dissenting.
[¶ 28] I respectfully dissent. The majority opinion, as part of Opp’s burden, would require duplication of party and judicial resources at the beginning of probate proceedings when those proceedings were already undertaken expeditiously and at a time when her interest was not and could not be a liquidated sum. This requirement not only wastes judicial resources, it exposes Opp to liability as a personal representative of the estate.
[¶ 29] While I agree Opp has the burden of establishing her inheritance was not “actually available” to her, I part ways with the majority’s determination Opp has not met this burden. The majority holds as part of her burden to establish unavailability, Opp must request a partial distribution of the estate under N.D.C.C. § 30.1-16-05.
[¶ 30] Substantial legal impediments, under both the probate code and the terms of Vetter’s will, prevented Opp from accessing any estate assets before May 31, 2000, and therefore preclude a determination the funds were available. When the Department terminated her benefits, Opp’s interest was not in a settled or determined sum from Vetter’s estate. Indeed, whether Opp received any assets under Vetter’s will depended upon various contingencies. Vetter’s will required Opp survive a distribution in order to take anything under the will. The Department’s finding Vetter’s net estate totaled $80,000 was based on evidence at the time of the administrative hearing after the period for filing creditor’s claims had passed, and amounts owed Vetter’s health care providers were still uncertain. The argument Opp, as a potential residuary beneficiary, had the ability to make her inheritance either partially or totally available when the Department terminated benefits is not based upon fact, but merely upon “legal fiction.” Post v. Cass County Soc. Servs., 556 N.W.2d 661, 664 (N.D.1996).
[¶ 31] This case differs substantially from the cases relied on by the majority. In Post, a judgment already existed which established Post’s right to support payment from her former spouse. Id. at 663. The right to receive the payment was certain and the amount of arrearages was fixed. Id. She was required to sue in order to establish that this fixed, already due, amount was not available. Id. at 665.
[¶ 32] In Schmidt v. Ward County Soc. Servs. Bd., 2001 ND 169, ¶ 2, 634 N.W.2d 506, a conservatorship had been established and the child was the sole beneficiary. The fund existed, contained an amount certain, and no other person had a claim to it. Id. The fund would have been disbursed for the child after graduating from high school “unless otherwise ordered by the appointing court.” Id. No one had attempted to determine if distribution could be made for the child’s current support needs. Id. at ¶ 16.
[¶ 33] By contrast, Opp has initiated, in a most expeditious manner, the process necessary to actualize her interest. She *714has met her burden by showing that on May 31, 2000 the following were the facts. She had initiated probate within a few days of her brother’s death. She was the personal representative. She had published notice to creditors. There were other claimants to the assets of the estate, including medical creditors, and potentially the claim of the surviving spouse. The amount of the known claims could be approximated but was not fixed. The time for filing creditors’ claims had not elapsed. Therefore, other creditors could have emerged. Her interest in the estate was contingent upon survival until distribution.
[¶ 34] In addition to wasting judicial resources, seeking a partial distribution would expose Opp to liability. As the majority sets out in ¶ 15, Opp, as a personal representative, has a fiduciary duty to act reasonably for the benefit of heirs, creditors, and other interested parties. Under N.D.C.C. § 30.1-18-12, a personal representative is liable for damage or loss resulting from a breach of this fiduciary duty. Matter of Estate of Peterson, 1997 ND 48, ¶ 36, 561 N.W.2d 618. If, as the majority would require, Opp requests a partial distribution and if, after such a request, assets are distributed before all creditors’ claims are paid or barred, Opp as personal representative would have fiduciary liability to the creditors. N.D.C.C. § 30.1-21-05. As the majority recognizes in ¶ 23, “[a]t the time the Department terminated Opp’s benefits, more than two months remained for creditors to file claims against Vetter’s estate and a claim for an elective share of the augmented estate by Vetter’s spouse was a possibility.”
[¶ 35] The probate code establishes three months as a reasonable time for creditors to file their claims. N.D.C.C. § 30.1-19-01. Opp started that period by timely publishing a notice to creditors. Under these facts it is patently unreasonable to require a potential heir to rush into court before the three months has elapsed with another proceeding to show that her interest was not actually available. On May 31, 2000 all of the interests in the estate could not even be identified.
[¶ 36] Because Opp set the probate process in motion in a timely manner, and because the request for a partial distribution would invite a waste of judicial resources and expose Opp to liability, I would reverse the judgment affirming the Department’s decision and remand for reinstatement of Opp’s Medicaid benefits.
[¶ 37] CAROL RONNING KAPSNER, J.