Estate of Bennett

Estate of Bennett, 2013 MT 228 (Aug. 13, 2013) (7-0) (McGrath, C.J.; Rice, J. concurring)

Issue: Whether the district court abused its discretion in appointing the decedent’s ex-wife and mother of the sole heirs PR.

Short Answer: No.


Facts: Jeremiah Bennett died intestate in September 2012 in a car accident caused by another driver. His two minor children survived the accident but were injured. They live with their mother, Jeremiah’s ex-wife, Sabrina. The couple divorced in 2010. The district court appointed Sabrina conservator and guardian for the children.

Jeremiah’s father, Abel, opened an informal probate of Jeremiah’s estate, and the clerk of court appointed him PR. The following month, Sabrina filed a petition seeking formal adjudication of intestacy, appointment of herself as PR and for supervised administration, and objecting to Abel’s appointment as PR.

Procedural Posture & Holding: After a hearing on Sabrina’s motion in December 2012, the court issued an order granting her petition, removing Abel as PR, and appointing Sabrina as PR. Abel petitioned for a writ of supervisory control, which was denied on Feb. 6, 2013. A second petition for supervisory control is pending, and Abel now appeals.

Reasoning: The district court has wide discretion regarding the appointment of a PR. Abel has not shown that the court failed to follow the law or abused its discretion. Under the intestacy statute, the first applicable category establishing priorities for appointment of the PR was “other heirs of the decedent.” Jeremiah’s two children at the sole heirs of his intestate estate. They cannot serve as PRS because they are minors. However, their guardian may. The district court properly concluded that Sabrina, as guardian and conservator of the heirs, could be PR. This conclusion is not changed by the possibility that Abel is also an “other heir,” as the appointment was within the district court’s discretion.

Justice Rice’s Concurrence: The language of the probate code does not prohibit a former spouse former serving as PR, and yet that result seems contrary to the general effort of the code to ensure that a former spouse cannot take property from the decedent or his estate.