Do you have to probate?

Just like with everything else concerning the law – it depends.  When someone dies in Mississippi with a valid will, the legal proceeding for distributing the decedent’s assets is called probate; otherwise, if no will existed, the proceeding is called administration of an intestate estate. 

Regardless of the type of legal proceeding, probate or administration may not be necessary. It depends on the value of the decedent’s assets at the time of his or her death and how the assets were titled.  Be sure to look at all instruments that created title in the decedent.  For example, if he or she owned a home as a joint tenant with rights of survivorship, the remaining owner or owners will retain title to the home without the necessity of probate.  Also, if he or she had a joint bank account or an account titled “payable on death” to a certain person, the bank account goes to the joint owner or payable on death designee without needing to probate.  This same principle applies to insurance policies and retirement benefits, such as IRAs or 401(k) plans, with a living beneficiary.

However, if the decedent owned property in his or her name only, probate or administration may be necessary. Probate or administration settles the claims of creditors, heirs at law and/or beneficiaries of the decedent.  It is the binding process to properly distribute assets and resolve any debts and taxes of the decedent.  Probate or administration also gives notice to other third parties, such as banks and insurance companies, that title has changed and identifies the new owner or owners.  If third parties are not given notice and debts are not paid, this could result in a number of difficulties down the road, such as the inability to sell the decedent’s home or to properly handle the decedent’s other assets.

If a decedent’s estate is less than $50,000, a small estate affidavit may be a less costly and time-consuming alternative to probating the estate.  Depending on the circumstances, this may be a great option for those estates where the decedent left no will but has some assets or debts that need title transferred to the decedent’s heirs.  Or, if the decedent had a will that devised real property and had personal assets totaling less than $10,000, and all known debts have been paid, filing a petition for muniment of title only may be an option.  While this is a procedure to show new ownership in the land records, it is likely not the best option. A potential purchaser or lender will not know if all debts against the property have been satisfied.  Therefore, determination of debts against the property will need to be resolved before the potential purchaser or lender will move forward, so any costs saved on a probate will likely be spent providing clear title.

If a decedent passes away with no will and no personal representative has been appointed, the heirs may be able to transfer title of an automobile by completing an Affidavit and submitting it to the Mississippi Department of Revenue.

Mississippi law requires representation by an attorney in a probate or administration.  Our attorneys are experienced in probate and administration matters, and we welcome the opportunity to speak with you about probate or administration.  We will work with you to make this difficult time as seamless and easy as possible for you and your loved ones.