2005 Regular Session
To: Judiciary A
By: Representative Gunn
AN ACT TO PROVIDE FOR NOTICE AND REPRESENTATION RULES REGARDING ADMINISTRATIVE OR JUDICIAL PROCEEDINGS INVOLVING ESTATES OF DECEDENTS OR TRUSTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. In the administration of or in judicial proceedings involving estates of decedents or trusts under Title 91 of the Mississippi Code of 1972, the following apply:
(a) Persons are bound by orders binding others in the following cases:
(i) Orders binding the sole holder or all coholders of a power of revocation or a general, special, or limited power of appointment, including one (1) in the form of a power of amendment or revocation to the extent that the power has not become unexercisable in fact, bind all persons to the extent that their interests, as persons who may take by virtue of the exercise or nonexercise of the power, are subject to the power.
(ii) To the extent there is no conflict of interest between them or among the persons represented:
1. Orders binding a guardian of the property bind the ward.
2. Orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will, in establishing or adding to a trust, in reviewing the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties. However, for purposes of this section, a conflict of interest shall be deemed to exist when each trustee of a trust that is a beneficiary of the estate is also a personal representative of the estate.
3. Orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate, in actions or proceedings by or against the estate.
(iii) An unborn or unascertained person, or a minor or any other person under a legal disability, who is not otherwise represented is bound by an order to the extent that person's interest is represented by another party having the same or greater quality of interest in the proceeding.
(b) Orders binding a guardian of the person shall not bind the ward.
(c) In proceedings involving the administration of estates or trusts, notice is required as follows:
(i) Notice as prescribed by law shall be given to every interested person, or to one who can bind the interested person as described in paragraph (a)(i) or paragraph (a)(ii). Notice may be given both to the interested person and to another who can bind him or her.
(ii) Notice is given to unborn or unascertained persons who are not represented pursuant to paragraph (a)(i) or paragraph (a)(ii) by giving notice to all known persons whose interests in the proceedings are the same as, or of a greater quality than, those of the unborn or unascertained persons.
(d) If the court determines that representation of the interest would otherwise be inadequate, the court may, at any time, appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unascertained person, a minor or any other person otherwise under a legal disability, or a person whose identity or address is unknown. If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests.
(e) When a sole holder or coholder of a general, special, or limited power of appointment, including an exercisable power of amendment or revocation over property in an estate or trust, is bound by:
(i) Agreements, waivers, consents or approvals; or
(ii) Accounts, trust accountings, or other written reports that adequately disclose matters set forth therein,
then all persons who may take by virtue of, and whose interests are subject to, the exercise or nonexercise of the power are also bound, but only to the extent of their interests which could otherwise be affected by the exercise or nonexercise of the power.
SECTION 2. This act shall take effect and be in force from and after July 1, 2005.