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THE NO-NONSENSE ™ GUIDE TO

MISSISSIPPI PROBATE

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TABLE OF CONTENTS Introduction ............................................................................................................................................................ 1

Mini-Chapter 1: What is Probate? ............................................................................................................... 2

Mini-Chapter 2: A Legalese-English Dictionary of Probate Terms ................................................ 3

Mini-Chapter 3: 5 Common Probate Questions .................................................................................... 4

Question 1: Is Mississippi probate required? .................................................................................. 4

Question 2: Do I need to hire a Mississippi probate attorney? ................................................ 4

Question 3: How much will probate cost? ......................................................................................... 4

Question 4: How Long Does Probate Take?..................................................................................... 4

Question 5: Are there any alternatives to probate? ..................................................................... 4

Mini-Chapter 4: Is Probate Necessary? ..................................................................................................... 5

How to Determine Whether Probate is Required .......................................................................... 5

What assets did the decedent own at the time of death? ............................................................ 5

Exactly who owned these assets? .......................................................................................................... 5

Are there any named beneficiaries for the assets? ........................................................................ 6

Where are the assets located? ................................................................................................................ 6

What is the value of the probate assets? ............................................................................................ 6

Mini-Chapter 5: How to Tell if a Will is Valid under Mississippi Law ............................................ 7

The Witnessed (Attested) Will: Legal Requirements .................................................................... 7

The Handwritten Will: Legal Requirements ..................................................................................... 8

Mini-Chapter 6: How to Probate a Will in Mississippi ......................................................................... 9

Attested Wills ................................................................................................................................................ 9

Handwritten Wills ..................................................................................................................................... 10

Mini-Chapter 7: The Mississippi Probate Process ............................................................................. 11

Opening the Estate in Mississippi Chancery Court .................................................................... 11

Administering the Estate ........................................................................................................................ 12

Closing the Estate ..................................................................................................................................... 13

Mini-Chapter 8: How to Handle the Estate When There is No Will .......................................... 14

Administering the Intestate Estate .................................................................................................... 14

How to Identify a Person’s Heirs at Law .......................................................................................... 14

The Heirship Suit ....................................................................................................................................... 15

Mini-Chapter 9: Duties of the Executor or Administrator.............................................................. 16

Mini-Chapter 10: Probate and Real Estate ........................................................................................... 18

Mini-Chapter 11: Homestead Exemption and Other Family Protections ................................ 20

Mississippi Homestead Exemption .................................................................................................... 20

The Mississippi Elective Share ............................................................................................................. 20

The Spousal Allowance ........................................................................................................................... 22

Mini-Chapter 12: Four Steps to Get You Started ............................................................................... 23

Step 1: Make a List of the Decedent’s Assets ............................................................................... 23

Step 2: Determine Whether There is a Valid Last Will and Testament ............................. 23

Step 3: Make a List of the Names and Addresses of the Parties Involved ......................... 23

Step 4: Talk to Mississippi Probate Attorney ................................................................................ 23

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INTRODUCTION This guide gives straightforward answers to many of the questions that people have about

Mississippi probate. In it you will learn:

• How to tell whether probate is required

• How to tell whether you need to hire an attorney

• How long the Mississippi probate process could take

• Whether there are any alternatives to probate that could apply

• Plain English definitions for some of the legal jargon you will encounter

• How to determine if a Last Will and Testament is valid under Mississippi law

• How to probate a Last Will and Testament in Mississippi

• How to administer a Mississippi estate if there is no Last Will and Testament

• The duties of an executor or administrator under Mississippi law

• How Mississippi probate affects real estate

This guide is divided into twelve short mini-chapters to help you find answers to your

questions as quickly as possible. Let’s get started.


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MINI-CHAPTER 1: WHAT IS PROBATE? Probate is a court-supervised process for distributing the assets of a deceased person to

the people or organizations that are entitled to the assets. The county court oversees the

process to be sure that the right people receive the assets. Creditor claims are usually

resolved as part of the probate proceeding.

Probate is often required to access bank accounts and other financial assets that were in

the name of the deceased person alone (without a joint owner or payable-on-death

beneficiary). In fact, due to privacy concerns, many financial institutions will not even

discuss the account until the estate is opened with the court.

The purpose of probate is to give clear or marketable title to the deceased person’s assets.

After the probate process is complete, the individuals or organizations that end up with

the assets can sell them, take out loans against them, and otherwise freely deal with the

assets.

Failure to deal with probate can result in a loss of value in real estate, giving rise to what is

called heir property. Heir property is land that is jointly owned by descendants of a

deceased person whose estate was never handled in probate. These descendants (heirs)

have the right to use the property, but they do not have clear or marketable title to the

property since the estate issues have not been resolved.

Over time, as each generation passes, the ownership of the heir property becomes more

and more fragmented as it is divided among a larger group of people. At the same time,

the number of unprobated estates in the title increases, bringing with it an added cost.

