Probate is a court-supervised process for settling a decedent’s estate and distributing their assets to those entitled to them. Probate can be a daunting and confusing process which, unfortunately, comes at a difficult time. However, probate is required for most estates to ensure that the decedent’s debts are paid and that clear title to property is transferred in an orderly fashion. In Mississippi, probate will take a minimum of 90 days and typically takes 4-6 months. However, complications such as probate litigation can cause the process to take much longer. Mississippi Trusts and Estates law governs the process. Miss. Code Ann. § 91-1-1 et seq.
The legal process of probating an estate begins with the filing of the will, if any, along with the death certificate and a petition for probate. In Mississippi the chancery courts serve as probate courts and have jurisdiction over probate matters. The petition must be filed with the chancery court in the county in which the decedent lived at the time of their death. Once the chancery court judge admits the will to probate and appoints the executor to act on behalf the estate, the executor is tasked with caring for the following steps:
- Collect, secure, and appraise assets in the estate. Once the court gives the executor control of the estate, it is the executor’s responsibility to safeguard its assets. The executor must also determine the value of the estate.
- Pay the estate’s debts and taxes. Creditors of a decedent are notified of the probate case. Anyone who wants to make a claim against the estate must file them within 90 days after the executor first published a notice. The executor is required to pay from estate assets all valid timely filed claims to the extent there are assets in the estate available to do so. In addition, the executor is responsible for filing any outstanding tax returns and paying taxes due.
- Close estate and distribute estate assets. After debts, taxes, and expenses of administration are paid, the executor must distribute the remaining assets to the beneficiaries as directed in the will or Mississippi law.
Problems During Probate
Disagreements during probate can lead to probate litigation, extending the length of probate and increasing expense to the estate. If probate disputes develop involving the executor, beneficiaries, creditors, or other interested parties that they are unable to resolve out-of-court through negotiation, litigation before a judge may be required.
For example, if an heir believes that the will is fraudulent, they may initiate a will contest and present evidence supporting their beliefs. Other common reasons for probate litigation include disagreements over how the executor is doing their job, creditor claims, and disagreements over how to interpret terms of the will.
Absence of a Will
If a decedent did not leave a will, if the will is declared invalid, or if the will did not properly dispose of all of the decedent’s probate property, then the property will be distributed based on Mississippi’s laws of intestate succession. Miss. Code Ann. § 91-1-1 et seq. Under the law, an intestate decedent’s primary heirs-at-law are their surviving spouse and children. In the absence of either, the law states who is in line to receive the decedent’s property, starting with parents followed by siblings. If there is a question about whether someone is entitled to inherit, the claimant can establish entitlement by filing a Petition to Establish Heirs.
Mississippi has options for simplified procedures for settling small estates. Under the Notices in Small Estates provision, if an estate has a value of $500 or less, it is not necessary for the executor or personal representative to publish newspaper notices. Instead, notices can be posted in the courthouse and in 2 other public places. Creditors have 90 days to submit claims. Miss. Code Ann. § 91-7-147. After debts are paid to those who filed timely valid claims, assets can be distributed.
Another expedited process allows the will to be used as proof of title. In the case of a testate estate, if the value of the estate does not exceed $10,000 beneficiaries may use the will as a “muniment of title.” This means that a beneficiary can request transfer of title of property based on proving ownership of property by producing the will. Miss. Code Ann. § 91-5-35.