It is enacted by the General Assembly as follows:
SECTION 1. WHEREAS, The General Assembly finds that due to the aging of Rhode Island's population and other societal demands, increased demands have been placed on the probate courts of each city and town. Accordingly, in order to provide further guidance to the statutorily created courts to assist them in the prompt and efficient administration of decedent's and guardianship estates, the General Assembly has enacted the following revisions to sections of the Rhode Island General Laws dealing with probate jurisdiction, practice and appeals. These revisions will be known collectively as the Probate Uniformity Act of 1996.
SECTION 2. Section 8-2-13 of the General Laws in Chapter 8-2 entitled "Superior Court" is hereby amended to read as follows:
8-2-13. Exclusive jurisdiction of equity actions. -- The superior court shall, except as otherwise provided by law, have exclusive original jurisdiction of suits and proceedings of an equitable character and of statutory proceedings following the course of equity {ADD ; provided, however, that every probate court shall have the power, concurrent with the superior court, to replace, remove or fill any vacancy of any trustee under a trust established under a will, or to effect tax minimization or estate planning under section 33-15-37.1 ADD} . If an action is brought in the superior court which represents an attempt in good faith to invoke the jurisdiction conferred by this section, the superior court shall have jurisdiction of all other actions arising out of the same transaction or occurrence, provided such other actions are joined with the action so brought or are subsequently made a part thereof under applicable procedural rules, and the court may retain jurisdiction over such other actions even though the initial action fails for want of equity jurisdiction.
SECTION 3. Sections 8-9-7 and 8-9-9 of the General Laws in Chapter 8-9 entitled "Probate Courts" are hereby amended to read as follows:
8-9-7. Duties of probate clerk. -- The probate clerk shall attend the meetings of the probate court and shall record its proceedings and also all wills, administrations, inventories, accounts, decrees, orders, determinations, and other writings, which shall be made, granted, or decreed upon by the probate court of such town or city, and shall have the custody and safekeeping of the seal of said court and of all the books and papers belonging to the probate office, {ADD and of any stenographic or electronic recording of any probate court proceedings made by the probate clerk, ADD} and shall not act as attorney before the court of which he is clerk. {ADD Provided, that the probate clerk shall be required to retain stenographic and electronic recordings of any probate court proceedings only for one (1) year from the date of the hearing. ADD}
8-9-9. General probate jurisdiction. -- Every probate
court shall have jurisdiction, in the town or city in which it is
established, of the probate of wills; the granting of
administration, the appointment of custodians, of administrators,
of guardians of persons and estates, or of persons only or of
estates only, and of conservators; the accepting and allowing of
bonds, inventories, and accounts of executors, administrators,
and guardians; the granting of leave to sell at public or private
sale, or to mortgage property, as hereinafter provided; of the
making of partition of the real estate of deceased persons; of
the adoption of persons eighteen (18) years of age or older; of
change of names of persons; of assigning dower to widows;
{ADD of the removal or filling of a vacancy of a trustee of any
trust established under a will, or the termination of such
trust; ADD} of setting off and allowing real estate and personal
property to widows and surviving husbands; and of all other
matters now within the jurisdiction of probate courts. Such court
shall have power to accept the resignation of, or to remove, any
custodian, executor, administrator, or guardian, or any other
person appointed by such court, and also power to do and transact
all matters and things incidental to the jurisdiction and powers
vested in probate courts by law. {ADD Every probate court shall have
the power to follow the course of equity insofar as necessary to
fulfill the mandates of title 33 of the Rhode Island General
Laws, specifically: the replacement, removal or filling of any
vacancy of any trustee under a trust established under a will; or
tax minimization or estate planning under section 33-15-37.1. ADD}
The jurisdiction assumed in any case by the court, so far as it
depends on the place of residence of a person, shall not be
contested in any suit or proceedings except in the original case
or on appeal therein or when the want of jurisdiction appears on
the record.
SECTION 4. Section 33-9-1 of the General Laws in Chapter 33-9 entitled "Collection and Management of Decedents' Estates" is hereby amended to read as follows:
33-9-1. Return of inventory of estate. -- Every
administrator and every executor, unless he or she has given
bond to pay the funeral charges, debts, and legacies of the
testator, shall, within ninety (90) days after his or her
appointment or such longer period as may be allowed by the
probate court, return to the probate court, under oath, a true
inventory of all the goods, chattels, rights, and credits of
the deceased which have come to the knowledge of the
administrator or executor, {ADD personal property, both tangible
and intangible, and of all claims, rights, causes of actions and
other assets, other than real property, of the deceased, ADD} with
an appraisement thereof . {ADD as of the date of the decedent's
death. ADD}
SECTION 5. Sections 33-11-4, 33-11-16, 33-11-17, 33-11-18, 33-11-23, 33-11-24, 33-11-25, 33-11-28, 33-11-29, 33-11-31, 33-11-32, 33-11-33, 33-11-34, 33-11-35, 33-11-36, 33-11-37, 33-11-38, 33-11-39, 33-11-40, 33-11-41, 33-11-42, 33-11-43, 33-11-44, 33-11-45, 33-11-46, and 33-11-48 of the General Laws in Chapter 33-11 entitled "Claims Against Decedents' Estates" are hereby amended to read as follows:
33-11-4. Manner of filing claims -- Copy to executor or administrator. -- All persons having claims, including pending suits, preferred claims, and claims of the executor or administrator, against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court {ADD in such form which adequately sets forth the nature and approximate amount (if known) of the claim, and the name and address of the claimant and of his or her attorney, if any. ADD} Each statement of claims, other than that filed by an executor or administrator, shall contain an affidavit that a copy of the statement was transmitted by hand delivery, or forwarded to the executor or administrator, or his or her attorney of record by registered or certified mail, return receipt requested.
33-11-16. Appointment of commissioners to hear
disallowed claims against solvent estate. -- {ADD Appointment of
commissioner to hear disallowed claims against solvent estate.
-- ADD} If the estate is solvent, the executor{ADD , ADD} or
administrator{ADD , or creditor filing the claim ADD} may, within ten
(10) days after disallowance of a claim, file a request that
{ADD any ADD} claims {ADD claim ADD} disallowed be proved before {ADD the ADD}
commissioners {ADD commissioner ADD} . The court may thereupon
appoint one or three (3) {ADD a ADD} commissioners
{ADD commissioner ADD} , who shall examine and determine the claims. All
claims disallowed shall be heard and decided by the
commissioners {ADD commissioner ADD} , and no suit shall be brought
upon any claim . {ADD , until said hearing and report shall be
made to said court. ADD}
33-11-17. Hearings and report by commissioners.
-- {ADD Hearings and report by commissioner. -- ADD} The
commissioners {ADD commissioner ADD} shall give notice to creditors
whose claims are referred to them , of the time when and place
where their claims will be examined, as the court may direct.
They {ADD The commissioner ADD} shall report to the court within
thirty (30) days after the expiration of the time limited for
proving claims, unless further time for cause shown shall be
allowed by the court.
33-11-18. Insolvency of estate determined after
appointment of commissioners. -- {ADD Insolvency of estate
determined after appointment of commissioner. -- ADD} If {ADD a ADD}
commissioners {ADD commissioner ADD} are {ADD is ADD} appointed for a
solvent estate, and it shall later appear, before their > {ADD his
or her ADD} report is confirmed, that the estate is probably
insolvent, the probate court shall, upon application filed
therefor by the executor or administrator, vacate the appointment
and acts of the commissioners {ADD commissioner ADD} ; but the
commissioners {ADD commissioner ADD} shall receive from the estate
a suitable compensation, to be fixed by the probate court.
33-11-23. Disallowed claims against insolvent estates
to be heard by commissioners. -- {ADD Disallowed claims against
insolvent estates to be heard by commissioner. -- ADD} All claims
against an insolvent estate which are disallowed shall be heard
and decided by the commissioners {ADD commissioner ADD} .
33-11-24. Appointment of commissioners on insolvent
estates. -- {ADD Appointment of commissioner on insolvent estates.
-- ADD} An executor or administrator at any time during
administration may represent the insolvent estate to the probate
court, and apply for the appointment of {ADD a ADD} commissioners
{ADD commissioner ADD} to examine and determine claims. If the probate
court finds the estate is probably insolvent, and there are
claims which have been disallowed, it shall appoint one {ADD (1) ADD}
or three (3) commissioners {ADD commissioner ADD} .
33-11-25. Qualification of commissioners --
Substitutes. -- {ADD Qualification of commissioner--Substitutes.
-- ADD} The probate clerk shall forthwith notify the
commissioners {ADD commissioner ADD} of their {ADD his or her ADD}
appointment. Each commissioner shall within ten (10) days after
notice be engaged to the faithful discharge of his or her duties,
and file with the probate clerk a certificate of his or her
engagement, signed by the officer before whom he or she was
engaged. If it does not appear at the expiration of such time
that he or she has been so engaged, he or she shall be deemed to
have declined the appointment and another commissioner shall be
appointed in his or her stead.
