Mississippi probate law treats real estate a little differently from other probate assets. Under Mississippi law, the ownership of real estate becomes fixed as of the moment of death unless the property must be sold to satisfy creditors’ claims. If the decedent left a valid Last Will and Testament, 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. But in either event, the ownership of real property is fixed at the death of the decedent.
So does this mean that there is no need to go through probate? Unfortunately, no. There are still several practical issues to resolve. Did the deceased person have any creditors who could claim an interest in the property? If there was a will, is it valid? Could there be unknown heirs involved?
These are the issues that the Mississippi probate process is designed to address. Probate disposes of any creditors’ claims against the property, establishes the validity of a will (if there is one), and makes sure that all individuals who might claim an interest in the property are involved. Probate gives third parties (like buyers, lenders, tenants, etc.) assurance that the legal owners do in fact have good title to the property. So while legal title does pass immediately at the moment of death, those who inherit the property do not have clear title (and won’t be able to effectively deal with the property) until these other issues are resolved.
So if probate is still required, what is the real distinction between real estate and other assets? Glad you asked! The difference has to do with the executor’s or administrator’s duties with regard to real estate. Your primary responsibility is to preserve the property through the probate proceeding for the benefit of the heirs/beneficiaries and creditors. This might involve being sure that property taxes and insurance premiums are paid and that the real estate is well-maintained.
Leases are treated more like personal property than real estate. If the decedent is only a tenant, the lease is considered personal property of the decedent and handled like other assets. You are responsible for reviewing the lease and notifying the landlord of the decedent’s death. If the decedent is the landlord, rent usually passes to the person who inherited the real estate.
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, a Mississippi probate attorney may be able to clear title without going through the full probate process by using an alternative to probate. Whether any of them might work 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 allows them to deal with the property (by selling it, mortgaging it, etc.), these alternatives are of limited usefulness.