Category Archives: Probate

As of July 1, 2014 the Mississippi Code was amended to define and allow a new type of guardianship known as the “Adult Guardianship”. The changes now clarify the difference in a conservator and guardian; specifically a conservator  is a person appointed by a court to “administer the property of an adult, including a person appointed under Section 93-13-251, et seq.“, whereas a guardian is a person appointed by a court to “make decisions regarding the person of an adult, including a person appointed under Section 93-13-111 and Sections 93-13-121 through 93-13-135.” It is now also easier to transfer guardianships between states. Also a new section was created to address Adult Guardianships particularly; the new provisions can be found at Miss. Code Ann. § 93-14-1 et seq.

According to Miss. Code Ann. Sec. 93-13-38(1),  “[a]ll 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.” This means that the guardian will need to file an affidavit of creditors in the proper time, publish to creditors, file an inventory, and do all the other acts and things required of fiduciaries in estates.

It is also important to note that when a guardian has more than one ward, each ward’s business must be accounted for separately. (Mississippi Code Ann. § 93-13-69.)

And although guardians can ask for compensation for handling the guardianship, the request must comply with Uniform Rules of Chancery Court 6.11, which states that such a request “shall show the total amount of the estate coming into his hands, the total amount disbursed, the balance on hand, the nature and extent of the service rendered and expense incurred by him, and the total amount previously allowed to him on account thereof. Fees for fiduciaries and attorneys shall not be based on the value of any real property.”

For an Adult Guardianship to be successful, the following procedure must be completed:

1. The potential Ward must have been a citizen of MS for a period of at least 6 months before the filing of a Petition for the Court to have jurisdiction;
2. An attorney is required by Statute;
3. A Petition for Guardianship of the Person will need to be drafted, signed by the petitioner and attested to (in front of a notary) and filed in the Chancery Court of the County the potential ward is a resident of; (in Lauderdale Co. the filing fee is $149)
4. A Summons in accordance with M.R.C.P. 81 must be issued, setting a hearing date for the Ward and next friend or next of kin (who may join in the petition);
5. If the Ward and/or Next of Kin did not join, he/she must be served with the Petition and Summons or join in the petition;
6. At the hearing the evidence showing the need for a guardianship may be presented and any contesting evidence or views may also be presented;
7. Once an Order Appointing a Guardianship of the Person is granted, the Guardian(s) must take an Oath and then Letters will be issued;
8. The letters and order will be needed when performing your duties as Guardian.
9. An affidavit of Creditors, and Notice of Creditors must be completed (Miss. Code Ann. § 93-13-38)
10. An inventory unless waived must be performed within 3 months of his/her appointment as Guardian (Miss. Code Ann. § 93-13-33);

If you should find yourself in need of an Adult Guardianship and would like more information or my firm to guide you through the process and represent you in the proceeding please contact my office at 601-483-4144 or via email at stella@stellahurttlaw.com

A guardianship for schooling purposes can sometimes become burdensome; but there are methods to make these guardianship less burdensome.  So why should we make something more complex than it really has to be? And I’m going to provide some information, that will hopefully assist you when trying to wade through what is sometimes referred to as a “school guardianship”.

First of all, a “school guardianship” is a guardianship of the person that is designed to  get a child into a particular school, generally via grandparents and within the tolerance of the school district involved.

Before 2013,  a guardianship of the person had to meet all of the same requirements as for an estate, including notice to creditors, probate of claims, and accountings, according to Mississippi Code Ann. Sec. 93-13-38; however, this changed as of July 1, 2013.

The changes to Miss. Code Ann. Sec. 93-13-38 include: “[t]he requirements in a guardianship of the person are modified to the extent that notice to creditors is not required, reports will be made only as often as the court requires, and the guardianship may be closed without the need for any accounting unless otherwise determined by the court.”

So, an attorney is still required, as in any estate matter; but the notice of creditors is gone and accounitngs may be waived or extended as the court deems proper.

But before you go out and decide to get a guardianship of a person, you should know that there are still responsibilities the guardians are required to comply with. A Guardian is entitled to, and are responsible for the care, custody and control of the Ward. He/She is responsible for providing food, clothing, shelter, education and all medical and dental care required by your ward. The Guardian has the right to determine where the ward lives; however, the Guardian does not have the right to change the ward’s residence, or relocate from the county in which his guardianship has been established, or from the State of Mississippi, without Court approval. (Miss. Code Ann. §93-13-61 and §93-13-63). Also, it is important to note that even when a minor has a guardian, the parents are still obligated to financially support the child, and may even be awarded visitation with the child.

