DUTIES OF THE ATTORNEY IN PROBATE MATTERS

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.

“PRIMARY PHYSICAL”: A CUSTODY CONUNDRUM

August 3, 2010 § 7 Comments

Many lawyers use the term “primary physical custody” in their property settlement agreements.  For example:  “The parties shall share joint legal custody, and wife shall have primary physical custody of the minor children.” 

If the intent was for wife to have exclusive physical custody, use of the word “primary” in that sentence is probably harmless, if meaningless.

Consider, however, language in a property settlement agreement that provides, “The parties shall share joint legal and physical custody, with wife to have primary physical custody and husband to have secondary physical custody.”  For lawyers looking for a way to mollify a father demanding custody or at least joint custody, and a mother insisting on sole custody, such language sounds like a nice, painless way to make the father feel included in the physical custody loop while leaving the mother in first place, right?  Think again.

In Porter v. Porter, 23 So.3d 438 (Miss. 2009), the parties’ agreement used the “primary” and “secondary” language above.  The Mississippi Supreme Court pointed out that the joint custody statute includes no definition of the terms “primary physical custody” or “secondary physical custody.”  The court held that the term “primary physical custody” could not be used to transform what was expressly a joint physical custody arrangement into a de facto sole physical custody arrangement.  In other words, the use of the language “primary physical custody” has no legal meaning in our law, and its use may import dangerous ambiguity into your otherwise carefully-crafted agreement, leaving it open to an interpretation neither you nor your client ever intended.

Imagine having to explain to your client who thought she would be “primary” in the custody arrangement that she and her ex-husband are on an equal custodial footing.  Do you think she might be a bit peeved at her attorney? 

In my opinion, the same result as in Porter would be reached in the situation where the parties agreed to this language:  “The parties shall share joint legal and physical custody, and wife shall have primary physical custody.” 

And the same result with this language:  “The parties shall have joint custody, and wife shall have primary physical custody.”  The reason that this language would produce the same result is found in § 93-5-24 (5) (a), MCA, which states that ” … ‘joint custody’ means joint physical and legal custody.”

I believe that attorneys often operate under the mistaken belief that “primary physical custody” designates the person who has final decision-making authority in a joint custody arrangement.  The Porter case tells us that is not so.  If you want the wife to have final decision-making authority, use language to this effect:  “The parties shall share joint custody of the minor children, and wife shall have final decision-making authority in matters of the children’s health, education and welfare.”      

Practice Tip:  Avoid using the term “primary physical custody” or any other term not defined in the statute when crafting your custody provisions.

PUBLICATION PITFALL

June 17, 2010 § 7 Comments

So you dug and dug until by the hardest you found the defendant’s mailing address in Moosebreath, Idaho.  Good for you.  Pleadings all prepped and filed.  Publication 3 consecutive weeks in the MERIDIAN STAR for that anticipated and fateful day.  Notify client to be there.  No answer filed.  Case called in open court.  Defendant called 3 times.  Present judgment …

Judge shakes his head and says, “Sorry, no jurisdiction.”

What happened?  How do you explain this to your client?

The answer is in Rule 4 (c) (4) (C), MRCP.  That rule states:  “Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be evidence of the summons having been mailed to the defendant”  [Emhasis added].

Prectice tip:  At the same time that you file your pleading, provide the clerk with an extra copy of the pleading and the summons and specifically request that it be mailed as set out in the rule, and that the facts of issuance of process and mailing be noted on the docket.  Some lawyers, to add a measure of assurance, pay the postage for the clerk to mail it certified mail, return receipt requested, although that should not be strictly necessary if the facts of issuance and mailing are properly noted on the general docket. 

JURISDICTION FOR ADOPTION

June 14, 2010 § 1 Comment

Effective July 1, 2007, Mississippi’s adoption statute was amended to change the residency requirement from 90 days to six months.  

§ 93-17-3, MCA, sets out the jurisdictional requirements, which now read more like the UCCJEA than like the old, familiar adoption statutes.  There are now jurisdictional requirements about availability in the state of information about the child, licensure of any adoption agency involved, and pendency of any adoption or custody proceeding in another state. 

PRACTICE TIP:  Get into your computers and add all of the statutory language verbatim into your adoption Complaint forms.  Then, when preparing your pleadings, strip out what does not apply.

Most judges I have spoken with agree that if the jurisdictional and other statutory language is not included in your Complaint, you will have to start over, which may include obtaining a second Consent or Joinder.

At least twice a month I have to point these matters out to attorneys.  Don’t embarass yourself with a client by being one of them.

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