Before long, it isn’t worthwhile for any one heir to pay the property taxes and the group of

heirs cannot agree to keep up with the property. At that point, the property is usually sold

for outstanding taxes. The new owner then acquires the property for a deeply discounted

value. The heirs simply lose the economic value of the property.

The best way to prevent the heir property scenario is to promptly deal with the estates of

deceased property owners.


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MINI-CHAPTER 2: A LEGALESE-ENGLISH DICTIONARY OF PROBATE TERMS The legal jargon that attorneys and judges use to talk about the Mississippi probate

process can be confusing. But, like it or not, these terms are so ingrained that they don’t

appear to be going anywhere soon. So let’s get some basic terminology under our belts

before moving on.

Asset – Generally any property that has monetary value, or, in the case of an

estate, sentimental value.

Beneficiary – A person designated to receive money or other assets by a Will, trust,

or insurance policy.

Chancery Court – In Mississippi, the local court that manages the probate process.

Decedent – The deceased person whose estate is being administered.

Executor/Executrix and Administrator/Administratrix – An executor (male) or

executrix (female) is the person appointed by a Will to handle an estate. An

administrator (male) or administratrix (female) is appointed by the court when

there is no Will.

Holographic Will – A Will that is written entirely in the testator’s handwriting and

signed at the bottom.

Probate/Estate Administration – These two terms are often used interchangeably,

so don’t get hung up here. But as a technical matter, “probate” refers to a court-

supervised process for distributing an estate in accordance with a Will. “Estate

administration” refers to the same process when there is no Will.

Rights of Survivorship – Joint ownership of an asset with “rights of survivorship”

means that ownership of the asset passes automatically to the survivor.

Testator/Testatrix – A testator (male) or testatrix (female) is a person who makes a

valid Will.

Testate/Intestate – The term “testate” refers to an estate for which there is a valid

Will. “Intestate” refers to an estate of a decedent who died without a valid Will.


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MINI-CHAPTER 3: 5 COMMON PROBATE QUESTIONS This section covers answers to frequently-asked questions about Mississippi probate.

QUESTION 1: IS MISSISSIPPI PROBATE REQUIRED? Whether or not probate is required depends on the assets involved and who exactly owns

them. If the deceased person (the “decedent”) owned assets in his or her name alone,

some form of court proceeding is usually required. See Is Probate Necessary? (Mini-

Chapter 4) beginning on page 5 below.

QUESTION 2: DO I NEED TO HIRE A MISSISSIPPI PROBATE ATTORNEY? If the estate will be admitted to probate, the answer is “yes.” Mississippi Chancery Court

Rule 6.01 provides that all Mississippi estates must be represented by an attorney. Due to

the complexity involved, Mississippi probate is simply not a do-it-yourself affair.

QUESTION 3: HOW MUCH WILL PROBATE COST? This is not an easy question to answer without more information. Mississippi probate fees

are based on the work involved, not the value of the estate. This means that attorney fees

for probate matters can vary depending on how much work is involved.

As a very broad and general rule, you could expect to spend between $2,300.00 and

$3,000.00 for a very simple Mississippi probate proceeding. There are exceptions on both

ends of this range, though, depending on what attorney you use and what county is

involved. If the estate involves creditor issues, disputes among heirs, or other

complicating factors, probate could cost much more.

QUESTION 4: HOW LONG DOES PROBATE TAKE? Most of our simple estates are closed within 4 to 12 months from the date the attorney is

hired. Mississippi law requires that the estate stay open for at least 90 days from the date

that notification to creditors is first published. This makes it impossible to close a

Mississippi estate in less than 90 days, and it would be unusual close a Mississippi estate in

less than 5 months.

QUESTION 5: ARE THERE ANY ALTERNATIVES TO PROBATE? Yes! Mississippi law has several alternatives that may help to avoid or shorten the

probate process. But these alternatives are not available to every estate. Whether an

alternative will apply to your case depends on several factors, including the assets

involved and the date of death.


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MINI-CHAPTER 4: IS PROBATE NECESSARY? HOW TO DETERMINE WHETHER PROBATE IS REQUIRED Before you dive headfirst into probate, you will want to step back and think about

whether probate is even necessary. In many cases, this depends on the decedent’s assets.

Some assets may be subject to probate; others may not. Here are a few questions to help

you decide whether probate is required:

WHAT ASSETS DID THE DECEDENT OWN AT THE TIME OF DEATH? The answer to this question is the most important factor in determining whether probate

will be required. If the decedent didn’t own any assets, there’s probably no need to

probate the estate. If the decedent did own assets, take a look at the next questions to

find out whether probate is necessary.

EXACTLY WHO OWNED THESE ASSETS? If you find out that the decedent did own assets, make a list of how each asset is titled

(that is, whether the decedent owns the assets in his or her name alone, or other people

are co-owners). There are several ways that an asset might be titled, including:

1. Decedent’s name alone.

2. Tenants in common (i.e., jointly without rights of survivorship).

3. Jointly with rights of survivorship.

4. Revocable living trust.

5. Other separate entity (LLC, corporation, etc.).

Knowing the ownership details of each asset will help determine which assets will pass

automatically to others (non-probate assets) and which may require Mississippi probate

(probate assets). For example, real estate that is held jointly with rights of survivorship

will pass to a surviving owner without the need for probate.

