Alternatives to Mississippi Probate

Once you’ve gone over the preliminary considerations and engaged a Mississippi estate lawyer, it’s time to explore the various alternatives to probate available under Mississippi law.  Under Mississippi law, a will is not recognized as valid unless it is admitted to probate.  This does not mean, however, that every estate must be probated.  Before making that assumption, you should consult with your Mississippi estate lawyer about whether there are alternatives available to shorten or avoid probate.

Alternatives to Mississippi Probate: Affidavit of Successor (Small Estate Affidavit)

Like many states, Mississippi has enacted a special statutory provision for “small estate.”  And like many states, the legislature has so limited the application of the statute as to limit its usefulness for most estates.  Generally, the statute allows tangible personal property or instruments evidencing a debt, obligation, stock, or chose in action of a decedent to be delivered to the decedent’s “successor” by affidavit, as long as the value of the decedent’s entire estate is less than $50,000.00.  For more information, see our discussion of Mississippi’s Small Estate Affidavit.

Alternatives to Mississippi Probate: Muniment of Title

When a person dies leaving a will that disposes of real property he or she owns in the state of Mississippi, the will may be admitted to probate as a “muniment of title” only by presenting the chancery court with a petition signed and sworn to by all beneficiaries named in the will and, if the decedent’s spouse is not named as a beneficiary in the will, by the decedent’s spouse. Other requirements include: (1) the value of the decedent’s personal property (property other than real estate) in Mississippi cannot exceed $10,000, exclusive of any exempt property; and (2) all known debts of the decedent and his or her estate must be paid first, including estate and income taxes, if any. Muniment of title proceedings are available to both residents and nonresidents.  For more information, see our Section on Mississippi Muniment of Title.

A muniment of title proceeding generally avoids the need for a full-blown probate proceeding under which an executor must be appointed and creditors must be notified. However, because creditors are not notified, a muniment of title proceeding does not provide assurance to third parties (buyers, lenders, renters, etc.) that the property is free and clear of all debts. Title companies often will not insure property that passes to the transferee in this manner, especially if the transfer is fairly recent. This can impair marketability of the property.

Alternatives to Mississippi Probate:  Transfer of Bank Accounts to Successors

Mississippi law provides for the transfer of assets in banks, savings and loan associations, and savings banks to be transferred to designated individuals without the need for probate.  Certain restrictions apply, including the requirement that the account values must not exceed $12,500.  For more information, see our Section on Transfer of Bank Accounts to Successors.

Alternatives to Mississippi Probate:  Unpaid Wages Due to a Deceased Employee

There is a statutory provision that allows an employer to pay any accrued but unpaid wages due to a deceased employee to certain relatives.[1] The payment could be made to the surviving spouse.  If there is no surviving spouse, then the payment can be made to children or other family members in order of priority.

Alternatives to Mississippi Probate:  Affidavit of Heirship

An Affidavit of Heirship is sometimes used by title companies if a long period of time has passed since a person’s death.  The Affidavit of Heirship is a sworn statement identifying the heirs at law of a decedent.  It is generally used for intestate estates (i.e., estates that are not disposed of by a valid Last Will and Testament).  Title companies will usually rely on an heirship affidavits only if a long time has passed since the decedent’s death.   For more information, see our section on Mississippi Heirship Affidavit.

Alternatives to Mississippi Probate:  Heirship Suit (Petition to Establish Heirs)

An heirship suit can sometimes be useful as an alternative to full-blown estate administration for individuals who die without a will (intestate).  An heirship suit is a petition to the chancery court to establish the heirs at law of a decedent.  It requires notification of all known heirs and publication of notice to unknown heirs in the local newspaper.  Once notice has been provided, the Mississippi estate attorney will attend a hearing and obtain an order establishing the heirs of the decedent.

As the name suggestions, the purpose of an heirship suit is to judicially establish the heirs of a deceased individual.  This allows third parties to know who is actually entitled to a person’s property under Mississippi’s laws of intestacy.  But it doesn’t address claims against the estate.  Third parties have no assurance that the decedent’s assets are not subject to a lien or other creditor claim.  Because creditor issues are not addressed, an heirship suit is not an effective stand-alone solution unless a great deal of time (e.g., 10 years or more) has passed since the decedent’s death.  For more information, see our discussion of heirship proceedings at How to Determine Heirs.

Alternatives to Mississippi Probate: Joint Ownership

Although this isn’t technically one of the alternatives to Mississippi probate, the distinction between probate and non-probate assets is often relevant to the discussion (for more on that, see our previous section on entitled Is Probate Necessary?). Probate is often unnecessary if the entire (and that means all) estate is disposed of through non-probate transfers.  Non-probate assets include assets held jointly with other individuals with rights of survivorship and other property arrangements that automatically transfer property at death.These arrangements include life insurance contracts, some retirement plans, and jointly owned bank accounts.

The ability to avoid probate through joint ownership and transfer at-death designations is limited.  Most people do not hold their entire estate jointly with other individuals, and for good reason.  Joint ownership is a bad idea for several reasons, such as exposure to creditor claims, loss of control, and the risk of tying up property that could be needed for future medical needs.

Probate is also unnecessary if the deceased person has done some pre-death planning to avoid probate, usually through the use of living trusts (see our section on Revocable Living Trusts). As the name suggests, living trusts are effective during a person’s life (as opposed to testamentary trusts, which only become effective at death). Living trusts allow a person to transfer all of their assets to the trust during their lifetime while retaining full control of the transferred assets. At death, all of the decedent’s assets are owned by the living trust, so the decedent effectively has no Mississippi probate estate. Unfortunately, many people fail to plan adequately for probate avoidance.  For more on probate avoidance in your own estate, see our section on Avoiding Mississippi Probate.

Effect of Dying Without a Will in Mississippi

One supposed alternative to Mississippi probate is not an alternative at all:  Dying without a will does not avoid probate in Mississippi. Even if a person dies without a valid will (called dying intestate), his or her estate will still go through Mississippi probate. A person who dies with an invalid or partially valid will is also considered to have died intestate as to any portion of his or her property that was covered by a valid will. Mississippi intestate law generally distributes property equally among the surviving spouse and children, then to parents and close family members. However, because each state has different default categories of intestate beneficiaries and because state laws are subject to change, relying on the Mississippi intestate distribution scheme is risky. It is important to have a valid will or trust in place before death to avoid these uncertainties.

This information is presented for informational purposes only and should not be taken as legal advice.  A competent Mississippi estate lawyer should always be consulted to determine whether probate is necessary and where the will should be admitted to probate.