33-11-28. Notice of commissioners' meetings.
-- {ADD Notice of commissioner meetings. -- ADD} Commissioner s on
insolvent estates shall appoint convenient times and places for
their meetings to hear and determine claims, and shall advertise
notice of the meetings in one or more newspapers published in
this state, as ordered by the court, at least once each week for
two (2) successive weeks before the first meeting. They shall, by
mail or otherwise, give to all creditors whose claims are
disallowed at least seven (7) days written notice of the times
and places of the meetings.
33-11-29. Statements of contested claims against
insolvent estate. -- At least fourteen (14) days before the
first meeting of the commissioners {ADD commissioner ADD} on an
insolvent estate, the executor or administrator shall file in the
office of the probate clerk a statement disallowing claims, not
previously disallowed, as he or she intends to contest, and he or
she shall from time to time, and as soon as may be, file a like
statement with respect to any claim thereafter filed which he or
she intends to contest.
33-11-31. Power of commissioners over witnesses.
-- {ADD Power of commissioner over witnesses. -- ADD} The
commissioner s may compel the attendance of witnesses and
administer oaths in the same manner as courts of record.
33-11-32. Secured claims against insolvent estates. --
If a creditor, having a security for his or her claim against an
insolvent estate upon any property of the estate, shall file his
or her claim, the commissioners {ADD commissioner ADD} shall
inquire into the cash value of the security, and report the value
to the probate court; and if the commissioners
{ADD commissioner ADD} allow{ADD s ADD} the claim, the executor or
administrator shall give the creditor personal notice of the
amount allowed and the value of the security as reported by the
commissioners {ADD commissioner ADD} ; and unless the creditor
shall, within fifteen (15) days after receiving notice, lodge
with the court a certificate of his or her election to relinquish
the security, he or she shall be entitled to a dividend from the
estate upon the excess only of his or her claim above the amount
of the commissioners' {ADD commissioner's ADD} valuation of the
security.
33-11-33. Interest on claims against solvent estate. --
In solvent estate cases the commissioners {ADD commissioner ADD}
shall allow interest to the expiration of the commission on
claims carrying interest, and on claims not carrying interest to
the same time from the death of the testator or intestate; upon
claims not due and not bearing interest they shall discount the
sum as will reduce them to their present value.
33-11-34. Interest on claims against insolvent estate.
-- In insolvent estate cases, the commissioners
{ADD commissioner ADD} shall allow interest to the death of the
testator or intestate on claims drawing interest, and on claims
not due at the death of the testator or intestate they shall
ascertain their value as of the date of the death of the
decedent.
33-11-35. Offset of mutual claims. -- When there are
mutual claims between the estate of the deceased and the person
claiming as a creditor, which are subject to offset, the
commissioners {ADD commissioner ADD} , after reducing the claim of
the creditor to its present value, if there is a balance in his
or her favor, shall consider any mutual claims and allow the
creditor only the balance justly due.
33-11-36. Time allowed for proof before
commissioners. -- {ADD Time allowed for proof before commissioner.
-- ADD} Claims shall be proved before the commissioners
{ADD commissioner ADD} within three (3) months from the date of
their {ADD his or her ADD} appointment, or within any extended
time, not exceeding six (6) months from the appointment date, as
the court for cause shown by claimants or commissioners
{ADD commissioner ADD} may allow; provided, that if an estate be
represented insolvent within six (6) months of the first
publication of notice, at least six (6) months from the
publication shall be allowed for proving claims.
33-11-37. Notice of disallowance by commissioners.
-- {ADD Notice of disallowance by commissioner. -- ADD} If a claim
against a solvent or insolvent estate shall be disallowed in
whole or in part by the commissioners {ADD commissioner ADD} , the
probate clerk shall mail a written notice thereof to the claimant
or to his or her attorney within seven (7) days after the filing
of the commissioners' {ADD commissioner's ADD} report.
33-11-38. Report of commissioners. -- {ADD Report of
commissioner. -- ADD} Within thirty (30) days from the expiration of
the time limited for proving claims, or within further time as
the court may allow, the commissioner s, or a majority of
them, shall report to the probate court a list of the claims
allowed, the order of their payment as provided in section
33-12-11, and a list of the claims disallowed.
33-11-39. Notice of hearing on commissioners' report.
-- {ADD Notice of hearing on commissioner's report. -- ADD} Upon
coming in of the report, the court shall appoint a time for
hearing on the report. The executor or administrator shall give
notice of the hearing by advertisement as the court shall direct,
and also by mailing a notice to each person who has filed a claim
and whose post office address is filed with the court.
33-11-40. Court hearing and action on commissioners'
report. -- {ADD Court hearing and action on commissioner's report.
-- ADD} The court at the time appointed for the hearing shall hear
the parties, examine the report, and confirm the same, or may
recommit the report for errors, or for any misconduct of the
commissioners {ADD commissioner ADD} . The commissioners
{ADD commissioner ADD} may by leave of court correct any errors in the
report. No claim shall be diminished without notice to the
creditor or his or her attorney, nor increased without notice to
the executor or administrator. Any claim not heard by the
commissioners {ADD commissioner ADD} through accident, mistake or
unforeseen cause, may be heard by the court. Claims heard and
allowed by the probate court, and claims not disallowed by the
executor or administrator, or not objected to as provided in
section 33-11-14, shall be added to or inserted in the report.
But, no change shall be made in the report after confirmation,
except on appeal.
33-11-41. Compensation of commissioners. --
{ADD Compensation of commissioner. -- ADD} Upon receiving the report of
the commissioners, {ADD commissioner, ADD} the court shall allow
them > out of the estate a suitable compensation for their
{ADD his or her ADD} services.
33-11-42. Appeals to superior court from confirmation
of commissioners' report. -- {ADD Appeals to superior court from
confirmation of commissioner's report. -- ADD} Any person whose
claim is not allowed in full by the commissioners
{ADD commissioner ADD} on either a solvent or insolvent estate may
appeal to the superior court from the decree of the probate court
confirming the report of the commissioners {ADD commissioner, ADD}
{ADD pursuant to the provisions of section 33-23-1 et seq. ADD} ; and in
like manner an executor, administrator, creditor or other party
interested may appeal with respect to any claim allowed.
33-11-43. Superior court judgment -- Costs. -- The
judgment of the superior court, on appeal, shall ascertain the
claims and amounts to be added to, or deducted from, the claims
as reported by the commissioners {ADD commissioner ADD} {ADD , pursuant
to the provisions of section 33-23-1 et seq ADD} . The costs of the
appeal shall be awarded by the court against either party, or be
divided between them, as justice may require, and execution
therefor shall issue accordingly.
33-11-44. Claims based on action commenced against
decedent before death. -- Any action or suit brought against a
decedent in his or her lifetime, which survives, and in which the
executor or administrator shall be notified to take upon himself
or herself the defense as provided in section 33-18-8, and any
action or suit, upon any cause of action originating in the
lifetime of the decedent and which survives, brought against the
executor or administrator before the estate has been represented
insolvent, shall not abate, but may be prosecuted to final
judgment against the estate. All such claims shall be filed in
the office of the probate clerk as provided in sections 33-11-4
and 33-11-5, but need not be proved before the commissioners
{ADD commissioner ADD} . Execution upon the judgment in the case shall
be stayed. If the estate is, or shall be represented insolvent,
the amount of the judgment shall be included in or added to the
commissioners' {ADD commissioner's ADD} report as a claim against
the estate, subject to the provisions of section 33-11-32, but
shall not be subject to appeal; and if the estate is solvent,
execution may issue at any time after claims of the same class
are payable.
33-11-45. Claim barred by failure to prove. -- If any
creditor whose claim has been disallowed or objected to shall not
prove his or her claim before the commissioners
{ADD commissioner ADD} within the time originally fixed or thereafter
extended as provided in this chapter, he or she shall, unless
otherwise provided by law, be forever barred of his or her action
therefor against the executor or administrator.
33-11-46. Proof of claim paid before appointment of
commissioners. -- {ADD Proof of claim paid before appointment of
commissioner. -- ADD} In case of an insolvent estate, if the
executor or administrator shall have paid any just claim due to a
creditor in full or in part before the appointment of {ADD a ADD}
commissioners {ADD commissioner ADD} , he or she may prove the claim
before the commissioners {ADD commissioner ADD} .