Note: To determine if real estate is held in joint tenancy with right of survivorship (JWROS), take a look at the deed to the property. Language stating “to A and B, as joint tenants with right of survivorship” or similar language indicates that the property is held jointly. Sometimes this language will read, “A and B, as joint tenants with right of survivorship and not as tenants in common,” making it clear that the property is not intended to be held as tenants in common. If the deed either states that the property is held as tenants in common or is silent regarding the issue, the property will be presumed to be held as tenants in common and probate will usually be necessary. If you have questions about how an asset is titled, ask a Mississippi attorney to take a look.


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ARE THERE ANY NAMED BENEFICIARIES FOR THE ASSETS? Some assets—such as financial accounts and insurance policies—may have a “transfer on

death” (also called a “payable on death”) designation that names a beneficiary. When the

asset owner dies, the asset will automatically pass to the named beneficiary without the

need for probate of that asset. While you will need to provide the financial institution or

insurance company with a death certificate (and possibly fill out a few forms), assets with

a valid beneficiary designation should pass outside of the Mississippi probate process.

WHERE ARE THE ASSETS LOCATED? Even if you determine that probate will probably be required, this doesn’t necessarily

mean that Mississippi is the right state for the probate proceeding. If, for example, the

decedent lived in Mississippi but owned real estate in Florida, it could be that Florida is

the best place to bring the probate proceeding. Questions about where to start the

probate proceeding usually require the advice of an attorney.

WHAT IS THE VALUE OF THE PROBATE ASSETS? Once you determine that there are probate assets, you should estimate the value of each

asset. Debts owed by the decedent in connection with the asset should be subtracted

from the gross value to give the asset’s net worth. This will allow you to make an informed

decision about whether to proceed with probate.

In a few situations, such as insolvent estates, some clients choose not to go through

probate since there wouldn’t be any assets left over to distribute. But even if there are a

number of debts, there may be tools available to protect at least some of the assets from

creditors. At a minimum, the Mississippi homestead exemption and spousal allowance

should be considered.

Estate Planning Question: I have a Last Will and Testament. Doesn’t this mean that my estate won’t need to go through probate?

Unfortunately, no. A Will does not avoid probate. In fact, the term probate technically refers to “proving” a Will. There are ways to structure an estate plan to avoid probate (such as using revocable living trusts), but just having a Will won’t do the job. Probate doesn’t depend on whether or not you had a Will, but on what assets you own and how they are titled. For more information on

avoiding probate in your own estate, request our No-Nonsense™ Guide to Avoiding Probate.


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MINI-CHAPTER 5: HOW TO TELL IF A WILL IS VALID UNDER MISSISSIPPI LAW Did the decedent leave a valid Will? You will want to find this out as quickly as possible.

The answer is important for at least two reasons.

1. The Last Will and Testament will identify the person that is in charge of

administering the estate. Like the law of most states, Mississippi law allows a

person to choose who will administer his or her estate. The only requirements are

that the chosen executor be of sound mind, over age 18, and not a convicted felon.

This choice is made in the Will (look for specific language naming a person or

organization as executor).

Note: If the Will names an executor, that person should be notified quickly. The named executor is not required to actually serve as executor, but will have the first option of doing so. The first executor named in the Will has 40 days from the date of the decedent’s death to admit the Will to probate and be recognized by the court as executor. After 40 days, the alternate executors named in the Will (if any) can petition for appointment. If there are none, then the court can appoint someone else to serve as executor.

2. The Last Will and Testament controls who will receive the decedent’s assets.

Mississippi gives a person broad authority to dispose of his assets at death as he or

she sees fit. In most (but not all) situations, the individuals or organizations named

in the will share in the assets of the estate.

Probate Note: Sometimes a poorly-drafted Will may only deal with part of a person’s estate. In this situation, any portion of the decedent’s estate that is not dealt with in the Will are distributed under Mississippi’s laws regarding estates where there is no valid Will.

So how do you determine whether a document that looks like a Last Will and Testament is

valid under Mississippi law? Mississippi law recognizes two types of Wills, each of which

have their own set of requirements.

THE WITNESSED (ATTESTED) WILL: LEGAL REQUIREMENTS The most common form of Will is an attested Will. It is a document that has been

witnessed (“attested to”) by at least two individuals. The witnesses should not be

individuals who stand to inherit from the decedent.

Attested Wills are valid only if they meet a set of requirements known as “testamentary

formalities.” For an attested Will to be valid:


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1. The person making the Will (testator) must sign the Will or someone else must sign

it for the testator at his or her direction;

2. If the witnesses did not actually see the testator sign the Will, the testator must

acknowledge his signature to the witnesses and show the Will to the witnesses

when they sign it;

3. The witnesses must sign the Will in the testator’s presence;

4. The witnesses must be credible.

Although Mississippi law only requires the witnesses to sign the Will, attorneys will

usually use an “attestation clause” that lists these testamentary formalities and states that

they have been satisfied.

