Mo Dept. of Social Services v. Kramer

• Decision Date: 27 February 2007
• Docket Number: No. ED 88928.,ED 88928.
• Citation: Mo Dept. of Social Services v. Kramer, 215 S.W.3d 739 (Mo. App. 2007)
• Parties: STATE of Missouri, ex rel. MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF MEDICAL SERVICES, Relator, v. The Honorable Gary P. KRAMER, Circuit Judge, 23rd Judicial Circuit, Jefferson County, Respondent.
• Court: Missouri Court of Appeals

215 S.W.3d 739

STATE of Missouri, ex rel. MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF MEDICAL SERVICES, Relator, v. The Honorable Gary P. KRAMER, Circuit Judge, 23rd Judicial Circuit, Jefferson County, Respondent.

No. ED 88928.

Missouri Court of Appeals, Eastern District, Writ Division Three.

February 27, 2007.

Elizabeth LaFlamme, Office of the Attorney General, St. Louis, MO, for relator.

Dennis H. Tesreau, Hillsboro, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Relator, the Missouri Department of Social Services, Division of Medical Services, filed its petition for writ of mandamus requesting that Respondent, the Honorable Gary P. Kramer, be directed to issue letters testamentary or supervised administration for the estate of Jeanette F. Parker. We issued a preliminary writ in mandamus. After briefing and argument, we now make the preliminary writ absolute.

Jeanette F. Parker died on June 20, 2005, while domiciled in Jefferson County. No estate was opened. On June 20, 2006, Relator filed a "Petition for Issuance of Letters Testamentary or of Administration" pursuant to Section 473.020, RSMo 2000.¹ Relator alleged it was a creditor of the estate as a result of aid provided to the decedent prior to her death. Relator claimed that the decedent's estate owed the State of Missouri $49,851.88 for Medicaid assistance paid by Relator. Relator's petition included the decedent's name and social security number, the date of her death, known information regarding the decedent's will, the address and value of real property in the decedent's estate, and the names and addresses of known heirs. Relator acknowledged in its petition that the real property in decedent's name at the time of her death was subject to a beneficiary deed.

Respondent denied Relator's petition on the basis that an accounting under Section 461.300 was the appropriate action, not an action for administration. Relator filed a petition for writ of mandamus requesting that Respondent be directed to open an estate for the decedent.

Mandamus is an extraordinary remedy and cannot compel a discretionary act. State ex rel. Sanders v. Kramer, 160 S.W.3d 822, 824 (Mo.App. W.D.2005). We issue the writ to prevent the exercise of powers exceeding judicial jurisdiction. Id. The writ is used both to compel a court to do what is required by law and to undo what is prohibited by law. Id.

Section 473.020 provides:

1. If no application for letters testamentary or of administration is filed by a person entitled to such letters pursuant to section 473.110 within twenty days after the death of a decedent, then any interested person may petition the probate division of the circuit court which would be the proper venue for the administration of the estate of such decedent for the issuance of letters testamentary or of administration. For purposes of this section, in addition to persons provided for in subdivision (15) of section 472.010, RSMo, any person who has attached a claim supported by an affidavit setting forth the basis upon which such person has a claim against the decedent shall be an interested person.

2. The petition must be filed within one year after the date of death of the decedent and shall include the following:

(1) The decedent's name, the address of the decedent's last residence and the date of death of the decedent;

(2) If a written will of the decedent has been presented for probate, the names and addresses of the personal representatives designated in such will; and

(3) The names, addresses and relationships to the decedent of the decedent's heirs as is known to, or can be reasonably ascertained by, the petitioner.

3. Within fifteen days from the date of filing, the petition shall be set for hearing to determine who should be directed to apply for letters testamentary or of administration, and not to determine the validity of any claim. Notice of the hearing shall be served upon all interested persons in the manner and within such time as directed by the court. Upon hearing of the petition, the court shall enter such order or orders as it deems appropriate, including any of the following:

(1) An order directing the person found by the court to be entitled to the issuance of letters testamentary or of administration to...