33-11-48. Action on disallowed claim. -- Suit on claims
disallowed prior to the expiration of six (6) months from first
publication may be brought no later than thirty (30) days after
the expiration of six (6) months from first publication, and suit
on claims disallowed after the expiration of six (6) months from
first publication may be brought within thirty (30) days after
notice is given to the claimant that the claim is disallowed,
unless the estate has been represented as insolvent or request
that the claim before {ADD the ADD} commissioners {ADD commissioner ADD}
has been duly filed; and, unless otherwise authorized, suit on
the claim shall not be brought thereafter against the executor or
administrator. If, subsequent to the expiration of the period in
which suit may be brought, the executor or administrator shall
represent the estate as insolvent, a disallowed claim, on which
suit is barred by the foregoing provision of this section, shall
not be provable before {ADD the ADD} commissioners {ADD commissioner ADD}
thereafter appointed to examine and determine claims.
SECTION 6. Chapter 33-11 of the General Laws entitled "Claims Against Decedents' Estates" is hereby amended by adding thereto the following section:
33-11-5.1. Duty to notify known or reasonably ascertainable creditors. -- {ADD (a) If the identity of a creditor of an estate is known or reasonably ascertainable by an executor or administrator, such executor or administrator shall, within a reasonable period of time after qualification, take such steps as are necessary to ensure that such creditor receives or has received actual notice of the commencement of the estate. ADD}
{ADD The sending of a notice in the form contained in subsection (b) by such fiduciary to such creditor at his/ her or its last known address, by first class mail, postage prepaid, shall be deemed to be a means, but not the exclusive means, of satisfying the requirements of this section. ADD}
{ADD (b) An executor or administrator shall be conclusively presumed to have complied with this section by sending a written notice in substantially the following form: ADD}
{ADDSTATE OF RHODE ISLAND | PROBATE COURT OF |
COUNTY OF__________________ | THE _____________ |
ESTATE OF (NAME OR ESTATE) | (NO.) _____________ |
{ADD NOTICE OF COMMENCEMENT OF PROBATE ADD}
{ADD last known address of creditor) ADD}
{ADD Notice is hereby given by (name of fiduciary) that a probate estate has been commenced for (name of decedent) in the Probate Court of the (name of municipality, address of court) docket no. ADD} ___________________{ADD , said (name of fiduciary) having been qualified on (date of qualification) ADD}
{ADDName and address of | |
Estate Representative or Attorney | |
______________________________ | |
Date ADD} |
SECTION 7. Section 33-14-2 of the General Laws in Chapter 33-14 entitled "Accounts of Executors and Administrators" is hereby amended to read as follows:
33-14-2. Charges and credits shown -- Investments. --
Accounts rendered by an executor or administrator to the probate
court shall be for a period stated therein, and shall charge the
executor or administrator with the amount of the inventory, or,
instead the amount of the balance of the last account rendered,
as the case may be, and all income, all gains from the sale of
personal property, and all other property received by him or her,
although not inventoried, and all rents and proceeds of the sale
of real estate received by the executor or administrator; the
accounts shall credit all charges, losses and payments, including
legacies, distribution and specific personal property delivered,
and shall also show the investments of the balance of the
account, if any, and changes of investment. {ADD investments,
along with such documentation verifying such investments as the
court may request. ADD}
{ADD An executor or administrator who is represented by an attorney shall not be required to submit originals or copies of evidence of charges, losses and payments which appear on his or her account, except for documentation required pursuant to the provisions of section 33-14-8, but shall instead include with any such account a certification substantially in the form set forth in section 33-14-2.2, signed by such executor or administrator and by said attorney. An executor or administrator who is not represented by an attorney or whose attorney declines to execute and submit such a certification shall, in addition to such certification, submit to the probate court for inspection copies of the front sides of all checks or other documents evidencing any such charges, losses and payments, unless specifically waived by the court.
Provided, however, that the provisions of this section shall not prohibit the probate court, on its own motion, from ordering the executor or administrator to submit originals or copies of evidence of the charges, losses and payments which appear on the executor's or administrator's account, in any case where the court deems such documentation necessary to its review of such account. ADD}
{ADD As used in this section and in the remainder of title 33, the term "attorney" shall mean an individual who is a member in good standing of the Rhode Island Bar Association. ADD}
SECTION 8. Chapter 33-14 of the general laws entitled "Accounts of Executor and Administrators" is hereby amended by adding thereto the following section:
33-14-2.2. Form of certification. -- {ADD The certification referred to in section 33-14-2 shall be in substantially the following form: ADD}
{ADD CERTIFICATION OF ACCOUNTING ADD}
{ADD The undersigned, (name of attorney), attorney, and (name of fiduciary), fiduciary hereby certify that the within accounting was prepared based on information which each of the undersigned have personally examined, and further certify that, to the best of the knowledge and belief of each of the undersigned, the within is a true and accurate representation of the accounts of the estate for the period indicated. ADD}
{ADD (Name of fiduciary | |
___________________ | |
Fiduciary | |
(Name of attorney) | |
__________________ | |
Attorney ADD} | |
{ADD STATE OF RHODE ISLAND
COUNTY OF
Subscribed and sworn to before me this___________day of ________________
_____ , 19_____ .
{ADD __________________________ | |
NOTARY PUBLIC | |
My commission expires: ADD} | |
SECTION 9. Sections 33-15-4, 33-15-7, 33-15-17.1, 33-15-37, 33-15-37.1, 33-15-19, and 33-15-47 of the General Laws in Chapter 33-15 entitled "Limited Guardianship and Guardianship of Adults" are hereby amended to read as follows:
33-15-4. Limited guardianship. -- (a)(1) Absent a
finding, based on a decision making assessment {ADD tool ADD} , that an
individual is totally incapacitated, the court shall limit the
scope of the powers and duties of a guardian to the terms best
suited to allow the individual found partially incapacitated to
participate as fully as possible in decisions affecting him or
her. {ADD One such decision making assessment tool must be completed
by a physician who has examined the respondent. The probate
court may consider such additional decision making assessments
tools signed and submitted by one or more non-physicians. ADD} The
court shall not appoint a guardian or limited guardian if the
court finds that the needs of the proposed ward are being met or
can be met by a less restrictive alternative or alternatives.
The court shall authorize the guardian to make decisions for the
individual in only those areas where the court finds, based on
a {ADD one or more ADD} decision making assessment {ADD tools ADD} , that
the individual lacks the capacity to make decisions. The court
must strike a delicate balance between providing the protection
and support necessary to assist the individual and preserving, to
the largest degree possible, the liberty, property and privacy
interests of the individual. The certificate of appointment
issued to the limited guardian shall clearly state that it is a
limited guardianship. The court order shall clearly indicate the
scope of the powers and duties of the limited guardian. The
appointment of a limited guardian shall not constitute a finding
of legal incompetence. An individual for whom a limited guardian
is appointed shall retain all legal and civil rights except those
which have been specifically suspended by the order.
(2) A decision making assessment tool, in the form as shown in section 33-15-47, must be filed with the petition in each case.
(3) The individual's treating physician must complete a decision making assessment tool. Professionals, or other persons acquainted with the individual being assessed may, also complete a decision making assessment tool.
(4) {ADD Modification ADD} : If, because of a change in the partially incapacitated individual's level of functioning, the scope and duties of the limited guardianship order no longer meet the needs of the individual and/or fail to afford the individual as much autonomy as possible, modification of the limited guardianship order is required.
(i) Modification can be accomplished by agreement of the parties: the partially incapacitated individual and his or her counsel, and the limited guardian. This agreement shall be submitted to the court and entered as an order.
(ii) Where no agreement can be reached, any or all of the parties may request a hearing.
(b) However, provisions of this chapter shall not be construed to mean a person is in need of a guardian or limited guardian solely because he or she is being furnished or relies upon treatment by spiritual means through prayer alone in accordance with the tenets and practices of a church or religious denomination recognized by the laws of this state.
33-15-7. Guardians ad litem -- Duties -- Legally incapacitated respondents right to counsel -- Termination of appointment of guardian ad litem. --
(a) Upon filing with the probate court clerk of a petition for the appointment of a guardian, a guardian ad litem shall be appointed for each respondent;
(b) The guardian ad litem need not be an attorney;
(c) The duties of a guardian ad litem shall include all of the following:
(1) Personally visiting the respondent;
(2) Explaining to the respondent the nature, purpose, and legal effect of the appointment of a guardian;
(3) Explaining to the respondent the hearing procedure, including, but not limited to, the right to contest the petition, to request limits on the guardian's powers, to object to a particular person being appointed guardian, to be present at the hearing, and to be represented by legal counsel;
(4) Informing the respondent of the name of the person known
to be seeking appointment as guardian; and
{ADD (5) Reviewing the decision making assessment tool(s), petition for guardianship/limited guardianship, and the notice;
(6) Interviewing the prospective guardian by telephone or in person; and ADD}
(5) {ADD (7) ADD} Making determinations, and informing the
court of those determinations, on all of the following:
(i) Whether the respondent wishes to be present at the hearing;
(ii) Whether the respondent wishes to contest the petition;
(iii) Whether the respondent wishes limits placed on the guardian's powers; and
(iv) Whether the respondent objects to a particular person
being appointed guardian . {ADD ;
(v) Whether the respondent wishes to be represented by legal counsel.
