Mississippi Probate Process

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Once you have hired a Mississippi estate attorney and explored the alternatives to mississippi probate, you are ready to begin the probate process in earnest.

Probate begins when a Mississippi estate attorney files a petition in probate court (called a “chancery court”) asking to appoint someone to serve as the executor or administrator of the estate. Once the estate is opened, creditors are notified, claims are either paid or contested, and ultimately the estate is distributed in accordance with the deceased person’s will or, if there is no will, in accordance with Mississippi law. Once the deceased person’s estate is distributed, the Mississippi estate attorney will attend a hearing and, if all goes well, the probate court will issue an order closing the estate and releasing the executor from further responsibilities.

Although a conceptual description of the probate process can be helpful, probate in Mississippi can often be nuanced. Common complexities include locating the witnesses to the will, determining the heirs or beneficiaries of the estate, gathering estate assets, preparing estate accountings, keeping up with required tax filings, preparing transfer documents (such as deeds), and going through the procedural steps necessary to ultimately distribute the estate.

The steps required to probate a specific estate can vary, especially if the will is contested. However, some generalizations about probate in Mississippi can be drawn. The following steps generally occur in every estate:

  1. The family locates will and the witnesses to it. The will is brought to a Mississippi estate attorney (in Mississippi, every estate must be represented in court by a licensed Mississippi estate attorney). At least one witness gives an affidavit to the due execution of the will if such affidavit was not given at the time the will was executed.
  2. The Mississippi estate attorney prepares the initial documents to present to the probate court (called a “chancery court”) asking that the will be admitted to probate. These papers must be signed by the executor. Once these initial documents are signed, the estate attorney files them and appears before the probate judge (called a “chancellor” in Mississippi) to obtain an order admitting the will to probate and appointing an executor.
  3. Once the order admitting the will to probate has been issued, an Oath of Executor is filed and the probate court will issue Letters Testamentary giving the executor the legal authority to administer the estate. In most cases, the will waives the requirement of bond. If for some reason it does not, the executor must obtain and the Mississippi estate attorney must present a fiduciary bond to the court in order to obtain the Letters Testamentary.
  4. Once Letters Testamentary have been issued, the executor duties begin.  The executor will review the decedent’s affairs and compile a list of known creditors of the Mississippi estate. The executor must notify each known creditor of their right to probate a claim against the estate and let them know that their claim will be barred if they fail to do so within 90 days of the first date that notice to creditors is published in the local newspaper. Once all known creditors have been notified, the executor will sign an the Mississippi estate attorney will file an Affidavit of Notice to Known Creditors with the probate court stating either that all known creditors have been notified or that there were no known creditors.
  5. After the Mississippi estate attorney files the Affidavit of Notice to Known Creditors, a notice to unknown creditors is published in the local newspaper once a week for three weeks. The date of first publication starts the 90-day window during which creditors can submit their claims. Any claims not submitted within this 90-day period are barred.
  6. After the 90-day window has expired, the Mississippi estate attorney will contact the probate court to determine what claims were filed by creditors. The executor will then have the opportunity to either pay or contest the creditors’ claims, if any.
  7. If the estate exceeds certain monetary thresholds, an estate tax return must be filed. The estate tax return (IRS Form 706) must be filed within nine months from the date of death unless an extension is filed, in which case the deadline will be extended until 15 months from the date of death. All taxes are due when the return is filed. If the deceased person made taxable gifts and did not file gift tax returns (IRS Form 709), these returns are filed along with the estate tax return. The IRS must audit the estate tax return within three years from the filing date, but generally audits the return much sooner. Once the IRS has audited the return, it will issue a “closing letter” which generally allows the executor to safely proceed with closing the estate.
  8. The executor pays any unpaid income taxes, including any unpaid taxes on income earned prior to the date of death and income earned during the estate administration. 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. Income earned by the estate during the probate process is reported by the estate on a fiduciary income tax return if necessary.
  9. The Mississippi estate attorney will prepare a petition to discharge the executor and close the estate. The beneficiaries of the estate are usually asked to join in this petition in order to avoid the necessity of serving them with formal notice of the petition. The assets of the Mississippi estate are generally not distributed until the beneficiaries join in the petition to discharge the executor and close the estate (although in some cases partial distributions may occur during the Mississippi estate administration).
  10. Once the Mississippi estate attorney attends a hearing and obtains the order discharging the executor and closing the estate, the executor takes the final steps authorized by the order. This will generally include distributing the assets to the beneficiaries (including deeding any real estate to the beneficiaries) and, in many cases, obtaining receipts from the beneficiaries to evidence these distributions. Once the executor has taken all of the steps described in the order discharging the executor an closing the estate, the Mississippi estate attorney may file a Statement of Compliance, signed by the executor, stating that all actions have been taken and that the estate is closed.

The Mississippi probate process described above applies specifically to Mississippi estates for which there is a valid Last Will and Testament (that is, a “testate” estate). For estates for which there is no Last Will and Testament (“intestate” estates), the procedure is similar, but there are a few key differences. The primary difference is that a supplemental proceeding known as an heirship suit must be brought to determine who is entitled to receive the decedent’s property under the Mississippi laws of intestacy. Since there is no will to waive the fiduciary bond, bonding requirements must also be addressed.

Although these are the basic legal steps that must be taken in Mississippi estate proceedings, estate administrations are often much more complicated. The time it takes to probate an estate can be significantly lengthened by fact-specific circumstances, such as will contests, property that must be sold during the estate proceeding, assets owned in other estates, or tax issues. It is important for the Mississippi estate attorney to get an understanding of these circumstances early in the proceeding so that any unnecessary delay can be minimized.