A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

WHEN IS A GIFT A GIFT?

June 9, 2011 § Leave a comment

We’ve talked here before about inter vivos gifts between spouses, and how they do not raise a presumption of undue influence.

What about where the question is whether in actuality there was a gift at all, as where a child claims that the now-deceased or infirm parent made a gift of an item, and the siblings deny that any gift was made?

As a general rule, the donee bears the burden of proof by clear and convincing evidence all of the following:

  1. That the donor is competent to make a gift;
  2. That the gift was a voluntary act of the donor who had donative intent; 
  3. That the gift was complete and not conditional; 
  4. That the donor delivered the gift; and 
  5. That the gift was irrevocable.

In re Estate of Ladner, 909 So. 2d 1051, 1054 (Miss. 2004).

In the case of real property, however, the person seeking to set aside a facially valid deed bears the burden of proof. Mullins v. Radcliff, 515 So.2d 1183, 1190 (Miss. 1987).

In the case of a CD titled in the names of two or more persons, payable to any of the persons named, it is presumed that those persons are owners of the account.

In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So. 2d 935, 942 (Miss. 2001) (citing Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993)). “When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’” DeJean v. DeJean, 982 So. 2d 443, 449-50 (Miss. App. 2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963)). That presumption of ownership may be overcome “‘upon proof of forgery, fraud, duress, or an unrebutted presumption of undue influence.’” Reilly, 784 So. 2d at 942 (quoting Madden, 626 So. 2d at 617).

These notes are taken from Judge Griffis’s COA opinion in Yarborough v. Patrick, decided June 7, 2011, at ¶¶ 22-26.

UPDATED CHECKLIST OF CHECKLISTS

May 27, 2011 § 5 Comments

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.  If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot. 

Many lawyers have told me that they print out these checklists and use them at trial.  I encourage you to copy these checklists and use them in your trial notebooks.  And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use.  Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine).  Good.  If it improves practice and makes your (and my) job easier and more effective, I’m all for it. 

Here is an updated list of links to the checklists I’ve posted:

Attorney’s fees.

Attorney’s fees in an estate.

Adverse possession.

Child custody.

Closing an estate.

Doing an accounting in a probate matter.

Grandparent visitation.

Equitable distribution.

Income tax dependency exemption.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

A CHECKLIST OF CHECKLISTS

December 15, 2010 § Leave a comment

Proving your case by proving certain factors is a fact of legal life in Mississippi.  I’ve referred to it as trial by checklist.

Here are the checklists I’ve posted (you can click on the links to get to them):

Attorney’s fees.

Adverse possession.

Child custody.

Grandparent visitation.

Equitable distribution.

Modification of child support.

Periodic and rehabilitative alimony.

Lump sum alimony.

Separate maintenance.

Income tax dependency exemption.

Those are all of the checklists of which I am aware.  If you know of others, please let me know and I will add them to the list.

I also posted a checklist for closing an estate, but it’s a procedural cheklist rather than a substantive checklist.

JUDGE ROBERTS’ PRIMER ON ADVERSE POSSESSION

November 17, 2010 § 3 Comments

In the case of Dean vs. Slade, et al., rendered November 9, 2010, Judge Larry Roberts of the Court of Appeals laid out a template of authority you should keep on hand for your next adverse possession case.  Although the decision does not touch on all of the adverse possession factors, it touches on some important authority that you can use to your advantage.  I simply stripped the material below right out of Judge Roberts’ opinion, making a couple of minor editorial changes.

THE ADVERSE POSSESSION FACTORS

MCA § 15-1-13(1) (Rev. 2003) provides the following: Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.] Thus, the party claiming adverse possession must prove by clear and convincing evidence that his/her possession was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Stringer v. Robinson, 760 So. 2d 6, 9 (Miss. Ct. App. 1999) (citing Rice v. Pritchard, 611 So. 2d 869, 871 (Miss. 1992)). “The ultimate question is whether the possessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership.” Id. (citing Johnson v. Black, 469 So. 2d 88, 90-91 (Miss. 1985)).

