Must I hire a Mississippi probate attorney? Can I represent the estate myself?

In Mississippi, every estate must be represented in court by an attorney. Mississippi Uniform Chancery Court Rule 6.1 requires every fiduciary (such as an executor or administrator) to be represented by an attorney unless such fiduciary is an attorney.

What is an Executor/Administrator/Personal Representative?

The person named in the decedent’s will or appointed by the court to carry out the terms of the will and manage the decedent’s estate is known as an executor (male) or executrix (female). If the decedent died without a will, called dying intestate, this person is known as an administrator (male) or administratrix (female). The term personal representative encompasses both executors and administrators.

I live out of state. In order to probate the estate, will I need to travel to Mississippi?

Probably not. In Mississippi, most uncontested probate matters are handled through ex parte proceedings in which the attorney presents the various petitions to the chancellor without the client's attendance. As a result, most uncontested probate matters can be handled by correspondence between the attorney and the executor without the need for face-to-face meetings.

Must the probate attorney have an office in the same city or county as the decedent?

Not usually. Not necessarily. In Mississippi, probate matters are handled by chancery courts. Mississippi is divided into judicial districts, including chancery court districts. Chancellors within a judicial district can hear cases filed in counties within that judicial district, even when sitting in a different county. For example, in the 8th Chancery Court District, four chancellors hear matters brought in Harrison, Hancock, and Stone County. If the decedent died in Hancock County, the probate proceeding would be opened in Hancock County. However, a chancellor sitting in Harrison County could hear petitions pertaining to the estate proceeding since Hancock County and Harrison County are in the same judicial district. This means that an attorney practicing in Biloxi, Mississippi, could easily handle a probate proceeding filed in Bay St. Louis, Mississippi, through the Biloxi courthouse. The same attorney could also handle matters brought in Jackson County, George County, and Green County through the Ocean Springs, Mississippi, courthouse, since those three counties are also in the same judicial district and Ocean Springs is near Biloxi. Because of this chancery court district system, a Mississippi probate attorney can usually handle estate proceedings on a regional (as opposed to city-specific) basis.

I am the executor of an small estate that held a piece of real estate in Mississippi. Is there a way to simply pass title to the real estate without the need for a full Mississippi probate proceeding? I have heard about Mississippi's muniment of title statute and would like to know if it is a viable option.

When a person dies leaving a will that disposes of real property he or she owns in the state of Mississippi, the will may be admitted to probate as a "muniment of title" only by presenting the chancery court with a petition signed and sworn to by all beneficiaries named in the will and, if the decedent's spouse is not named as a beneficiary in the will, by the decedent's spouse. Other requirements include: (1) the value of the decedent's personal property (property other than real estate) in Mississippi cannot exceed $10,000, exclusive of any exempt property; and (2) all known debts of the decedent and his or her estate must be paid first, including estate and income taxes, if any. Muniment of title proceedings are available to both residents and nonresidents.

A muniment of title proceeding generally avoids the need for a full-blown probate proceeding under which an executor must be appointed and creditors must be notified. However, because creditors are not notified in a muniment of title proceeding, such a proceeding does not provide assurance to subsequent transferees that the property is free and clear of all debts. For this reason, title companies often will not insure property that passes to the transferee in this manner, especially if the transfer is fairly recent. This can significantly impair marketability of the property. For this reason, a full probate proceeding is usually required even though a muniment of title proceeding could technically pass title.

How long do I have to probate a will in Mississippi?

Unlike some states, Mississippi does not have a statute of limitations for probating a will. This means that a will can technically be admitted to probate regardless of how much time has passed since the decedent's death. In Fatheree v. Lawrence, 33 Miss. 585 (1857), the court admitted a will to probate even though it had been 23 years since the testator's death!

Must I probate the will?

Under Mississippi law, it is a crime to conceal or destroy a will. A Court will compel anyone having possession of a will to produce it so that it can be admitted to probate. However, all beneficiaries can generally agree not to probate the will and, instead, to administer the estate as though the decedent had died intestate. If this is done, an intestate proceeding will usually be necessary to establish valid title.

I was named as an executor of a Mississippi estate. Am I entitled to payment from the estate for my services?

In Mississippi, an executor or administrator is entitled to reasonable compensation unless the will directs otherwise. Unlike some other states, the amount of the executor's fee is not based strictly on a percentage of the estate's value. Rather, it is to be in a reasonable amount, as approved by the court. The court will look to the value and worth of the estate, the difficulty of the duties to discharge, the mechanical work of making out the estate reports, the collection and disbursement of money, and the skill and responsibility involved in the estate administration. The executor's petition for payment of executor's fees should show the amount of the estate, the total amount disbursed, the balance on hand, the nature and extent of the services rendered, and the expenses incurred by the executor.