From the Listserv Edited by Louise A. Lock
Louise A. Lock is a solo practitioner who received her law degree from the University of Baltimore School of Law. Her practice concen- trates in the areas of medical malpractice, drug products liability and personal injury.
OPENING AN ESTATE TO FILE A CLAIM
From: “Mike” <
4Mike@JacobsBarney.com>
We would appreciate suggestions on the issue of opening an estate for a named defendant in a suit where no family mem- ber is willing to serve as the personal representative. We have a suit pending against, inter alia, a decedent’s estate which has yet to be opened. While we filed a claim with the Register of Wills, the Register will not open an estate or consider a petition for judicial probate unless we name & have the consent of a personal representative. No family member appears to be willing to serve as such. We & our clients cannot serve as such since the estate is an oppos- ing party in the suit. Suggestions? Thanks.
From: Robert G. Samet <
ashcraft@radix.net>
I haven’t looked at it recently, but I
think I recall that the order of priority for serving as a personal representative in- cludes creditors and then in the last category anyone. I’ve used an attorney or secretary in my office in the past.
From: “Mike” <
4Mike@JacobsBarney.com>
Bob – Thanks for the suggestion. We consid-
ered that & discussed it with the register of wills. It seems to us that the conflicts of interest involved would preclude that. If you see a way around that, I’d wel- come the suggestion. But otherwise, we would seem to be in the position of rep- resenting parties suing us as the PR.
From: Ashcraft & Gerel <
4ashcraft@Radix.Net>
Mike:
I don’t think it’s an impermissible con- flict of interest situation, and, if handled carefully, you’d be ok. Here’s why. The duties of a personal representative are to fairly administer the estate to both credi- tors and beneficiaries. In an ordinary, solvent estate where there are assets and debts, the estates law anticipates a benefi- ciary or creditor serving, so there is already a built-in conflict, but that’s anticipated in the law.
The law doesn’t expect or require a
creditor, which your client is, to wait around indefinitely for someone else to open the estate, at the risk that no estate will ever be opened. You can’t very well go out on the street looking for volun- teers. If there are intestate beneficiaries, which you could attempt to ascertain by the use of the discovery and subpoena powers of a personal representative, there aren’t likely any significant assets. The beneficiaries wouldn’t be liable for any debt or judgment imposed upon an in- solvent estate, so they probably have little to no interest in the outcome of the per- sonal injury claim. If it turns out there are some assets that conceivably could be jeopardized by the personal injury action, your personal representative, whether it be a secretary or lawyer in your office, can immediately volunteer to bow out and substitute a beneficiary. More appropri- ately, you can offer to allow a representative of the insurance carrier or their counsel to substitute themselves. Conflicts of interest aren’t automati- cally impermissible, and I think this is one where if the P.R. you get appointed were to notify all interested parties of the po- tential conflict and offer to step down, the failure of any beneficiaries or of any other creditor to step in would be deemed to be a consent to an unavoidable conflict.
26 Trial Reporter
SERVICE ON DEFENDANT BY SERVING THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION
From: Michael Gregg Morin <
mikemorin@email.msn.com>
I must serve a corporation composed of one person who is aggressively avoid- ing service. I plan to serve SDAT but have not done this before. I have the Writ and all required attachments from the district court. Is service complete once the Writ and attachments have been served on SDAT or must SDAT indicate in some- way that they have forwarded on to the defendant corporation? If complete upon service on SDAT, need I do anything spe- cial for the Return? I suspect that the answers may be obvious but I am still missing it. As always, thank you for the help.
From: Hal Link <
4hlink@home.com>
Service on SDAT under Md. Rule 3- 124 (assuming you are in District Court) is an extremely useful device for serving corporations, especially small corporations which are lax about keeping their resident
Spring 2001
From: “Mike” <
4Mike@JacobsBarney.com>
For those of you concerned with this discussion, it appears that Bob Samet’s suggestion is the most workable. In an abundance of caution, I ran this by the Ethics Hotline; specifically, Tom Lynch in Frederick. Tom indicated that for an apparently no asset estate in this situation, there would not appear to be an imper- missible conflict, particularly if the interested parties are, as Bob suggests, of- fered an opportunity to step in as the PR if they wish to do so.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56