Unless waived by the court, at least three (3) days prior to the hearing, the guardian ad litem shall file a report substantially in the form as set forth in section 33-15-47 with the court and shall mail or hand deliver a copy to each attorney of record. ADD}
(d) If the respondent wishes to contest the petition, to have limits placed on the guardian's powers, or to object to a particular person being appointed guardian, and, if legal counsel has not been secured, the court shall appoint legal counsel. If the respondent is indigent, the state shall bear the expense of legal counsel.
(e) If the respondent requests legal counsel, or if the guardian ad litem determines it is in the best interest of the respondent to have legal counsel, and if legal counsel has not been secured, the court shall appoint legal counsel. If the respondent is indigent, the state shall bear the expense of legal counsel.
(f) If the respondent has legal counsel appointed pursuant
to subsection (b) {ADD (d) ADD} or (c) {ADD (e) ADD} , the appointment
of a guardian ad litem shall terminate.
33-15-17.1. Notice. -- (a) {ADD Except for the appointment
of a temporary guardian, ADD} No {ADD no ADD} petition for limited
guardian or guardian shall be heard and no person shall be
appointed limited guardian or guardian of an individual unless
notice of the petition for appointment of a limited
guardian/guardian and a copy of the petition itself shall be
served upon the respondent in person at least fourteen (14) days
prior to any hearing on the petition.
{ADD In the case of a petition for the appointment of a temporary guardian, such fourteen (14) day notice period shall be reduced to five (5) days, unless a shorter period is ordered by the court. ADD}
(b) The notice shall be in plain language, large type and shall include the time and place of the hearing, the possible loss of liberty if the petition is granted, and shall inform the respondent of his or her rights including: the court appointment of a guardian ad litem; the right to a hearing and to be present at the hearing to confront, witnesses, present evidence, contest the petition, object to the appointment of a particular individual as guardian, request that limits be placed on the guardian's powers, and the right to counsel.
(c) The court officer that serves this notice shall be dressed in plain clothes. He or she shall have experience dealing with individuals who may lack decision making ability.
(d) The court officer shall present the written notice and shall also read the notice to the respondent.
(e) {ADD Except for a petition for the appointment of a
temporary guardian, ADD} Notice {ADD notice ADD} shall be given by the
petitioner, or his or her attorney at least ten (10) days before
the date set for hearing on the petition by regular mail, postage
prepaid, addressed to (1) the respondent's spouse and heirs at
law (under the rules of descent) as set forth in section 33-1-1
only at their last known addresses; and (2) the administrator of
any care and treatment facility where the respondent resides or
receives primary services; and (3) any individual or entity known
or reasonably known to the petitioner to be regularly providing
protective services to the respondent. {ADD In the case of a
petition for the appointment of a temporary guardian, such ten
(10) day notice period is reduced to five (5) days, unless a
shorter period is ordered by the court, with the petitioner
required to use reasonable efforts in identifying and noticing
those individuals described in the immediately preceding sentence
within the limitations of investigation of identity of addresses
of such individuals inherent in a temporary guardianship
proceeding. ADD} The petitioner, or his or her attorney, shall at
or prior to the hearing file or leave to be filed an affidavit
that notice was given setting forth the names and post office
addresses of the persons to whom the notice was sent and the date
of mailing, together with a copy of the notice.
(f) Should the petitioner have no knowledge of the existence or whereabouts of any of the persons required to be notified pursuant to subparagraph (e) above, an affidavit to that effect filed with the court shall satisfy this notice requirement.
(g) Notwithstanding any notice requirement of the petitioner, {ADD and except for a petition for appointment of a temporary guardian ADD} the court shall give notice of the petition by advertisement.
33-15-19. Inventory and appraisement of estate. -- Within thirty (30) days after his or her appointment, or such longer time as may be allowed by the probate court, a {ADD temporary ADD} guardian{ADD , guardian or limited guardian ADD} shall return to the probate court, under oath, an inventory and appraisement of all the real and personal property of his or her ward, {ADD as of the date of the guardian's qualification ADD} to be made by a suitable, disinterested person or persons appointed by the court, which shall fix the number of appraisers at one {ADD (1) ADD} or three (3) in its discretion. The appraisers shall be sworn to the faithful discharge of their trust.
{ADD In appraising the ward's interest in any assets held by the ward jointly or in some other form of concurrent ownership with another party, the appraiser shall include on such inventory an explanation for the basis for appraising such inventory, as either all, none, or a portion of the value of such assets. ADD}
33-15-37. Support of dependents for whom ward has no legal obligation to provide. -- Whenever a limited guardian or guardian or conservator of the estate of any person is appointed by any court in this state and the person has, prior to the appointment of the limited guardian or guardian or conservator, provided for any other person out of his or her estate, whom the ward was not under legal obligations to support or provide for, and where it appears that the ward would have continued support or provision if the limited guardian or guardian or conservator had not been appointed, the superior {ADD or probate ADD} court, upon complaint filed by the person who received the support or provision or by the limited guardian or guardian or conservator, may authorize the limited guardian or guardian or conservator to continue to make such allowances out of the estate of the ward, as the court in its sound discretion deems the ward would have made if a limited guardian or guardian or conservator had not been appointed. Provided, however, that the court shall not exercise this power in cases where the ward has prior to the appointment of a limited guardian or guardian or conservator expressly declared or requested that these powers shall not be exercised by the court. In granting the authority, the court may impose conditions, restrictions and give such directions as it may deem advisable.
33-15-37.1. Minimization of taxes. --
{ADD 33-15-37.1. Minimization of taxes; Estate planning. -- ADD}
(a) The superior {ADD or probate ADD} court, upon the complaint
{ADD petition ADD} of a conservator{ADD , ADD} limited guardian or guardian,
other than the guardian of a minor, and after notice by
publication as the court directs and other notice to all persons
interested, may authorize the conservator{ADD , ADD} limited guardian
or guardian {ADD to exercise any and all powers over the estate and
business affairs of the ward which the ward could exercise if
present and not under disability. The court may authorize the
taking of such action, or the application of ADD} to take action,
or to apply any funds as are not required for the ward's own
maintenance and support, in any fashion as the court shall
approve as being in keeping with the ward's wishes, so far as
they can be ascertained, {ADD or which the conservator, guardian or
limited guardian can demonstrate is in the best interest of the
ward. In ascertaining and carrying out the ward's wishes, or in
determining which actions are in the ward's best interests, the
court may consider, but shall not be limited to minimization of ADD}
and as designed to minimize, insofar as possible, current or
prospective state or federal income, estate and inheritance
taxes, and to provide for {ADD and providing for ADD} gifts to
charities, relatives and friends as would be likely recipients of
donations {ADD or future inheritances ADD} from the ward.
(b) The action or application of funds may include, but
shall not be limited to, the making of gifts, to the conveyance
or release of the ward's contingent and expectant interests in
property including marital property rights, and any right of
survivorship incident to joint tenancy or tenancy by the
entirety, to the exercise or release of the ward's powers as
donee of a power of appointment, the making of contracts, the
creation of revocable or irrevocable trusts of property of the
ward's estate which may extend beyond the ward's disability or
life , {ADD and for which the ward may or may not be a
beneficiary, ADD} the exercise of options of the ward to purchase
securities or other property, the exercise of the ward's right to
elect options and to change beneficiaries under insurance and
annuity policies, and the surrendering of policies for their cash
value, the exercise of the ward's right to an elective share in
the estate of the ward's deceased spouse, and the renunciation or
disclaimer of any interest acquired by testate or intestate
succession or by intervivos transfer.
(c) The guardian, limited guardian or conservator in the
complaint {ADD petition ADD} shall briefly outline the action or
application of funds for which approval is sought, the results
expected to be accomplished thereby and the tax savings{ADD , if
any, ADD} expected to accrue. The proposed action or application of
funds may include gifts of the ward's personal property or real
estate. Gifts may be for the benefit of prospective legatees,
devisees or heirs apparent of the ward, or may be made to
individuals or charities in which the ward is believed to have an
interest. The conservator, limited guardian or guardian shall
also indicate in the complaint {ADD petition ADD} that any planned
disposition is consistent with the intentions of the ward insofar
as they can be ascertained, {ADD or are otherwise in the best
interest of the ward. ADD} and if {ADD If ADD} the ward's intentions
cannot be ascertained, the ward will be presumed to favor
reduction in the incidence of the various forms of taxation{ADD , ADD}
and the partial distribution of the ward's estate {ADD during his or
her lifetime, ADD} as provided in this section. The conservator,
limited guardian or guardian shall not, however, be required to
include as a beneficiary any person whom there is reason to
believe would be excluded by the ward.
