This is the question that plagues many people. As if losing a loved one isn’t stressful and heart-breaking enough, the survivor(s) must make some important decisions that could affect the decedent’s assets and potentially his/her legacy. Follow the steps below to assist in determining if Probate is required or needed.
1. What did the decedent own at the time of his/her death?
The answer to this question is the single most important factor in determining whether probate is required or needed. If the decedent didn’t own any assets, then the estate may not need to be probated. If the decedent did own assets, proceed to the next steps.
2. How are the decedent’s assets titled?
If you find out that the decedent did own assets, determine how each asset is titled. There are several ways that an asset might be titled, including:
- Decedent’s name alone.
- Tenants in common (i.e., jointly without rights of survivorship).
- Jointly with rights of survivorship.
- Revocable living trust.
- Other separate entity (LLC, corporation, etc.).
Knowing how each asset is titled will assist in determining which assets pass automatically to others (non-probate assets) and which 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; whereas real estate that is held in the decedent’s name alone, may require probate.
PROBATE TIP: To determine if real estate is held in joint tenancy with right of survivorship take a look at the deed to the property. If the deed states “to A and B, as joint tenants with right of survivorship” or similar phrases indicates that the property is held jointly. Sometimes the deed may state, “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 is presumed to be held as tenants in common and probate is generally necessary. Consult a probate attorney to assist in determining the classification of ownership of real estate.
3. Do the decedent’s assets have beneficiary designations?
Some assets, like financial accounts and insurance policies, may be titled with a “payable on death”, POD, (also called a “transfer on death”) designation. At the decedent’s death, a POD designation will automatically pass the asset 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.
4. Where are the decedent’s assets located?
Even if you determine that probate will probably be required, this doesn’t necessarily mean that Mississippi is the right state in which to bring the estate proceeding. If, for example, the decedent resided in Mississippi but owned real estate in Alabama, it could be that Alabama is the best place to bring the estate proceeding or possibly a second probate may be needed or a monument of title may be used. For more information on this topic, consult a Probate Attorney.
5. What is the value of the decedent’s probate assets?
Once you determine that there are probate assets an estimation of the value of each asset will be needed. Debts owed by the decedent in connection with the asset will need to be subtracted from the gross value to give the asset’s net worth. This will allow you to make an informed decision about how to proceed.
In a few situations, such as insolvent estates, some 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 in the probate process to protect at least some of the assets from creditors. At the very least, the Mississippi homestead exemption and spousal allowance should be considered.