THE EVIDENTIARY STANDARD

Clear and convincing evidence has been defined as follows: that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case. Moran v. Fairley, 919 So. 2d 969, 975 (Miss. Ct. App. 2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir. 1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So. 2d 1369, 1375 (Miss. 1990)).

CONFLICTING EVIDENCE

Absent a finding of an abuse of discretion or manifest error, a chancellor is the sole judge of the credibility of witnesses and the weight to give to the evidence. Webb v. Drewrey, 4 So. 3d 1078, 1081 (Miss. Ct. App. 2009).

ACTUAL OR HOSTILE

“Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’” Warehousing Mgmt., LLC v. Haywood Props., LP, 978 So. 2d 684, 688 (Miss. Ct. App. 2008) (quoting Wicker v. Harvey, 937 So. 2d 983, 993-94 (Miss. Ct. App. 2006)). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So. 2d 702, 706-07 (Miss. Ct. App. 2001) (citing Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992)). “Adverse use is defined as such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right.” Peagler v. Measells, 743 So. 2d 389, 391 (Miss. Ct. App. 1999) (quoting Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 334 (1927)).

OPEN, NOTORIOUS AND VISIBLE

The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible. Wicker, 937 So. 2d at 994 (citing Craft v. Thompson, 405 So. 2d 128, 130 (Miss. 1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So. 2d 1057, 1059 (Miss. Ct. App. 2003) (citing People’s Realty & Dev. Corp. v. Sullivan, 336 So. 2d 1304, 1305 (Miss. 1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’” Wicker, 937 So. 2d at 994(citing Blankinship v. Payton, 605 So. 2d 817, 820 (Miss. 1992)).

EXEMPT PROPERTY AND ESTATES

October 28, 2010 § 14 Comments

You’re handling an estate of a decedent whose spouse predeceased him.  The decedent was a man of modest means with a two-bedroom home in town, some furniture and appliances, an older car, some savings and $6,000 in a 401(k) account.  There’s not enough cash to  pay all the creditors’ claims.  The surviving children and grandchildren want you to close the estate as soon as possible.  Do you advise them to sell the furniture at an estate sale to muster up enough cash to satisfy the creditors?  Or should you get court approval to sell the house, pay the debts, and distribute what’s left?

Not so fast.  All that property may not even belong in the estate in the first place.  It may not be subject to the creditors’ claims at all.

MCA § 91-1-19 provides in part:

 The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”

What this language means is that the property that is exempted by Mississippi law from sale under execution or attachment descends automatically, not through any estate, as stated in the statute.  You would be shortchanging the statutory survivors considerably by not pursuing the exemptions. 

It’s important to know what are the exemptions.  MCA § 85-3-1 sets out the personal property and financial assets that are exempt:

There shall be exempt from seizure under execution or attachment:

(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:

(i) Household goods, wearing apparel, books, animals or crops;

(ii) Motor vehicles;

(iii) Implements, professional books or tools of the trade;

(iv) Cash on hand;

(v) Professionally prescribed health aids;

(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.

Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.

(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.

(ii) Income from disability insurance.

(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:

(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;

(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and

(iii) An individual retirement account.

(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.

(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.

(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.

(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).

(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.

(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.

(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.

(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.

(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.

MCA § 85-3-21 establishes the homestead exemption. 

There are other exemptions that are set out in the cross-references to the code sections cited.

MCA § 91-7-117 requires the appraisers to set apart the exempt property.

As attorney for the estate, you have a duty to determine what assets need to be declared exempt and not included in it.  In moderate estates it could mean the difference between survivors getting nothing and the survivors getting something.

Now re-read the first paragraph above.  Do you see it differently?

BETTER CHANCERY PRACTICE FAQ

October 8, 2010 § 2 Comments

My 8.05 financial statements stink.  How can I improve them?

Here are Ten Tips for More Effective Rule 8.05 Financial Statements.

Is my estate ready to close?

Check out this Checklist for Closing an Estate.

I think I need to file a habeas action.  Any tips?

