Probate for Small MS Estates

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Courthouse for estate probate

In Mississippi, small estates can bypass probate by using a small estate affidavit for personal property, and a muniment of title for real property.

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 rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.

Process

To use the small estate process:

  1. Prepare a Small Estate Affidavit, have it notarized, and attach a copy of the death certificate and the will (if any)
  2. Obtain possession of estate assets by presenting the affidavit to current custodians (real estate cannot be transferred via small estate affidavit)
  3. Settle the estate in the normal way (pay debts, distribute remaining assets)
  4. 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 rights 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:

  1. Submit to the court a Petition for Muniment of Title (see below)
  2. The court will issue an Order of Muniment of Title
  3. 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 MS Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

Estate debts have priority over most distributions in turn, so you should arrange to have all debts resolved before distributing assets. Unpaid estate creditors have the right to sue heirs for the value of any distributions received using the approaches described on this page.

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.

See also General Probate.

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