Under Mississippi law, a decedent’s real property vests in his or her heirs (if the decedent leaves no will) or beneficiaries (if the decedent leaves a will) at the time of death. The executor’s responsibilities with respect to the real property are more limited, but still exist. For example, the executor must determine whether the decedent was a joint owner or the sole owner. Although the full scope of the decedent’s responsibilities with respect to real property are not clearly defined by Mississippi law, the executor must perform any duties he or she assumes with proper care and can be held liable for negligence in the performance of such duties.

Unlike real estate, property which is leased by the decedent is considered personal property of the decedent and become an estate asset upon the decedent’s death. The executor is responsible for reviewing the lease and notifying the lessor of the decedent’s death.

If the decedent leases property to someone else, rents from the property will usually accrue to the benefit of the person who received the property at death unless the will provides otherwise. Any rents that accrue but remain unpaid prior to the decedent’s death become an estate asset.

Questions often arise about the need for probate when the decedent died without a will owning very little other than his or her home. Under limited circumstances, title to real estate may be transferred to the next generation without the necessity of probate. Whether these alternatives will be practical in a given situation depends on several factors, including whether the heirs intend to transfer title within a few years and how much time has lapsed since the decedent's death. Insurability of title is usually a paramount concern and, for this reason, a probate proceeding is usually necessary. The alternatives to probate are:

Affidavit of Heirship.  If a long period of time has lapsed since the decedent's death, an affidavit of heirship may be used to clear up any ambiguities in the chain of title. An affidavit of heirship is an affidavit, signed by one or more family members and at least two unrelated parties, identifying the decedent's legal heirs. Affidavits of heirship are not based in law, but in common practices accepted by insurance companies. An affidavit of heirship is usually accepted only as a last resort when many years have passed since the decedent’s death and there is no other way to conclusively determine heirs.  It is used primarily to satisfy a title company regarding an old break in the chain of title where there are other reassuring factors, such as sufficient time for adverse possession.

In 2007, Section 89-5-8 of the Mississippi Code was amended to expressly provide for the recording of heirship affidavits. That section now states that the affidavit is prima facie evidence of the facts stated therein and of the marketability of the title. The amendment was a response to the decision of the Mississippi Supreme Court in Ferrara v. Walters, 2002-CA-02052-SCT (decided September 22, 2005), which held that an heirship proceeding was the only effective way to establish marketable title to property after the death of an intestate owner. Prior to Ferrara , Mississippi lawyers often used deeds which state that the grantors were “all the heirs at law” of the person or persons who were record title owners (people in whom the land records showed owned the land, generally mother or father) and/or an heirship affidavit. The amendment presumably reinstated pre-Ferrara practice of title companies to rely on heirship affidavits when a long time has passed since the death. If there are immediate plans to sell or mortgage the property, however, a title company may not be comfortable with an heirship affidavit prepared in immediate anticipation of the transaction. Heirs would be prudent to put the affidavit on record as soon as possible and allow as much time to pass as possible before attempting to convey title.

Suit to Determine Heirship.  A suit to determine heirship is a court proceeding, much like a probate proceeding, that asks the court to make a determination of all of an intestate decedent's heirs at law. After the Petition to Establish Heirship is filed, summons to unknown heirs is published weekly for several weeks in a local newspaper. Once a hearing has been held, the Mississippi chancery court will issue an order setting forth the heirs of the decedent. A suit to determine heirship is usually an independent but necessary part of an intestate probate proceeding.

A suit to determine heirship provides title insurance companies with a judicial order to rely on to establish the heirs of the decedent.  However, unlike an intestate proceeding, creditors are not notified of the need to present their claims and, as a result, all claims against the decedent's estate will follow the property to the hands of the heirs. Because claims against the estate are not resolved, title companies have no assurance that title to the property is clear. Thus, in the absence of an intestate proceeding, a suit to determine heirship does not usually provide insurable title.

Because of lack of insurability, a suit to determine heirship should only be used as a sole proceeding if property is going to be held for several years, since that allows the statute of limitations to run on any claims. Some title insurance companies may insure the property after 3 years.  Most require the owners to wait 5-8 years. For most estates, the costs of bringing a suit to determine heirs will not be significantly less than the costs of bringing an intestate probate proceeding, making a suit to determine heirship an unfavorable option when used as an alternative to an intestate probate proceeding.

Intestate Probate Proceeding.  When used along with a suit to determine heirship, it an intestate proceeding will cut off the claims of creditors and clearly identify the current owners of the property.  This provides marketable, insurable title and brings closure to the unsettled estate. For small estates, such as those holding only one parcel of property, the costs of an intestate probate proceeding are not significantly more than the costs of a suit to determine heirship. In the vast majority of cases, an intestate probate proceeding is the best way to transfer real property to the next generation if the decedent died owning real estate in his or her own name.  

Property Held as Joint Tenants with Right of Survivorship. Property that is held as joint tenants with a right of survivorship passes to the surviving joint tenant upon one joint tenant’s death by operation of law, without the need for probate of the deceased joint tenant’s estate. Under these circumstances, a title insurance company will accept a death certificate as evidence that one of the joint tenants is deceased and the property is vested in the remaining joint tenant.