Mississippi Probate Assets

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Mississippi probate attorneys often receive calls from clients with questions about whether to open a Mississippi probate proceeding.  As mentioned in our section on the necessity of probate,  this question usually depends on what assets are involved and whether those assets are probate or non-probate assets. Knowing what assets are included in the Mississippi probate estate is important for several reasons:

  • The need for a Mississippi probate proceeding and the type of probate proceeding usually depends on the assets of the probate estate.  If the estate doesn’t have any probate assets, there is usually no need to open a probate proceeding.  Even if the estate does have assets, probate may not be worthwhile if the assets are worth less than a probate proceeding would cost or if there are more debts than assets.  For these reasons, Mississippi probate attorneys will usually need to know which assets are involved before they can advise you about how and whether to pursue a probate proceeding.
  • As executor or administrator of an estate, you have responsibility to gather and manage the assets of the Mississippi probate estate (see Mississippi Executor Duties). This responsibility includes the duty to take possession of the personal assets of the decedent and ultimately distribute them to their intended beneficiaries. If you don’t know what assets are included in the Mississippi probate estate, you won’t know which assets you are responsible for.
  • The claims of creditors of the estate attach to the probate assets of the estate. Assets that pass outside of the estate – such as life insurance proceeds made payable to a specific beneficiary – may be beyond the reach of creditors and are not the responsibility of the executor.  So knowing what assets are probate assets and those that are not can be important for creditor purposes.

As executor/administrator, you are responsible to the creditors and heirs of the estate for the assets that are under your care.  If you have reason to believe that any of the assets of the estate are being improperly concealed or withheld, you should file a summary petition against the suspected wrongdoer demanding discovery of the assets and the claims related to the assets.

If there are insurance policies that are payable to the estate, your job is to prepare proofs of loss to collect the proceeds from those policies. Policies payable to specific designees are not part of the Mississippi probate estate.

A Note on Real Estate Held as Joint Tenants with Right of Survivorship

As noted in Mississippi Probate and Real Estate, the executor’s duties with respect to real estate owned by the decedent can be tricky. At a minimum, the executor should take whatever steps are necessary (including a title search in some cases) to be sure of the real estate that the decedent owned and determine its ultimate disposition.

Property that is held as joint tenants with rights of survivorship will pass to the surviving joint owner outside of the probate estate. The executor’s role with respect to jointly owned property is to find out whether it was owned with rights of survivorship (as opposed to tenancy in common) and, if so, to determine whether the joint tenant(s) survived the decedent. If any one of the joint tenants survive the decedent, the property will pass to the joint tenant without any act by the executor.  Title insurance companies often accept a death certificate as evidence that one of the joint tenants is deceased and the real estate is vested in the remaining joint tenant.

To determine if real estate is held in joint tenancy with right of survivorship (JWROS), Mississippi probate attorneys can examine your deed to see how it is titled.  Language stating “to A and B, as joint tenants with right of survivorship” or similar language indicates that the property is held jointly.  Sometimes this language will read, “A and B, as joint tenants with right of survivorship and not as tenants in common,” making it clear that the property is not intended to be held as tenants in common.  If the deed either states that the property is held as tenants in common or is silent regarding the issue, the property will be presumed to be held as tenants in common and probate will usually be necessary.

If you have any questions regarding the assets of the probate estate, contact a Mississippi probate attorney today by calling (877) 875-6957 or use our Contact Form.  We are usually able to schedule a free preliminary telephonic consultation from 8:00 to 5:00 central time, Monday through Friday.

Please note that contacting our firm or having a preliminary discussion regarding your Mississippi probate matter does not establish an attorney-client relationship.  The attorney-client relationship does not begin until you sign a written agreement with us to engage a Mississippi probate attorney for your estate matter.