THE HANDWRITTEN WILL: LEGAL REQUIREMENTS A Will that is written entirely in the testator’s handwriting and signed at the bottom is

known as a ‘holographic” Will. Unlike attested Wills, holographic Wills do not require

testamentary formalities. To determine if a handwritten Will is valid, answer two

questions:

1. Did the person signing this document intend for it to be a valid Last Will and

Testament (and not just notes or a draft of a Will)?

2. Is the entire document in the handwriting of the person making it and signed at the

bottom?

If the answer to both is “yes,” the holographic Will is probably valid.

Note: The requirement that the entire holographic Will be in the handwriting of the testator is not as strict as it seems. A good attorney will know the loopholes. For example, under the common law “surplusage rule,” words that are not in the handwriting of the testator can be ignored if doing so would not alter the meaning of the Will. So, for example, printed captions or titles would not usually invalidate a holographic Will.

Note: Holographic Wills can be more difficult to probate. They are often poorly-drafted by non-lawyers, contain unclear language, and omit some of the more important provisions of a formal Last Will and Testament. Be sure to have your attorney review the Will to spot any potential difficulties.


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MINI-CHAPTER 6: HOW TO PROBATE A WILL IN MISSISSIPPI The word “probate” essentially means “to prove.” To probate a Will is simply to provide its

validity in court. For testate estates, proving the validity of the Will is the first step in the

Mississippi probate process.

So how do you probate a Will in Mississippi? The answer depends on the type of Will and

how it was prepared.

ATTESTED WILLS If a Will has been signed by the person making the Will (the testator) and two witnesses, it

is known as an attested Will. During probate, Mississippi law requires the testimony of at

least one person who witnessed the Will. This testimony is usually in the form of an

affidavit (a written, sworn statement).

Most Mississippi estate planning attorneys prepare a self-proving affidavit along with the

Will. This is an affidavit signed by the witnesses at the time the Will was executed. The

self-proving affidavit is usually kept with the Will. When the time comes to probate the

Will, the required testimony from the witness is already there in the self-proving affidavit.

Wills of this nature are said to be “self-proved.”

If the Will is not self-proved, someone must track down one of the witnesses and obtain

the affidavit. This can be tricky, especially if many years have passed since the Will was

written.

If the witnesses cannot be located, there are two options:

1. The attorney can introduce testimony of people who can speak to the testator’s

capacity and the proper execution of the Will. Since execution of a Will is usually

not a public matter, this may difficult.

2. The attorney can show that the signatures of the testator and the two witnesses

are authentic. This evidence can be in the form of any method permitted under

Mississippi law for proving signatures. This is usually done by finding one or more

individuals who are not named in the Will that can verify that the signatures are

authentic. The attorney will also introduce evidence that the original witnesses

were unavailable.

If either option is available, the Will can be admitted to probate. Since Mississippi law

favors Wills, judges will usually allow the Will to be probated if at all possible. But if the


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Will simply cannot be proved, the estate will need to be administered as if there is no Will

under Mississippi’s laws of intestacy.

HANDWRITTEN WILLS Wills that are entirely handwritten by the testator are called “holographic” Wills. To

prove a holographic Will, the executor must demonstrate that it is written entirely in the

decedent’s handwriting and that it is signed at the bottom (subscribed). Proof that the

testator was mentally competent to write the Will and that the Will is entirely in his or her

handwriting is usually in the form of affidavits by people who don’t have a personal

interest in the estate.


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MINI-CHAPTER 7: THE MISSISSIPPI PROBATE PROCESS No two estate proceedings are the same. Because each estate involves different assets,

individuals, and legal documents, the work required to administer each estate can vary.

But the probate process generally unfolds in three primary stages:

1. Opening the estate

2. Administering the estate

3. Closing the estate.

OPENING THE ESTATE IN MISSISSIPPI CHANCERY COURT The estate will officially begin when it is “opened” in the local probate court (called a

“chancery court” in Mississippi). This stage can be broken down into several steps:

1. If there is a Will, the court will need the original, signed document. The attorney

will examine the Will to be sure it was signed by the testator and at least two

witnesses. If there is no Will, skip to step 3.

2. The attorney will determine what needs to be done to “prove” the Will. See How to

Probate a Will in Mississippi (Mini-Chapter 6) beginning on page 9) for more

information on proving a Will.

3. The attorney will prepare the initial documents to open the estate in chancery

court. These documents include a Petition for Probate of Will and Issuance of

Letters Testamentary (for estates with a valid Will) or a Petition for Grant of

Letters of Administration (for estates without a valid Will). In many cases, the

attorney will also prepare documents (known as joinders) that the other parties

involved can sign so they can participate in the process.

4. Once all of the initial documents have been signed and filed with the court, the

attorney will attend a hearing or otherwise communicate with the judge to obtain

an order opening the estate.

