CHECKLIST FOR DOING AN ACCOUNTING IN A PROBATE MATTER

April 11, 2011 § 16 Comments

_____ State the time period covered by the accounting, starting with the date of the last accounting, or if a first account with the date the estate, guardianship or conservatorsip was opened.

_____ List all assets of the estate as of the ending date of the last accounting. (MCA §91-7-277, §91-7-93, §93-1333, §93-13-67, and §93-113-259 and UCCR 6.03).

______ List the date, source, and amount of each item of income since the last accounting. (MCA §91-7-277, and §93-13-67).

______ Total the income and state a total.

______ List the date, payee, explanation or description, amount, and authority (the date of each authorizing court order) for each disbursement since the ending date of the last accounting. (MCA §91-7-277, 91-7-279, §93-13-67p, and §93-13-71 and UCCR 6.04 and 6.05).

______ Attach all documents supporting all income and disbursements. This is the “voucher” requirement that was previously posted about here. The required documentation includes ALL statements of any accounts or investments showing income or disbursements. This may also include canceled checks and receipts. (See statutes and rules cited above).

______ Total the disbursements and state the totals.

______ List and explain for all non-financial assets that appeared on the previous accounts, but are no longer in the control of the fiduciary.

______ A request for payment for the fiduciary including a bill or itemization to support request. (MCA §91-7-299 and §93-13-67 and UCCR 6.11).

______ A request for attorney fees, including a bill or itemization to support said request. (MCA §91-7-281 and §93-13-79 and UCCR 6.12).

______ Close with a summary calculation of the value of the estate coming into the hands of the fiduciary at the opening of the accounting period, a total of the income, a total of the disbursements, and a total balance in the fiduciary’s control that will be the beginning figure for the next account.

______ Have the fiduciary sign and swear to the accounting. (MCA §91-7-277 and §93-13-37 and UCCR 6.02).

Thanks to Jane Miller, Senior Staff Attorney for the 12th District.

EVENTS THAT TERMINATE GUARDIANSHIPS

November 15, 2010 § 2 Comments

We’ve already discussed how to close a guardianship, but what exactly are the events that trigger closing it? 

MCA § 93-13-75:

The powers of a guardian for a minor cease when the ward attains the age of 21.

The chancellor may, in his or her discretion, terminate the guardianship after the ward attains the age of 18.

When the funds and personal property of the ward do not exceed $2,000, and there is no prospect of further funds coming into the guardianship, the court may terminate the guardianship and may impose conditions and restrictions for the deposit and expenditure of the funds.  This provision applies not only to guardianships for minors, but also to guardianships for a “person of unsound mind, or convict of felony.” 

MCA § 93-13-125:

In a guardianship for a person of unsound mind but not “properly adjudged mentally unsound,” the court may terminate the guardianship “If at any time it be made to appear to the satisfaction of the court that such person has been restored to sanity, such guardianship may be terminated and ended as now provided by law.”

MCA § 93-13-133:

If the court is satisfied that a person of unsound mind is restored to sanity, or that an habitual drunkard, or habitual user of cocaine, or opium or morphine has “sufficiently reformed to justify it …” the court may terminate the guardianship.

MCA § 93-13-135:

The guardianship of a convict of felony ceases when the term of imprisonment expires or the convict dies.

MCA § 93-13-151:

Guardianship of a person who is found in need of mental treatment shall end when the ward is “restored to reason” and is so adjudicated by a court of competent jurisdiction.

MCA § 93-13-161:

If a guardian has been appointed for the estate of a person in the armed forces or a merchant seaman who is “officially reported or listed as missing in action, or interned in a neutral country, or beleagured, besieged, or captured by an enemy,” the guardianship may be terminated as follows:

At any time upon petition signed by the absentee, or on petition of an attorney-in-fact acting under power of attorney granted by the absentee, the court shall direct the termination of the guardianship and the transfer of all property held thereunder to the absentee or the designated attorney-in-fact.  Likewise, if at any time subsequent to the appointment of a guardian it shall appear that the absentee has died and an executor or administrator had been appointed for his estate …”

MCA § 93-13-77:

” … it shall be made the duty of an executor or administrator of a deceased guardian to make final settlement in a of their testator’s or intestate’s guardianship accounts in the chancery court in which the same mey be pending …”

It is obvious that a guardianship terminates on death of the ward.  In such a case, an estate should be opened, a final accounting filed and noticed, and the assets transferred to the estate once the guardianship is closed.

A guardianship solely of the person terminates on emancipation of the ward, or when it is shown to the court no longer to be necessary.

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