Recent Lowndes County Probate Case Involves Proper Appointment of a Mississippi Estate Administrator

Who should be appointed as administrator of a decedent’s Mississippi estate?  The answer is usually straightforward, but can be complicated if there are unresolved issues regarding a deceased person’s marital status.

The Mississippi Court of Appeals recently decided Lowndes County probate case involving a medical malpractice suit against Dr. Emad H. Mohamed.  The wrongful death suit was brought by the decedent’s husband, who had been appointed as the administrator of the decedent’s Mississippi estate.  It turns out that the decedent had been previously married and that her divorce had never been finalized.  Based on this prior marriage, Dr. Mohamed argued that the chancery court had appointed an improper person requested that the decedent’s second husband be removed as the Mississippi estate administrator.

The rule for determining whether there has been a divorce or annulment is well-established:  You show what county each party to the prior marriage resided at the time of the second marriage, then get a certificate of search from the county clerk in each county to show that there has been no divorce or annulment granted by the court of that county.  In this case, however, no county certificates were produced to establish that the parties have not been divorced.

But here’s the bigger issue:  What does the decedent’s prior marital status or the appointment of her Mississippi estate administrator have to do with a doctor’s liability for medical malpractice?  Even if we assume that the decedent failed to get a proper divorce from her first husband, should that allow Dr. Mohamed to challenge the appointment of the administrator of the decedent’s estate?  The court said no, holding that the alleged medical negligence was an independent matter of the probate action.  The good doctor’s desire to get rid of the malpractice suit did not give him standing to interfere with the estate administration.

Even if the doctor did have standing, though, the result would have probably been the same.  The court felt that there was no cause to remove the second husband as the administrator of the decedent’s estate.  Because there wasn’t any evidence that the second husband was not the decedent’s legal husband, there were no grounds to remove the second husband from his position as administrator of the decedent’s estate.  The Court of Appeals remanded the case to the Lowndes County Chancery Court for an order reinstating the second husband as the Mississippi estate administrator.

Estate of Wallace v. Mohamed, 2008-CA-01344-COA

Marion County Probate Decision Involves Intersection of Mississippi Probate and Foreclosure Law

Mississippi probate is often intertwined with issues involving real estate law.  The Mississippi probate proceeding itself is often brought when the heirs or beneficiaries of a decedent’s estate want to clear title to real estate.

Probate clears title in at least two ways.  First, it provides a judicial determination of the people who are entitled to the deceased person’s property.  This judicial determination allows third parties (buyers, sellers, lenders, tenants, etc.) to rest assured that they are dealing with all of the people who have a genuine interest in the property.

The second way that probate clears title is by resolving outstanding creditor issues.  If creditors are properly notified, all outstanding debts are resolved in the probate proceeding.  This provides third parties (particularly buyers) with comfort that no creditor will come out of the woodwork with a claim against the property at a later date.

But what if the decedent owned real estate that was subject to a mortgage?  Must the heirs or beneficiaries continue to pay notes on the property to prevent foreclosure?  The answer is yes, as seen in a recent Marion County, Mississippi, probate case.

The case involved a decedent who had purchased land in 2000 and died in 2002.  The land that he purchased was secured by a mortgage (called a “deed of trust” in Mississippi).  After his death, the deed of trust went into default and the lender foreclosed on the property.  The lender then sold the property to a third party.

The administrator of the decedent’s estate challenged the foreclosure sale, claiming that the lender had not properly notified the heirs of the decedent’s estate.  Unfortunately for the administrator, there is no requirement that interested parties be notified of the foreclosure proceeding.  The presumed rational behind this rule is that the interested parties should know that they are at risk of foreclosure, since they have stopped paying the mortgage payments.

In any event, the Marion County probate court found that the lender had no obligation to do more than what Mississippi law requires.  Since Mississippi law did not require the heirs of the estate to be notified of the foreclosure, the lender did not act improperly by failing to notify them.

In re Estate of May, 2009-CA-0442-COA (March 2, 2010)