Heirs at Law or Named Beneficiaries?
The first step in probating an estate is to determine whether or not a decedent has left a valid will. If so, the people or organizations named in the will, known as beneficiaries, are entitled to the deceased person's assets. If not, the person's "heirs at law" will share the deceased persons assets under Mississippi's laws of intestacy (discussed below).
There are two types of wills that are recognized as valid under Mississippi law: holographic wills and attested wills.
Holographic Will. A holographic will is a will that is written entirely in the testator's handwriting. Although holographic wills are not required to comply with the testamentary formalities applicable to attested wills, discussed below, they are no less valid than attested wills. However, holographic will can cause probate difficulties, usually because they are drafted by non-lawyers, are unclear, and may not effectively dispose of all of the decedent's property. Holographic wills may be signed by witnesses, but this is not a requirement for validity under Mississippi law.
The requirement that a holographic will be wholly in the writing of the testator is not as strict as it might first appear. Under the common law "surplusage rule," words that are not in the handwriting of the testator will not invalidate the will if disregarding them would not alter the meaning of the will. Printed captions or titles and signatures of witnesses are examples of items that may be permissible on a holographic will even though not in the testator's handwriting. To prove a holographic will, the executor must demonstrate that it is entirely in the decedent's handwriting and that it is signed at the bottom (subscribed). Proof that the testator had testamentary capacity and that the will is wholly in his handwriting is usually in the form of affidavits of disinterested persons.
Attested Wills. Attested wills are those that have been witnessed and "attested to" by witnesses. If the will is not a holographic will, it must be attested in order to be valid. The following requirements must be satisfied to have a valid attested will: (1) the testator must sign the will or someone else must sign it for the testator at his or her direction; (2) the testator must acknowledge his signature to the witnesses and publish the will to the witnesses when they sign the will (if he did not sign it in their presence); (3) the testator must ask the witnesses to sign the will; (4) the witnesses must sign the will in the testator's presence; and (5) the witnesses must be credible. Although Mississippi law only requires the witnesses to sign the will, it is good practice to include an attestation clause stating that the instrument describing setting forth the satisfaction of these requirements.
An attested will may be admitted to probate upon the affidavit of one or more of the witnesses to the will. The affidavit should generally state that the will was validly executed and that the testator was of sound and disposing mind. Mississippi law allows the affidavit to be signed at the time the will is executed, in which case it is known as a "self-proving affidavit." If a self-proving affidavit is not attached, the Mississippi estate attorney may obtain an affidavit from one or both of the witnesses after the testator's death.
If the subscribing witnesses are unavailable to sign affidavits, there are two options available to the executor. First, the executor can introduce independent testimony of people who have knowledge about the testator's capacity and that the will was duly executed. Since execution of a will is usually not a public matter, this may difficult. Second, the executor could introduce evidence that the signatures of the testator and the two witnesses are authentic. Evidence may be in the form of any method permitted under Mississippi law for proving signatures. This is usually done by finding one or more disinterested persons who can testify in an affidavit as to the authenticity of the signatures and introducing evidence (usually a sworn statement) that, after due diligence and inquiry, the original subscribing witnesses could not be located.
Laws of Intestacy
Mississippi laws of intestacy control the distribution of real and personal property owned by a decedent at the time of his death that was not otherwise bequeathed by will. This would include those dying without a will as well as those who die with a valid will that does not effectively dispose of all assets. Mississippi laws of intestate succession govern inheritance of all property situated in Mississippi, whether real or personal. Mississippi intestate succession law will also control the inheritance of out-of-state personal property owned by a Mississippi resident if the other state follows the common law rule that intestate succession of personal property is governed by the law of the decedent's home state.
Most of the provisions of the Mississippi Code that apply to testate estates (estates of decedents who dispose of all of their property by valid will) also apply to intestate estates. There are primary differences between an intestate proceeding and a testate proceeding. First, in an intestate proceeding, Mississippi law fills in the blanks on your estate plan by providing for an orderly distribution of your assets to your "heirs at law." Second, in most cases, a suit to determine heirs must accompany an intestate proceeding in order to allow future transferees to rest assured that you didn't leave any unknown descendants who could later claim an interest in your property through the intestacy law.
An intestate proceeding is commenced by filing a Petition for Issuance of Letters of Administration alleging that, to the petitioner's knowledge and after diligent search and inquiry, the decedent died without a will. The court prefers to appoint a spouse as administrator of an intestate estate, but will appoint others if the spouse is unwilling or unable to serve as administrator. To qualify as an administrator, a person must be over age 18, not of "unsound mind," and not a felony convict.
Mississippi's laws of intestacy pass a decedent's estate to his or her spouse and blood relatives (those descended from common ancestors). The only exception to this general statement is that legally adopted persons are also treated as blood relatives. One share of the decedents estate is allocated for each child of the decedent and one share is allotted to the spouse of the decedent, if any. For example, the estate of a man who dies with a wife and three children would be split between the wife and children in equal fourths. This allocation is made per stirpes, meaning that the share of any deceased child is split between that child's children (the decedent's grandchildren), and so on at subsequent generational levels. If the decedent leaves no spouse or children, his estate is split among descendants of his ancestors, beginning with father, mother, siblings, and children of siblings who predecease the decedent. If the decedent leaves no children and a spouse, his or her spouse will inherit the entire estate.
Terminology is also slightly different in an intestate probate as compared to a testate probate. The "Executor" in a testate probate becomes an "Administrator/Administratrix" in an intestate proceeding. Likewise, "Letters Testamentary" become "Letters of Administration" and a "Petition for Probate of Will" becomes a "Petition for Issuance of Letters of Administration." However, the concepts generally remain the same.
Heirship Proceedings
Although property may be transferred from the estate of someone who died without a will to his or her heirs at law by operation of law, those who later acquire property from the heirs may want proof that no one else can claim an interest in the property. No one wants to buy a lawsuit. This is especially true in the case of real estate.
For example, assume that Uncle Joe dies leaving one known child - Junior - and no spouse. Under Mississippi intestacy law, his interest in his home passes entirely to Junior. A deed is prepared and Junior is given legal ownership of the property. But because Junior lives in another state, Junior decides to sell the property to Buyer. A few weeks after Buyer acquires the property, he gets a call from Jackie, Uncle Joe's daughter from a prior relationship that Uncle Joe had never mentioned. Jackie now wants to set aside Junior's conveyance to Buyer, claiming that her one-half interest in the home was without her consent. Although Buyer bought the property in good faith, he now finds himself in the position of having to defend his title against an unknown heir.
Because of the risk that an unknown heir will later claim an interest in the property, a mechanism is needed to ensure buyers (and, perhaps more significantly, title insurance companies) that there are no unknown heirs. This mechanism is an heirship proceeding, also called a suit to determine heirs. After a hearing, the chancellor will usually issue an Order Establishing Heirs, which gives buyers (and title insurance companies) the assurance they need that no unknown heirs will later claim an interest in the property conveyed.
To commence an heirship proceeding, a Petition to Establish Heirs is filed with the chancery court in the county in which the decedent died or owned real property. After the Petition to Establish Heirs has been filed, a date is set with the chancery court for a hearing on the Petition and unknown heirs are summoned to appear at the hearing through publication in a local newspaper. The Summons to Unknown Heirs generally states the time and date of the hearing, which should occur at least 30 days after the Summons to Unknown Heirs is first published in the local newspaper. Because known heirs generally sign a Waiver of Process and Joinder in Petition to Establish Heirs, it is generally unnecessary to serve them with personal notice to appear at the hearing. However, if there are known heirs that will not waive service of process, they should be served with notice of the hearing.