33-15-47. Forms. -- The following forms shall be used for the purposes of this chapter:
STATE OF RHODE ISLAND | PROBATE COURT OF THE |
COUNTY OF ________________ | _________________ |
No. ______________ | |
ESTATE OF _____________________ | |
PERSONAL ESTATE ESTIMATED AT $__________ | CITY/TOWN OF |
______________ | |
19 ______________ | |
PETITION FOR LIMITED GUARDIANSHIP
OR GUARDIANSHIP
________________________ hereby petitions the Probate Court of the
Petitioner
city/town of ________________ to appoint a limited guardian/guardian for __________________ who currently resides at ____________________,
Address
in the city/town of _____________, and whose date of birth is _________.
Based upon an assessment conducted by ______________ on ______________,Date which functional assessment reflects the current level of functioning of __________________, it has been determined that __________________,
Respondent
respondent lacks decision-making ability in one or more of the following areas as indicated:
____ health care
____ financial matters
____ residence
____ association
____ other
Regarding each area indicated, please describe the specific assistance needed:_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
Indicate which of the following less restrictive alternatives to guardianship have been explored and deemed inappropriate as indicated:____ Durable Power of Attorney for Health Care
____ Living Will
____ Power of Attorney
____ Durable Power of Attorney
____ Trusts
____ Joint Property Arrangements
____ Representative Payee
____ Money Management
____ Single Court Transactions
____ Government Benefit and Social Service Programs
____ Housing Options
____ Other
Please describe the basis for the determination that the alternative will not meet the needs of the respondent for each alternative explored and deemed inappropriate:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
The following individual/agency is willing to serve as guardian:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________
Upon information and belief the above individual/agency has:
____ No conflict of interest that would interfere with
guardianship duties.
____ No criminal background that would interfere with
guardianship duties.
____ The capacity to manage financial resources involved.
____ The ability to meet requirements of law and unique
needs of individual.
____ Demonstrated willingness to undergo training.
The Respondent has the following heirs at law:
NAME : | RESIDENCE: |
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
_____________________________ | |
Signature | |
_____________________________ | |
Name | |
_____________________________ | |
Address | |
__________________ | |
Telephone ADD} | |
Subscribed and sworn to before me as to the truth of the above facts by _____________ in ______________ the ______ day of ________, 19____.
_____________________________ | |
Notary Public | |
_____________________________ | |
Print Name | |
DECREE | |
__________________ ___________________ | |
Dated___________ PROBATE JUDGE | |
This notice should be served at once and returned to the clerk of the court.
NOTICE
GREETING:
Petitioner a limited guardian/guardian for you.
A hearing regarding this Petition shall be held On: _________________________ Date At: _________________________ Time at the Probate Court for the city or town of ___________________________. _________________________________________________________________Address _________________________________________________________________
The Petition requests that the Probate Court consider the qualification of the following individual/agency to serve as your limited guardian/guardian: _________________________________________________________________ _________________________________________________________________ A guardian ad litem will be appointed by the probate Court to visit you, explain the process and inform you of your rights. You have the right to attend the hearing to contest the petition, to request that the powers of the guardian be limited or to object to the appointment of a particular individual/agency limited guardian/ guardian. If you wish to contest the petition, you have the right to be represented by an attorney, at state expense, if you are indigent. If the Petition is granted and a limited guardian/guardian is appointed, the Probate Court may give the limited guardian/guardian the power to make decisions about one or more of the following: Your health care; your money; where you live; and with whom you associate. Copies of this Notice will be mailed to:The administrator of any care or treatment facility where you live
or receive primary services; your spouse, and heirs at law; any
individual or entity known to petitioner to be regularly supplying
protection services to you.
CERTIFICATION OF SERVICE
_____________________________ | |
Signature | |
_____________________________ | |
Print Name | |
_____________________________ | |
Address | |
_____________________________ | |
CERTIFICATION OF NOTICE
I certify that, as required by Rhode Island General Laws section 33-15-17.1(e), I mailed a copy of this Notice to the following persons, at the addresses listed, on the {ADD __________ ADD} day of{ADD ________ ADD} , 19 {ADD _____. ADD}
_____________________________ | |
Signature | |
_____________________________ | |
Print Name | |
_____________________________ | |
Address | |
_____________________________ | |
Subscribed and sworn to before me this {ADD _______ ADD} day of
{ADD ________ ADD} , 19 {ADD _____ ADD} .WITNESS
Judge of the Probate Court of the ___________ of __________ this _______ day of _______________, 19____ .
_____________________________
Clerk
DECISION-MAKING ASSESSMENT TOOL
_______________________________
Date of Birth: Permanent Address (if different): ______________ __________________________________________________________________
Instructions for Completion
This document will be used by a Probate Court to determine whether to appoint a guardian to assist this individual in some or all areas of decision-making.
This document has two parts. Please first complete the part which is right after these instructions, titled Assessment. Then complete the second section, titled Summary.
To a physician completing this document: The individual's treating physician must complete this document. If there is any information of which the treating physician {ADD completing this document ADD} does not have direct knowledge, he or she is encouraged to make such inquiries of such other persons as are necessary to complete the entire form. Those persons might include other medical personnel such as nurses, or other persons such as family members or social service professionals who are acquainted with the individual. If the physician has received information from others in completing the form, the names of those individuals must be listed on {ADD the ADD} Summary.To a non-physician completing this document: Professionals or other persons acquainted with the individual being assessed may also complete this document. If there is information of which a non-physician {ADD completing this document ADD} does not have knowledge, such non-physician may either leave portions of the document blank, or also make inquiries or do such investigation as is necessary to complete the entire document. Again, the names of any individual from whom information is derived should be listed on the Summary.
The document must be signed and dated by the person completing it. It does not need to be notarized.
A. BIOLOGICAL ASSESSMENT
THE FOLLOWING IS BASED UPON A PHYSICAL EXAMINATION CONDUCTED BY ME ON _____________________
(DATE)(1) DIAGNOSIS and PROGNOSIS: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
(2) MEDICATIONS (PLEASE LIST):
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________How do the above medications, if any, affect the individual's decision-making ability? Please explain:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(3) CURRENT NUTRITIONAL STATUS:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________B. PSYCHOLOGICAL ASSESSMENT
1. MEMORY (CIRCLE ONE)
(A) Intact; (B) Mild Impairment; (C) Moderate Impairment; (D) Severe Impairment
2. ATTENTION (CIRCLE ONE)
(A) Intact; (B) Mild Impairment; (C) Shifting/Wandering; (D) Delirium; (E) Unresponsive
3. JUDGMENT (CIRCLE ONE)
(A) Intact; (B) Able to Make Most Decisions; (C) Impaired; (D) Gross Impairment
4. LANGUAGE (CIRCLE ALL THAT APPLY)
(A) Intact; (B) Sensory Deficits: (Hearing/Speech/Sight); (C) Impairment In Comprehension/Speech: (Mild/Moderate/Severe); (D) Completely Unresponsive
5. EMOTION (CIRCLE ALL THAT APPLY)
(A) ANXIETY/DEPRESSION:
(1) None; (2) History of Anxiety/Depression; (3) Moderate Symptoms of Anxiety/Depression; (4) Severe symptoms with sleep/appetite/energy disturbance; (5) Suicide/Homicidal
(B) OTHER:
(1) Suspiciousness/Belligerence/Explosiveness; (2) Delusions/Hallucinations; (3) Unresponsive
If you circled any of the above, other than (A) or (1) for any of the above categories, please explain whether the situation is treatable or reversible, and if so, how:
(C) SOCIAL ASSESSMENT
1. MOBILITY (CIRCLE ALL THAT APPLY)
(A) Intact/Exercises; (B) Drives Car Or Uses Public Transportation; (C) Independent Ambulation in Home Only; (D) Walker/Cane; (E) Requires Assistance
If you circled (C), (D), or (E), is situation treatable or reversible? If so, how?
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________2. SELF CARE (CIRCLE ALL THAT APPLY)
(A) No Assistance Needed;
(B) Requires Assistance with (1) Meals (2) Bathing (3) Dressing (4) Toileting/Feeding;
If you circled any of (B), is individual aware that assistance is required? _______________
Is individual willing to accept assistance? _______________
Is individual able to arrange for assistance?
