Reprise: Checklist for Closing an Estate

October 20, 2017 § Leave a comment

Reprise replays posts from prior years that you may find useful today.

This one should be in every one of your estate files.


September 27, 2010 § 19 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed.
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

October 19, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

Moving the Ward

October 17, 2017 § 2 Comments

The guardian whom you represent drops by to pay on her bill and nonchalantly reports that “We had to move momma to a rest home over in Lisman, Alabama. We think she’ll be happier there.” After she departs, you begin musing whether something should have been filed in court.

Well, you would do well to study MCA 93-13-63. It reads, in its entirety:

If a guardian desire to remove the person and personal property of his ward out of this state, on petition and on his making settlement of his guardianship accounts, the court which appointed him may make an order to that effect; but the guardian shall first give a bond, with two sufficient sureties residing in this state, in the full value of the ward’s personal estate, conditioned that he will qualify as guardian of the ward in the state or country to which he intends removing, and will there present and file in the proper court a complete inventory of his ward’s property and effects; and, on failure to comply with the condition, the bond may be put in suit for the benefit of the ward.

My, that’s a lot to do. First, a petition must be filed seeking authority. Second an accounting must be filed. Third, the guardian must post bond with two Mississippi sureties in the value of the ward’s estate conditioned on his qualification as guardian in the state to which the ward is to be moved, and on condition that he will file a complete inventory of the ward’s property and effects in that court. And, on failure to comply, the bond “may be put in suit” for benefit of the ward.

So, yes, there are plenty of procedural hoops through which you and the ward must cavort in order to achieve your aim. I’m not aware of a case on point, but I would think that failure of the guardian to comply with the statute might well put her original bond in jeopardy. And if she entered into a contract with the Alabama facility without approval of the court, the court could assess the expense against her. Who was providing the guardian with legal advice while all of this was happening?

Change the scenario above to a movement of the ward from Quitman, in Clarke County, to Brandon, in Rankin County, without prior court approval. Any problem with that?

MCA 93-13-61 tells what is supposed to be done:

If a guardian desire to remove the person and/or personal property of his ward to any county other than that in which he was appointed guardian, he may, on petition, be allowed to do so, if the court deem it proper, and it may make an order to that effect, on condition that the guardian will qualify in the county to which he removes, or it may allow the removal and retain jurisdiction over the guardianship. The court of the county to which he removes, on production of the order authorizing the removal, may appoint him guardian. And when he shall produce to the court which originally appointed him the letters of guardianship from the court of the county to which he has removed, and make a settlement of his guardianship accounts, he may be discharged from his original bond; and thereafter he shall present his inventories and accounts to and be under the control of the court of the county to which he has removed. And the clerk of the court in which the settlement was made shall transmit a certified copy of the settlement, at the cost of the guardian, to the clerk of the court in which he was last appointed.

First, file a petition and obtain an order. The order can direct removal of the case to the destination county, or the original court can retain jurisdiction. Then follow the procedure step by step. It’s fairly straightforward.

By the way, all of the above pertains to conservatorships also.

This is something that I have run across too many times in my court. Lawyers are not aware of the statutes, and so don’t advise their clients.

The main thing is that you can not remove a ward to another county or state without first obtaining authority from the court to do so. It’s your duty to advise your guardian or conservator.

Using the Natural Parent Presumption in a Parent vs. Parent Contest

October 16, 2017 § Leave a comment

After Erica Moore gave birth to a daughter, LM, in 2009, she did not list the father, Patrick Bradshaw on the birth certificate, and she did not tell Patrick about the birth of the child. Erica and Patrick were never married.

Patrick learned of the baby in April, 2010, in a telephone conversation with Erica. He saw the child in person on only two occasions afterward.

In 2011, DHS filed a paternity action against Patrick, who consented to a DNA test, but the test was never conducted due to an error by DHS. The case stalled.

In the meantime, in 2014, Erica found herself in financial straits and agreed to give custody of LM to her parents, the Santuccis. The custody petition listed the father as “unknown.” The court entered an order awarding the Santuccis custody.

In September, 2014, the DNA test was finally conducted, and Patrick filed suit for custody against Erica. The chancellor set aside the Santucci custody order. The Santuccis and Erica jointly answered the complaint with a denial. Patrick counterclaimed against the Santuccis.

At trial the Santuccis withdrew their claim for custody. The chancellor ordered that Erica replace them against Patrick. The chancellor awarded custody to Erica, and Patrick appealed. His two main contentions on appeal were that Erica should not be awarded custody because she did not petition the court for custody, and that Erica had lost the natural parent presumption when she gave up custody to the Santuccis.

In Bradshaw v. Moore, handed down June 13, 2017, the COA affirmed, with a majority opinion by Judge Lee.

The court rejected Patrick’s argument that it was error for the chancellor to award custody to Erica with no pleading filed by her. The court pointed out that this was a R81(d) action, in which Erica was not required to file a pleading, and that it was Patrick himself who had brought Erica into the suit. The court also pointed out that the chancellor had replaced the Santuccis in the suit with Erica and rejected Patrick’s claim of surprise.

On the issue of the natural parent presumption, Judge Lee wrote:

¶11. Patrick also argues that the chancellor erred in awarding Erica sole custody of L.M. because Erica waived her natural-parent presumption when she consented to the Santuccis’ petition for custody of L.M. Patrick argues that, as a result, Erica’s claim for custody of L.M. was inferior to his.