5. Once the order is issued, you will sign an oath and file it with the court. In some

cases, you’ll need to obtain a fiduciary bond (insurance that you will perform your

duties as executor) and file it with the court.

6. The court will issue a document that officially appoints you to act on behalf of the

estate, either Letters Testamentary (for estates with a valid Will) or Letters of

Administration (for estates without a valid Will).


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ADMINISTERING THE ESTATE Once the estate has been opened, the real work begins. This is typically the most labor-

intensive part of probate for executors and administrators. Each estate is different, but

the following duties are required in every probate proceeding.

1. Creditor Notification – Creditor notification is one of the most important duties of

an executor or administrator. This process is required even if there are no

creditors of the estate. And since the estate can’t be closed until this process is

complete, it’s best to get to it quickly. Creditor notification requires four steps:

a. Notice to Known Creditors – You must notify each known creditor of the

estate that the creditor has a right to probate (prove) a claim against the

estate. The notice must also state that the creditor’s claim will not be legally

enforceable if it is not filed with the court within 90 days from the date that

the notice is first published in the local newspaper.

b. Affidavit of Notice to Known Creditors – Once all known creditors have

been notified, you will sign (and the attorney will file) an Affidavit of Notice

to Creditors with the chancery court stating that all known creditors have

been notified.

c. Publication of Notice to Unknown Creditors – To deal with any unknown

creditors, the attorney will publish a Notice to Creditors in the local

newspaper. The date of first publication starts a 90-day period during which

creditors of the estate can submit claims.

d. Evaluation and Payment of Claims – After the 90-day creditor period

expires, the attorney will find out what claims were filed. You will then have

an opportunity to pay or contest any claims.

2. Payment of Taxes – You must be sure that all of the decedent’s taxes are paid.

Required tax filings typically fall into three categories:

a. Income Earned Prior to Death – Any income earned prior to the date of

death but after the filing of the decedent’s last tax return is known as

income in respect of a decedent (IRD) and is reported on the decedent’s final

income tax return.

b. Income Earned After Death – Any income earned by the estate during the

probate process is reported by the estate on a fiduciary income tax return.

c. Estate Tax Returns – If the decedent’s assets exceed the federal exemption

amount (currently $5 million), a Federal estate tax return and possibly a

Federal gift tax return. You should talk to the attorney about Federal filing

requirements.


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3. Inventory and Accounting – You will need to prepare a list of the decedent’s

assets, along with each asset’s value on the date of the decedent’s death. If you

aren’t sure about the value of certain assets, talk to your attorney about whether

you should have the assets appraised. You should also keep careful records of any

funds coming in or going out of the estate.

CLOSING THE ESTATE Once you’ve done what’s needed to administer the estate, it’s time to close the estate.

This stage can also be broken into several steps:

a. The attorney will prepare and you will sign a Petition to close the estate. This

Petition will often, but not always, include an accounting of any receipts or

disbursements of estate funds. The beneficiaries or heirs of the estate are usually

asked to join in the Petition.

b. The attorney attends a hearing and obtains an Order directing you to take the final

steps necessary to close the estate and discharging you from your duties. The final

duties usually include paying the expenses of administration and distributing the

assets to the beneficiaries or heirs.

c. Once you have taken all of the steps described in the Order, the attorney may file a

Statement of Compliance stating that all actions have been taken and that the

estate is closed.

This section should give you a good overview of the Mississippi probate process, but it

isn’t always this simple. Complicating factors include Will contests, creditor issues,

property that must be sold during the estate proceeding, assets owned by other estates,

or tax issues. If you anticipate any of these issues, let the attorney know right away so

that any unnecessary delay can be minimized.


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MINI-CHAPTER 8: HOW TO HANDLE THE ESTATE WHEN THERE IS NO WILL The assets of a person who dies intestate (without a valid Will) are distributed in

accordance with a default system known as laws of intestacy or intestate distribution.

These laws would also apply to a person with a poorly-drafted Will that does not dispose

of all of his or her assets. Mississippi intestate law will apply to all assets (including real

estate) located in Mississippi.

ADMINISTERING THE INTESTATE ESTATE Most of the provisions of the Mississippi Code that apply to testate estates also apply to

intestate estates. So administering a Mississippi intestate estate will be similar to the

probate of a Will in Mississippi. But there are a few significant differences:

1. In an intestate proceeding, the law makes assumptions about which individuals

should share in the decedent’s estate. These individuals are referred to as the

decedent’s heirs at law. The application of these rules is mechanical and doesn’t

leave much of an opportunity to change who will receive the assets. 2. If the estate is intestate, the attorney will also file an heirship suit (or suit to

establish heirs), discussed below. The purpose of this proceeding is to conclusively

establish the decedent’s heirs at law. Heirship suits are not always required in

testate estates since the Will specifies who receives the assets, but some counties

require heirship suits for both testate and intestate estates.

