Archive for the ‘Executors’ Category

Mississippi Supreme Court Update – June 16, 2011

Monday, June 20th, 2011

In the Matter of the Estate of Anthony Walter Smith: W.E. Davis, Administrator v. Raymond Smith, No. 2009-CA-01838-SCT

In a Desoto County estate matter, the Supreme Court ruled that the estate was not entitled to prejudgment interest for the beneficiary’s share of estate taxes due where there existed a legitimate disagreement or dispute among the parties’ regarding each one’s tax liability and where the Estate had previously over estimated the amount due from the beneficiaries and where no bad faith was shown and the damages were unliquidated.

The Supreme Court also upheld a judgment against the estate for 24-months back rent where the administrator locked the beneficiary out of two farm buildings in which he owned a life estate for two years following a judgment reforming of title in which the Court determined the beneficiary had a life estate in the property.

The administrator’s obligation to protect the estate property expired when it was determined that the beneficiary had a life estate in the property. The administrator then had a new obligation to relinquish the property to the beneficiary.

Dooley et al. v. Byrd and Independent Roofing Systems, Inc., No. 2009-CA-01830

A Rankin County Circuit Court wrongful death case brought by beneficiaries of Jonathan Wayne Dooley, a two-year-old child who died when the vehicle his mother was driving  struck the rear end of a flatbed trailer that was hanging out of a driveway onto Highway 468. The jury’s verdict was for the defendants. Family conflict existed between the heirs and several heirs were represented at trial by separate attorneys.

The Supreme Court held that all wrongful-death claims must be litigated in one suit and upheld the trial court’s granting of a beneficiary’s joinder motion, stating that Miss. Code Ann. 11-7-13 also mandated that outcome.

Each wrongful-death beneficiary has a right to participate fully in all aspect of a trial. Joining Plaintiff had a right to question all witnesses (trial court had limited questioning to the first Plaintiff to file). Trial court committed reversible error in denying joining Plaintiff’s right to question all the witnesses.

Court also gave a lengthy analysis of jury instructions with regard to warning devices for trucks and buses as contemplated by Section 63-7-71 after upholding the trial court’s denial of Plaintiff’s jury instruction that misstated the law.

The Court did find error in granting jury instructions that removed fact issues from the jury’s consideration.

Rebuild America, Inc. v. Tim A. Norris, No. 2009-CT-01191-SCT

A Hinds County Chancery Court case setting aside a tax sale for failure to effect personal service pursuant to Section 27-43-3, which requires notice of the tax sale in three forms, personal service by summons, mail at his usual address, and by publication in a newspaper in county which land is located. All three requirements must be met. Under some circumstances where the clerk and sheriff have complied with their duties the tax sale may be confirmed even though the owner never received actual notice of the tax sale, however the sheriff has not complied with his duties in this case when he did not effect personal service despite knowing the owner’s home address.

Tags: , , , , , , , , , , , , , , , ,
Posted in Car Wrecks, Estate Tax, Executors, Intestate Estates, Probate, Rules of Civil Procedure, Supreme Court Updates | No Comments »

Executors: Fiduciary Duty and Conflict of Interest

Friday, May 7th, 2010

Executors owe a fiduciary duty to the estate they are administering. The Mississippi Supreme Court defines the obligations and duties of an executor to (1) 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.  See Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945).

Mississippi law clearly provides that when an executor violates his or her fiduciary duty to the estate, that executor should be removed. Likewise, where an executor has a conflict of interest with the estate, that executor should resign be removed.

“An executor may not take inconsistent positions which would be detrimental to the heirs on the one hand and beneficial to himself on the other. When an executor finds his own interest in conflict with those of the estate, the sanctity of the fiduciary relationship is invaded and he should immediately resign as executor.” See In the Matter of Chambers, 458 So.2d 691 (Miss. 1984), citing Ratliff v. Ratliff, 395 So.2d 956 (Miss. 1981).

