Testate Estate (Will)
Prior to a will being probated, the document is not an effective means of transferring title. In Mississippi, chancery courts have jurisdiction over estate matters. If the testator was a resident of the State of Mississippi, the documents must be filed with the chancery clerk of the county in which the decedent resided. The probate process requires that proof regarding the validity of the document must be presented. Probate can be in common form or solemn form. However, in either case, a testatorís will and an accompanying petition must be filed with the appropriate chancery court. Proof of due execution of testamentary capacity must be presented. The main distinction between the two approaches is the notice requirement. Common form probate does not require legal notice, and proof of validity of the document is generally supplied by affidavits. However, if a will is probated in common form, interested parties may initiate a will contest within two years after probate. The two-year period is extended in situations involving fraud, minors, or individual who are of unsound mind. On the other hand, if a will is probated in solemn form, all interested individuals must be made parties to the petition for probate. Therefore, all such individual are notified of the pendency of the proceeding. After sufficient evidence is presented, an order declaring the will to be legally effective is entered. At this point, an individual is usually appointed to administer the estate.
Pursuant to Miss. Code Ann. ß 91-5-35, administration of an estate is not necessary if a will can be probated as a muniment of title. In order for this exception to apply, several requirements are imposed. First, the testatorís will must devise real property that is located in Mississippi. Second, the value of the testatorís interest in personal property must not exceed $10,000. Unless the exception applies, after a will has been properly probated, the court will appoint an individual to administer the estate.
After meeting requirements imposed by law, letters testamentary are granted to the individual who will administer the estate and ensure that the provisions of the will are properly executed. At this time, the executor must take a statutorily prescribed oath. Under Mississippi law, a testator is permitted to explicitly waive certain formalities that accompany the administration process. One of the requirements that can be waived is a bond equal to the value of the testatorís estate. Statutory law imposes several safeguards by requiring the executor to oversee a number of tasks. In summary, these tasks focus on inventory, appraisal, and accounting. However, case law has indicated that a testator can elect to waive these requirements by including such a provision his or her will. A notice to creditors must be published once a week for three consecutive weeks. The preferred means of notification is publication in a newspaper that is circulated in the county of the testatorís residence. If the claim of a creditor is not probated and registered with the clerk of the court within ninety days of the first publication, the claim is generally barred. However, if a will clearly provides that creditors are not required to probate claims, this limitation does not apply.
Intestate Estate (No Will)
In order to initiate administration of an estate of a decedent who was a resident of Mississippi, a petition must be filed in the county in which the decedent resided.
For thirty days after the decedentís death, the decedentís heirs are given priority as far as serving as the administrator or administratrix of the estate. After the expiration of this period, appointment of an administrator or administratrix is within the discretion of the court. However, in order for letters of administration to be granted, the individual who petitions to be appointed as the administrator or administratrix must meet three requirements. First, the prospective administrator or administratrix must be at least eighteen years of age. Second, the prospective administrator or administratrix must not have been convicted of a felony. Third, the prospective administrator or administratrix must be of sound mind. Prior to letters of administration being granted, the petitioner must take an oath that is required by statute. In addition, unless waived or reduced by the court, the petitioner must give bond in an amount equal to the value of the decedentís personal estate.
Unless waived for good cause, three disinterested persons are appointed to compile an inventory and appraise the decedentís chattels, goods, and personal estate; this requirement excludes money and choses in action. The inventory and appraisement must be completed thirty days after letters of administration are granted. In addition, the administrator or administratrix must make an inventory of the decedentís money that comes into the administratorís possession and debts owed to the decedent. In the event that the court waives the appraisal requirement, the inventory that is prepared by the administrator or administratrix must also list and value any of the decedentís property that is in his or her possession.
The administrator or administratrix of an estate must make a diligent effort to identify and notify the decedentís creditors. After completing these tasks, the administrator or administratrix must file an affidavit indicating compliance with these mandates. Subsequently, a notice to creditors must be published once a week for three consecutive weeks. The preferred means of notification is publication in a newspaper that is circulated in the county of the decedentís residence. If the claim of a creditor is not probated and registered with the clerk of the court within ninety days of the first publication, the claim is forever barred.