John T. Brooks of Foley & Lardner gives us this heads-up:
Estate of Carter, 4 Cal. Rptr. 3d 490 (4th Dist., Sept. 5, 2003), a recent decision of first impression in California, tackles the question of whether an estate's administrator must give “Tulsa” notice to possible heirs of the decedent. The answer is “yes” — probate due process is not just for creditors anymore.
Carter came up for appellate review after the trial court vacated an order for final distribution because two women had filed a motion in which they claimed to be the decedent's daughters. The women argued that the estate's administrator, the decedent's brother, did not provide them adequate notice of the administration, in violation of their Fourteenth Amendment due process rights.
The petitioners, Lindella and Lenitra, were born out of wedlock; their birth certificates do not list their father's name. Their mother, Carman, had dated the decedent since she was 14 years old, but their relationship had been “on/off, love-hate,” according to the court. Carman, Lindella and Lenitra lived with the decedent in his residence before his death. Lindella and Lenitra alleged that the decedent had acknowledged his paternity to various individuals (though there was never a formal declaration of paternity as contemplated in the Uniform Parentage Act). The estate's administrator claimed that the decedent had not acknowledged paternity, but rather had said Carman had had many affairs and Lindella and Lenitra were not his children.
In the wake of the famous Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340 (1988), California's probate code adopted a “reasonably ascertainable” standard for giving notice, not only to creditors (as specifically covered in the Tulsa decision) but also to heirs.
The Carter court held that the administrator violated Lindella and Lenitra's due process rights because their existance and parentage/status as daughters of decedent existence was “reasonably ascertainable.” Specifically, the administrator had not notified them although he possessed information that would lead a reasonable person to believe that Lindella and Lenitra “could make a claim to the court which would ultimately result in a finding that Lindella and Lenitra had been received into [the decedent's] household and publicly held out as his children.” The court reasoned that, if due process required actual notice to reasonably ascertainable creditors, it made logical sense to also require notice to reasonably ascertainable heirs and beneficiaries who have standing to contest a will.
The court recognized the particular problem faced by estate representatives when children are born out of wedlock to a male decedent. A representative is forced to decide if the individuals meet the legal criteria for possible heirs without “neat, categorical lines” to follow. The court also noted that absolute certainty in matters of paternity historically has been hard to obtain. Compounding the representative's dilemma is the fact that he often has a direct interest in the decedent's estate, thus an imputed conflict of interest. But the court said that it is precisely because of this potential conflict of interest that it was requiring notice to reasonably ascertainable heirs; a disinterested court should be the ultimate arbiter of the decedent's true heirs.
Although not all state legislatures have extended the Tulsa holding to heirs, the Carter decision is instructive to representatives who have reason to know of possible heirs. Estate representatives and their attorneys now should consider the due process rights of reasonably ascertainable possible heirs, as failure to do so might make their estate the test case for their jurisdiction.