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.