Some Random Thoughts and Tips on Probate Practice
August 12, 2016 § 1 Comment
Probate practice is entirely statutory. That means that everything you need to know is spelled out in the code, right?
Well, yes and no. The black letter of the law is there, true. But case law, the Uniform Chancery Court Rules (UCCR), and common sense fill in the gaps.
Here are some thoughts about probate, along with a few tips:
- MCA 93-7-145 (b) requires that the “executor or administrator” shall file an affidavit with the clerk that he/she has made reasonably diligent efforts to identify persons having claims against the estate. The affidavit can only be made by the executor or administrator. Thus, if you have it signed and notarized before the person is appointed by court order and before the person qualifies (by taking the oath and posting any bond), it is ineffective, and, in this district, you will have to start over. That’s because the person has not yet assumed the office of executor or administrator. The attorney may not sign the affidavit on behalf of the fiduciary. I posted about this here before.
- UCCR 6.13 requires that every pleading, account, report, etc. filed by a fiduciary be sworn. In the recent case of Miss. Comm. on Judicial Performance v. Shoemake, handed down April 14, 2016, the MSSC as much as said that every pleading and other document calling for court attention filed in an estate must be sworn to by the fiduciary. In this district we no longer accept any pleadings, accountings, motions, etc. signed solely by the attorney, with the sole exception of the situation where the attorney has completely lost contact with the fiduciary, and the attorney must file a report with the court per UCCR 6.01 and 6.02.
- For publication process on unknown heirs and unknown wrongful death beneficiaries: remember that there must be some sworn statement, either in pleading or via affidavit, that there are no other known heirs, and the names of any other heirs, if any, are unknown, or words to that effect, per MRCP 4(c)(4)(D). AND, since you will be publishing process, you must include in the sworn statement that diligent search has been made for them, as required in MRCP 4(c)(4)(A).
TIP: Why not include the necessary language in your petition to determine heirs, or even in your complaint to open the estate? Since UCCR 6.13 requires the fiduciary to swear to all pleadings, you can kill 2 birds with one proverbial stone.
TIP: When opening an administration, why not include sworn language in your complaint that no other heirs are known after diligent inquiry, and petitioning the court to determine and adjudicate heirship. This will eliminate the need to file a separate petition.
- If you are asking for approval of attorney’s fees in any probate matter, including a guardianship or conservatorship, I require that you include a statement of the amount of fees for which you are seeking approval within the pleading asking for it. That way, when the fiduciary signs it, he or she is put on notice of the amount. If there is a disagreement over the amount, include: (1) a statement of the amount claimed, (2) that there is a dispute, and (3) a request that the court resolve the dispute. Set the matter for hearing and be prepared for both sides to present their positions. Whether your chancellor requires it or not, you might want to consider following this practice.
- There are factors that the court must consider in determining whether and how much to award for attorney’s fees in an estate. In addition to those, I especially take into account: how diligent was the attorney in doing all that was necessary to close the estate in a reasonable time; how timely were the inventory and accountings; how responsible was the fiduciary; how timely were publications and how correct were they; and how much did the attorney’s diligence or lack thereof save or cost the estate, guardianship, or conservatorship.
- Most attorneys know by now, but let me emphasize: If you do not file an Affidavit of Known Creditors BEFORE you publish notice to creditors, your publication is ineffective because MCA 91-7-145 states that “Upon filing such affidavit …” it is the duty of the fiduciary to publish notice to creditors. In other words, only after the filing of the affidavit may you publish. In this district, if you publish without having first filed the affidavit, you will be required to re-publish your notice, delaying closing of the estate. See, Estate of Petrick: Vann v. Mississippi Neurosurgery, PA, 635 So.2d 1389 (Miss. 1994).
- Speaking of inventories, I know it will come as a surprise to many of you – judging from the estate files I look at – that MCA 91-7-93 requires the executor or administrator to file an inventory within 90 days of the date when letters are issued, unless the court has either waived inventory or extends the time. MCA 91-7-105 states that the court can revoke letters of a delinquent fiduciary.