April 19, 2011 § 7 Comments
- Always accompany the executor, administrator, guardian or conservator to the bank or other financial institution to open the estate account. That way you can make sure that the funds are properly deposited into a restricted account, and that the fiduciary does what she is supposed to do.
- Always ask that a duplicate bank statement be sent to you for the estate account. If the bank balks, direct that the bank statement be sent to you and not the fiduciary. Review each bank statement promptly when you receive it to make sure that no unauthorized disbursements are being made. Also, when the next accounting comes due — Voila! — you have a complete set of bank statements.
- Have your secretary or paralegal call the fiduciary every couple of months to inquire how things are going, to remind of upcoming deadlines, and to ensure that the address and telephone info in your file is accurate. This is not only great client relations, it’s one of the best means possible to discover and address problems in their early stages.
- Accompany your fiduciary to inventory that safe deposit box, and, if possible, bring a witness. It seems that there is often someone lurking in the wings ready to allege that there were all sorts of valuable items in there that the fiduciary is not accounting for.
- Do an inventory even when one is not required. Inventory establishes the baseline for accounting. It also can help neutralize the claims of many disgruntled heirs and sideline-sitters.
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.
October 27, 2010 § 1 Comment
Frank Lewis appeared personally in court with his attorney and joined in a request that his son be appointed his conservator. The idea for the conservatorship arose out of some financial dealings by other members of the family who had powers of attorney. After a hearing with no record, the Chancellor ruled that a guardian should be appointed instead, due to Frank’s physical infirmities and need for regular kidney dialysis. The judge appointed Frank’s then attorney as guardian of his estate, and his son as guardian of the person, and cancelled the powers of attorney.
Frank retained another attorney and appealed the Chancellor’s decision.
The Court of Appeals reversed the trial court and remanded for further proceedings, In The Matter of The Guardianship of the Estate of Frank Lewis, decided October 5, 2010.
There are several interesting arguments made by both sides, and I commend the decision for your reading, but the issue of interest in this post is that proper notice of the hearing was not given.
There is no question that Frank Lewis was present at the hearing with his retained attorney. Ordinarily, a party’s presence in court would submit him voluntarily to the jurisdiction of the court. In order to establish a guardianship, however, MCA § 93-13-281 requires that the proceedings shall join as defendants two of his adult kin within the third degree by proper process, joinder or waiver. The petition did name two adult relatives within the third degree, but there is no evidence in the record that they were properly summoned, joined, waived process or personally appeared before the court. The court of appeals reversed and remanded to allow proper notice to two relatives within the third degree and for the court to hear evidence whether Frank does need a guardian.
The moral of the story is that guardianships and conservatorships are creatures of statute, and the statutes must be strictly complied with. If there are two relatives within the third degree, you must join them. If there are not two relatives within the third degree, the court is required to appoint a guardian ad litem for the infirm individual.
August 9, 2010 § 2 Comments
Not too long ago, during a proceeding involving a minor’s settlement, the following exchange took place between a veteran lawyer (who practices primarily in Circuit Court) and me:
Judge: Your claim for attorney’s fees has to be supported as set out in Rule 6.11.
Lawyer: I am sorry, your honor, I was not aware of your local rules.
Judge: That is not a local rule; it is the Uniform Chancery Court Rule.
Lawyer: When were uniform chancery rules adopted?
If ignorance is bliss, that is one happy lawyer.
Sometimes I feel that even lawyers who are fully aware of the Uniform Chancery Court Rules (UCCR) have no idea what they include because they do not bother to read them. Take the requirements for lawyers in probate matters. From time to time, I have to remind lawyers of their duties, and when I do it often happens that they are surprised to learn of it. Could it be that lawyers nowadays are just too busy to familiarize themselves with the law? Now that’s a scary thought.
My best advice is to get out your rule book and read UCCR 6.01 – 6.17 right now.
Okay, I know you’re too busy to do it right now, so here is an overview:
- Rule 6.01 requires that every fiduciary must have an attorney unless the fiduciary is licensed to practice law. The attorney’s compensation will be fixed by the Chancellor, and the attorney may not withdraw unless permitted to do so by the Chancellor. As a practical matter, you will not be allowed to withdraw unless and until an attorney takes your place, so you need to think twice before entering an appearance in a probate matter.
