The “School Guardianship”

Date
Posted by
Comments0
The “School Guardianship”

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.

Mississippi Probate Law – Part II

Date
Posted by
Comments0
Mississippi Probate Law – Part II

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.

Mississippi Probate Law – Part I

Date
Posted by
Comments1
Mississippi Probate Law – Part I

This will be a two part blog post, due to the amount of information that will be provided.

Mississippi Probate Practice is govern by Title 91 of the Mississippi Code Annotated and Rule 6 of the Mississippi Uniform Chancery Court Rules (MS UCCR).

STEP 1: Know the lingo. You need to know some of the common terms that will be used when discussing the probate process.

  • Administration. The process of properly appointing an administrator(ix), inventorying, and disposing of the property of a deceased without a will. See also Probate.
  • Administrator. (f: Administratrix) One appointed by the court to take responsibility for anadministration. Also used with certain modifying terms to designate a person appointed to replace an executor named in a will.
  • Beneficiary. One named in a will to receive abequest or devise, or in a trust to receive the trust proceeds. Note that not all heirs are not necessarily beneficiaries.
  • Bequest. Disposition of property by will.
  • Decedent. The person whose death has occasioned the opening of an estate.
  • Devise. Disposition of property without a will at the completion of the Administration.
  • Executor. (f: Executrix) One appointed by the court to take responsibility for probateof a testate
  • Fiduciary. Term embracingadministrators, conservators, executors, guardians, trustees and others who have a special duty of good faith and responsibility to the court and interested parties in relation to the matters entrusted to him or her.
  • Heir. One who is designated under the laws of descent and distribution to receive the estate of a decedent not disposed of in a will. Although an heir may be abeneficiary, all beneficiaries are not necessarily heirs.
  • Holographic will. A will written entirely in the handwriting of thedecedent.
  • Intestate. The state of not having written a will; also refers to the individual himself or herself.
  • Probate. The procedure to prove a will. Also, the collective term used for estates, administrations, guardianships, conservatorships and judicially-administered trusts, the common characteristic of which is appointment of a fiduciaryto be responsible to the court and interested parties.
  • Probate in Common Form. Admission of a will toprobate ex parte, without formalities. (Not recommended)
  • Probate in Solemn Form. Admission of a will toprobate after notice to all interested parties and a court hearing. (Recommended)
  • Residuary Estate. All that remains of an estate after the expenses of administration, debts,legacies and devises have been satisfied.
  • Testate. The state of having written a will; also refers to the individual himself or herself.
  • Testator. (f: Testatrix) The maker of a will, and one who dies leaving a will.

STEP 2: You are REQUIRED to have an attorney to administer or probate an estate in Mississippi- Rule 6.01 MS UCCR

“Every fiduciary must, unless he is licensed to practice law, retain an attorney or firm of attorneys to represent, advise and assist him during the whole term of his office, whose compensation will be fixed or approved by the Chancellor. When an attorney has once appeared for such a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the client.”

STEP 3: The Right Attorney. You will need an attorney who is familiar with the probate process; therefore, you should be prepared to provide certain documentation to the attorney and you will need to feel comfortable with the attorney, as you will be working closely with him/her for the next several months, so feel free to ask questions at the consultation.

Documents/Information you should bring to a consultation:

  1. Death certificate
  2. Will if applicable
  3. A list of all known debts (include the to whom the debt is owed, the amount, and the contact information of the person owed the debt)
  4. A list of all checking, savings, CDs, IRAs, or any other financial assets (include whose name on it, what financial institution, the amount, and if there is any beneficiaries listed)
  5. A copy of all real property deeds, no matter what state or county it may be situated in.
  6. A copy of any and all titles to automobiles, tractors, trailers, boats, atvs, etc.
  7. A list of all heirs and/or beneficiaries (include name, address, and telephone numbers).
  8. A copy of any known trusts.

Some questions you may want answered:

  1. How long will this take?
  2. How much will this cost?
  3. Will I have to post bond?
  4. Will I have to perform an inventory?
  5. What are my responsibilities?
  6. What are my liabilities?
  7. What are the steps to probate/administration?

STEP 4: The Complaint to Open an Estate. After you have hired an attorney, he/she will draft a complaint to open the estate of the deceased. The person requesting to be appointed Executor(ix)/Administrator(ix) will be required to sign any and all complaints and other pleadings filed with the court under Rule 6.13 of the Mississippi Uniform Chancery Court Rules. If there is a will it will need to be proven. Although there are many ways to prove a will, the most common is by the witnesses completing an affidavit.

STEP 5: Appointment, Oath, Bond, and Letters of Testamentary/Administration. If the Judge appoints you as Executor(ix)/Administrator(ix) of the estate, you will be required to (1) take an Oath asserting you will be diligent in probating/administration the estate, (2) Post a Bond, unless specifically waived, and (3) Letters will be issued, allowing you to fulfill your duties as fiduciary.

