Monthly Archives: April 2016

Mississippi Probate Law – Part II

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Mississippi Probate Law – Part II

This is part two of the two part posts of Mississippi Probate Law. Yesterday, we covered Step 1 through Step 7 of the Probate procedure in Part of of Mississippi Probate Law. You can refresh your memory here. Today, we will start with Step 8.

STEP 8: Inventory. Although an inventory may be waived, I request that my fiduciaries (Executor/Administrator) to always perform an inventory. This is to safeguard the fiduciary and myself as the attorney. It never surprises me, it’s time to distribute all the assets and funds and then someone mentions Aunt Sue’s 5 karat diamond ring is missing. The fiduciary may find himself in a difficult situation that could end in a lawsuit; however, if an inventory has been completed and no ring was inventoried, then he has proof to back himself up that there was no ring when the process began. If the inventory is not waived, a fiduciary is required to make an inventory within 90 days of there appointment.

STEP 9: Distribution of Letters. Once you have taken an oath and posted a bond, unless waived, then you will be issued either Letters of Testamentary (if there’s a will) or Letters of Administration (if there’s no will). You will then distribute these letters to the bank or any other financial institution, and anywhere else that is necessary to probate or administer the estate. These letters allow you to conduct business on behalf of the estate and to gather the necessary information needed during the probate procedure.

STEP 10: Probate of Claims. Once the notice of creditors have been published. Creditors will have 90 to file a claim with the Chancery Clerk. After the 90 days have expired, you must decide which claims are valid and which claims to dispute. For disputed claims, a hearing will be set and the claimant will be afforded the opportunity to submit evidence in efforts to validate his/her claim by clear and convincing evidence and the attorney will have the opportunity to dispute the facts and evidence. At the end of the hearing the judge will rule to either allow or disallow the claim on the estate. If the claim is allowed or if the claim is not disputed it becomes a debt of the Estate that is payable at the time of distribution.

STEP 11: Accounting. Many times, the court will require an accounting of the estate. This is required when the probate or administration process exceeds one year. The accounting should state the period of time the accounting covers, the assets of the estate, what assets have been disposed of, why and where the funds from said disposal is. The accounting should also make reference to the debts of the estate. The accounting must be signed and attested to by the fiduciary.

STEP 12: Payment of Probated Claims. After the heirs and the court has decided how the assets should be divided, or in the event of an insolvent estate the assets have been sold; it is time to pay all of the probated claims. The order in which you pay the claims is important. First the cost of administration should be paid (attorney fees and court costs and expenses). Next the funeral cost and last medical expenses should be paid. Then taxes and other government fees, if any should be paid. After that, then secured debts to be paid. Finally the probated claims should be paid; if there is not enough funds to pay every claim, then the claims should be paid on a pro rata share.

STEP 13: Distribution. If after the probate claims and all other expenses are paid in full, there are still funds and assets remaining in the estate, then the assets and funds should be distributed to the proper parties, either by the will or by the heir share.

STEP 14: Closing of the Estate. Once the claim and debts have been paid and the assets properly distributed; then the fiduciary should file a final accounting and a motion to close the estate and to relieve him/her of the duties of a fiduciary. A hearing should be set and the motion presented at the hearing. Once the order is granted, the estate will be closed and the fiduciary relieved of his/her duties.

I know this appears to be a difficult process, and I will admit it can be; if it is approached the proper way and with the proper guidance the process will be bearable and should only take between 4 and 6 months, although in certain situations, the process could take longer to complete.

Mississippi Probate Law – Part I

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Mississippi Probate Law – Part I

This will be a two part blog post, due to the amount of information that will be provided.

Mississippi Probate Practice is govern by Title 91 of the Mississippi Code Annotated and Rule 6 of the Mississippi Uniform Chancery Court Rules (MS UCCR).

STEP 1: Know the lingo. You need to know some of the common terms that will be used when discussing the probate process.