This Habeas Corpus Step by Step should help.

One more time: what are those child custody factors I need to prove at an upcoming trial?

The Albright factors are what you’re looking for.  

Help! We need to sell some real property in an estate, and I don’t know where to start?

How to Sell Real Property in an Estate may be just what you need. 

I’ve been asked to handle a minor’s settlement for a Jackson firm, and I’ve never done it before.  What do I need to do?

This Outline for Handling a Minor’s Settlement will get you started.

My mail has an MRCP 41(d) notice in it this morning.  I remember you said something about it, but I don’t have time to look for it.  Can you remind me what I am supposed to do?

<Sigh>  Here’s a post on what to do When Rule 41(d) Comes Knocking at Your Door. 

I need to prove the tax effects of alimony, but my client can’t afford to hire a CPA to come testify.  Any ideas on what I should do?

Try looking at Proving Tax Effects of Alimony.

My Chancery Judge is really nitpicky.  How can I draft my adoption Complaint to satisfy him?

Are you talking about me?  Whatever.  Here is a post on pleading Jurisdiction for Adoption.

Every time I go to court in Jackson, the lawyers there snicker about my countryfied attire.  Any suggestions?  I cannot afford another $100 contempt citation for punching out a lawyer in the courtroom.

You probably need to be charging more so that you can afford either a better wardrobe or more contempt fines.  Until you do, try reading “High Waters” and Burlap Suits.  It won’t change anything, but it may help you to feel better.

SALE OF REAL PROPERTY IN AN ESTATE

July 21, 2010 § 6 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Vesting of title.

Real property vests directly in the heirs in an intestacy.  Parker v. Newell, 245 So.2d 575 (Miss. 1971).  It vests in the devisees in a testate estate.  Anderson v. Gift, 126 So. 656 (Miss. 1930).  Also See, In Re Estate of McRight, 766 So.2d 48 (Miss. App. 2000).

Abatement.

Even though the real property passes directly to the heirs or devisees, and not into possession of the Administrator or Executor (unless the Executor is directed by the will to sell the real property), it is subject to the claims of creditors and payment of estate expenses.  The rules of abatement govern the order in which assetss of the estate must be first applied to such claims and expenses.  Gordon v. James, 39 So. 18 (Miss. 1905); §§ 91-7-91 and -191, MCA.

Authority to sell real property.

When a petition to sell real property to pay debts is filed, all parties interested shall be cited by personal summons or publication.  § 91-7-197.  The burden of proof is on the petitioner to show that the land must be sold in preference to the personal property.  Brown v. McAfee, 421 So.2d 1061 (Miss. 1982); Blum v. Planters’ Bank & Trust Co., 122 So. 784 (Miss. 1929).  In such instances the Executor or Administrator would generally be the petitioner.

A will may grant the Executor the express authority to sell the real property.  Glidewell v. Pannell, 130 So.2d 288 (Miss. 1930).  If the Executor under the will is specifically instructed to sell the real property, there is no requirement for court approval.  Davis v. Sturdivant, 19 So.2d 499 (Miss. 1944).    

Execution of the deed.

If the property has vested in the heirs or devisees, the Administrator or Executor should not sign the deed.  See the citations above.  There is no title in the Administrator or Executor to convey.  The heirs or devisees sign the contract, exeecute the deed, and receive the cash proceeds.

There are, however, two instances in which the personal representative will sign the deed.  First, if the Executor is given the power of sale by the terms of the will, he or she should execute the will.  Second, if the sale is by court order, the Executor or Administrator should sign the deed.  §§ 91-7-187, -189, and -191, MCA.  The practical effect of sale by court order is to divest the title out of the heirs or devisees, as the case may be.

Necessity of bond.

When real property is sold pursuant to a decree of the court, the Executor or Administrator shall execute a bond equal to the proceeds of the sale of the land.  § 91-7-205, MCA.  This code section does not apply to a sale by the heirs or devisees in whom title has vested.

