The Mississippi Probate Process

The probate process generally unfolds in three primary stages: opening, administering, and closing the estate.

Opening the Mississippi Estate in Chancery Court

The Mississippi probate process officially begins when the estate is “opened” in the local probate court (called a “chancery court” in Mississippi).  This stage can be broken down into several steps:

  1. If there is a Last Will and Testament, the Mississippi estate attorney needs the original, signed document.  The attorney examines the will to be sure it was signed by the testator and at least two witnesses.  If there is no will, skip to step 3.
  2. The Mississippi estate attorney determines what needs to be done to “prove” the will.  See How to Probate a Will in Mississippi for more information on this step.
  3. The Mississippi estate attorney prepares the initial documents to file with the court.  These documents include a Petition for Probate of Will and Issuance of Letters Testamentary (for testate estates) or a Petition for Grant of Letters of Administration (for intestate estates).  If the estate is intestate (or if the county otherwise requires it), the attorney may also prepare a Petition to Establish Heirs. In many cases, the attorney also prepares joinders for signature by the other parties involved.
  4. Once all of the initial documents have been signed and filed with the court, the probate attorney attends a hearing and obtains an Order granting the Petition for Probate of Will and Issuance of Letters Testamentary or the Petition for Grant of Letters of Administration, as the case may be.
  5. Once the Order is issued, you sign an Oath and file it with the court.  In some cases, a fiduciary bond is also obtained and filed with the court.
  6. The court issues Letters Testamentary (testate) or Letters of Administration (intestate).  This document officially appoints you to act on behalf of the decedent in winding up his or her affairs.

Administration of the Estate

The real work begins once the Letters Testamentary or Letters of Administration are issued.  Administration is usually the most labor-intensive part of probate for executors and administrators.  Each case is different, but the following duties are required in every probate proceeding:

  1. Creditor Notification – Creditor notification is one of the most important duties of an executor or administrator.  This process is required even if the decedent had no known creditors.  And since the estate can’t be closed until this process is complete, it’s best to get to it quickly.  Creditor notification requires four steps:
    1. Notice to Known Creditors – You notify each known creditor of the estate that the creditor has a right to probate a claim against the estate.  The notice must state that the creditor’s claim will be barred if not presented within 90 days from the date that the notice is first published in the local newspaper.
    2. Affidavit of Notice to Known Creditors – Once all known creditors have been notified, you sign (and the probate attorney files) an Affidavit of Notice to Creditors with the chancery court stating that all known creditors have been notified.
    3. Publication of Notice to Unknown Creditors To deal with any unknown creditors, the estate attorney publishes a Notice to Creditors in the local newspaper.  The date of first publication starts a 90-day period during which creditors can submit claims.
    4. Evaluation and Payment of Claims – After the 90-day creditor period expires, the estate attorney finds out what claims were filed.  You then have an opportunity to pay or contest any claims.
  2. Payment of Taxes – As discussed in Death and Taxes, you must be sure that all of the decedent’s taxes are paid.  Required tax filings typically fall into three categories:
    1. Income Earned Prior to Death – Any income earned prior to the date of death but after the filing of the decedent’s last tax return is known as income in respect of a decedent (IRD) and is reported on the decedent’s final income tax return.
    2. Income Earned After Death – Any income earned by the estate during the probate process is reported on a fiduciary income tax return.
    3. Estate Tax Returns – If the decedent’s assets exceed the federal exemption amount (currently $5 million), a Federal estate tax return and possibly a Federal gift tax return. You should talk to the probate attorney about Federal filing requirements.
  3. Inventory and Accounting – You prepare a list of the decedent’s assets, along with each asset’s value on the date of the decedent’s death.  If you aren’t sure about the value of certain assets, talk to your attorney about whether you should have the assets appraised.  You should also keep careful records of any funds coming in or going out of the estate.

Closing the Estate

Once you’ve done what’s needed to administer the estate, it’s time to close the estate.  This stage can be broken into several steps:

  1. The probate attorney prepares and you sign a Petition to close the estate.  This Petition will often, but not always, include your accounting of any receipts or disbursements of estate funds.  The beneficiaries or heirs are usually asked to join in the Petition.
  2. The probate attorney attends a hearing and obtains an Order directing you to take the final steps necessary to close the estate and discharging you from your duties.  The final duties usually include paying the expenses of administration and distributing the assets to the beneficiaries or heirs.
  3. Once you have taken all of the steps described in the Order, the probate attorney may file a Statement of Compliance stating that all required actions have been taken.
Probate Note: Unfortunately, some executors or administrators are not diligent in moving the estate toward completion. If you are the heir or beneficiary of an estate that someone else is handling, there may be things that you can do to help move things along. Take a look at our post on How to Force Someone to Close or Settle an Estate in Mississippi for more information.

This section should give you a good overview of the Mississippi probate process, but it isn’t always this simple.  Complicating factors include will contests, property that must be sold during probate, assets owned in other estates, or tax issues.  If you anticipate any of these issues, let the estate attorney know right away so that any unnecessary delay can be minimized.