Now that you know the responsibility of a Guardian, if your still interested in obtaining a Guardianship of a person, you will need to do the following:

1. The potential Ward must have been a citizen of MS for a period of at least 6 months before the filing of a Petition for the Court to have jurisdiction;
2. An attorney is required by Statute;
3. A Petition for Guardianship of the Person will need to be drafted, signed by the petitioner and attested to (in front of a notary) and filed in the Chancery Court of the County the child is a resident of; (in Lauderdale Co. the filing fee is $149)
4. A Summons in accordance with M.R.C.P. 81 must be issued, setting a hearing date;
5. The parents of the Ward (or next of kin) must be served with the Petition and Summons or join in the petition;
6. If the potential Ward is 12 yrs or older, he/she must be served with the Petition and Summons;
7. At the hearing the evidence showing the need for a guardianship may be presented and any contesting evidence or views may also be presented;
8. Once an Order Appointing a Guardianship of the Person is granted, the Guardian(s) must take an Oath and then Letters will be issued;
9. The letters and order will be needed when enrolling the ward in school and for other purposes such as extra-circulars.

*Please note that some procedures may vary from county to county, so always contact the Court Clerks and Administrator to find out local procedures.

This is part two of the two part posts of Mississippi Probate Law. Yesterday, we covered Step 1 through Step 7 of the Probate procedure in Part of of Mississippi Probate Law. You can refresh your memory here. Today, we will start with Step 8.

STEP 8: Inventory. Although an inventory may be waived, I request that my fiduciaries (Executor/Administrator) to always perform an inventory. This is to safeguard the fiduciary and myself as the attorney. It never surprises me, it’s time to distribute all the assets and funds and then someone mentions Aunt Sue’s 5 karat diamond ring is missing. The fiduciary may find himself in a difficult situation that could end in a lawsuit; however, if an inventory has been completed and no ring was inventoried, then he has proof to back himself up that there was no ring when the process began. If the inventory is not waived, a fiduciary is required to make an inventory within 90 days of there appointment.

STEP 9: Distribution of Letters. Once you have taken an oath and posted a bond, unless waived, then you will be issued either Letters of Testamentary (if there’s a will) or Letters of Administration (if there’s no will). You will then distribute these letters to the bank or any other financial institution, and anywhere else that is necessary to probate or administer the estate. These letters allow you to conduct business on behalf of the estate and to gather the necessary information needed during the probate procedure.

STEP 10: Probate of Claims. Once the notice of creditors have been published. Creditors will have 90 to file a claim with the Chancery Clerk. After the 90 days have expired, you must decide which claims are valid and which claims to dispute. For disputed claims, a hearing will be set and the claimant will be afforded the opportunity to submit evidence in efforts to validate his/her claim by clear and convincing evidence and the attorney will have the opportunity to dispute the facts and evidence. At the end of the hearing the judge will rule to either allow or disallow the claim on the estate. If the claim is allowed or if the claim is not disputed it becomes a debt of the Estate that is payable at the time of distribution.

STEP 11: Accounting. Many times, the court will require an accounting of the estate. This is required when the probate or administration process exceeds one year. The accounting should state the period of time the accounting covers, the assets of the estate, what assets have been disposed of, why and where the funds from said disposal is. The accounting should also make reference to the debts of the estate. The accounting must be signed and attested to by the fiduciary.

STEP 12: Payment of Probated Claims. After the heirs and the court has decided how the assets should be divided, or in the event of an insolvent estate the assets have been sold; it is time to pay all of the probated claims. The order in which you pay the claims is important. First the cost of administration should be paid (attorney fees and court costs and expenses). Next the funeral cost and last medical expenses should be paid. Then taxes and other government fees, if any should be paid. After that, then secured debts to be paid. Finally the probated claims should be paid; if there is not enough funds to pay every claim, then the claims should be paid on a pro rata share.

STEP 13: Distribution. If after the probate claims and all other expenses are paid in full, there are still funds and assets remaining in the estate, then the assets and funds should be distributed to the proper parties, either by the will or by the heir share.

STEP 14: Closing of the Estate. Once the claim and debts have been paid and the assets properly distributed; then the fiduciary should file a final accounting and a motion to close the estate and to relieve him/her of the duties of a fiduciary. A hearing should be set and the motion presented at the hearing. Once the order is granted, the estate will be closed and the fiduciary relieved of his/her duties.

I know this appears to be a difficult process, and I will admit it can be; if it is approached the proper way and with the proper guidance the process will be bearable and should only take between 4 and 6 months, although in certain situations, the process could take longer to complete.