3. In most testate estates, the Will includes a clause waiving any need for a fiduciary

bond. In an intestate estate, a fiduciary bond is required as a matter of law unless

all of the heirs at law join in the petition to waive that bond. This often results in

the additional expense of having to post a fiduciary bond.

4. A person who leaves a Will usually names the person who will serve as executor of

his or her estate. But in an intestate estate, the court must appoint someone to

serve as administrator. The spouse is given preference, but the court will appoint

others if the spouse delays in administering the estate.

HOW TO IDENTIFY A PERSON’S HEIRS AT LAW Mississippi’s laws of intestacy pass a decedent’s assets to his or her heirs at law—a group

that includes the decedent's spouse and blood relatives (those descended from common

ancestors and adopted children). These individuals are divided into four groups:

a. Spouse and children. If the decedent had a spouse and children, the estate is

divided into equal shares for the spouse and the children. The descendants of any


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deceased child will inherit that child’s share. If the decedent had a spouse but no

children, the entire estate passes to the spouse.

b. Parents, Siblings, and Descendants of Siblings. If the decedent had no spouse or

children, his or her assets are distributed among his or her parents, siblings, or

descendants of siblings. Each parent or sibling is given one share of the decedent’s

estate. If any of the siblings predeceased the decedent, that sibling’s share will pass

to his or her descendants.

c. Grandparents, Uncles, and Aunts. If the decedent had no spouse, child, parents,

siblings, or descendants of siblings, his estate will pass to his grandparents, uncles,

and aunts in equal shares. Unlike the previous categories, the share of a deceased

aunt or uncle does not pass to his or her descendants.

d. Blood Relatives of Highest Degree. In the rare event that there are no individuals

in any of the previous categories, the decedent’s assets are distributed in

accordance with degrees of kinship as established by civil law. This rather

convoluted process involves going up the family tree to a common ancestor, then

back down the tree to the descendants of that ancestor, counting degrees for each

step in the ascending and descending family line.

THE HEIRSHIP SUIT If a person dies without a Will, Mississippi’s laws of intestacy will distribute a decedent’s

estate to his or her heirs at law. But how can third parties know who the person’s heirs at

law are? What would stop one child from claiming that he is the only heir when there are

actually more children involved? Those who later acquire property from an heir may want

proof that no one else can claim an interest in the property.

The heirship suit solves this problem by providing a judicial determination of a person’s

heirs at law. This gives third parties something to rely on to know that they are dealing

with all of the heirs involved.

To establish heirs, the attorney will file a Petition to Establish Heirs with the chancery

court in the county where the decedent died or owned property. Known heirs will usually

join in the petition, and notice is published in the local newspaper to deal with any claims

by unknown heirs. The attorney will then attend a hearing and obtain an Order

Establishing Heirs, which serves as a judicial recognition of the decedent’s heirs at law.


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MINI-CHAPTER 9: DUTIES OF THE EXECUTOR OR ADMINISTRATOR Your role as executor or administrator in Mississippi probate is a fiduciary role. This

means that you must act in the best interest of everyone who has a monetary interest in

the estate (creditors, heirs, and beneficiaries). You hold the estate assets for their benefit,

and looking out for your interests alone will get you into trouble.

Mississippi law requires you to carry out your fiduciary duties in good faith and as a

reasonably prudent person would in the circumstances. This standard is admittedly

vague, but Mississippi statutes and case law provide plenty of guidance on how to handle

specific situations. Keep in mind, though, that each specific application must be read in

light of the general fiduciary standard—the best interest of everyone who has a monetary

interest in the estate. This will help you make good judgment calls if any gray areas arise.

Questions about your duties in any given situation should be directed to the attorney

handling the estate. But the following list should give you an idea of the type of

responsibilities involved:

1. Hire the Probate Attorney. Although Mississippi court rules require the each

estate be represented by an attorney, you are responsible for hiring a probate

attorney that you are comfortable with. Questions will come up throughout the

process, so you should select someone who is responsive and knowledgeable about

Mississippi probate law.

2. Gather, Inventory, and Value Probate Assets. Once the estate is opened with the

chancery court, you should make a list of the assets of the decedent, along with

their values, and the debts owed by the decedent. Although a formal inventory can

be waived in some circumstances, you will need at least an informal inventory to

keep up with the estate. You should talk to the attorney about whether appraisal

would be a good idea.

3. Open an Estate Account and Manage Cash Assets. If the estate holds liquid funds

(things like cash or marketable securities), you will need to open one or more estate

accounts to hold the assets during the estate administration. To open an account,

financial institutions typically require the court-issued document that officially

appoints you to act on behalf of the estate (Letters Testamentary or Letters of

Administration) and an employer identification number (EIN) for the estate, which

the attorney or your tax advisor can provide. Some financial institutions also

require a copy of the order opening the estate. Liquid funds should usually be

moved into the estate account(s).


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4. Notify Creditors and Pay Debts of the Estate. It is important that you follow the

legal requirements for notifying creditors of the estate, even if you don’t think that

the decedent had any creditors.

