PUBLICATION TO CLOSE AN ESTATE: A STATUTE-RULES CONFLICT
January 25, 2011 § 2 Comments
MCA § 91-7-295 addresses summons or publication for a final account in an estate, conservatorship or guardianship. The entire statute reads as follows:
The final account so presented with the statement as to parties, shall remain on file, subject to the inspection of any person interested. Summons shall be issued or publication made for all parties interested, as in other suits in chancery court, to appear at a term of court, or before the chancellor in vacation, not less than thirty (30) days from the service of the summons or the completion of the publication, and show cause, if any they can, why the final account of the executor, administrator, or guardian should not be allowed and approved. [Emphasis added]
MRCP 4 (c) (4) (B), which governs procedure in “suits in chancery court,” states: “The defendant shall have thirty (30) days from the date of first publication to appear and defend.”
So which is it? Thirty days from completion of publication as the statute says? Or thirty days from first publication as the rule says?
The Order Adopting the Mississippi Rules of Civil Procedure issued by the Supreme Court on May 29, 1981, expressly states that ” … in the event of a conflict between these rules and any statute or court rule previously adopted these rules shall control.”
That language would seem to dispose of the matter, but for MRCP 81 (a) (8), which limits the applicability of the rules to matters under MCA Title 91. There is also the fact that the law of executors and administrators is entirely a creature of statute, which requires strict application.
What should you do? I would follow the statute. Doing so does not run afoul of MRCP 4, and actually allows more time for interested parties to act. I would also publish returnable to a day certain more than thirty days after the completion of publication, so there is no doubt on the part of those summoned as to the date by which they are required to act. If you do not follow the statute, you run the risk that a disgruntled party may file suit at a later point attacking your accounting on the ground that the court lacked jurisdiction to proceed.
Thanks to Chancellor Gene Fair for pointing this out.
CLOSING A GUARDIANSHIP STEP BY STEP
October 25, 2010 § 4 Comments
The time has come to close that guardianship you opened a few years back to receive a personal injury settlement on behalf of a minor ward. So how are you going to go about closing it?
MCA § 93-13-77 provides that “When the guardianship shall cease in any manner, the guardian shall make a final settlement of his guardianship, by making out and presenting to the court, under oath, his final account, which shall contain a distinct statement of all balances of his annual accounts, either as debits or credits, and also, all other charges, expenditures, and amounts received, and not contained in any previous annual account.”
The final account must include a re-cap of the previous annual accounts, and must also set out the final annual of disbursements and charges since the last account, supported by proper vouchers as required in MCA §§ 93-13-71, -73 and 91-7-277. The only exception to the requirement of proper vouchers is when the guardian is a federally regulated bank, thrift or trust company, and there is a sworn statement of an officer that the vouchers are available for inspection. What constitutes a proper voucher was the subject of a previous post that you can find here.
After the final account has been filed, it must be on file for inspection by the ward for not less than “one month,” and you must issue a summons to him or her to appear in court on a day after the one month period has expired to show cause why the final account should not be approved. If the ward does contest the account, the court will hear evidence and adjudicate whether it should be approved.
In the judgment closing the estate, the court may make an allowance to the guardian not to exceed 10% of the value of the estate, and shall order that the property of the estate be delivered to the ward and the guardian discharged.
If the ward has reached 21 years of age, the ward may petition the court under oath to waive the final account, ” … and the court shall grant the same unless there be reason to suspect that the petition was procured by the guardian through fraud or undue influence over the ward, in which case the court shall require proof of the good faith thereof.”
So when is it time to close a guardianship? You can read about that here.
The Better Chancery Practice Blog 