3. CARE PLAN MAINTENANCE (CIRCLE ALL THAT APPLY)
(A) No Active Problem; (B) Initiates Problem Identification; (C) Actively Cooperative; (D) Passively Cooperative; (E) Passively Uncooperative; (F) Actively Uncooperative
4. SOCIAL NETWORK RELATIONSHIPS
(CIRCLE ONE IN (A) AND IN ONE IN (B))
(A) SUPPORT:
(1) Very Good Supportive Network; (2) Some Support From Family And Friends; (3) None or Limited Support From Family/Friends; (4) Needs Community Support; (5) Isolated/Homebound
(B) SOCIAL SKILLS:
(1) Very Good Social Skills; (2) Good Social Skills; (3) Interacts With Prompting; (4) Isolated
D. SUMMARY
I hereby certify that I have reviewed sections A, B, & C attached hereto and based on such assessments that the individual's decision-making ability is as follows:
(1) PLEASE DESCRIBE AS FULLY AS YOU CAN THE INDIVIDUAL'S DECISION-MAKING ABILITY IN EACH OF THE FOLLOWING AREAS:
(A) FINANCIAL MATTERS
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(B) HEALTH CARE MATTERS
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(C) RELATIONSHIPS _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
(D) RESIDENTIAL MATTERS
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(2) PLEASE INDICATE YOUR OPINION REGARDING WHETHER THE INDIVIDUAL NEEDS A SUBSTITUTE DECISION-MAKER IN ANY OF THE FOLLOWING AREAS: (Circle one for each category. If you circle "limited" for any category, please explain.)"
(1) FINANCIAL MATTERS Yes No Limited
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(2) HEALTH CARE MATTERS Yes No Limited
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(3) RELATIONSHIPS Yes No Limited
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________(4) RESIDENTIAL MATTERS Yes No Limited _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
(5) OTHER: If there are any other areas in which you think the individual lacks decision-making ability or has limited decision-making ability, please explain.
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ ______________________________________________________________________________________________ | |
Signature | |
_____________________________ | |
Name (Print or Type) | |
_____________________________ | |
Title | |
__________________ | |
Date | |
Names and titles of others who assisted in Preparation of This Assessment.
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________STATE OF RHODE ISLAND | PROBATE COURT OF THE |
COUNTY OF ________________ | |
Docket No._________________ | |
Estate of _____________________
ANNUAL STATUS REPORT
(1) The residence of the ward is _______________________
(2) The medical condition of the ward is:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
(3) I perceive the following changes in the decision making capacity of the ward:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________
(4) The following is a summary of the actions I have taken and decisions I have made on behalf of the ward during the last year:
_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ (If more space is needed, please attach a supplement)._____________________________ | |
Guardian | |
_____________________________ | |
Date | |
{ADD STATE OF RHODE ISLAND | PROBATE COURT OF |
COUNTY OF | THE ____________ |
(Estate Name) ADD} | |
Probate Court No. ADD} | |
{ADD REPORT OF THE GUARDIAN AD LITEM ADD}
{ADD Now comes (Name of Guardian Ad Litem) for (Name of Proposed Ward) and reports that on (Date), I personally visited the proposed ward at (Address). I explained to (Name of Proposed Ward) the following:
* The nature, purpose, and legal effect of the appointment of a guardian; * The hearing procedure, including, but not limited to, the right to contest the petition, to request limits on the guardian's powers, to object to a particular person being appointed guardian, to be present at the hearing, and to be represented by legal counsel; * The name of the person known to be seeking appointment as guardian: Based on such visit and the respondent's reaction thereto, I make the following determination regarding the respondent's desire to be present at the hearing, to contest the petition, to have limits placed on the guardian's powers and respondent's objection, if any, to a particular person being appointed as guardian. ADD}__________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________
{ADD Based on my review of the petition, the decision making assessment tool, my interview with the prospective guardian, my visit with the respondent, and interviews and discussions with other parties, I made the following additional determinations:Regarding whether the respondent is in need of a guardian of the type prayed for in the petition: ADD}
__________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________
{ADD Regarding whether the guardian ad litem has, in the course of fulfilling his or her duties, discovered information concerning the suitability of the individual or entity to serve as such guardian. ADD}
__________________________________________________________________ __________________________________________________________________ __________________________________________________________________ __________________________________________________________________
Respectfully submitted, | |
Date: _________ | __________________________ |
(Name of Guardian Ad Litem) | |
SECTION 10. Chapter 33-22 of the General Laws entitled "Practice in Probate Courts" is hereby amended by adding thereto the following sections:
{ADD 33-22-19.1. Recording of all probate court proceedings. -- (a) At the request of any party thereto, or at the request of the probate judge presiding thereat, any proceedings held in probate court shall be recorded by the probate clerk, by either electronic or stenographic means (the means utilized to be determined by the probate clerk), which means are reasonably designed to produce a true and accurate verbatim transcription of such proceedings.
(b) This section shall not be construed to prohibit a party from bringing in a stenographer, at the party's own expense, to a probate court proceeding.
(c) No city or town shall be obligated to assist a party to produce a written or typed transcription from any proceeding other than in instances where an appeal is claimed pursuant to the provisions of section 33-23-1 et seq. In the event such an appeal is claimed, the appellant shall be responsible for all transcription costs. If the city or town utilizes electronic means to record proceedings, the probate clerk shall, upon request, assist any party to such appeal in producing a true and accurate verbatim written transcript of such proceeding. Such assistance shall consist of providing the party with suitable space within the building within which the probate clerk does business, in which a stenographer, brought in at the parties' sole expense, may produce a written transcription. Provided further, that the party requesting the transcript shall be charged for all out of pocket costs of the probate clerk incurred in preparing the transcript. Physical possession of the original recording or transcription notes shall remain with the probate court unless otherwise ordered by the superior court. The written transcript and electronic recording shall be deemed a public record. ADD}
{ADD 33-22-19.2. Hearings in probate courts -- Evidence. -- (a) In uncontested matters and/or matters on waiver, the Rhode Island Rules of Evidence adopted by the supreme court, may be used as a guide, but need not be followed, for the omission or exclusion of evidence.
(b) In all contested matters, the Rhode Island Rules of Evidence shall be applied; provided, however, that this section shall not prohibit parties from stipulating or waiving the requirements of the Rules of Evidence as to any particular matter. ADD}
{ADD 33-22-29. Local rules of probate court. -- The probate court of each city or town shall promulgate local administrative rules designed to facilitate the efficient discharge of the statutory duties of such court; provided, however, that no such local administrative rule shall expand, contract or otherwise vary any specific provision of title 33 or any other provision of the General Laws. Such local administrative rules shall include the following: the dates and times when the court is in session; procedures for docketing of cases at hearings of the court; the scheduling of special sessions; and deadlines for the submission of pleadings or other filings. Such local administrative rules shall be clearly posted in the office of the probate clerk and copies of such rules shall be available to any interested party from the probate clerk. ADD}
33-22-30. Probate court docket and special sessions. -- Dockets of matters at regular sessions of the probate court shall be prepared by the clerk and heard by the court in such a way as to ensure that formal and uncontested matters are heard before contested matters. The probate court may hold such additional special sessions as reasonably necessary to hear contested matters without additional fees or charges therefor. ADD}
{ADD 33-22-31. Form of order and decree. -- (a) Every decision of a probate court shall be reduced to a written order or decree, promptly executed by the probate judge, entered and filed in a timely fashion by the probate clerk. No party can rely upon any action, inaction or instructions of the probate court nor take an appeal from any decision of the probate court that has not been reduced to a written order or decree duly executed by the probate judge.
(b) If a form of order or decree is not available for execution by the probate judge at the time of hearing, the court shall require the prevailing party to submit a proposed form of order or decree by regular mail to all parties who have entered an appearance in the matter. Absent written objection setting forth the reason for such objections by any such party within seven (7) days after mailing, the prevailing party shall file the original thereof with the probate court. Such order or decree shall contain a certificate that notice has been given pursuant to this subsection.
(c) For all purposes, the effective date of an order or decree is the date executed by the probate judge and not the date of hearing. ADD}
SECTION 11. Section 33-22-21 of the General Laws in Chapter 33-22 entitled "Practice in Probate Courts" is hereby amended to read as follows:
33-22-21. Fees enumerated -- Hearing date to be noted on receipt. -- (a) The fees in probate courts shall be as follows: for every petition for the appointment of a receiver, custodian, administrator, guardian, or conservator, or for the probate of and recording of a will, one percent (1.0%) of the personal property of the decedent or ward over which the court has jurisdiction, but in no event shall the fee be less than thirty dollars ($30.00) nor more than one thousand five hundred dollars ($1,500.00); for every petition for the change of name, thirty dollars ($30.00); for every petition for adoption, thirty dollars ($30.00); for every petition of a foreign administrator, executor or guardian, to transfer or sell real or personal estate, one percent (1.0%) of the personal property of the decedent, or ward located in Rhode Island, but in no event shall the fee be less than thirty dollars ($30.00) nor more than one thousand five hundred dollars ($1,500.00) which fees shall be in lieu of all subsequent filing and recording fees in the same proceedings, except as hereinafter provided, and shall be paid before the petition is filed, and shall be based upon estimates submitted by the petitioner or someone in his or her behalf, and shall be subject to revision whenever it appears that the estimates were incorrect, and upon revision a further payment or rebate shall be made promptly. In the event that the appointment of a receiver or custodian, pending the appointment of an administrator, guardian, or conservator, or the probate of or recording of a will, is necessary, the fee so paid for the petition shall be applied on the amount to be paid upon the filing of a petition for the appointment of the administrator, guardian, or conservator, or for the probate of or recording of the will. The court at any time may cite in and examine any receiver, custodian, executor, administrator, guardian, or conservator for the purpose of determining the full fee due and payable. Also, the following fees shall be charged:
(1) For every petition to file a claim out of time, thirty dollars ($30.00);
(2) For every petition for the removal of an executor, administrator, guardian, conservator, or other fiduciary, thirty dollars ($30.00);
(3) For every petition for appointment of a successor guardian under the uniform gifts to minors act, thirty dollars ($30.00);
(4) For every petition to file a will with no probate, thirty dollars ($30.00);
(5) An affidavit of complete administration, thirty dollars
($30.00); and
(6) For every certificate of appointment, five dollars
($5.00) . {ADD ; ADD}
{ADD (7) For every petition to remove or fill a vacancy of a trustee of any trust established under a will, or the termination of such trust, thirty dollars ($30.00); and
(8) For every petition for tax minimization or estate planning, thirty dollars ($30.00). ADD}
(b) Upon payment of any fee enumerated in this section the clerk of the court shall issue a written receipt to the person making payment. In the event that the matter filed with the court calls for a hearing, the clerk of the court shall note the hearing date and time on the receipt whenever possible; otherwise as soon as is practicable after the filing of the matter, the clerk of the court shall provide written notice of the hearing date and time directly to the person filing the matter.
