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Conservatorships
and Guardianships
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I. INTRODUCTION When a person is not capable of caring for his needs, he or she must have someone to maintain his or her possessions. This includes land, or real property, and personal possessions such as money, bank accounts, furniture, cars, stocks, and bonds, which are known as personal property. A person who is an adult can have the Probate Court appoint someone to maintain his estate and care for his or her possessions. This is done by having the Probate Court appoint a Conservator. The conservator performs various tasks for the disabled person, including, but not limited to, opening and maintaining bank accounts and paying bills, maintaining property, running a business, and any other act that the disabled person would do if the disabled person were able to do so. If a person is a minor, then that person must have a GUARDIANSHIP opened. This can be a guardianship of the property of the minor, which would be analogous to a Conservatorship (mentioned above); or it can be a guardianship of the person, where a formal relationship is required between the caretaker and the disabled person, such as a child who lives with an aunt or uncle and must have a guardianship established before the aunt or uncle can enroll the minor in the local school; or it can be both. A person who is an adult can also in certain situations have a guardianship established. An estate must be opened in the Probate Court in order to give effect to a Conservatorship or Guardianship. This is accomplished by the filing of a petition with the Court. An Estate can then be opened. A Personal Representative is appointed- a Guardian or a Conservator.
Following the appointment of the personal representative, (Guardian or Conservator) the Court will direct the clerk of the Court to issue "Letters" which reflect this appointment and which will provide evidence to third parties of the authority to act on behalf of the estate of the disabled person. Call 901-757-5557 for a free appointment to discuss your situation. II. NOTICE TO CREDITORS A published or posted notice to creditors of the qualification of the personal representative will be processed by the Clerk of the Court. In addition, it is the duty of the personal representative to mail or deliver by other means a copy of the published or posted notice to all creditors of the ward of whom the representative has actual knowledge or who are reasonably ascertainable by the representative, at such creditors' last know addresses. Such notice shall not be required where a creditor has already filed a claim against the estate, has been paid or has issued a release of all claims against the estate. The representative
must file a separate affidavit or the petition to
close the estate must contain language stating that
the personal representative has complied with this
requirement at the time the Court is requested to
close the estate.
Within sixty days
after entering opening the administration of an
estate, the personal representative is required to
make a complete and accurate inventory of the
estate of the ward and file same with the Clerk of
the Court. The personal representative must verify
the inventory by oath before the Clerk, a notary
public or before any person authorized by law to
administer oaths.
Within fifteen months from the date of the qualification as the personal representative you are required to make an accounting with the Clerk of the Court. After the first accounting and until the estate is fully administered, the personal representative is required to make further accountings annually from the date of the first accounting. Such accountings shall state all receipts, disbursements and distributions of principal and income for the accounting period and the remaining assets held in the estate and shall be verified by oath before the Clerk, a notary public or before any person authorized by law to administer oaths. Detailed accountings
must include original checks or other commercial
paper showing all disbursements of the estates
funds and bills showing the debts incurred by the
estate.
The Guardian or Conservator is responsible for marshaling the assets (rounding up all of the property) and distributing the property and funds according to the directions of the Probate Court. The personal representative may not pay any funds without prior Probate Court approval or without a prior Probate Court Order allowing the funds to be disbursed in the desired manner. The personal representative should contact the attorney for the estate and have the attorney file a motion with the Probate Court to obtain approval before disbursing if there is no authorization for the disbursement. If there is not enough
money in the estate, there may be an insolvent
estate. This is a circumstance which should be
discussed with the attorney.
Similar procedures are utilized for Guardianships and Conservatorships. Please schedule an appointment to consult with the attorneys for more detailed information. Call 901-757-5557 for a free appointment to discuss your situation. |
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Phone: 901-757-5557
Cordova (Memphis), Tennessee
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