Mississippi Probate and Real Estate

As discussed in our Section on the necessity of probate, it is important to know which assets are Mississippi probate assets.  Mississippi estate attorneys are often asked about the relationship between real estate and probate in Mississippi.  Is Mississippi probate always required when real estate is involved?  Are there any alternatives to probate that could help me reach my goals?  What if someone tries to deed the real estate without my consent?  The answer to these questions lies at the intersection of real estate and probate law.

Under Mississippi law, a decedent’s real estate vests in his heirs at the time of death.  If the decedent left a valid will, the people named in the will are the legal owners; if the decedent left no will, the owners are determined under Mississippi’s laws of intestacy.  In either event, the legal ownership of the deceased person’s real estate is fixed at death (unless one of the heirs disclaims the real estate).

So does this mean that there is no need to involve Mississippi estate attorneys or go through the probate process?  Unfortunately, no.  Even though ownership of the real estate is fixed from a purely legal standpoint, there are several practical issues to resolve before the owners can obtain clear title to the real estate.  Did the deceased person have any creditors who would have a superior claim to the real estate?  If there was a will, is it a valid will?  Are there any other heirs who would have a right to contest the proceeding?  Until these issues are resolved, the title to the real estate will not be cleared and you will generally be unable to deal with the real estate.

The Mississippi probate process is designed to resolve issues like these.  Mississippi estate attorneys can guide you through the steps necessary to obtain clear title.  Probate disposes of any creditor claims against the real estate, establishes the validity of a will (if there is one), and makes sure that all people who claim an interest in the real estate are involved.  Once the probate proceeding is complete, third parties (like buyers, lenders, tenants, etc.) have assurance that the legal owners do in fact have good title to the real estate.

The executor’s responsibilities with regard to Mississippi real estate differ somewhat from how other assets are treated.  If the decedent left a valid will, the person named as executor under that will has no authority to act on behalf of the estate until the Mississippi estate attorney has the will “proved” with the Mississippi probate court and the court issues Letters Testamentary recognizing the person as executor.  Once that happens, the executor’s responsibilities are somewhat limited.  The primary responsibility is to preserve the property through the probate proceeding for the benefit of the heirs and creditors.  Although the full scope of the decedent’s responsibilities with respect to real estate are not clearly defined by Mississippi law, the executor must perform any duties he or she assumes with proper care and can be held liable for negligence in the performance of such duties.

Leases of real estate are treated differently from real estate that is owned outright.  Unlike real estate that the deceased person owned, leased real estate (where the decedent is the tenant) is considered personal property of the decedent.  It becomes an asset of the estate upon the decedent’s death.  The executor is responsible for reviewing the lease and notifying the landlord of the decedent’s death.  If the decedent is the landlord, the rents from the leased real estate will usually accrue to the benefit of the person who received the real estate at death unless the will provides otherwise. Any rents that accrue but remain unpaid prior to the decedent’s death become an estate asset.

So what if the decedent didn’t own much except a parcel of real estate?  Is Mississippi probate still necessary?  Not always.  Under limited circumstances, Mississippi estate attorneys may be able to facilitate the transfer of title without going through the full probate process. Whether these alternatives to Mississippi probate will be practical in your situation depends on several factors, including how soon you plan to deal with the property and how much time has passed since the decedent’s death.  Because most people want “good” (insurable) title that will allow them to deal with the property (by selling it, mortgaging it, etc.), these alternatives are of limited usefulness.  The alternatives to Mississippi probate include:

Mississippi Muniment of Title

Mississippi’s muniment of title proceeding allows real estate to be transferred to individuals named in a valid Last Will and Testament if certain conditions are satisfied.  The most significant condition is that the decedent’s Mississippi assets, exclusive of the real estate, cannot exceed $10,000.00.  Muniment of title proceedings can be helpful in limited circumstances, particularly when the decedent has been dead for ten years or more.  For more information, see our Section on Mississippi Muniment of Title.

Mississippi Affidavit of Heirship

A Mississippi Affidavit of Heirship is an affidavit, signed by one or more family members and at least two unrelated parties, that identifies the decedent’s legal heirs. Some Mississippi estate attorneys will use an Heirship Affidavit to in conjunction with a deed to put third parties on notice of the identity of the legal heirs.  You can read more about Mississippi Affidavits of Heirship at Alternatives to Mississippi Probate and Mississippi Heirship Affidavits.

Suit to Determine Heirs/Heirship

A suit to determine heirship is a court proceeding used by Mississippi estate attorneys to determine the identity of the heirs of an estate.  The heirship suit is much like a probate proceeding, except that it asks the court to make a determination of all of an intestate decedent’s heirs at law. After the Petition to Establish Heirship is filed, summons to unknown heirs is published weekly for several weeks in a local newspaper. Once a hearing has been held, the Mississippi chancery court will issue an order setting forth the heirs of the decedent. Mississippi estate attorneys must bring a suit to determine heirship as part of an intestate probate proceeding, and some counties (such as George, Greene, and Jackson County) require a suit to determine heirs even when there the decedent left a valid will.

Mississippi estate attorneys use a suit to determine heirs to provide title insurance companies with a judicial order to rely on to establish the heirs of the decedent.  However, unlike a full intestate proceeding, creditors are not notified of the need to present their claims.  As a result, all claims against the decedent’s estate will follow the real estate to the hands of the heirs. Because claims against the estate are not resolved, title companies have no assurance that title to the real estate is clear. Because suits to determine heirs do not deal with creditor claims, an heirship suit will not usually provide insurable title unless it is coupled with a probate proceeding.

For title purposes, Mississippi estate attorneys will usually only use a stand-alone heirship proceeding if real estate is going to be held for several years, since that allows the statute of limitations to run on any claims. Most title insurance companies equire the owners to wait at least 10 years, although 5-8 years may be acceptable in some circumstances. For many estates, the costs of bringing a suit to determine heirs will not be significantly less than the costs of bringing an intestate probate proceeding.  For this reason, many Mississippi estate attorneys will not recommend a suit to determine heirship as an alternative to an intestate probate proceeding unless there are other favorable circumstances.

For more about Mississippi heirship suits, see our section on How to Determine Heirs.

Intestate Probate Proceeding

Mississippi estate attorneys can use a suit to determine heirs along with an intestate probate proceeding to both cut off the claims of creditors and clearly identify the current owners of the real estate.  This provides marketable, insurable title and brings closure to the unsettled estate. Title is vested in the heirs of the estate, as determined by Mississippi laws of intestacy.  For small estates, such as those holding only one parcel of real estate, the costs of an intestate probate proceeding may not be much more than the costs of a suit to determine heirship. For this reason, many Mississippi estate attorneys would recommend an intestate probate proceeding over a stand-alone suit to determine heirship.

If you would like to speak to one of our Mississippi estate attorney about how to clear title to your real estate, please don’t hesitate to contact us today.