Tags: , , ,
Posted in Executors, Probate | No Comments »

Notice to Creditors

Tuesday, September 15th, 2009

One important function of probate is the Notice to Creditors. A Notice to Creditors performs the function implied by its title: It notifies creditors of the decedent that an estate has been opened in a given Chancery or Probate court and that all creditors have 90 days from the first publication of the Notice to Creditors in which to file any claim against the estate. Pursuant to Section 91-7-151 of the Mississippi Code Ann., any claim not registered within 90 days from first publication is barred, and no suit can be maintained as to that claim. However, existing liens on a property owned by the decedent can still be enforced even if the lien-creditor failed to present the claim. See Section 91-7-167 Mississippi Code Ann.

Tags: ,
Posted in Executors, Probate | No Comments »

What do Executors do?

Tuesday, August 25th, 2009

So you’re an executor. Now what?

Perhaps the most important part of any Will is the naming of the executor, also sometimes referred to as the executrix (female) or the personal representative. Executor may sound like a scary word, but there’s really nothing scary about it.

Mississippi Code Annotated Section 91-7-47 requires the executor to take possession of the decedent’s estate, and manage it “for the best interest of all concerned,” consistent with the Will and the law.

In general, an executor’s duties are as follows (be sure to consult a Mississippi probate attorney when administering an estate in Mississippi):

1. Locate the original Will.
2. Hire  an attorney to probate the Will.
3. The probate attorney opens the estate and the Court gives the executor Letters Testamentary.
4. Use the Letters Testamentary to locate the assets of the decedent. The Letters Testamentary is the document which shows holders of the decedent’s assets, such as banks, that you are the executor and have the authority from the Court to administer the decedent’s estate.
5. Obtain an inventory and appraisal of the estate if the Will did not waive these requirements. Many Wills do waive this requirement. Check with your probate attorney. Even when the requirement is waived it’s necessary to have a fairly good handle on the value of the estate.
6. Open an estate account. In order to do that the executor will need a Federal Tax ID number. These are easily obtained by your probate attorney or an accountant.
7. Notify creditors and pay any debts of the estate. Once known creditors are paid, the probate attorney notifies the Court through an affidavit. Then a Notice to Creditors is published in the local paper notifying unknown creditors that they ninety (90) days to file a claim or their claim with be time barred.
8. File tax returns and pay all outstanding taxes. Consult your probate attorney or tax advisor regarding paying any taxes owed by the decedent or his estate.
9. Distribute the assets of the estate to the beneficiaries and close the estate. Once the debts and taxes have been paid, the executor should distribute the assets of the estate to the beneficiaries as instructed by the Will. In some cases, a final accounting will be necessary. Upon distribution the probate attorney will seek to close the estate and release the executor from his or her duties.

Tags: , ,
Posted in Executors | No Comments »

Good Bookkeeping Essential for Executors and Personal Representatives

Tuesday, August 18th, 2009

While it is a common practice in the drafting of wills for the testator to waive accounting and inventory in the probate of the estate, that does not mean the other beneficiaries lose the right to object to the mismanagement of the Estate. In Estate of Thomas: Thomas v. Thoms et al., No. 2008-CA-00462-COA, the will contained a similar waiver of accounting. However, when the executor filed his Petition to Close Estate and Discharge Executor, his siblings objected, alleging maladministration of the Estate. The Court ordered the Executor to file an inventory and accounting. Following a trial on the matter and a lengthy review of the accounting  the Court surcharged the Executor $267,477.41, representing the amount of expenditures for which the chancellor could not determine the purpose of the expense. In its findings, the Court gave a detailed account for those expenses listed in the accounting for which the Executor had established a legitimate estate purpose. However, there were other expenses for which the Executor’s records did not contain a purpose for the expense:

The Court will not make further assumptions about the purpose of the remaining checks written on the Estate’s checking account given the complete incomprehensibility of the so-called accounting and the amount of time and the number of opportunities  had to prepare an accounting.

The Chancery Court further stated:

The Court has painstakingly gone through the so-called accounting filed by the Executor and the copies of the more than 1,200 checks written by the Executor on the Estate’s checking account, most of which contain nothing whatsoever on the “memo line.” The Court is asked by [John] to approve his so-called accounting, but to do so would be to approve the unknown; what was the money spent for and where did it come from. The Court cannot approve such an accounting.

The Court of Appeals of Mississippi upheld the chancellor’s decision. Executors and probate attorneys should take note. Even in seemingly simple probates, it is important to keep detailed records regarding expenses. Use that memo line!

Tags: , , ,
Posted in Executors | No Comments »