STEP 6: Notice to Creditors. Known creditors will need to be notified in writing of their opportunity to probate a claim. You are also required to place a notification in the legals in the classifieds of the local newspaper in the county of the residence of the decedent. This notification must be published once a week for three consecutive weeks and must notify all unknown creditors of the opening of the estate and their opportunity to file a probate of a claim for debts owed within 90 days of the initial publication with the chancery clerk of the county in which the estate is being probated/administered.

STEP 7: Notice to Heirs. If there isn’t a will, then notice to unknown heirs must be published in the legals in the classifieds of the local newspaper in the county of residence of the decedent. This notice must state the time and date certain, for which any unknown heir who wish to make a claim to the estate, to appear and assert their claim. On the date certain set, the bailiff will be asked to call any unknown heirs of the estate and one of two things will happen. First if there are no unknown heirs present to make a claim, a judgement/order asserting there are no unknown heirs and recognizing only the known heirs by name; or second, if there are unknown heirs, they will be afforded the chance to present evidence to prove their heirship and the attorney for the estate will also be afforded the right to dispute any evidence presented. Then the judge will rule whether or not the unknown heir is a proper person to inherit under the law.

Tomorrow Part II of MS Probate Law will be published.

Understanding Your Options When it Comes To Initiative 42 and 42A

Date
Posted by
Comments0
Understanding Your Options When it Comes To Initiative 42 and 42A

Ok, this IS NOT going to be a “My stance on Initiative 42 or 42A” post, as I do not want to project my political views onto anyone. I am using this blog to explain the differences in the current reading of Section 201, and both proposals to amend Section 201. I received my information from valid sources and not just political websites and the links to each source will be provide if you are interested in investigating yourself.

I strongly believe that before a person votes or chooses not to vote for something, he or she should be well informed. I chose to provide information about the proposed changes to Section 201, because I have had several people stop me and ask me if I knew what was the truth and what was political rumors and “mumbo jumbo”.

Please note that the changes are UNDERLINED and the current language that will no longer appear has been STRICKEN THROUGH and the current language that will remain unchanged appears NORMAL and unchanged.

SECTION 201 of the Mississippi Constitution currently  reads (and has since Dec. 4, 1987) as follows: 

“The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe.” See MS Sec. Of State website

Initiative No. 42 Proposes that SECTION 201 to read as follows:

“Educational opportunity for public school children: To protect each child’s fundamental right to educational opportunity The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may prescribe. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief.” See MS Sec. of State website

Initiative No. 42 A Proposes that Section 201 to read as follows:

“The Legislature shall, by general law, provide for the establishment, maintenance and support of an effective system of free public schools upon such conditions and limitations as the Legislature may prescribe.” See MS Legislature Website

Now, I am not going to tell you how to vote or my opinions, but I will point out the differences in the alternatives.

(1) The first alternative is not to vote for either one. By doing this Section 201 will remain the same and unchanged. This will require the Legislature to provide for “establishment, maintenance and support of  free public schools” basically how they see fit, which is how it is now.

(2) The second alternative is to vote for Initiative 42. By doing this Section 201 will be greatly changed; the greatest change being the one that takes the enforcement and oversight from the legislature and puts it with the Chancery Courts. The second major change is it states “an adequate and efficient system“, which in my opinion, (I know I said I wasn’t going to give my opinion, but here it is anyway; take it for what it is, an opinion), leaves Section 201 open for interpretation, because what one person, or judge, finds as adequate and efficient, another may not. And the third major change is it provides in writing that a free public education is a fundamental right; which means it be placed on the same pedestal  as freedom of religion, the right to bear arms, the right to marriage, and other fundamental rights.

(3) The third alternative is to vote for Initiative 42 A. By doing this Section 201 will be changed to add the terms, “of an effective system“. Therefore, the Legislature will still remain in charge of establishing, maintaining, and providing support for an effective system that promotes free public schools.

To review the options, here is the Comparison in Chart form:

Current Initiative 42 Alternative 42
The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe. Educational opportunity for public school children: To protect each child’s fundamental right to educational opportunity The Legislature the State shall, by general law, provide for the establishment, maintenance and support of an adequate and efficient system of free public schools upon such conditions and limitations as the Legislature may prescribe. The chancery courts of this State shall have the power to enforce this section with appropriate injunctive relief. The Legislature shall, by general law, provide for the establishment, maintenance and support of an effective system of free public schools upon such conditions and limitations as the Legislature may prescribe.

So the main question you need to ask yourself before going to vote or not to vote on November 3, 2015 is: (1) Do you think the current system for providing and funding a public education is sufficient or not? (2) Do you want the Legislature to remain in control of developing and funding public schools or do you want the Chancery Courts to be in charge of enforcing the development and funding of public schools? and (3) consider what effect your choice will have on your children, grandchildren, great-grandchildren, nieces, nephews, and for generations to come.

Also, just one other little point, for either of these Initiatives to pass one of them MUST receive at least 40% of the vote.

