Ronald Morton's Elder Law Blog

Summary of Intestate Probate

The following is a summary of many of the rules for probating an estate, reprinted from Chancery Judges Ed Patten's newsletter and Larry Primeaux's blog. 

Statutory order of preference for appointment of Administrator. § 91-7-63, MCA.

* Surviving spouse.

* Next of kin, if not otherwise disqualified.

* Other third party, bank or trust company.

* If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.

* If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed. § 91-7-79 and -83, MCA.

Oath and Bond.

* At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.

* At the same time the Administrator must also post a bond in the full value of the personal estate unless all heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir. § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

* Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.

* Administrator must file affidavit of known creditors and attest to having served actual notice on them.

* After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate.

The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.

* Administrator must file proof of the newspaper publication with the court.

* Publication may be waived by the court in small estates with a value not more than $500.

 Inventory and Appraisal.

* Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration. § 91-7-145, MCA.

Determination of Heirs.

* An action to determine heirs must be brought before the estate may be closed.

* Publication process to the unknown heirs of the decedent must be made.

* Determination of heirship requires 30 days’ process and should be to a day certain so that the unknown heirs may be called.

Interim Hearings.

* Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.

* A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.

* A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

* The attorney must file a certificate that there are no probated claims, or that the probated claims have been satisfied.

* Final account is filed with petition, unless excused by the court.

* All parties in interest are summoned to a hearing on the final account and petition to close. § 91-7-295, MCA.

* If approved, the court enters judgment for final distribution of any property in the Administrator’s care. § 91-7-297, MCA.

* Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees. § 91-7-299, MCA.

It's a Buyer's Market for Burial Spots

An article in today's USA Today points out how difficult it can be to re-sell a burial spot.  Many interviewed in the article purchased lots, only to change their plans years later, and have had no interest from the public in purchasing the spaces.  For seniors and their children, this suggests an opportunity.  Either purchase space from a private individual reselling their purchase, at a discount, or wait until the need arises and purchase a discounted lot on an at-need basis.  The down-side risk to waiting, of course, is that a space will not be available in your preferred location at your time of need.  But given the heavy inventory of spaces currently for sale, it is likely that grave spaces can be acquired at significant discounts below the retail prices offered by cemeteries for pre-planning, and certainly for "at-need" planning, which is generally significantly higher than the usual price for lots.  Places to check for cemetery lots are the newspaper classified ads, and online sources like Craigs List. 

Many people who want to plan their funerals for their own piece of mind and to remove that burden from their children mistakenly believe that they must purchase  such planning from a funeral home.  A better option is to do that planning inside of a funeral trust.  The funeral trust can be funded with funds not associated with the funeral home, so that family will be free to conduct services and bury their loved ones at the place that makes the most sense at the time of death, rather than what made sense at the time planning was first done.  Funeral trusts are completely portable and are unavailable as Medicaid resources.  Funeral lots for self and immediate family are likewise exempt from Medicaid. 

Medicaid Reductions on the Horizon

States are worrying that enhanced federal payments to help cover Medicaid expenses during the recession will soon end after the House opted not to include an extension of the funds in its recent jobs bill.  States are lobbying the Senate to put back a provision back into the jobs bill that provided funds for enhanced federal Medicaid payments that would last through the end of the year, CQ reports. "'States are still in fiscal peril,' Scott Pattison, executive director of National Association of State Budget Officers (NASBO), said during a conference call June 3. He said governors face a 'cliff' when the extra $87 billion provided for Medicaid in the 2009 stimulus package runs out Dec. 31." The governors association is asking for lawmakers to restore the enhanced funding — at a cost of $23 billion — through next June, after it was stripped out of a jobs bill last week. "Under the health care overhaul law, states can no longer increase premiums or otherwise change eligibility criteria for Medicaid. That means their options for cutting costs are limited to things like reducing provider reimbursements, increasing co-payments or dropping coverage for optical and dental services".  Meanwhile, news reports indicate that states also are bracing for the budgetary impact if Congress doesn't extend this federal Medicaid assistance. More

North Korea Finds Fountan of Youth

North Korea claims to have developed a "super drink" that, it says, can multiply brain cells and stop skin ageing.  The secretive state's official news agency, KCNA, says the drink contains 60 kinds of "microelements" extracted from more than 30 species of plants.  It attracted "much interest from Chinese, German and other businessmen" at a trade fair in Pyongyang last month, the agency reports.  It was developed by a joint venture fruit juice company.  KCNA says: "It, with effects of both preventive and curative treatment, helps improve mental and retentive faculties by multiplying brain cells.  "It also protects skin from wrinkles and black spots and prevents such geriatric diseases as cerebral haemorrhage, myocardium and brain infarction by removing acid effete matters in time.  "It, much higher than quality cosmetics in anti-oxidation capacity, is efficacious for different skin diseases, including allergic dermatitis. It also makes skin fair.  Of course, the nation also claims that its "Deal Leader" hit 18 holes in one the first time he tried the game of golf, and that he wrote an entire encyclopedia while attending college, so it should come as no surprise that such a great development as a youth elixer would be developed here.  More.

Medicaid Repeals Rate Reductions

The Mississippi Division of Medicaid has repealed its earlier reduction of reimbursement rates for nursing homes, pharmacists, and physicians.  Link  Medicaid now says it has enough money to get it through the rest of this fiscal year through administrative cuts.   

