Fiduciary Duties

The following is a partial list of the many steps a fiduciary may need to take during the administration of an estate. The fiduciary will be actively pursuing many, if not most of these steps simultaneously. Any fiduciary in a probate role, including, guardians, conservators, executor(ix)s, and administrator(ix)s must fulfill these duties.

Generally speaking, the duties of a fiduciary are limited to the winding up of an estate of a decedent. In the absence of a statute otherwise providing the duties of a fiduciary are (1) to reduce to possession the personal assets of the testator; (2) to pay the testator’s debts; (3) to pay legacies; and (4) to distribute the surplus to the parties entitled thereto. Yeates v. Box, 22 So.2d 411 (Miss. 1945)

Statutorily, the duties and responsibilities of fiduciarys and administrators are generally set forth in Miss.Code Ann. § 91-7-1 et seq. (1972), but specifically see §91-7-47 which provides:

Every fiduciary or administrator with the will annexed, who has qualified, shall have the right to the possession of all the personal estate of the deceased, unless otherwise directed in the will; and he shall take all proper steps to acquire possession of any part thereof that may be withheld from him, and shall manage the same for the best interest of those concerned, consistently with the will, and according to law. He shall have the proper appraisements made, return true and complete inventories except as otherwise provided by law, shall collect all debts due the estate as speedily as may be, pay all debts that may be due from it which are properly probated and registered, so far as the means in his hands will allow, shall settle his accounts as often as the law may require, pay all the legacies and bequest as far as the estate may be sufficient, and shall well and truly execute the will if the law permit. He shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor.

Assets Defined. §91-7-91 provides:

The goods, chattels, personal estate, choses in action and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real, personal or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets and shall stand chargeable with all the just debts, funeral expenses of the deceased, and the expenses of settling the estate. The lands of the testator or intestate shall also stand chargeable for the debts and such expenses over and above what the personal estate may be sufficient to pay, and may be subjected thereto in the manner hereinafter directed.

Managing the Estate.

1. Set up the bookkeeping records.
2. Discuss with your attorney how monetary assets of the estate will be managed:
3. Establish an estate bank account at a bank located within the State of Mississippi; or
4. All estate funds will be deposited into your attorney’s trust account and will be managed by the attorney. [This procedure should only be utilized if the funds will be in the attorney’s trust account for short periods of time, inasmuch as Mississippi Supreme Court rules provide for confiscation of all interest earned on funds in an attorney’s trust account.]
5. Re-register stocks, bonds in the name of the estate. Arrange for collection of dividends and interest.
6. Inventory all items of property and contact your attorney regarding the necessity for an appraisal.
7. Examine all real estate in which the estate may have an interest, as to its condition, the adequacy of insurance, and the taxes and assessments.
8. Review all investments as to safety and quality; make necessary changes as prudence indicates.
9. Examine books and records of any business interest. Have necessary audits and appraisals made.
10. Discuss with your attorney the management/operation of any business venture in which the deceased was involved prior to death.
11. Talk to Post Master regarding obtaining a key to the deceased’s post office box or having mail delivered elsewhere. Review mail daily!

Collecting assets and information.

1. Locate safe deposit box and key.
2. Contact decedent’s insurance agent(s) regarding filing life insurance, hospitalization or other claims. Life insurance proceeds may or may not be an asset of the estate. Once you have gathered the appropriate information, discuss this with your attorney.
3. Obtain social security burial allowance, if applicable.
4. Check on veteran’s benefits, social security benefits, pension benefits.
5. Locate bank accounts and determine any survivorship interests which may exist in those accounts. Transfer all interest of the deceased in the accounts to estate account or your attorney’s trust account.
6. Collect all stocks and bonds.
7. Locate names and addresses of all heirs, legatees, devisees and next of kin.
8. If an inventory of the property of the deceased is not waived in the will, the inventory, verified by oath, must be filed within ninety (90) days of the grant of the letters of administration pursuant to §91-7-93. If there is more than one fiduciary, all must join in returning the inventory. §91-7-99. If and when additional property of any kind which was not contained in the original inventory shall come into the possession or knowledge of the fiduciary, an amended or supplemental inventory must be filed. §91-7-95.
9. Assemble deeds, abstracts, lease contracts, insurance policies for each parcel of real estate.
10. Investigate the status of any business interest owned.
11. Locate and inventory automobiles, furniture, jewelry and other possessions.

