Some Language to Add to your Fiduciary Orders

June 17, 2014 § 7 Comments

In this district we have had a problem with fiduciaries having been appointed and never qualified by taking the oath and posting any required bond, and consequently not having Letters issued.

A fiduciary has no authority to act unless and until that person has qualified, which requires taking the oath, posting any required bond, and having Letters issued.

In one case in my court the person appointed used the order appointing him, without Letters of Administration ever having been issued, to sell a car, and he closed a couple of bank accounts. He sold the car and pocketed the money; who knows what he did with the funds. The lawyer who opened the estate spent a considerable sum out of his own pocket trying to recover the estate’s money. Not surprisingly, the perpetrator was judgment proof and can no longer be found on this planet.

In another case, a woman (not the mother) testified that she was guardian of the child, but when I ordered the insurance attorney to get the guardianship file, it showed that only an order appointing her had been entered, and she had never taken an oath or posted a required $10,000 bond. Incidentally, she testified that her lawyer had told her that the order was adequate, and she proceeded to use that apparent authority to negotiate a settlement of the child’s claim.

We came up with some language that we now require all attorneys to include in their orders opening estates, guardianships, and conservatorships. You may find this language useful in your own district, and even if you find it superfluous, you just might conclude that there’s no harm in including it.

Here it is:

IT IS FURTHER ORDERED AND ADJUDGED that if the fiduciary has failed to qualify by posting the required bond, if any, taking the oath, and having appropriate Letters issued as required by this order and the laws of the State of Mississippi within thirty (30) days of entry of this order, then the Chancery Clerk is hereby ordered and directed to notify the court immediately of such failure, and the court shall enter an order dismissing this civil action without prejudice and without further notice to the fiduciary, or attorney of record for the fiduciary, or any other parties who have entered an appearance in this civil action.

IT IS FURTHER ORDERED AND ADJUDGED THAT THIS ORDER DOES NOT AUTHORIZE [Name] TO ACT AS THE FIDUCIARY FOR [Name of ward or decedent] UNLESS VALID LETTERS [Testamentary, or of Administration, or of Guardianship, or of Conservatorship] ARE ATTACHED HERETO.

IT IS FURTHER ORDERED AND ADJUDGED that persons who use or accept this order without the attached Letters as court authority to act or conduct the affairs of the [ward or decedent] shall be subject to sanctions by this court.

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§ 7 Responses to Some Language to Add to your Fiduciary Orders

  • Patricia Smith says:

    Thank you so much for raising this issue. If a Will appoints an executor and a trustee (same person), and person only qualifies as executor, can he take actions as a trustee too? I say no, but other attorneys are saying yes.

    • Larry says:

      Unless you can point me to a statute to the contrary, I believe that a trustee needs only an effective trust as authority to act.

      • Patricia Smith says:

        By an effective trust, what do you mean? A Trust was authorized in Will if any heirs were minors. Due to death of one child, the minor grandchildren became the minor heirs. All land still in estate’s name, no trust set up for minors in court. Executors also appointed trustees in will, but nothing done by them as trustee except to borrow money. no authority in Will to borrow or do anything but pay for funeral and properly probated claims. did not get court permission to do anything until 5 years later. It seems that there is no trust, but I may be wrong. It seems to me that executors should have gone through the same process to be trustees as they did to be executors.

      • Larry says:

        By effective trust I mean one that is funded and ready to go. Check the statute for the powers of the trustees. I disagree that a trustee has to qualify as does a fiduciary. Again, look at the statutes.

  • Bob Wolford says:

    I suspect that your approach has taken care of the apparent problem you were having, but what about setting the matter for show cause on a date certain, then dismissing if the parties do not appear or, if they appear, offer no good reason for not following through? Just a thought.

    • Larry says:

      We prefer for the burden to be on the lawyer and fiduciary who started the matter in the first place. A lawyer asked me what to do where the fiduciary is having trouble getting a bond. My answer was to file a motion with the court and bring it to the judge’s attention without delay. Why should the judge be standing around scratching his head when simple communication will address the problem.

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