(c) The clerk of the court shall charge one dollars and fifty cents ($1.50) per page and three dollars ($3.00) to certify any probate documents on file with the probate court.
SECTION 12. The title of Chapter 33-23 of the General Laws entitled "Appeals from Probate Court" is hereby amended to read as follows:
CHAPTER 23
APPEALS FROM PROBATE COURT
{ADD CHAPTER 23 ADD}
{ADD JUDICIAL REVIEW OF PROBATE COURT ORDERS AND DECISIONS ADD}SECTION 13. Sections 33-23-1, 33-23-3, 33-23-4, 33-23-8, 33-23-9, 33-23-10, 33-23-11, 33-23-12, 33-23-13, 33-23-14, 33-23-17, 33-23-18, and 33-23-19 of the General Laws in Chapter 33-23 entitled "Appeals From Probate Court" are hereby amended to read as follows:
33-23-1. Filing of claim of appeal, record, and reasons.
-- {ADD (a) ADD} Any person aggrieved by an order or decree of a
{ADD probate ADD} court of probate {ADD (hereinafter, "appellant"), ADD}
may, unless provisions be made to the contrary, appeal to the
superior court for the county in which the probate court is
established, by taking the following procedure:
(1) Within twenty (20) days after entry {ADD execution ADD} of
the order or decree {ADD by the probate judge ADD} , he or she {ADD the
appellant ADD} shall file in the office of the clerk of the probate
court a claim of appeal to the superior court and a request for a
certified copy of the claim and the record of the proceedings
appealed from, and shall pay the clerk his or her fees therefor.
(2) Within thirty (30) days after the entry of the order or decree, the appellant shall file in the superior court a certified copy of the claim and record and the reasons of appeal specifically stated, to which reasons the appellant shall be restricted, unless, for cause shown, and with or without terms, the superior court shall allow amendments and additions thereto.
{ADD (3) The appellant shall file with the probate clerk an affidavit in proof of the filing and docketing of the probate appeal pursuant to the time deadlines set forth in section 33-23-1(a)(2).
(b) For purposes of this chapter, the "record of the proceedings appealed from" shall include copies of documents filed with the probate court and certified by the probate clerk which are relevant to the claim of appeal and the transcript (if any) of the relevant probate court proceedings. By stipulation of all parties who entered an appearance in the probate court proceedings, the record may be limited or shortened. Any party unreasonably refusing to limit or shorten the record may be taxed by the probate court for the additional cost. The superior court may require or permit subsequent corrections or additions to the record.
(c) If the appellant ordered the transcript from the probate clerk within the twenty (20) day deadline of subsection (a)(1) and the transcript is unavailable for filing within the thirty (30) day deadline of subsection (a)(2), the superior court on appellant's motion shall grant an extension of such additional time reasonably necessary to complete the record.
(d) An appeal under this chapter is not an appeal on error but is to be heard de novo in the superior court. By agreement of the parties, the record of proceedings, including the certified documents and the transcript (if any) from the probate proceedings, may be introduced in the superior court without further authentication. If the record of proceedings is introduced in the foregoing manner, the findings of fact and/or decisions of the probate court may be given as much weight and deference as the superior court deems appropriate, however, the superior court shall not be bound by any such findings or decisions. Nothing herein shall preclude a witness who testified at the probate court proceeding from testifying at the superior court hearing, however, the transcript of such probate court testimony may be used for any evidentiary purpose, consistent with the Rhode Island rules of evidence.
(e) The deadline of subsections (a)(1) and (a)(2) of this chapter are jurisdictional and may not be extended by either the probate court or the superior court, except for purposes of extending the time to file the transcript under subsection (c).
(f) Nothing in this chapter shall preclude interested parties in a probate proceeding from stipulating to a probate appeal from the probate court to the superior court and toward that end to build a record by agreed statement of facts and otherwise, to fashion on a form of order or decree to preserve or frame issues as the parties desire, and to preserve the status quo ante pending appeal through custodianship of assets or otherwise. Such a stipulated probate appeal shall be governed by and be subject to the procedural requirements of this chapter.
(g) The executor, administrator, guardian or other fiduciary pending a probate appeal shall annually, or more often as requested by the probate court, file a written report of the status of the appeal.
(h) The filing fees payable to the superior court clerk for reasons of appeal in a probate appeal shall be the same as those established from time to time for the filing of a complaint in a civil action.
(i) The fee charged by the probate clerk for the record of proceedings shall include the reasonable copying costs, transcription costs, (if any), and the costs of transmitting the record. The probate clerk need not transmit the record unless and until all costs therefor are paid in full.
(j) Whenever a transcript or the production of a transcript is requested or referred to in title 33, the moving party shall, pursuant to the provisions of section 33-22-19.1, be responsible for the production of and payment for said transcript, and nothing contained herein shall require the probate court or the probate clerk to make arrangements for or advance the costs of the same. ADD}
33-23-3. Effect of appeal from granting of letters. -- If an appeal is claimed from a decree of a probate court granting letters testamentary, of administration, {ADD of administration with the will annexed, ADD} or of guardianship, the executor, administrator, {ADD administrator with the will annexed, ADD} or guardian, on giving bond as by law required, shall have power to file an inventory and to collect, receive, and take possession of all the rights, credits, and estates of the testator, intestate, or ward, as if no appeal had been claimed. All claims against the estate of the deceased or ward shall be filed within the time prescribed by law, and the executor, administrator, or guardian may, under the direction of the probate court, do such acts as the law requires concerning claims; and all limitations in regard to claims shall apply as if no appeal had been claimed.
33-23-4. Sale of animals or perishable goods pending
appeal. -- {ADD Sale of tangible personal property pending appeal.
-- ADD} In case of an appeal from an order or decree of a probate
court granting letters testamentary, of administration, {ADD of
administration with the will annexed ADD} or of guardianship, the
executor, administrator, or {ADD administrator with the will
annexed, or ADD} guardian, pending the appeal, upon leave of the
probate court first obtained, may sell at public auction or
private sale any live animals, goods, and chattels {ADD tangible
personal property ADD} of the testator, intestate, or ward, which
are liable to perish or waste or to be greatly reduced in value
by keeping, or which cannot be kept without great and
disproportionate expense, and hold the proceeds of these sales,
after deducting from the proceeds the necessary expenses of the
sale, for the benefit of the estate.
33-23-8. Notice of appeal. -- When a probate appeal
is entered in the superior court, the clerk shall notify all
persons having an interest in the appeal to appear on the return
day of the citation provided in this section, by advertisement
for at least three (3) days in some public newspaper published in
this state designated by the court, and shall also issue a
citation to the adversary parties who entered an appearance in
the probate court in the proceeding appealed from to appear on
the assignment day on which the appeal shall be in order for
assignment. The citation shall be served at least five (5) days
before the assignment day; provided that for cause shown, further
time may be granted, with or without terms, to give notice, to
make service, or to file a certified copy of the record of the
proceeding appealed from; provided further, that the superior
court at any time during the pendency of the appeal may direct
any additional notice or service, and, upon motion, may permit
any interested party to enter an appearance. {ADD (a) When a
probate appeal is entered in the superior court, the appellant
shall serve a true copy of the reasons of appeal by regular mail,
postage prepaid, to all interested persons in the estate of the
deceased or ward and to all persons who entered an appearance,
pro se or through counsel, in the underlying probate proceedings.
