Executor Responsibilities in Mississippi Probate

Mississippi law gives people leeway to determine how they want their assets distributed and how they want their final affairs managed after their death.  When people visit a Mississippi probate lawyer to have a will drawn up, one of the major issues to decide is who will administer the probate process.  The Mississippi probate lawyer will then draw up a will nominating someone to serve in that capacity.  This person is known in Mississippi as an executor (some states refer to this role as personal representative).

Your duties as executor begin when the Mississippi probate process has commenced.  The Mississippi Code requires the executor to gather any part of the decedent’s estate that is not in his possession and manage the estate in the best interest of all concerned, consistent with the decedent’s will and Mississippi law. The role of executor is a fiduciary role, meaning that the executor must act on behalf of those with monetary interest in the estate (creditors and beneficiaries) and not in his own best interest.  Mississippi executors must carry out their fiduciary duties in good faith and as a reasonably prudent person would in the circumstances.

The Mississippi Code deals with many specific applications of the duties of an executor under Mississippi law. Although specific questions should be directed to a Mississippi probate lawyer, the basic executor responsibilities under Mississippi law could be summarized as follows:

• Review the Will and Arrange for Probate. As noted in our Section entitled Is Probate Necessary?, the executor must locate and review the will carefully, noting any special instructions. The executor must also select a Mississippi probate lawyer and, if necessary, an accountant that will represent the probate estate. All legal matters involved in probating the will must be handled by a Mississippi probate lawyer.
• Gather, Inventory and Value Probate Assets. Once the Mississippi probate lawyer has obtained Letters Testamentary from the probate court, the executor should search for and identify the assets and debts of the decedent. Unless it is waived, the executor should immediately begin a formal inventory of the probate assets. Even if inventory is waived, the executor and the Mississippi probate lawyer will usually prepare an informal inventory of the probate assets. The probate assets will also need to be appraised unless appraisal is waived or is unnecessary. If inventory and appraisal are not waived, the executor has 90 days from the grant of letters testamentary to file the inventory and appraisal with the probate court. (Note: Special duties apply to real estate–see our section on Mississippi Probate and Real Estate.)
• Open an Estate Account and Manage Probate Assets. If there are any liquid assets of the estate (things like cash or marketable securities), the executor should open an estate account to hold the assets during the estate administration. To open an estate account, the executor must obtain a federal tax identification number for the estate. The Mississippi probate lawyer or accountant will usually assist the executor in filing the Application for Employer Identification Number with the IRS (the form can be filled out online fairly quickly).
• Notify Creditors and Pay Debts of the Estate. If the executor finds debts against the probate estate, a letter should be sent to the known creditors as soon as possible. The letter must contain sufficient identifying information to allow the creditors to file a claim against the probate estate in probate court. Once all known creditors have been notified (or, if there are no known creditors), the Mississippi probate lawyer will file a signed Affidavit of Notice to Known Creditors with the probate court, publish Notice to Unknown Creditors in the local newspaper, and file the proof of publication with the probate court. The notice must tell the creditors that they have a right to probate a claim and that all claims that are not probated within 90 days of publication will be barred. The Mississippi probate lawyer should ensure that the notice is published in a local newspaper once weekly for three consecutive weeks. (For more on creditor notification, see our discussion in the Mississippi Probate Process).
• File Tax Returns and Pay All Outstanding Taxes. Because the executor could be held personally liable for unpaid taxes, the executor should be certain that all tax returns have been filed and all taxes have been paid. The decedent’s final income tax return should be filed on Form 1040 reporting all income earned prior to the decedent’s death. Income tax returns for the estate (Form 1041) should also be filed to report income earned during each year of estate administration. If the decedent is subject to the estate tax, an estate tax return (Form 706) must also be filed. The estate tax return and the taxes are due nine months from date of death, or with extensions, 15 months. If the decedent made taxable gifts but failed to file a gift tax return (Form 709), the gift tax return should be filed with the estate tax return.
• Distribute Assets to the Beneficiaries and Close the Estate. Once the preceding steps have been taken, the executor will usually provide the Mississippi probate lawyer with a final accounting to file with the court in connection with the Petition to Close the Estate.  At the time the estate is closed, the executor will distribute any remaining assets to the beneficiaries of the estate pursuant to the terms of the will. Once the estate can be closed, the executor is generally released from further duties on behalf of the estate.

Specific questions about your executor responsibilities should always be directed to a Mississippi probate lawyer.  The overview presented here is somewhat simplified and should not be viewed as comprehensive.  If you would like to speak to a Mississippi probate lawyer about your role, please contact us today.