LA Times Reports on Mississippi Medicaid and Healthcare

An article in the LA Times reports:

Mississippi is one of eight states that cut its Medicaid rolls between 2004 and 2008, according to enrollment data analyzed for the Kaiser Commission on Medicaid and the Uninsured. In the same period, the number of Mississippi children living in poverty increased.

Enrollment in Medicaid has begun creeping back up more recently. But the governor has said Mississippi cannot afford to insure any more people, even with the extra help from Washington.

"This new law will ultimately force the state to raise taxes, as hundreds of thousands of new people will be added to our Medicaid rolls," Barbour said.

Mississippi will have to find about $429 million over the next decade, a nearly 5% increase in Medicaid spending, according to an estimate by the Urban Institute, a left-leaning Washington-based think tank. But the federal government has agreed to kick in an estimated $9.9 billion over the same period to help Mississippi, enough to allow the state to cut in half the number of poor adults without insurance.

Mississippi Medicaid Costs to Increase 4.8% as Result of Healthcare Reform

Although most of the coverage expansion under the Patient Protection and Affordability Act will come from adding to the Medicaid rolls, state governments will not have to spend much more on the program thanks to funding from the federal government, according to analysis from the Urban Institute for the Kaiser Commission on Medicaid and the Uninsured.  Mississippi will have the biggest increase in state spending, at 4.8%.  Link  Since the president promised that reform would not result in any tax increase for those making less than $250,000 per year, and very few in the state where the median income is $35,971earn that much, one wonders where all that money to pay for the state's increase will come from.

Medicaid to Pay for Home Care

With the passage of recent legislation, limited Medicaid funds will now be available to provide assistance for home care and assisted living care.  Link.  This is great news for both seniors, their children, and taxpayers.  While the program may, at first blush, appear to be simply another government welfare give-away, the fact is that many individuals are in nursing homes because their families have no other choice.  Nursing home care is extremely expensive and Medicaid covers those costs, which average over $5,000 per month, for those that cannot afford it.  For those who would be able to stay at home with a little help from others, such as sitters, or assistance provided at assisted living facilities, they could receive care at home or in an assisted living facility with far less cost than a nursing home.  This also will open up nursing home bed for those who are more seriously ill and are in most need of it.  This program, already in trial phases in several counties around the state, will improve the quality of life of those seniors who qualify, will give their children more options and peace of mind, and I believe will ultimately save the state money by shifting seniors from high cost nursing home beds to low cost at-home care.  

Those That Amend Their Own Wills Do So At their Peril

In a recent case decided by the Mississippi Court of Appeals, a Will in which the testator apparently changed her mind and made handwritten changes was held to be a partial revocation, but her handwritten additions to the Will were ignored. In the case of in The Matter of the Estate of Laura Foster Carpenter, Mississippi Court of Appeals, 2009 -SA - 00114 - COA., decided on May 18, 2010, the decedent, in 1999, drafted a Will that disinherited one of her four children. Sometime thereafter, she scratched out of the language that disinherited her at her daughter, instead scratching out the words "will not inherit", and the changing them to "will inherent." In additionally, in another section bequeathing certain real property, the previously disinherited child was handwritten in by the testator as receiving an equal share of the real property. Additionally, she also struck through several complete paragraphs of the Will. In the resulting will contest, the Chancellor ruled that the changes to the Will were sufficient to result in its entire revocation, resulting in the property being divided equally among the children under Mississippi's Intestacy laws. However, the Court of Appeals reversed that decision, holding instead that the Will was only partially revoked, with those paragraphs completely marked through being revoked, but the additions of the previously disinherited child were held to be of no consequence, since those changes were not witnessed and therefore did not serve to be a valid codicil to the Will.

This case illustrates the importance of following the technical requirements of a Will. People that try to cut corners by doing it themselves frequently wind up with a result that at least appears to be different than may ultimately  have been intended. If an individual's legacy is important enough to them to write down, it should be important enough to them to make sure that it is done correctly. In Wills there are no "do over's." It must be done correctly the first time or an individual risks their final wishes not been carried out. Worse, the resulting dispute between these siblings will no doubt have a damaging, and if not irreparable, harm to their relationship, with the previously disinherited, but subsequently reinherited child feeling bitterness toward her siblings as a result of a cruel and ancient legal application, the importance of which was unrecognized by her mother.

Mississippi Has Entered Into Healthcare Lawsuit

The Clarion Ledger reports that Gov. Haley Barbour on Friday joined the multi-state lawsuit challenging the constitutionality of the nation's new health care law.

"The health care law passed earlier this year is an unprecedented expansion of federal power," Barbour said in a statement.

"The Constitution does not give Congress or the federal government the authority to force every American to purchase health insurance."

Barbour's office said Florida, lead plaintiff in the case, reached agreement with its legal counsel to cap the cost of the litigation at $50,000.

Mississippi will split its share of that with the other states in the lawsuit.

Mississippi is one of 20 states in the lawsuit.

The AG, a Democrat, has taken the position that suit should not be filed because it is unlikely to succeed.  The question that I have is, how is it that the state's lawyer gets to choose what cases his client does and does not prosecute.  The AG is the lawyer for the state, but the Governor is the client.  Last time that I checked, lawyers don't get to choose not to prosecute cases on behalf of their clients just because they think the case may be unsuccessful, or because the suit is contrary to the lawyer's personal beliefs.  Certainly lawyers have the option of not representing a client if they so choose, by resigning as counsel.  Instead, we have the odd circumstance where a private lawyer is hired to do the job that another lawyer is already being paid to do.