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In re Estate of Kotowski10/11/2005
after the service ;
(3) within . . . one year after the decedent's death . . . whether or not notice to creditors has been published or served under section 524.3-801 . . . .
The calculation of the applicable time frame for presenting a claim depends on whether Becker was served with the notice to creditors. If there was proper and effective service of the notice, under clause (2), Becker would be required to present her claim within four months after publication of the notice to creditors. Minn. Stat. § 524.3-803(a)(2). Because the notice was published on April 21, 2001, the deadline for presentation of the claim under Minn. Stat. § 524.3-803(a)(2) would fall on August 21, 2001, for those who were properly served. Under such circumstances, presentation of the claim on September 30, 2001, would be untimely, and the claim would be barred. See In re Estate of Kuckenbecker, 383 N.W.2d 11, 12-13 (Minn. App. 1986) (holding that claim is barred when not filed within statutory period). If service of the notice were not properly effected, under clause (3), Becker would be required to present her claim within one year after the decedent's death. Minn. Stat. § 524.3-803(a)(3). Because Kotowski died on December 11, 2000, a claim presented on September 30, 2001, would be timely. See Russo v. Sunrise Healthcare Corp. (In re Estate of Russo), 994 P.2d 491, 495 (Colo. Ct. App. 1999) (under Colorado version of UPC § 3-803 substantially identical with Minn. Stat. § 524.3-803, holding that failed notice activated residuary deadline); see also Nat'l Bank of Commerce Trust & Sav. Assn. v. Otto (In re Estate of Emery), 606 N.W.2d 750, 755-56 (Neb. 2000) (reaching similar conclusion under Nebraska variant of UPC § 3-803); In re Estate of Anderson, 821 P.2d 1169, 1172 (Utah 1991) (reaching similar conclusion under Utah variant of UPC § 3-803).
Thus, we must determine whether the mailing of the April 16 order constitutes effective service. A personal representative may accomplish service "either by delivery of a copy of the required notice to the creditor, or by mailing a copy of the notice to the creditor by certified, registered, or ordinary first class mail[.]" Minn. Stat. § 524.3-801(c) (2004). The Minnesota Supreme Court recently recited the law governing service by mail in Eischen Cabinet Co. v. Hildebrandt, 683 N.W.2d 813 (Minn. 2004). The case involved a statute that required a lien to be "served personally or by certified mail on the owner." Id. at 815-16. The court stated that, when a statute provides for service by regular mail, service is not effective unless the mailing is actually received; but when a statute expressly indicates service by certified or registered mail, service is effective on mailing. Id. at 818 (citing 66 C.J.S. Notice § 30(a) (1998)). Other Minnesota caselaw addressing service by regular mail supports the proposition that such service is not effective unless there is actual receipt. Cf. Roehrdanz v. Brill, 682 N.W.2d 626, 632 (Minn. 2004) (holding that when rule directed service "by first class mail" and district court found actual receipt, service was effective); State v. Pierce, 257 Minn. 114, 115-16, 100 N.W.2d 137, 138 (1959) (" e have long held that, where service is made by mail and actually reaches the party to be served within the required time, it is equivalent to personal service."). An affidavit of mailing will raise a presumption of receipt but may be overcome by reasonable evidence demonstrating no actual receipt. Thomas v. Fey, 405 N.W.2d 450, 454 (Minn. App. 1987); City of Chisago City v. Poulter, 342 N.W.2d 167, 169 (Minn. App. 1984).
Here, the estate offers an affidavit to establish that the notice to creditors was sent to Becker by regular m
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