Determining debts and other claims against the estate.

1. Determine current bills owed, doctor, hospital, rent, utilities, etc. and arrange to pay.

• Check decedent’s mail daily.
• Review decedent’s checkbook to locate possible creditors.
• Be sure to talk to decedent’s bank to determine if any recurring debts were paid by draft from decedent’s checking or saving accounts.
• If possible, check decedent’s e-mail accounts to help locate possible creditors.

2. Check on decedent’s charge accounts – make arrangements for continuing services and for obtaining credit or discontinuing services.
3. Find out what long or immediate term debts exist – mortgage, life insurance loan, bank loan, automobile loan.
4. Your attorney will publish legal notice about claims against the estate in newspaper.
5. Obtain vouchers for every bill and claim paid. Keep books and records of all items.

Determining and assert applicable exemptions.

1. It is important that your attorney have an accurate and complete list of all property owned by the deceased at the time of his/her death.
2. Your attorney will review applicable law and the list of property owned by the deceased at the time of death and will file appropriate pleadings before the Court to establish any applicable exemptions
3. § 91-1-19, Miss Code 1972, as amended provides in part:

The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent’s share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner.”

• See Title 83, Chapter 3 of the Mississippi Code concerning exempt property, including, but not limited to:§ 85-3-1:

There shall be exempt from seizure under execution or attachment: (a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:

(i) Household goods, wearing apparel, books, animals or crops;

(ii) Motor vehicles;

(iii) Implements, professional books or tools of the trade;

(iv) Cash on hand;

(v) Professionally prescribed health aids;

(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.

Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawnmower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term “household goods.” This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.

(b)(i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.

(ii) Income from disability insurance.

(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state’s or that political subdivision’s income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), “pension or other retirement plan” includes:

(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;

(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and

(iii) An individual retirement account.

(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.

(e) Assets held in, or monies payable to the participant or beneficiary from, whether vested or not, (i) a pension, profit-sharing, stock bonus or similar plan or contract established to provide retirement benefits for the participant or beneficiary and qualified under Section 401(a), 403(a), or 403(b) of the Internal Revenue Code (or corresponding provisions of any successor law), including a retirement plan for self-employed individuals qualified under one of such enumerated sections, (ii) an eligible deferred compensation plan described in Section 457(b) of the Internal Revenue Code (or corresponding provisions of any successor law), or (iii) an individual retirement account or an individual retirement annuity within the meaning of Section 408 of the Internal Revenue Code (or corresponding provisions of any successor law), including a simplified employee pension plan.

(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.

(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).

(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.

(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.

(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.

(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.

(l) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.

1. § 85-3-21: Every citizen of this state, male or female, being a householder shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him, or her, but the quantity of land shall not exceed one hundred sixty (160) acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of Seventy-five Thousand Dollars ($75,000.00); provided, however, that in determining this value, existing encumbrances on such land and buildings, including taxes and all other liens, shall first be deducted from the actual value of such land and buildings. But husband or wife, widower or widow, over sixty (60) years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not residing therein.
2. and § 85-3-11, 13 and 15 concerning Life Insurance, and § 85-3-17 concerning judgments for personal injury.

Determining and paying all taxes.

1. As fiduciary, you are responsible for filing all federal, state and local income, estate or other tax returns or reports. You should discuss this matter with your attorney and make arrangements for the filing of same, if necessary.
2. Pay personal property or real estate taxes owed by the decedent prior to his/her death, if any.

Distributing the Estate.

1. Your attorney will assist you in reviewing the Will to determine who is entitled to share in the estate. This process will involve:
   1. Determining how assets will be distributed, which legatee and devisee is to get each item of property;
   2. Paying all final costs, expenses and probated/allowed claims.
   3. Arranging for transfer and re-register of securities.
   4. Preparation of any deeds, bills of sale or other documents evidencing the transfer of title to property to devisee’s, legatee’s or heirs.
2. You and your attorney will also prepare an accounting to the court and interested parties as to the distribution of the assets of the estate.
3. You will also obtain releases and acknowledgments of receipt from all beneficiaries to be filed with Court.