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.

WAIVING ACCOUNTING IN ESTATES

June 28, 2010 § 2 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:

  • An Administrator is required to file an annual account and a final account.  §§ 91-7-277 and 291, MCA. 
  • Although the statute does not provide an exception to the filing of a final account, a final accounting may be waived “on good cause shown.”  § 91-7-291, MCA.
  • The Administrator may be relieved of the duty of accounting by waiver of all parties interested in the estate of their right to an accounting.  34 C.J.S. Executors and Administrators, § 834.
  • If all of the heirs of the estate join in a request to waive annual account, the court would seem to have discretion to do so, but the court does have statutory authority to waive the final account. 

Testate Estates:

  • An Executor is required to file annual accounts and a final account.  §§ 91-7-277 and 291, MCA.   
  • case law, however, recognizes that a testator may waive the requirement of both annual and final accounts.  Harper v. Harper, 491 So.2d 189 (Miss. 1986);  Will of McCaffrey v. Fortenberry, 592 So.2d 52 (Miss. 1991); Matter of Holt v. Scott, 806 So.2d 296 (Miss. App. 2001).  BUT consider the following case:  Where accounting was waived in the Will, it was held that administration of the esatte was removed from jurisdiction of the court.  Bryan v. Bryan, 167 So.2d 56 (Miss. 1936). 
  • It is customary to waive accounting even if the Will does not expressly so provde, assuming all of the residuary beneficiaries join in the rtequest.
  • The court may require an account even if waived in the Will.  In re Estate of Carter, 912 So.2d 138 (Miss. 2005).  

BONDS IN ESTATES

June 22, 2010 § 2 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 Administrator is required to give a bond equal to the value of all of the personal estate.  § 91-7-67, MCA. 
  • Bond may be waived or reduced if (1) Administrator is the sole heir, or (2) all of the heirs are competent and agree in their sworn petition to waive or reduce bond, BUT
  • The court may nonetheless require a bond to protect the creditors if the court deems it necessary to protect their interests.  Smith by and through Young v. Estate of King, 501 So.2d 1120 (Miss. 1987).
  • At any time that the court deems the bond inadequate, the court may require the Administrator to give a new bond.  § 91-7-315, MCA.

Testate Estates:

  • The Executor is required to give bond in an amount equal to the full value of the estate.  § 91-7-41, MCA.
  • Executor who is also a residuary legatee may give bond conditioned to pay all debts and legacies of the testator within one year.  § 91-7-43, MCA.
  • If the testator in the will directs that the Executor not be required to give bond, then none is required unless the court or the clerk has a reason to require a bond.  § 91-7-45, MCA. 
  • Any creditor may petition the court to require the Executor to give a bond if the creditor believes that his or her claim is jeopardized due to bad management of the estate.  § 91-7-45, MCA. 
  • State or national banks domiciled in Mississippi are not required to give bond unless directed by the Will.  The court has discretion to waive the bond notwithstanding that the Will directs it.  § 81-5-35, MCA. 

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