  • Administration. The process of properly appointing an administrator(ix), inventorying, and disposing of the property of a deceased without a will. See also Probate.
  • Administrator. (f: Administratrix) One appointed by the court to take responsibility for anadministration. Also used with certain modifying terms to designate a person appointed to replace an executor named in a will.
  • Beneficiary. One named in a will to receive abequest or devise, or in a trust to receive the trust proceeds. Note that not all heirs are not necessarily beneficiaries.
  • Bequest. Disposition of property by will.
  • Decedent. The person whose death has occasioned the opening of an estate.
  • Devise. Disposition of property without a will at the completion of the Administration.
  • Executor. (f: Executrix) One appointed by the court to take responsibility for probateof a testate
  • Fiduciary. Term embracingadministrators, conservators, executors, guardians, trustees and others who have a special duty of good faith and responsibility to the court and interested parties in relation to the matters entrusted to him or her.
  • Heir. One who is designated under the laws of descent and distribution to receive the estate of a decedent not disposed of in a will. Although an heir may be abeneficiary, all beneficiaries are not necessarily heirs.
  • Holographic will. A will written entirely in the handwriting of thedecedent.
  • Intestate. The state of not having written a will; also refers to the individual himself or herself.
  • Probate. The procedure to prove a will. Also, the collective term used for estates, administrations, guardianships, conservatorships and judicially-administered trusts, the common characteristic of which is appointment of a fiduciaryto be responsible to the court and interested parties.
  • Probate in Common Form. Admission of a will toprobate ex parte, without formalities. (Not recommended)
  • Probate in Solemn Form. Admission of a will toprobate after notice to all interested parties and a court hearing. (Recommended)
  • Residuary Estate. All that remains of an estate after the expenses of administration, debts,legacies and devises have been satisfied.
  • Testate. The state of having written a will; also refers to the individual himself or herself.
  • Testator. (f: Testatrix) The maker of a will, and one who dies leaving a will.

STEP 2: You are REQUIRED to have an attorney to administer or probate an estate in Mississippi- Rule 6.01 MS UCCR

“Every fiduciary must, unless he is licensed to practice law, retain an attorney or firm of attorneys to represent, advise and assist him during the whole term of his office, whose compensation will be fixed or approved by the Chancellor. When an attorney has once appeared for such a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the client.”

STEP 3: The Right Attorney. You will need an attorney who is familiar with the probate process; therefore, you should be prepared to provide certain documentation to the attorney and you will need to feel comfortable with the attorney, as you will be working closely with him/her for the next several months, so feel free to ask questions at the consultation.

Documents/Information you should bring to a consultation:

  1. Death certificate
  2. Will if applicable
  3. A list of all known debts (include the to whom the debt is owed, the amount, and the contact information of the person owed the debt)
  4. A list of all checking, savings, CDs, IRAs, or any other financial assets (include whose name on it, what financial institution, the amount, and if there is any beneficiaries listed)
  5. A copy of all real property deeds, no matter what state or county it may be situated in.
  6. A copy of any and all titles to automobiles, tractors, trailers, boats, atvs, etc.
  7. A list of all heirs and/or beneficiaries (include name, address, and telephone numbers).
  8. A copy of any known trusts.

Some questions you may want answered:

  1. How long will this take?
  2. How much will this cost?
  3. Will I have to post bond?
  4. Will I have to perform an inventory?
  5. What are my responsibilities?
  6. What are my liabilities?
  7. What are the steps to probate/administration?

STEP 4: The Complaint to Open an Estate. After you have hired an attorney, he/she will draft a complaint to open the estate of the deceased. The person requesting to be appointed Executor(ix)/Administrator(ix) will be required to sign any and all complaints and other pleadings filed with the court under Rule 6.13 of the Mississippi Uniform Chancery Court Rules. If there is a will it will need to be proven. Although there are many ways to prove a will, the most common is by the witnesses completing an affidavit.

STEP 5: Appointment, Oath, Bond, and Letters of Testamentary/Administration. If the Judge appoints you as Executor(ix)/Administrator(ix) of the estate, you will be required to (1) take an Oath asserting you will be diligent in probating/administration the estate, (2) Post a Bond, unless specifically waived, and (3) Letters will be issued, allowing you to fulfill your duties as fiduciary.

STEP 6: Notice to Creditors. Known creditors will need to be notified in writing of their opportunity to probate a claim. You are also required to place a notification in the legals in the classifieds of the local newspaper in the county of the residence of the decedent. This notification must be published once a week for three consecutive weeks and must notify all unknown creditors of the opening of the estate and their opportunity to file a probate of a claim for debts owed within 90 days of the initial publication with the chancery clerk of the county in which the estate is being probated/administered.

STEP 7: Notice to Heirs. If there isn’t a will, then notice to unknown heirs must be published in the legals in the classifieds of the local newspaper in the county of residence of the decedent. This notice must state the time and date certain, for which any unknown heir who wish to make a claim to the estate, to appear and assert their claim. On the date certain set, the bailiff will be asked to call any unknown heirs of the estate and one of two things will happen. First if there are no unknown heirs present to make a claim, a judgement/order asserting there are no unknown heirs and recognizing only the known heirs by name; or second, if there are unknown heirs, they will be afforded the chance to present evidence to prove their heirship and the attorney for the estate will also be afforded the right to dispute any evidence presented. Then the judge will rule whether or not the unknown heir is a proper person to inherit under the law.

Tomorrow Part II of MS Probate Law will be published.