Probating the estate of a person who has died in a traffic accident raises the question of whether to give other persons involved in the accident notice of the probate proceedings when it appears that the decedent may have been at fault. One practice is to file the estate for probate quickly, giving notice only by publication and hoping that the potential claimants fail to file by claim day, generally about six months later. Then not only are their claims forever barred but their counterclaims may be barred in a wrongful death suit brought by the executor. Nebraska and other states have supported this practice in the past by holding that a tort claimant who is given only notice by publication of the pendency of the probate proceedings is forever precluded from presenting his claim if it was not filed in time. When the names and addresses of persons who were injured or who suffered damage in the accident are listed in the police accident report, or are otherwise easily ascertainable, it seems unjust to bar their claims after only six months without at least notice by mail of the probate proceedings. Indeed, examination of current cases in the United States Supreme Court produces the almost inescapable conclusion that known potential claimants are entitled by due process of law to notice by mail. Although no state court has as yet discussed the due process question in detail, several courts have recently allowed the holders of unliquidated tort claims to sue for recovery, at least against the decedent's insurance, even when the claim was barred by the nonclaim statute. The purpose of this comment is to explore the law in this area in depth. The main issues to be treated are: (1) the underlying public policies; (2) current Nebraska case law and statutory requirements (especially section 25-520.01), the legislative intent behind this section, and its relationship to the due process clause; (3) limitations placed by the due process clause upon the use of notice by publication as a means for notifying persons of proceedings which may affect their rights in general; (4) the character of unliquidated tort claims as "property" within the meaning of the due process clause; (5) the kind of notice required to be given to the holders of unliquidated tort claims when their claims are (a) known, (b) not known but discoverable, or (c) not reasonably discoverable; and (6) the possibility of reaching the decedent's insurance whether or not claims against the estate itself are barred.
Gregory D. Erwin,
Unliquidated Tort Claims in Probate Proceedings—Notice Requirements,
44 Neb. L. Rev. 829
Available at: http://digitalcommons.unl.edu/nlr/vol44/iss4/7