Estate of Kurth

11/21/2017
DA 17-0173
Case Number: DA 17-0173
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 288N
IN THE MATTER OF THE ESTATE OF:
PAUL L. KURTH,
Deceased.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DP-13-043(A)
Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Evan F. Danno, Danno Law Firm, P.C., Kalispell, Montana
For Appellee:
Matthew Hutchison, Ramlow & Rudbach, PLLP, Whitefish, Montana
Submitted on Briefs: September 13, 2017
Decided: November 21, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Sinda Puryer (Sinda) appeals from an order of the Eleventh Judicial District Court,
Flathead County, appointing Bruce Barstis (Barstis) personal representative of the Estate
of Paul L. Kurth (Estate). We affirm.
¶3 Paul L. Kurth (Kurth) died in January 2000 at the age of 82. Kurth never married
or had children. He was, however, survived by nine nieces and nephews, including
Sinda, a niece, and Barstis, a nephew. For the last several years of his life, Kurth lived
with Sinda and her husband Marty Puryer (Marty) (together, the Puryers). On
February 19, 1998, two years before Kurth’s death, Marty handwrote a document entitled
“Instructions and Last Will and Testament of Paul L. Kurth” (Will). Kurth allegedly
dictated the Will to Marty and then signed it. The Will left everything Kurth owned to
the Puryers and appointed Marty as personal representative. When Kurth passed away in
2000, he held a real property interest in mineral rights in eastern Montana. In 2001,
Sinda hired an attorney to administer Kurth’s estate, but did not pursue probate of the
Will at that time.
¶4 Approximately ten years later, an oil and gas company contacted Barstis, wanting
to lease the mineral rights. Barstis retained an attorney and in February 2013 notified all
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of Kurth’s heirs, including Sinda, that the Estate needed to be probated and the mineral
rights distributed. At that time, Barstis offered to be personal representative. In response
to Barstis’s notice, Marty filed a petition to formally probate the 1998 Will. Barstis
challenged the Will, arguing that the time for probate had passed. The District Court
agreed with Barstis, ruling in November 2015 that § 72-3-122(1), MCA, barred probate
of the Will and, accordingly, Kurth died intestate. We affirmed the District Court’s
determination, holding Kurth died intestate and that the Estate should be distributed in
accordance with Montana’s intestacy statutes in In re Estate of Kurth, 2016 MT 188,
¶ 32, 384 Mont. 261, 378 P.3d 1151.
¶5 Thereafter, Barstis filed a petition in District Court to determine heirs, appoint
himself as personal representative, and to supervise administration. Barstis notified all
potential heirs and interested parties of his petition. Sinda was the only potential heir
who objected to Barstis’s petition—she requested the District Court appoint a special
administrator and require bond to secure such performance. On February 16, 2017, the
District Court held an evidentiary hearing on Barstis’s petition, at which both Barstis and
Sinda testified. The District Court subsequently recognized Kurth’s nine nieces and
nephews as the Estate’s heirs and granted Barstis’s petition, appointing him personal
representative and ordering supervised administration. The parties do not dispute the
District Court’s recognition of the heirs. However, Sinda appeals the court’s appointment
of Barstis as personal representative, arguing Barstis’s conflicts of interest preclude him
from being able to fairly administer the Estate. Specifically, Sinda alleges Barstis already
breached fiduciary duties to the Estate by taking money for his personal use. She argues
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Barstis and other heirs previously leased mineral rights and kept the proceeds for
themselves, demonstrating that their interests are contrary to those of the Estate. Thus,
Sinda argues no heir, including Barstis, can be appointed personal representative and that
necessitates the appointment of a special administrator. Barstis responds, acknowledging
that he and some of the other heirs did enter into leases for some of the mineral rights.
He contends, however, that such leases do not present a conflict of interest precluding
him from acting as personal representative.
¶6 We address the issue of whether the District Court correctly appointed Barstis as
the Estate’s personal representative. This Court reviews a district court’s appointment of
a personal representative to determine whether the district court correctly applied the law.
In re Estate of Bennett, 2013 MT 228, ¶ 6, 371 Mont. 270, 312 P.3d 400. Pursuant to
§ 72-3-502(6), MCA, heirs of a decedent have priority in being appointed as personal
representative of an estate. A personal representative is a fiduciary who has a duty to
“settle and distribute the estate of the decedent . . . as expeditiously and efficiently as is
consistent with the best interests of the estate.” Section 72-3-610, MCA. Thus, a district
court can “refuse to appoint a person as personal representative for cause if there is a
conflict of interest between that person’s interests and those of the estate.” In re Estate of
Kuralt, 2001 MT 153, ¶ 19, 306 Mont. 73, 30 P.3d 345 (quoting In re Estate of Peterson,
265 Mont. 104, 108, 874 P.2d 1230, 1232 (1994)).
¶7 As Kurth’s heir, Barstis has priority in being appointed personal representative
over a special administrator. Barstis testified that he understands the fiduciary duties of a
personal representative and is willing to investigate all avenues for recovery of Estate
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assets. Furthermore, review of the record does not reveal a conflict of interest between
the interests of Barstis and the Estate. Instead, Barstis’s and the Estate’s interests are
aligned. The District Court did not incorrectly appoint Barstis as personal representative
simply because he already started to lease the Estate’s mineral rights. Barstis testified he
and the other heirs would repay the Estate if any money was improperly taken from it
under the mineral leases. The District Court did not observe any evidence supporting
Sinda’s contention that the mineral lease transactions were fraudulent. Furthermore, by
ordering supervised administration of the Estate, the District Court ensured Barstis “is
responsible to the court, as well as to the interested parties, and is subject to directions
concerning the estate made by the court on its own motion or on the motion of any
interested party.” Section 72-3-404(1), MCA. Because the record does not demonstrate
a conflict of interest between Barstis and the Estate, we hold the District Court correctly
appointed Barstis as the Estate’s personal representative.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶9 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
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