July 18, 2012 § 7 Comments
- Failure to file an inventory. In every type of probate matter, it is required that an inventory be filed, usually within 90 days of appointment of the fiduciary. Often the will waives inventory, but the better attorneys I know always file an inventory, whether waived or not. Why? Because the inventory (a) sets a base line for later accountings, and (b) covers the lawyer’s rear from later claims by other heirs or beneficiaries that items are missing. Better to get those matters out up front where they can be dealt with than to let it hold up closing the estate. MCA 93-13-33 provides that an inventory must be filed within three months of appointment in a guardianship or conservatorship, and even requires an annual inventory. A guardian who fails to do so may be removed and be liable on his or her bond.
- Failure to publish notice to creditors. This requirement is mostly overlooked in guardianships and conservatorships. MCA 93-13-38(1) expressly states 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, insofar as applicable and not otherwise provided, be observed and enforced in all guardianships.” And remember that the statutory affidavit of creditors must be filed before publication of the notice to creditors. MCA 91-7-145(2) says that “Upon filing such affidavit …” it shall be the duty of the fiduciary to publish. An affidavit filed after the publication is a nullity.
- Failure to get authority of the court for expenditures. Perhaps the most pervasive error of fiduciaries. MCA 93-13-38 requires the conservator to improve the estate of the ward, and to “apply so much of the income, profit or body thereof as may be necessary for the comfortable maintenance and support of the ward and his family, if he have any, after obtaining an order of the court fixing the amount” [emphasis added]. Every expenditure must be approved in advance. Emergency expenditures may be ratified, but only if properly proven to be for the ward’s benefit, and properly supported by vouchers. Caution: as set out below, self-dealing expenses may be neither approved or ratified.
- Failure to keep the ward’s estate separate and to avoid self-dealing. It often happens that a son or daughter is appointed to serve as conservator of momma’s or daddy’s estate. The child simply adds his or her name to the parent’s account and proceeds from there. This complicates matters because that joint account belongs 100% to each person whose name is on the account, and becomes the property of the survivor on death. That is certainly not an appropriate or even legal arrangement for a guardian or conservator. The fiduciary in every kind of probate matter needs to open a separate estate, guardiandhip or conservatorship bank account, and make all financial transactions through it and through it alone. MCA 91-7-253 prohibits the fiduciary from paying herself any money from the ward’s estate without prior court approval, and loans to the fiduciary and family members are prohibited also. The statute says that the court can not ratify or approve such payments. If the fiduciary has some expense that needs to be reimbursed, make sure the fiduciary has proper documentation and petition the court for authority. Don’t expect a cash payment or check made out to cash to be approved without abundant supporting documentation.
- Failure to get court permission to move the ward to another county. It’s prohibited to relocate the ward to a county other than the one in which the fiduciary was appointed, unless approved in advance by the court. MCA 93-13-61.
September 23, 2010 § 6 Comments
by Jane Stroble Miller, Senior Staff Attorney for the Twelfth Chancery Court District
Shortly after graduating from law school I was confronted with a baffling legal question. An older and more experienced attorney was attempting to do something that Mississippi statutes and case law clearly stated he could not do. In my naiveté I assumed he knew of a statute or case about which I was ignorant that allowed him to act as he did. After several hours of exhaustive research I called a former professor and mentor, the Honorable William Champion. On hearing my dilemma, he chuckled and informed me that I had just encountered an attorney who had been practicing law for so long that he had lost touch with what the law was.
Recently I again encountered this phenomenon in my duty as staff attorney in monitoring probate matters. One of my tasks is to try to explain to attorneys why the chancellor feels that their accountings do not meet the requirements of both the statutes and the Uniform Chancery Court Rules (UCCR). In a meeting with an older attorney, I pointed out that he had failed to attach vouchers to his accounting. He insisted that he could not provide the necessary documentation “because the banks no longer returned the original canceled checks,” and remained firmly stuck to that position. I realized that I would have to do some research to arrive at a definitive answer.
Section 91-7-277, MCA, requires that the annual account show ” … disbursements, every item of which and the amount thereof to be distinctly stated and supported by legal voucher …” Sections 91-7-279 and 93-13-71, MCA, prescribe the form for vouchers and provide that the account shall be rejected by the clerk unless the vouchers are in the proper form. The only exception to the voucher requirement is when the guardian is an approved financial institution.
Over time, attorneys began using original canceled checks as “legal vouchers,” and the courts recognized them as such. Although neither the statutes nor case law identify canceled checks as “legal vouchers,” there is authority in UCCR. In fact, UCCR 6.04 does specifically refer to “a receipt or cancelled bank check …” as a voucher.
The problem with canceled checks as vouchers, however, is that if you stop at the check, you have omitted the most important, and meaningful, part of Rule 6.04. The sentence of the Rule dealing with vouchers, in its entirety is as follows: “Every such voucher shall consist of a receipt or cancelled bank check showing to whom and for what purpose the money was paid.” [Emphasis added]
In other words, if the canceled check fulfills the function of showing “to whom and for what purpose the money was paid,” then it is a proper voucher within the meaning of the Rule. If the canceled check does not do that job, it is not an acceptable legal voucher. Put even plainer: if the canceled check would not otherwise be acceptable as a receipt, it simply is not a legal voucher.
UCCR Rule 6.06 (Lost Vouchers) reinforces my conclusions. It states that if the original voucher is lost or destroyed, a duplicate or ” … receipt from the person or corporation to whom the money was paid or the property was delivered … ” may be accepted by the court. Again, the function of a voucher is to document actual payment, the recipient and the purpose.
I even looked at Black’s Law Dictionary, which defines voucher as ” … an account, receipt, or acquittance, that shows on its face the fact, authority, and purpose of the disbursement.”
Given no hard and fast definition of a “legal voucher,” I formulated the following requirements for a voucher to be sufficient to comply with our laws:
- A voucher must first and foremost be legal evidence that the money was disbursed for the purpose for which it is authorised or allowed.
- It must be in writing or printed and show the payee, amount and date, and services or goods for which the disbursement was made.
- A check made out to “cash” , even an original canceled check is not a “legal voucher.”
Canceled checks, whether copies or original, really only prove that a payee was paid a certain amount of money. In some circumstances, canceled checks may not be adequate proof. For instance, when a court has authorized the purchase of a computer for a minor ward, a canceled check to Best Buy or Sam’s Club does not prove the money was disbursed for a computer. The check could have just as likely been used to purchase a big screen television or a new set of tires for the guardian’s car. The same holds true for many canceled checks for clothing or personal items. Since vouchers are supposed to be “evidence,” the better practice is for an attorney to have printed receipts that match the date and amount of a canceled check. The guardian should provide the attorney with register tapes, tags or price stickers from the items purchased to prove that the disbursements were actually made for the ward and not for another party or purpose.
The best yardstick that both a judge and attorney could employ in determining the adequacy of a voucher would be to ask whether or not the proof would be of such a nature and sufficiency to be admissible as evidence at a trial and contains all the information necessary to convince the average person that the disbursement was made for what the guardian claimed it was made.
It took me a little time, digging and thought to arrive at my conclusions, but I had Professor Champion’s wisdom as a starting point and a reminder that sometimes we can practice law so long that we lose touch with what the law is.