5. File Tax Returns and Pay All Outstanding Taxes. You could be held personally

liable for unpaid taxes, so you will want to be sure that all tax returns have been

filed and all taxes have been paid.

6. Keep Complete Records. If you receive money or spend money, record that

information and be sure that you have supporting documentation. In most cases,

prior court approval is required before spending funds of the estate.

7. Make Distributions to Beneficiaries, Heirs, and Creditors. When it’s time to close

the estate, you will be responsible for paying creditors, and expenses of

administration, and distributing the remaining assets to the beneficiaries or heirs

of the estate.

This is a simplified overview, and there’s usually more involved. If you have questions

about your specific situation, be sure to run them by the attorney for the estate.


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MINI-CHAPTER 10: PROBATE AND REAL ESTATE Mississippi probate law treats real estate a little differently from other probate assets.

Under Mississippi law, the ownership of real estate becomes fixed at the moment of death

unless the property must be sold to satisfy creditors’ claims. If the decedent left a valid

Will, the people named in the Will are the legal owners; if the decedent left no Will, the

owners are determined under Mississippi’s laws of intestacy. But in either event, the

ownership of real estate is fixed at the death of the decedent.

So does this mean that there is no need to go through probate? Unfortunately, no. There

are still several practical issues to resolve.

• Did the deceased person have any creditors who could claim an interest in the

real estate?

• If there was a Will, is it a valid Will?

• Could there be unknown heirs involved?

These are the issues that the Mississippi probate process is designed to address. Probate

disposes of any creditors’ claims against the real estate, establishes the validity of a Will (if

there is one), and makes sure that all individuals who might claim an interest in the real

estate are involved. Probate gives third parties (like buyers, lenders, tenants, etc.)

assurance that the legal owners do in fact have good title to the real estate. So while legal

title does pass immediately at the moment of death, those who inherit the property will

not have clear title (and will not be able to effectively deal with the property) until these

other issues are resolved.

So if probate is still required, what is the real distinction between real estate and other

assets? The difference has to do with the executor’s or administrator’s duties with regard

to the real estate. Your primary responsibility is to preserve the real estate through the

probate proceeding for the benefit of the heirs, beneficiaries, and creditors. This might

involve being sure that property taxes and insurance premiums are paid and that the real

estate is well-maintained.

Leases are treated more like personal property than real estate. If the decedent is only a

tenant, the lease is considered personal property of the decedent and handled like other

non-real-estate assets. You will be responsible for reviewing the lease and notifying the

landlord of the decedent’s death. If the decedent is the landlord, rent from the leased real

estate will usually go to the person who inherited the real estate.


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So what if the decedent didn’t own much except a parcel of real estate? Is Mississippi

probate still necessary? Not always. Under limited circumstances, an attorney may be

able to clear title without going through the full probate process. Whether an alternative

to probate will work depends on several factors, including how soon you plan to deal with

the property and how much time has passed since the decedent’s death. Because most

people want “good” (insurable) title that will allow them to deal with the property (by

selling it, mortgaging it, etc.), these alternatives are of limited usefulness.


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MINI-CHAPTER 11: HOMESTEAD EXEMPTION AND OTHER FAMILY PROTECTIONS Mississippi law has built-in protections for the spouse and family of a decedent. These

protections have their roots in an earlier time, when most families had only one wage

earner. But the same policy applies today: a person should not be allowed to leave his or

her spouse destitute. These protections include the Mississippi Homestead Exemption,

the Mississippi Elective Share, and the Spousal Allowance.

MISSISSIPPI HOMESTEAD EXEMPTION The spouse of a decedent has an absolute right to use and occupy the marital home

(homestead) as long as he or she remains unmarried. If the Will includes provisions for the

spouse, but he or she rejects those provisions (the legal term for this is renouncing the

Will), or if there are not provisions for the spouse in the Will, the spouse will take an

undivided ownership interest in the homestead in the same manner that he or she would

in other property owned by the decedent.

Mississippi courts have held that a decedent cannot defeat a spouse’s right to occupy homestead property by leaving it to someone else. So even if the spouse does not have a

legal ownership interest in the marital home, he or she will be entitled to exclusive use and

possession.

Homestead property is generally not subject to debts of a decedent who dies without a

valid Will (that is, intestate) and is survived by a spouse or descendants or leaves it to his

spouse or children by Will (although this would not prevent a lender from foreclosing on a

mortgage). But if the decedent leaves the homestead property to someone other than a

spouse or descendant and is not survived by a spouse or descendants, the property is

subject to the claims of creditors.

THE MISSISSIPPI ELECTIVE SHARE If a Will leaves at least some assets to the decedent’s spouse, the court will usually assume

that the spouse has been taken care of. But there are important exceptions, the most

significant of which is Mississippi’s elective share statute. Under this law, a spouse is

allowed to reject the provision for the spouse under the decedent’s Will and instead claim

a different portion of the decedent’s estate. If the Will makes no provision for the spouse,

the spouse is automatically deemed to have renounced the Will, without the need for any

affirmative action by the spouse.

