Probate

In order to transfer someone’s assets after their death, their estate usually needs to go through probate. Probate is the process of transferring title from a deceased person to their successors and heirs. The probate process is overseen by a court. The primary two purposes of probate are to give a deceased person’s creditors the opportunity to be paid, and to ensure that legal title to assets is clearly established. A third important function of probate is to ensure that all heirs have a full and fair opportunity to know about the assets of the estate, to ensure that everyone is treated fairly. Probate in Mississippi requires the services of an attorney. At the Morton Law Firm, we assist many families each year through the often frustrating and tedious probate process. If you need help with probating a loved one’s estate, please feel free to contact us for a complementary consultation.

9 FAQs about the Probate Process

1. What happens if someone dies without a Will? If someone passes away without a Last Will and Testament, the estate will still have to be probated. However, a few different steps will be taken. Without a will, the estate will be opened intestate (without a Will). Mississippi has set up a set up intestacy laws that pass the decedent’s assets to his or her heirs starting with a spouse and children.
2. What is the difference between “testate” and “intestate”? Simply put, a testate estate means that the decedent died with a will while an intestate estate means the decedent did not have a will at death. Both types of estates must be probated in Mississippi using an attorney. While these processes differ slightly, the main steps and timeline remain about the same.
3. What are Estate “Letters” and how are they obtained? Letters Testamentary or Letters of Administration are granted by the Chancery Court once an estate has been opened in the court system, and an executor or administrator for the estate has been appointed. The “Letters” are proof of two things: (1) the existence of the estate and (2) the executor/administrator of the estate. With the Letters, the executor or administrator can handle any unfinished business for the decedent. The “Letters” are the “key to the kingdom.” They are the single document that allows financial institutions, insurance companies and others to reveal information about the decedent, his or her holdings and affairs, the identity of beneficiaries, and other information that is confidential to the general public.
4. How long does probate take? It generally take anywhere from 4 months to 1 year to fully complete the probate process. This depends upon the size of your estate and any complications (such as someone contesting the Will, or determining unknown heirs). The Court’s supervision in the process is designed to protect your family, beneficiaries, and creditors, so probate may take a longer amount of time if your estate is large.
5. How much does probate cost? This question does not always have a clear answer. At the Morton Law Firm, we use a flat fee rate that covers the basic probate matters that are needed in every estate. These include the Opening Petition, the Opening Order, Letters, Waivers, the Closing Petition, one Accounting, and the Closing Order. Additionally, for intestate estates the fee also includes a Determination of Heirs petition, Notice and Hearing. Any work that is required outside of these limited items is billed at our usual hourly rates. In the vast majority of estates our basic flat fee covers all that needs to be accomplished in the estate, giving the heirs predictability of anticipated expenses when the estate is opened. However, some estates are unavoidably complex, or involve difficult heirs or other parties, and those estates will cost significantly more to administer. Probate pricing depends largely on the size of the estate and any complications that may come up during the process. In any event, our clients have an understanding of pricing up front before they hire us, and our flat fee pricing keeps our firm accountable to handle the process efficiently. Click here to see our Fee Schedule.
6.  Are there alternatives to the probate process? There are alternatives to a formal probate process under limited circumstances. Some states allow a small estate to be administered in one of the following ways:
   • Muniment of Title: The purpose of a muniment of title is to simply clear title to certain real property. This can be used when the estate has no debts and there is no need for a personal representative. This alternative requires a Last Will and Testament that leaves real property to someone else. The value of the personal estate cannot exceed $10,000.00. The process dispenses with the notice requirements of the typical estate, but still requires a petition be filed with the Chancery Court declaring the will to be valid. The will is then filed along with the Court Order in the land records to show that title has passed to the beneficiaries named in the will.
   • Small Estate Affidavit: Heirs of the deceased file an affidavit with the court stating they are entitled to outright distribution IF the value of the estate is less than $50,000 and held no real property. This alternative is usually used in intestate estates, where there are very few assets. For example, an estate where the decedent died without any real property, and owned a bank account of $10,000, a $10,000 savings bond, and a $20,000 car could probably be handled using a small estate affidavit instead of going through the probate process.
   • Informal Family Settlement: This alternative can be used for small estates that contain only tangible personal property – no bank accounts or stocks. It is not legally binding and is subject to a probate later opened by other heirs or creditors.
7. If I live out of state, but the decedent died owning property in Mississippi, would I have to come to Mississippi to Probate the estate? In Mississippi, the probate attorney attends hearings and files court documents on the client’s behalf, so you probably would not have to travel to Mississippi to get the estate opened or closed unless complications made a court appearance inevitable.
8.  Is probate required when someone dies? Probate is a process, but not necessarily a problem. Here are a few questions to help determine whether probate is necessary after someone’s death:
   • Was anything owned by the deceased at the time of death?
   • How are the assets titled?
     • Decedent’s Name Only
     • Tenants in Common
     • Joint Tenants with Rights of Survivorship
   • Revocable Living Trust
   • Do any assets have beneficiary designations?
   • What is the value of the assets? These four questions can be extremely helpful when discussing probate options. If the decedent did not own any assets, there is probably no need to go through the probate process. Likewise, if the decedent’s only assets are payable to named beneficiaries or were co-owned by someone else, probate can usually be avoided. If the decedent owned assets individually titled, it is unlikely that they will pass automatically without going through the probate process in order to change title.
9. Do ALL assets have to go through the probate process? No. Many assets pass to another owner after death without going through the probate proceeding. These assets include:

• A home owned jointly with rights of survivorship
• A jointly owned bank account
• An investment account with named beneficiaries
• An annuity with named beneficiaries
• Proceeds from a life insurance policy with named beneficiaries
• Retirement accounts (401(k)s, IRAs, etc.) with named beneficiaries
• Bank accounts with transfer on death or payable on death beneficiaries
• Property held by a trustee passing to the beneficiaries of the truth

For additional information on the Mississippi Probate Process, check out our step-by-step guide: Mississippi Probate Process in a Nutshell.

Mississippi Probate Guide

• Will your loved one’s estate require probate?
• Does probate require a lawyer?
• How expensive and time consuming is probate

Join us for our upcoming PROBATE AND ESTATE ADMINISTRATION WEBINAR for answer to these and other questions

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• Your Durable Power of Attorney
• Your Will
• Your Trust
• Capacity Requirements
• Estate Taxation
• Making Gifts: The $10,000 Rule
• Charitable Gift Annuities
• Estate Administration
• Guardianship and Conservatorship
• FAQs about Estate Planning
• Medical Directives and Living Wills