A few weeks ago, Mississippi Chancery Judge Larry Primeaux published a cautionary blog post about the recent increase in judicial oversight of the Mississippi probate process. According to Judge Primeaux, “chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.”
As Judge Primeaux notes, the Mississippi Chancery Courts (equivalent of probate courts in other states) are the last line of defense to protect the parties who stand to lose if an estate is mishandled. In this model:
- The personal representative (executor or administrator) of the estate is responsible to do the right thing;
- The probate attorney is responsible to advise the personal representative about how to do the right thing (and what not to do); and
- The court is responsible to be sure that the right thing gets done.
So what happens when the system fails?
Sometimes not much. Many inadvertent mistakes can be corrected with a little time and effort. But when intentional wrongdoing occurs, the results often can’t be undone. In that case, the parties with an interest in the estate – the beneficiaries, heirs, and creditors – can be left left with little hope of recovery.
I recently closed an estate that had been opened by one of the attorneys mentioned in Judge Primeaux’s post. Thankfully, no funds were missing. But the estate had been mishandled from day one. Clear statutory requirements were simply ignored. There’s a good chance that the assigned chancellor would have caught these mistakes before the estate was closed. I caught them first and was able to clean things up and settle the estate.
But where does the blame belong when no one catches the problems with the estate? I’m glad to hear that the judiciary is tightening up fiduciary oversight, but can we expect our judges to catch every mishandled estate? Can we expect clients to always do the right thing, especially when many of them don’t really understand their fiduciary responsibilities? Or can we expect attorneys to always police the actions of their clients?
Perhaps the blame lies not with the various actors but with the system itself. No legal system is perfect, but that doesn’t mean that improvement is impossible. Sometimes a naïve question or two can advance the status quo. Here are a few humble suggestions that I think would improve the current Mississippi probate system.
Require Basic Client Education
Attorneys should be required to provide their clients with a basic, written overview of the Mississippi probate process and their fiduciary responsibilities. The client should also have the opportunity to ask any questions up-front. This initial review need not be a long, drawn out discussion or even a face-to-face meeting. But the client should have baseline expectations for how the probate process progresses and should know the dos and don’ts of Mississippi probate and estate administration.
Once the client and attorney have discussed the written overview, they should each sign a statement that the required material (which should be uniform across the state) has been reviewed and understood. This statement should be filed with the court. This lets the judge know that the client has been informed of the basics.
In my experience, most clients want to do the right thing but are often confused about their role. This requirement would clear up most of this confusion. There will always be bad actors – clients who simply disregard the rules. A basic education requirement would help ensure that the client was at least aware of his or her responsibilities.
Use Action-Specific Checklists
Many of the motions that are filed in a Mississippi estate administration are routine. The legal requirements are clear. The attorney follows the rules, the judge approves the motion. Simple as that, right?
Well, unfortunately quite a bit slips through the cracks. For example, I recently took over a case where the original will had not been submitted to the court. The client had the original will, but the attorney had not advised the client of the need to present it to the court. The judge had admitted the will to probate without having the will or any explanation for its absence.
Oversights like this may be less common if the attorney was required to submit a checklist along with the petitions he submits to a judge. If, for example, the attorney who opened the estate in the above example had to fill out a checklist certifying to the judge that the original will was attached, chances are that the attorney or the judge would have caught the mistake.
I use checklists internally to help keep me on track. If, for example, I want to ask the judge to approve a sale of real estate, I know that the court will want to know whether any creditor claims were filed, whether the sale of real estate is necessary to pay debts of the estate, and whether all parties in interest have been notified and/or have consented to the sale. Keeping a checklist of these items helps me be sure that I give the judge what he or she needs to approve my petition. There’s no reason for the judge not to have the benefit of these checklists as well.
There are some situations where a checklist would do no good. Not all estates fit into a nice pattern. But most estate matters that come before judges are routine. Simple checklists associated with the most common matters would help judges and attorneys to be sure that everything is in order before the judge considers a motion.