The share that the spouse is entitled to claim is known as the elective share. It is

calculated in a manner that reduces the amount the spouse is entitled to receive by the


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size of the spouse’s own assets. The following procedure is used to determine the

spouse’s share:

1. Determine the value of the deceased spouse’s net estate. This will include all

property passing under the Will, less debts, expenses of administration, estate

taxes, and funeral bills.

2. Determine the surviving spouse’s legal share. The legal share is the fractional

share of the decedent’s estate that the spouse would have taken if the deceased

spouse had died intestate (without a valid Will); this fractional share can’t be more

one-half. Under this rule, the spouse is generally entitled to one-half of the

decedent’s estate if the decedent left no children or one child. If the decedent left

more than one child, the spouse is generally entitled to a child’s share. For

example, if the decedent left a wife and two children, the wife would be entitled to

one-third and the two children would each be entitled to one-third.

3. Multiply the amount determined in Step 1 by the amount determined in Step 2.

4. Determine the net value of the surviving spouse’s net estate. This will include the

value of all property owned by the spouse at the decedent’s death less any debts of

the spouse. The issue of what is included in the spouse’s separate estate depends

on whether the spouse had rights in the property, vested by contract, before the

decedent’s death. The spouse’s separate estate will include all property owned in

joint tenancy with the decedent, life insurance proceeds on the decedent’s life

under the terms of the policy. Property inherited from the decedent through

intestacy (if the Will did not dispose of all of the assets) and homestead rights are

not considered part of the spouse’s estate.

5. Subtract the amount determined in Step 4 from the amount determined in Step 3

to arrive at the amount of the decedent’s estate to which the surviving spouse is

entitled (the “legal share”). The spouse is not obligated to accept this amount in

money (i.e., the spouse can claim an interest in specific assets).

There is also a rule of administrative convenience that can simplify the calculation of the

spouse’s separate share: If the spouse has a separate estate that is worth less than one-

fifth of the decedent’s estate (or has no separate estate at all), the spouse is entitled to the

full legal share. The purpose of this “one-fifth rule” is to avoid the necessity of appraisal of

the spouse’s estate if it is obviously negligible. If the value of the spouse’s separate estate

equals or exceeds the legal share, the spouse will take nothing other than what was

provided in the Will, if anything. If the spouse’s separate estate exceeds one-fifth of the

decedent’s estate but is less than the legal share, the spouse is entitled to the difference.


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THE SPOUSAL ALLOWANCE If a decedent leaves a spouse or children who were being supported by the decedent, the

spouse or children are entitled to as much of the decedent’s estate as is necessary to

accomplish the following for one year: to comfortably support them, to enable them to

buy clothes, and to pay the children’s tuition. This claim, known as the “spouse’s

allowance,” is a high priority claim that must be paid, even if the estate is insolvent. No

direct or formal proceeding is necessary to pay the spouse’s allowance.

So how much is the spouse’s allowance? There’s no clear answer. It is up to the chancery

court to determine the amount, depending on the value of the estate, the rights of others

in the estate assets, the dependent’s standard of living, and their specific life

circumstances. This spouse’s allowance does not reduce the spouse’s inheritance from

the estate.


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MINI-CHAPTER 12: FOUR STEPS TO GET YOU STARTED If you are ready to get started with dealing with a deceased person’s final affairs, we

suggest that you begin with these four steps. These steps will help you determine

whether probate is necessary and communicate efficiently with an attorney.

STEP 1: MAKE A LIST OF THE DECEDENT’S ASSETS You need to know what assets the decedent owned, where they are located, how much

they are worth, and how they are titled (whether there are any co-owners or TOD

designations). Knowing this information will help you decide how to deal with the estate

under Mississippi law, or if you need to handle it in another state.

STEP 2: DETERMINE WHETHER THERE IS A VALID LAST WILL AND TESTAMENT You also need to know there is a valid Last Will and Testament. If so, it will tell you who

has the first choice of administering the estate and who should receive the assets.

STEP 3: MAKE A LIST OF THE NAMES AND ADDRESSES OF THE PARTIES INVOLVED You cannot resolve Mississippi estate issues without knowing the names and addresses of

the other parties involved. Save yourself (and your attorney) some time by putting

together a list right away. Keep your eye on three groups:

1. Individuals or organizations named in the Will;

2. Close relatives of the decedent (especially spouses and children); and

3. Creditors or potential creditors of the decedent’s estate.

Because each of these groups could be affected by the Mississippi probate proceeding,

you should identify them early.

STEP 4: TALK TO MISSISSIPPI PROBATE ATTORNEY All Mississippi estates must be represented by a Mississippi attorney. Even if this were

not a strict legal requirement, it would be a practical one. Mississippi probate is too

complex for most laypersons to handle. The courts recognize this and treat attorney’s fees

as a necessary expense. As long as there are assets available, the attorney’s fees are paid

from the estate as an expense of administration. If we can be of assistance, please send an

e-mail to Jeramie Fortenberry at [email protected].


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