There is an exception to the requirement of bond.  If the time within which all claims of creditors against the estate has expired, the court may waive all or any part of the bond when all the beneficioaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond.  § 91-7-205, MCA.

If an Executor or Administrator fails to give the bond required, the court may direct a master to make the sale, and, after confirmation, convey the land.  § 91-7-207, MCA.  An early case held that failure to give the bond voids the sale.  Buckner v. Wood, 45 Miss. 57 (1871).  

TRIAL BY CHECKLIST: ADVERSE POSSESSION

July 12, 2010 § 11 Comments

A practice tip about trial factors is here.

Section 15-1-13, MCA, sets out a six-part test that must be applied to determine whether adverse possession has occurred. 

In order for possession to be adverse, it must be:

  1. Under claim of ownership.  The possessing party must have acted with respect to the land as if he or she owned it. Jordan v. Peters, 986 So.2d 1018, 1022 (Miss. App. 2008); 
  2. Actual or hostile.  Actual possession is effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses. Blankenship v. Payton, 605 So.2d 817, 819-820 (Miss. 1992); 
  3. Open, notorious and visible.  In order for possession to be open, notorious and visible, “An adverse possessor must unfurl his flag on the land and keep it flying so that the owner may see … that an enemy has invaded his domains, and planted the standard of conquest.” Sturdivant v. Todd, 956 So.2d 977, 982 (Miss. App. 2007);
  4. Continuous and uninterrupted for a period of ten years.   Possession may be tacked on to the possession of predecessors in title. Jordan, at 1023;
  5. Exclusive.  The law requires that the person possessing the property in question must intend to possess the land over all others and to the exclusion of all others. Sturdivant, at 992; and
  6. Peaceful.  The adverse possession must be peaceful and unchallenged by the title owner. See, Sturdivant, at 987.

The claim of adverse possession must be established by clear and convincing evidence. Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152 (Miss. 1992).

The adverse possession statute was enacted by the legislature to address the serious problems caused by landowners who ignore claims or encroachments over long periods of time. Clanton v. Hathorn, 600 So.2d 963, 966 (Miss. 1992).

There are various cases interpreting the adverse possession factors.  The cases cited here are only a basic introduction.

 

NEW LEGISLATION THAT MAY AFFECT YOUR CHANCERY PRACTICE

June 25, 2010 § 6 Comments

A number of bills passed in the 2010 Regular Session of the Legislature that you may find will have some effect on your practice in Chancery Court.  Below is a bulleted list with a brief description of the pertinent portions of each bill.  You can read the full text of the bills here.  Thanks to Steve Horne, Representative in District 81 for providing me with the summaries.  I will provide more detailed summaries of some of the bills in later posts.

All laws are effective July 1, 2010, unless noted otherwise.

  • HB 277.  Statutory method for renewing a judgment.
  • HB 704.  DHS may obtain income tax and sales tax information without a subpoena for individuals who are delinquent in child support payments. 
  • HB 886.  Prohibits a deed restriction or other covenant running with the land that requires a transferee or his heirs, successors or assigns to pay a property transfer fee, and any such provision is void and unenforceable.  The prohibition does not apply to certain property owners’ associations.
  • HB 1400.  Increases from $10,000 to $20,000 the amount of money or value of property that may be transferred to a ward without a guardianship, in the discretion of the Chancellor.
  • SB 2413.  Amends § 93-5-34, MCA, to clarify custody and visitation procedures when a parent receives military orders for temporary duty, deployment or mobilization.
  • SB 2929.  Youth Court has exclusive jurisdiction over delinquent acts committed by a child until the child’s 18th birthday.  Circuit Court may assume jurisdiction when transferred to it from Youth Court.
  • SB 2800.  Remedies of lien laws available to suppliers and construction contractors are made available on the same basis to rental and lease equipment suppliers.
  • HB 1479, effective July 1, 2011.  The name of Oakley Training School is changed to Oakley Youth Development Center.
  • HB 1049 and 1525.  Makes many changes in the mental commitment law.  The changes are too numerous to list here, and they will be detailed in a subsequent post.   

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