A COMPENDIUM OF ESTATE POSTS

July 5, 2011 § 6 Comments

SOME THINGS YOU MAY NOT KNOW ABOUT GUARDIANSHIPS

November 10, 2010 § 2 Comments

Here are some things you may not already know about guardianships.  Some of them have teeth that can draw blood if they catch you unawares …

  • MCA § 93-13-38, provides that “All the provisions of the law on the subject of executors and administrators, relating to settlement or disposition of property limitations, notice to creditors, probate and registration of claims, proceedings to insolvency and distribution of assets of insolvent estates, shall, as far as applicable and not otherwise provided, be observed and enforced in all guardianships.”
  • MCA § 93-13-33, requires that the guardian return an inventory within three months of the appointment, and states:  “Any guardian who shall fail to return inventories may be removed and his bond be put in suit, unless he can show cause for the default.”
  • When closing out a guardianship, the requirements of MCA § 93-13-77, must be satisfied.  That section requires that a final accounting filed, and that the ward be summoned and given notice to be and appear before the court on a day not less than one month after the date that the summons is served or after completion of publication, to show cause why the accounting should not be approved.  The accounting can not be approved earlier than one month after completion of process.  All the requirements to close a guardianship are here.
  • When a guardian has more than one ward, each ward’s business must be accounted for separately.  MCA § 93-13-69.
  • A child 14 or older has a statutory right to choose his or her guardian.  If the ward is over 14, you should have the child join in the petition.
  • Guardianship of a minor ceases by operation of law at age 21, and, in the discretion of the Chancellor, at age 18.  The guardianship may also be terminated by order of the court at any time that the estate has a value less than $2,000 and no further funds or property are anticipated to come into the guardian’s hands.  MCA § 93-13-75.
  • Any claim for a guardian’s fee must include the information required in Uniform Chancery Court Rule 6.11.
  • A “solicitor’s fee” (MCA § 93-13-79) may be allowed for the attorney, and the claim for it must be supported by an itemized statement of services rendered in the same form as that required for the guardian’s fee, plus the information required in Rule 6.12 of the Uniform Chancery Court Rules.    

CHECKLIST FOR CLOSING AN ESTATE

September 27, 2010 § 20 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed. 
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.

WAIVER OF INVENTORY AND APPRAISEMENT

August 10, 2010 § 3 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.]

Intestate Estates:

  • The goods and personal estate shall be inventoried unless the court or clerk “for good cause,” not require that it be filed.  § 91-7-109, MCA.
  • If appraisement is not required, an inventory pursuant to § 91-7-93, MCA, shall be made within 90 days of the issuance of Letters of Administration.
  • If personal property not included in the original inventory comes into possession of the Administrator, a supplemental inventory describing those items shall be returned within 30 days.  § 91-7-95, MCA.
  • An Administrator who fails to file a timely inventory may be removed.  §91-7-105, MCA.  

Testate Estates:

  • Inventory may be waived “for good cause” under § 91-7-109, MCA, or if the Executor is a residuary legatee under § 91-7-43, MCA. 
  • Although the statutes do not expressly provide that inventory can be waived by the Will of the testator, it is common practice for the court to recognize the request.  Perhaps the “good cause” exception is broad enough to allow waiver of the requirement by the Will.  § 91-7-109, MCA.

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