- Rule 6.02 expressly states that “Every fiduciary and his attorney must be diligent in the performance of his duties. They must see to it that …” publication to creditors is promptly made, inventories and accounts are timely filed and presented, all other statutory requirements are timely and properly met, and that ” … estates of decedents are completed and assets distributed as speedily as may be reasonably possible.” In plain English, that means that the lawyer is every bit as responsible to the court as is the fiduciary. Your professional standing, reputation with the court, and even your license in some cases, are on the line. It also means that estates are not to be kept open for years while the attorney deals with other matters.
- Rule 6.02 also provides as to guardianships and conservatorships that the attorney shall report promptly to the court a guardian’s or conservator’s failure to perform his or her duties, and if the lawyer fails to do so, the lawyer may be held in contempt.
- Rule 6.03 requires that every accounting must include a statement of all assets of the estate. For money, bonds or securities, a computer printout is not adequate; the accounting must include a sworn certificate by an officer of the bank that the funds are actually on deposit in the amount claimed.
- Rule 6.04 is perhaps the most overlooked of all, but it is perhaps also the most crucial. It requires that every disbursement be accompanied by a voucher in the form required by §91-7-279 and 93-13-71, MCA. It is not enough to recite in the accounting, for example, that “The guardian spent $50 on clothes for the ward as authorized by the court in the last accounting.” The accounting must include vouchers documenting the expenditure. In reporting the expenditures, Rule 6.05 mandates that where the expenditures are spelled out in the accounting, the voucher number, date of the disbursement, name of the payee, purpose of the expenditure, and date of any court order authorizing the payment must be stated.
- Rule 6.06 spells out how to deal with lost vouchers.
- Rule 6.07 states that claims arising after death of the decedent such as for funeral bills, monuments and attorney’s fees, must be approved by the court before payment.
- Any request for funds for support of a ward must include the present amount of the estate, the amount of the ward’s income, and the amount of any previous allowance, according to Rule 6.08. Any request to expend funds for necessities that are the responsibility of the parent will not be approved unless the guardian justifies the request under oath.
- Rule 6.10 deals with settlement of wrongful death or injury claims. An outline for handling minor’s settlements is here.
- Rule 6.11 sets out the required information to support a claim of the fiduciary for a commission or extraordinary compensation, which includes the total amount of the estate handled, the total amount disbursed, the balance on hand, the nature and extent of services rendered, the expenses incurred by the fiduciary, and the total amount of any amount previously allowed. The rule also states that neither fees for fiduciaries nor for attorneys shall be based on the value of any real property.
- Rule 6.12 governs petitions for attorney’s fees. The attorney must support the request with the same information required of a fiduciary as in Rule 6.11, and an itemized statement of services rendered. There are separate requirements for recovering damages for wrognful death or personal injury, and where a contingent fee contract has been approved.
- Rule 6.13 requires that the fiduciary swear to and sign every pleading, accounting and report. It is not adequate, as sometimes happens, that the attorney sign the documents.
- Rule 6.14 provides that a copy of the will must be attached to the petition to open the estate. Recently a lawyer (from out of town) argued with the clerk that the rule means that only a copy needs to be submitted, and that he should retain the original. That is not the meaning of the rule, and it is not the law. § 91-7-31, MCA, requires that the original will, when admitted to probate, shall be recorded and retained by the clerk. The rule merely requires that a copy of it be attached to the petition for ready reference by the court and other interested parties, and so that the original can be secured.
- Finally rule 6.17 bears stating verbatim: “If, without cause, an attorney fails to file accountings or other matters in probate cases (estates, guardianships and conservatorships) after being so directed in writing by the Court, the Court may consider such misconduct contempt.” Misconduct; such a meaningful, menacing word fraught with professional peril.
Practice Tip: Quit relying on forms to do everything and start reading the rules. I repeat: Start Reading The Rules. You stake your career on your performance; start staking your performance on knowledge of what you are doing. You have a professional duty to your client to know the law, to inform, advise and guide your client, and to keep your client as well as yourself in compliance. As the attorney in a probate matter the rules make it clear that you will be held every bit as responsible as the fiduciary when things go wrong. The fiduciary, however, seldom has a law license and career on the line like you do.