The appellant shall further notify such persons that they have
the right to enter an appearance or move to intervene in the
superior court probate appeal within twenty (20) days after
service. The appellant shall file a certificate in the superior
court that notice was given in the manner prescribed in this
section and shall identify the names and addresses of the persons
to whom notice was given. If an interested person fails to enter
an appearance or move to intervene within twenty (20) days after
notice, the superior court may entertain the appellant's probate
appeal without further notice to such person.
(b) The superior court may, sua sponte or on the motion of any interested party, order notice of the probate appeal advertised in a newspaper of general circulation in this state upon such terms and conditions as the court may direct.
(c) The superior court may at any time during the pendency of a probate appeal direct any additional notice or service.
(d) Any interested person in the estate of a deceased or ward may enter an appearance in the probate court or superior court and, upon doing so, is entitled to copies, at his or her own expense, of any and all filings in the estate by any party.
(e) The superior court may, upon motion, permit any interested person to intervene in a probate appeal and, upon doing so, is entitled to participate in any and all superior court proceedings concerning the appeal. The executor, administrator, guardian or other fiduciary shall automatically be a party to the superior court proceedings without motion to intervene. ADD}
33-23-9. Assignment day. -- The {ADD probate ADD} appeal
shall, unless otherwise ordered by the {ADD superior ADD} court, be in
order for assignment {ADD to the formal and special cause calendar,
the continuous non-jury trial calendar, or the continuous jury
trial calendar, as the case may be, ADD} on the assignment day which
occurs next after sixty-five (65) {ADD seventy-five (75) ADD} days
from the date of {ADD that ADD} the {ADD probate ADD} order or decree
appealed from {ADD was executed by the probate judge ADD} .
33-23-10. Claim for jury trial. -- If a matter of
fact be in controversy, either party may, at any time before the
assignment day, claim a jury trial, by notice, in writing, filed
with the clerk of the superior court. {ADD 33-23-10. Assignment
for hearing. -- ADD} {ADD (a) The appellant may, in the reasons of
appeal, claim a trial by jury of any factual dispute or issue
raised in his or her reasons of appeal. Any interested person
may, within twenty (20) days after service of notice of the
probate appeal, claim a trial by jury of any factual dispute
raised in the appeal.
(b) If the probate appeal raises a genuine issue of material fact, upon motion of the appellant or any party to the proceedings pursuant to section 33-23-8(e), the matter shall be assigned to the continuous non-jury trial calendar or jury trial calendar, as claimed pursuant to section 33-23-10(a).
(c) If the probate appeal can be decided as a matter of law, upon motion of the appellant or any party to the proceedings pursuant to section 33-23-8(e), the matter shall be assigned to the formal and special cause calendar where a briefing schedule shall be established and the matter further assigned to a justice of the superior court for decision based upon the record and the briefs submitted. The justice assigned may request or permit oral argument. ADD}
33-23-11. Failure to enter appeal claimed. -- If the
appellant fails to enter his or her appeal {ADD in the superior
court ADD} within the time allowed by law {ADD section
33-23-1(a)(2) ADD} , the probate court from which the appeal was
taken may, upon petition of any person interested, and upon such
notice to the appellant as the court shall order, affirm the
order or decree appealed from and further proceed as if no claim
of appeal had been filed; and in that case the probate court may
award double costs against the appellant.
33-23-12. Failure to perfect or prosecute appeal. -- If an appellant, having {ADD timely ADD} filed his or her reasons for appeal, fails to perfect his or her appeal within the time allowed by law or by the superior court, or to prosecute the appeal, the superior court, on motion of any person interested, may affirm the decree or order appealed from or make such other order or decree as justice may require.
33-23-13. Discontinuance of appeal. -- The party taking
an appeal from an order or decree of a probate court may, at any
time, discontinue the appeal in the manner provided for the
discontinuance of proceedings in the superior court; and upon
presentation to the probate court of a certificate of the
discontinuance from the clerk of the {ADD superior ADD} court having
jurisdiction of the appeal, the appeal shall then be entered on
the minutes or record of the probate court as discontinued;
and the suspension of the operation of the order or decree
appealed from, provided in section 33-23-2, shall then cease, and
the original order or decree shall then take effect as if an
appeal had not been taken.
33-23-14. Modification of decrees after discontinuance of appeal. -- In case an appeal shall have been taken from a decree granting letters testamentary, {ADD or of administration with the will annexed, ADD} or of administration, or of guardianship, any order or decree of the probate court made previous to discontinuance of the appeal, prescribing the amount and nature of bonds to be given by the executor, administrator, or guardian, may, after discontinuance, be modified or vacated, and new orders and decrees may be substituted if necessary, and bonds given accordingly; and in case of the modification or vacation of any such former orders or decrees, the bond or bonds given thereunder may be cancelled and discharged by the probate court.
33-23-17. Consolidation of appeals -- Addition of parties. -- Whenever there shall be more than one {ADD probate ADD} appeal in the superior court, relating to substantially the same matter, the {ADD superior ADD} court may by special order provide for the consolidation of the appeals, for admitting or summoning in other parties, and for giving notice or further notice to parties in interest.
33-23-18. Affirmance, reversal, or entry of new decree.
-- The superior court may, upon appeal, affirm or reverse, in
whole or in part, any order or decree of a probate court, and may
enter such decrees as the probate court ought to have
entered . {ADD and may remand the case for further proceedings,
with or without instructions, to the probate court. ADD}
33-23-19. Transmission of final decree to probate court.
-- A copy of the final decree or order {ADD judgment ADD} entered
by the superior court, in any {ADD probate ADD} appeal under the
provisions of this chapter, shall be certified and transmitted by
the clerk of the superior court, without fee therefor, to the
probate court appealed from.
SECTION 14. Title 33 of the General Laws entitled "Probate Practice and Procedure" is hereby amended by adding thereto the following chapter:
{ADD CHAPTER 26
ESTABLISHING A LEGISLATIVE COMMISSION
TO STUDY THE FEASIBILITY OF MODERNIZING PROBATE
LAW AND PROCEDURE TO MAKE RECOMMENDATIONS THEREFOR ADD}
{ADD 33-26-1. Legislative commission established. -- There is hereby established a special legislative commission consisting of twenty-three (23) members: three (3) of whom shall be from the house of representatives, not more than two (2) from the same political party to be appointed by the speaker; two (2) of whom shall be from the senate, not more than one (1) from the same political party, to be appointed by the majority leader; one (1) of whom shall be the president of the Rhode Island Probate Judges Association, or his or her designee, one (1) of whom shall be the president of the Rhode Island Town Clerks Association, or his or her designee; five (5) of whom shall be members in good standing of the Rhode Island Bar Association with experience in probate matters, of whom two (2) shall be appointed by the speaker and one (1) by the senate majority leader; one (1) of whom shall be a currently serving probate judge, to be appointed by the speaker; one (1) of whom shall be a currently serving probate clerk, to be appointed by the senate majority leader; one (1) of whom shall be the chairperson of the Rhode Island Bar Association Committee on Probate and Trust Law; and one (1) of whom shall be the chairperson, or his or her designee, of the legislative committee of the Rhode Island Chapter of the American Association of Retired Persons; one (1) of whom shall be the chairperson or his or designee, of the legislative committee of Rhode Island Retired Teachers Association; one (1) of whom shall be the chairperson or his or her designee, of the Rhode Island Council of Senior Citizens; and one (1) of whom shall be the president, or his or her designee of the Key Council of Rhode Island; and four (4) of whom shall be members of the general public who have an interest in probate matters, of whom one (1) shall be appointed by the speaker, one (1) of whom shall be appointed by the house minority leader, and one (1) by the senate majority leader and one (1) by the senate minority leader. Each member shall serve for a term of two (2) years, and may be reappointed.
In lieu of any appointment of a member of the legislature to a permanent advisory commission, a legislative study commission, or any commission created by a general assembly resolution, the appointing authority may appoint a member of the general public to serve in lieu of a legislator, provided that the majority leader or the minority leader of the political party which is entitled to the appointment consents to the appointment of the member of the general public.
The purpose of said commission shall be to study the feasibility of modernizing probate law and procedure in Rhode Island, including but not limited to the feasibility of adopting the Uniform Probate Code, and to make recommendations therefor.
Forthwith upon passage of this resolution, the members of the commission shall meet at the call of the speaker of the house and organize and shall select from among their members a chairperson. Vacancies in said commission shall be filled in like manner as the original appointment.
The membership of said commission shall receive no compensation for their services.
All departments and agencies of the state shall furnish such advice and information, documentary and otherwise, to said commission and its agents as is deemed necessary or desirable by the commission to facilitate the purposes of this resolution.
The speaker of the house is hereby authorized and directed to provide suitable quarters for said commission.
The commission shall report its findings and recommendations to the general assembly on an annual basis on or before February 10 of each year. ADD}
SECTION 15. This act shall take effect upon passage.