CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER
April 11, 2011 § 16 Comments
_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.
_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).
______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).
______ Total the income and state a total.
______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).
______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).
______ Total the disbursements and state the totals.
______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.
______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).
______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).
______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.
______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).
Thanks to Jane Miller, Senior Staff Attorney for the 12th District.
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Dear Judge Primeaux,
I am wondering if what you have described always applies in every estate accounting, or if there are exceptions. If a will states that the executor is allowed to spend her wealth however he sees fit, and the attorney appointed opens a trust account and gives the executor full access, how does that fit in with the definition of legal vouchers described above? Is the executor allowed to write out checks to “cash”, or any other illegal usages described in previous posts, or are there still some basic rules required since he is acting as the fiduciary? Assuming some inherent responsibility of the fiduciary role, should an attorney allow this or step in upon learning of misuse?
Many thanks,
Elisabeth
Under Mississippi law the estate is opned not only for the benefit of the beneficiaries, but also for the creditors. The assets of the estate do not pass to the beneficiaries until the estate is closed; thus, it is not their wealth, but that of the estate until the estate is closed. The fiduciary is charged with being faithful (hence the term fiduciary) to the beneficiaries in a testate estate, to the heirs in an intestate estate, to the creditors, and to the court. The attorney has a crucial role in monitoring the activities of the fiduciary, and in advising. Any misuse or abuse of fiduciary powers must be reported to the court immediately. Again, this post, and all of my posts, are based on Mississippi law. All of probate in every state, including Mississippi, is statutory, so the laws can vary significantly from state to state.
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Judge,
According to the statutes governing Guardians and Conservators, it instructs that if the account is brought by a bank or trust company then a certificate or statement, under oath, is required from the custodian of records attesting to the validity of bank records or “legal vouchers” used in support of expenditures, deposits, etc. If an individual is acting as Conservator, and provides us (attorney/staff) with monthly bank statements, would you (Chancellors for the 12th District) prefer a Certificate be attached as well? I would hope that the Conservator would not have the time, nor the resources to create fraudulent bank statements, but I have witnessed questionable management of estate finances before.
It certainly wouldn’t hurt, but here’s a good idea: When you go with the fiduciary to open the estate, guardianship or conservatorship account, direct the bank to seend a duplicate bank statement to your office each month. That way, with each bank statement you can see fairly quickly whether there is anything unauthorized going on AND at the end of the year you have a complete set of statements.