¶12. For support, Patrick cites to Grant v. Martin, 757 So. 2d 264, 266 (¶10) (Miss. 2000), in which the Mississippi Supreme Court held that “a natural parent who voluntarily relinquishes custody of a minor child . . . has forfeited the right to rely on the existing natural[-]parent presumption.” However, the holding in Grant is not applicable to the instant case. Grant discusses a natural parent who relinquished custody to a third party, then later attempted to reclaim the natural-parent presumption against that third party. The natural parent presumption is a doctrine that “precludes a court from granting custody to a ‘third party’ over the objection of a natural parent absent clear and convincing evidence that the
natural parent has abandoned or deserted the child, has engaged in immoral conduct harmful to the child, or is an unfit parent.” Welton v. Westmoreland, 180 So. 3d 738, 744 (¶21) (Miss. Ct. App. 2015).

¶13. Here, the issue is an initial custody determination between two natural parents—not between a natural parent and a third party. Furthermore, the order granting custody to the Santuccis, which Patrick claims constituted a voluntarily relinquishment of parental rights akin to the facts in Grant, was set aside for lack of notice to Patrick. Thus, the chancellor correctly found that Grant was not applicable, and Erica has not—as Patrick contends—forfeited any natural-parent presumption. The presumption simply does not apply in this case.

¶14. Ultimately, the foremost consideration in child-custody cases is the best interest and welfare of the child. Lacoste v. Lacoste, 197 So. 3d 897, 902 (¶9) (Miss. Ct. App. 2016). The chancellor determined that L.M.’s best interests would be served by awarding Erica custody. The record shows that the chancellor’s findings were supported by substantial credible evidence. Accordingly, the chancellor did not err in awarding custody to Erica.

Very interesting distinction, and important to grasp: the natural parent presumption simply does not apply in a contest for custody between the natural parents. It only applies as between a natural parent and a third party.

It’s hard to conjure up a situation other than this rather unusual one in which a similar argument could be made. If the Santuccis had refused to get out of the case, Grant v. Martin would certainly have come into play as between the Santuccis and Erica, and Patrick could have exploited the situation to his benefit. But when they withdrew and the previous order had been set aside, the chancellor was left with a straightforward parent vs. parent dispute. And the natural parent presumption became irrelevant.

Dispatches from the Farthest Outposts of Civilization

October 13, 2017 § Leave a comment

October 11, 2017 § Leave a comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!

A Few Thoughts on Process

October 10, 2017 § Leave a comment

  • The sole purpose of process is to give parties notice that there is a legal proceeding involving them. They are invited to participate.
  • Once a party is served with process, or once a party voluntarily appears and participates, the court has personal jurisdiction over that person for the entire remainder of the proceeding, all the way to final judgment, and no further process is necessary (But see the exception of R81 below).
  • When a party voluntarily submits to the personal jurisdiction of the court, no further process is necessary. A person can voluntarily submit to personal jurisdiction by filing a lawsuit as a plaintiff, or by filing a responsive pleading and/or counterclaim, or by simply appearing personally and participating.
  • R4 process requires the defendant to answer within 30 days.
  • R81 process requires the defendant to appear on a day certain. No answer is required, but the defendant may file an answer if he chooses, or if the court orders it. If the defendant does not appear on the specified day, or has not filed a responsive pleading contesting the matter on or before the specified day, then the court can hear the matter on the merits and rule accordingly.
  • We refer to the day specified in the R81 summons as the “return day” because process is “returnable” to that day.
  • If a matter can not be heard for whatever reason on the return day, then you must get an order signed that same day continuing the case to another day certain. And every continuance order thereafter has to be entered on the same day as that to which the case was continued. If you do not do this, your R81 process will be void, and you will have to re-issue process.
  • You do not need to issue process to the plaintiff when you file a counterclaim. That’s because the court already has personal jurisdiction over the plaintiff because he invoked the jurisdiction of the court. Once a party is in the court’s personal jurisdiction, you simply need to give notice per MRCP 5.
  • You can not obtain process by publication over a resident unless you first make diligent inquiry for that person’s whereabouts and then file an affidavit per R4(D)(4) that he is a resident but is not to be found in the state. Only after the affidavit is filed can the publication commence.

Musical Appellate Chairs

October 9, 2017 § Leave a comment

Catching up on the MSSC and COA news …

  • Justice Jess Dickinson left the MSSC September 15, 2017, to take over the Department of Child Protective Services. Dickinson served on the high court for nearly 14 years.
  • Judge David Ishee of the COA became Justice David Ishee of the MSSC on September 18, 2017, replacing Dickinson.
  • Governor Bryant tapped Senator Sean Tindell of Gulfport to take Ishee’s place on the COA, effective November 2, 2017. Tindell was an assistant district attorney for the Second Circuit Court District from 2002 to 2007, and has been in private practice since then. He was elected to the legislature in 2012, and served as Chairman of the Senate Judiciary A Committee.

In other news, former COA Judge Larry Roberts was appointed to serve temporarily as Circuit Judge in the Tenth District, taking the place of Judge Justin Cobb, who died September 9, 2017. Roberts is expected to serve until Governor Bryant names a replacement.

“Quote Unquote”

October 6, 2017 § 4 Comments

“The quality of mercy is not strain’d
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes;
‘Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.”  —  William Shakespeare, The Merchant of Venice, Act IV, Scene I

“The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent — strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the cycle of psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration.”  —  Bryan Stevenson

“If you want peace, work for justice.”  —  Pope Paul VI


October 5, 2017 § 1 Comment

Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”

The contest is underway and ends on November 3, 2017, at midnight. Happy voting!