Minn. Gen. R. Prac. 144.06
The failure to name the next of kin in a petition required by Rule 144.01or the failure to notify or obtain a waiver from the next of kin shall have no effect on the validity or timeliness of an action commenced by the trustee.
Minn. Gen. R. Prac. 144.06
Advisory Committee Comment-2007Amendment
This rule is derived from Rule 2 of the Code of Rules for the District Courts. The Task Force has amended the rule to refer to "next of kin" rather than "heirs." Minnesota Statutes, section 573.02 makes no requirements as to who must receive notification of petitions for appointment of trustees or for orders for distribution. Amendments to Rule 144.01, 144.02, and 144.05 codify the longstanding practice of requiring petitioners to name and notify only the decedent's surviving spouse and close relatives, not "all next of kin," which under Wynkoop v. Carpenter, 574 N.W.2d 422 (Minn. 1998), and recent changes to Minnesota's intestacy statute would include distant relatives such as nieces, nephews, aunts, uncles, and cousins. These amendments address only the matter of notification and are not intended to reduce substantive rights of any next of kin.
The Task Force considered the advisability of amending Rule 144.05 to require the court to consider and either approve, modify, or disapprove the settlement itself, in addition to the disposition of proceeds as required under the existing rule. Although it appears that good reasons exist to change the rule in this manner, the Minnesota Supreme Court has indicated that the trial court has no jurisdiction to approve or disapprove the settlement amounts agreed upon by the parties. The court can only approve the distribution of those funds among the heirs and next of kin. See Minneapolis Star and Tribune Co. v. Schumacher, 392 N.W.2d 197, 200n. 1 (Minn. 1986).
The final sentence of Rule 144.01 was added in 1992 to make it clear that it is the filing of papers in the actual wrongful death action, and not papers relating to appointment of a trustee to bring the action, that triggers the scheduling requirements of the rules, including the requirement to file a certificate of representation and parties (Rule 104) and an informational statement (Rule 111.02). Some have interpreted this comment to mean that the advisory committee intended there to be two separate actions for purposes of computing filing fees. Although a filing fee must be paid when the petition for appointment of a trustee is filed, a second filing fee should not be required in the wrongful death action, even when that wrongful death action is commenced in a different county or district.
Rule 144.06 codifies existing law holding that failure to notify some next of kin does not void an appointment. See Stroud v. Hennepin County Medical Center, 544 N.W.2d 42, 48-49 (Minn. App. 1996) (failure to list and obtain signatures of all next of kin did not invalidate trustee's appointment and commencement of a wrongful death action), rev'd on other grounds, 556 N.W.2d 552, 553-55, nn. 3 and 5 (Minn. 1996) (trustee's original complaint effectively commenced wrongful death action despite her improper appointment).
.