I hope I have provided you with some valuable information without projecting my personal views; but I did want to give you the full facts as I have found them before you go and vote on November 3, 2015. Thank you, and if you have any questions or comments, please post them below.

 

To Post Or Not To Post…That Is The Question

Date
Posted by
Comments0
To Post Or Not To Post…That Is The Question

In today’s society, publishing our lives on social media has become the new norm. Thirty years ago, an individual’s life was private and family “drama” was kept in the family. However, in today’s fast paced world a person put everything, and I mean everything, on his or her social media page. I cannot tell you the number of times I have been scrolling through a social media page and think to myself, “why would someone put this out there for the whole world to see?” In fact, just the other day I saw a post where a mom was bragging that her son did a number two on his potty, and to make it worst there was an accompanying photograph.

We constantly warn our children not to put things on the internet because they will always be out there for the world to see; yet when we, as the adults, are posting things to social media we do not heed our own warnings. This can become a real issue, especially when the individual is involved in some sort of litigation or dispute.

My first warning to all of my clients when they retain my services is to stay away from all forms of social media. With the internet now being literally at our finger tips, few can pass up the urge to post that photo, message, or statement to their page. However, what you may not know is that attorneys, including myself, go straight to social media and look at the parties pages and posts to get potentially incriminating evidence, which can be used in court proceedings.

I always tell my clients the following: 1) That everything he or she has posted now has the potential of becoming evidence in the case and 2) That if he or she now removes the posts then he or she is destroying evidence, which is a punishable crime.

That’s when my client usually looks panicked because he or she remember that Spring Break photo that was posted a couple months ago, then I’m asked, “what do I do then if I cannot remove incriminating post and evidence?” And I respond, you cannot remove the post, but you can do the following: 1) unfriend or delete people from your page, 2) limit who can view your page or heighten your security,  3) just shut down your page until the litigation is over, and  4) limit and watch what you post going forward.

Here’s a little tip, if you are going through a divorce it may not be a good idea to “friend” your spouse, his or her family, or friends who have chosen sides.

My advise to my clients, potential clients, and everyone in general: be conscious about what you post on social media, this also goes for texts, emails, letters, and even carrier pigeons.

A good rule of thumb is if you’re going to post something on a social media site or send a message to someone that is relevant to litigation: first take a step back and consider what you are posting, typing or writing and then ask yourself “would I want my Pastor and Mother to see this?” and if the answer is no, then hit delete. Basically, use your Mother’s Rule, “If you can’t say anything nice, don’t say anything at all.”

Lie Ability

Date
Posted by
Comments0
Lie Ability

Recently I was driving through a small community when I came across a small Baptist Church whose sign read ” The Ability to Lie is a Liability”.

This is such a true statement. I cannot tell you the number of times I have been speaking to fellow attorneys and I have heard “My client told me … but when I check it out I discovered he/she had just blatantly lied to my face.” This seems to be something that plagues the legal field. However, I cannot stress enough how important it is to be COMPLETELY HONEST with your attorney.

I tell my clients to tell me the truth, that I may not like the truth, but if I know the possible fact that may rear its evil head, I can try to get ahead of it or at least prepare for it. When a fact that the client has failed to disclose, lied about or skirted around, is brought to light while the client is on the stand, it damages the client’s position in the matter and many times it makes the attorney look incompetent (although we cannot control our client’s actions).

If one of my client’s flat-out lies to me, that is grounds for immediate termination of representation. And if I catch my client “skirting around” or “shading” the truth, I give him/her a strict warning and if it happens again representation is immediately terminated.

Please remember, your attorney is on your side and attorney-client privilege exist, so tell your attorney the truth, the whole truth and nothing but the truth, so help you God. If you do, I can just about guarantee, your attorney can find a remedy or positive way to use the information you provided, no matter how bad you may think it is.

Welcome

Date
Posted by
Comments6
Welcome

This is the future home of the website for Law Office of Stella M. Hurtt, PLLC. I am very excited to add this to the many ways I interact and communicate with clients, potential clients, and the general public. Please be patient with me as this site is still in the development stage is is not running 100% yet. If you find something on this site that you like, please let me know in the comment sections available; if you find something on this site that you feel needs to be updated or changed, please let me know int the comment sections available.

As I stated earlier, my goal for this website is to provide another avenue to communicate with my clients, potential clients, and the general public, so please let me know of any topics you would like to have discussed or any ideas you have to make this site better and more user friendly. I do not purport to know every aspect of the law; however, if you have a question or concern I will be glad to provide you with the information I do have, to help you any way that I can, or to point you in the direction of someone that I believe will be able to help you.

I hope you enjoy this site, God bless and please let me know what you think.

Sincerely,

Stella Hurtt, Attorney at Law

Please note, this or any post, or the information provided on this website is not meant to be legal advice and you are strongly urged to consult an attorney for any legal advice. And any communication through this site is not intended nor does it create an attorney-client relationship.