The Mississippi Small Estate Affidavit In a Nutshell
Assets Covered: The Mississippi Small Estate Affidavit can be used to transfer tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action.
Dollar Limitations: The value of the estate cannot exceed $50,000.00. Liens and encumbrances (e.g., mortgages) can be subtracted from the overall value for purposes of determining whether the estate value is less than or equal to $50,000.00.
Testate or Intestate? Usually applies to intestate estates. Not available if the estate is admitted to probate in any jurisdiction. The affiant must state that no application or petition for the appointment of a personal representative is pending, nor has a personal representative been appointed in any jurisdiction.
Who Can Benefit? The funds must be distributed to the spouse, children, or parents of the deceased person, in the following order:
- If the decedent is survived by a spouse, the assets are to be delivered to the spouse.
- If there is no surviving spouse, the assets are to be delivered to an adult that the decedent’s minor children live with. That adult is responsible to use the assets for the benefit of the minor children.
- If there is no spouse or minor children, the assets must be delivered to “any adult child” of the decedent.
- If there is no spouse or children of the decedent, then the assets must be delivered to “either parent” of the decedent.
Who Must Sign/File? The spouse, child, or parent of the decedent that is entitled to the assets, as the case may be (i.e., the “successor” of the decedent).
Special Requirements: At least thirty (30) days must have elapsed since the death of the decedent.
Special Notes: The language of the statute is mandatory, not permissive.
Explanation of the Mississippi Small Estate Affidavit
Under Mississippi’s Affidavit of Successor (Small Estate Affidavit) procedure, personal property owed to a deceased person with a value of up to $50,000 may be delivered to his or her heirs or successors by affidavit.
The affidavit can be made at any time after 30 days have passed since the person’s death. It may be given to “any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent.” That person is then required to transfer the personal property or the instrument to the successor.
As the name suggests, the use of the Small Estate Affidavit is limited to small estates. If the estate is worth more than $50,000, the Small Estate Affidavit will not apply. But any secured debt of the estate (for example, a lien on an automobile) can be subtracted from the value of the estate for purposes of computing the $50,000 threshold.
The Small Estate Affidavit is not available if an estate will be opened. The person making the affidavit must represent that no personal representative (executor or administrator) of the estate has been appointed or is the process of being appointed.
The affidavit must also describe the relationship between the person making the affidavit and the deceased person. The Small Estate Affidavit is only available to “successors,” which include the surviving spouse, the adult with whom minor children are residing, adult children, or parents of the decedent, in that order.
Once the successor provides the affidavit to the third party, he or she can take whatever actions necessary to deal with the property covered by the Small Estate Affidavit. Third parties can rely on the statute without fear of liability. There is no need for the third party to dig further into the truth of the affidavit or otherwise keep up with what happens to the asset after it is transferred to the successor. If the third party simply refuses to transfer the property after having been furnished with a Small Estate Affidavit, the successor can bring a proceeding in chancery court to force the transfer of the property.