Heir Rights (MS)
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As an heir, you likely have questions about the inheritance process in MS, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under MS Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, MS estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- MS Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see MS Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See MS Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
MS Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Mississippi, small estates can bypass probate by using a small estate affidavit for personal property, and a muniment of title for real property. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a Mississippi estate has gross value <$75,000, you can use the small estate process to settle an estate with no court involvement.
Requirements
To use the small estate process, the following conditions must be true:
- The estate's assets have a gross value <$75K in total (prior to July 1, 2020 the limit was $50K)
- At least 30 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In determining the value of the estate, you should value assets as of the date of death, and ignore any unsecured debts. Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate process:
- Prepare a Small Estate Affidavit, have it notarized, and attach a copy of the death certificate and the will (if any)
- Obtain possession of estate assets by presenting the affidavit to current custodians (real estate cannot be transferred via small estate affidavit)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- Submit an Affidavit Form 78-014 to the DMV for any vehicles (note that the document title is misleading, and refers to any estate where a will has not been probated).
See MS Code § 91-7-322 and
Muniment of Title
A Muniment of Title is similar to a Small Estate Affidavit, but is used to transfer real property (i.e., real estate).
Requirements
You can use a Muniment of Title if:
- A valid will exists that devises (i.e., assigns) real property to someone
- The value of any personal property in the estate is <$75,000 (prior to July 1, 2021 the limit was $10K)
- All known estate debts have been resolved
In determining the value of personal property (i.e., everything except real estate), you should value assets as of the date of death. Do not include exempt property or any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To transfer real estate via a Muniment of Title:
- Submit to the court a Petition for Muniment of Title (see below)
- The court will issue an Order of Muniment of Title
- Record the Muniment of Title with the county deeds office
Petition
A petition for Muniment of Title must:
- State the name, residence, and date of death of the decedent
- State your interest (e.g., named in the will as personal representative, heir, etc.)
- State that the value of any personal property in the estate is <$10,000 (not including exempt property)
- State that all estate debts have been paid, including any estate and income taxes
- List the names and addresses of the beneficiaries named in the will, and have each such heir sign the petition (disabled heirs may have their legal guardians or one of their parents sign for them)
- If a surviving spouse is not named as a beneficiary in the will, then he or she must also sign the petition
- As of 2021, it may be possible for a person named as executor in the will to sign on behalf of everyone above (check with the local court)
- Provide the legal description of the real property being claimed, and who is rightfully entitled to it according to the will (by percentage)
- Request that the court issue an order of Muniment of Title for the real property
Attach a certified death certificate, a copy of the will, and have every signature notarized.
See MS Code § 91-5-35 and MS 2020 SB-2850 Section 2.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in MS, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in MS, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow MS probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In Mississippi, the local Chancery Court handles wills and estate matters.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the MS estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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