Section 1.11 Entire Proceeding Is In Rem

• Library: Estate Administration 2014 Supp

F. (§1.11) Entire Proceeding Is In Rem

By provision of § 473.013, now RSMo 2000, as amended in 1957, the administration of the estate of a decedent, from the filing of the application for letters until the decree of final distribution and discharge of the last administrator or executor, is deemed one proceeding for purposes of jurisdiction. It is a proceeding in rem. No notice is jurisdictional except the notice of the granting of letters (§ 473.033, RSMo 2000) unless the provision requiring the notice expressly provides that the notice is jurisdictional. This statutory designation of the nature of an administration proceeding is a departure from the former law in Missouri. Wolff v. Rager, 30 S.W.2d 1005 (Mo. 1930). It was, like many other provisions of the Probate Code of 1955, taken from the Model Probate Code, § 62, and was designed to change prior caselaw, which had held that some of the various steps in the administration of estates were regarded as separate and independent proceedings that required separate statutory notice. It was thought that such a provision would eliminate the necessity for, or at least, the potential problem of irregularities in, subsidiary notices. In 1966, the Springfield Court of Appeals (now Southern District), in Clapper v. Chandler, 406 S.W.2d 114 (Mo. App. S.D. 1966), held that an order of sale of real property was void because no mailed notice was given and because the published notice was defective. Professor Paul E. Basye, in his article Are Probate Courts in Missouri Undergoing Retrogression?, 32 Mo. L. Rev. 175 (1967), argued that the court’s decision was clearly contrary to the intent of the statute and foresaw a regression to the pre-1955 Probate Code situation requiring the giving of separate notices for various steps in the administration proceeding.

Section 473.013 was further amended by the Probate Code Revision of 1980 with the addition of the following sentence: “Whether the administration is supervised or independent, from the time of first publication of the notice provided in section 473.033, the probate division of the circuit court has in rem jurisdiction of all real and personal property of the decedent located within this state.” (Emphasis added.) The amendment was specifically directed to change the result reached by the Clapper court. In Carpenter v. White, 664 S.W.2d 276 (Mo. App. S.D. 1984), Judge Maus, in affirming the trial court’s judgments that the order of final distribution designating 14...