Mississippi Probate Attorney

Mississippi Probate and Estate Administration

Is Probate Necessary? How to Determine Whether Mississippi Probate is Required

The Mississippi probate process isn’t awful, but it’s not fun either. Before you dive in headfirst, you should step back and think about whether probate is necessary.  Here are a few questions to help you make this determination:

What did the decedent own at the time of his or her death?

The answer to this question is the single most important factor in determining whether probate is required.  If the decedent didn’t own any assets, there’s probably no need to probate the estate.  If the decedent did own assets, take a look at the next questions to find out whether probate is necessary.

How are the decedent’s assets titled?

If you find out that the decedent did own assets, make a list of how each asset is titled.  There are several ways that an asset might be titled, including:

  1. Decedent’s name alone.
  2. Tenants in common (i.e., jointly without rights of survivorship).
  3. Jointly with rights of survivorship.
  4. Revocable living trust.
  5. Other separate entity (LLC, corporation, etc.).

Knowing how each asset is titled will help determine which assets pass automatically to others (non-probate assets) and which require Mississippi probate (probate assets).  For example, real estate that is held jointly with rights of survivorship will pass to a surviving owner without the need for probate.

Probate Note: To determine if real estate is held in joint tenancy with right of survivorship (JWROS), take a look at the deed to the property.  Language stating “to A and B, as joint tenants with right of survivorship” or similar language indicates that the property is held jointly.  Sometimes this language may read, “A and B, as joint tenants with right of survivorship and not as tenants in common,” making it clear that the property is not intended to be held as tenants in common.  If the deed either states that the property is held as tenants in common or is silent regarding the issue, the property is presumed to be held as tenants in common and probate is usually necessary.  If you have any questions about how an asset is titled, ask a Mississippi probate attorney to take a look.

Do any of the decedent’s assets have beneficiary designations?

Some assets—such as financial accounts and insurance policies—may be titled with a “transfer on death” (also called a “payable on death”) designation.  At the decedent’s death, a TOD designation will automatically pass the asset to the named beneficiary without the need for probate of that asset.  While you will need to provide the financial institution or insurance company with a death certificate (and possibly fill out a few forms), assets with a valid beneficiary designation should pass outside of the Mississippi probate process.

Estate Planning Question: I have a Last Will and Testament.  Doesn’t this mean that my estate won’t need to go through probate? Unfortunately, no.  A will does not avoid probate.  In fact, the term probate technically refers to “proving” a will.  There are ways to structure an estate plan to avoid probate (such as using a revocable living trust), but just having a will won’t do the job.  Probate doesn’t depend on whether or not you had a will, but on what assets you own and how they are titled.

Where are the decedent’s assets located?

Even if you determine that probate will probably be required, this doesn’t necessarily mean that Mississippi is the right state in which to bring the estate proceeding.  If, for example, the decedent lived in Mississippi but owned real estate in Florida, it could be that Florida is the best place to bring the estate proceeding.  Questions of where to start the estate proceeding usually require the advice of a Mississippi probate attorney.

What is the value of the decedent’s probate assets?

Once you determine that there are probate assets, you should estimate the value of each asset.  Debts owed by the decedent in connection with the asset should be subtracted from the gross value to give the asset’s net worth.  This will allow you to make an informed decision about how to proceed.

In a few situations, such as insolvent estates, some clients choose not to go through probate since there wouldn’t be any assets left over to distribute.  But even if there are a number of debts, there may be tools available to protect at least some of the assets from creditors.  At a minimum, the Mississippi homestead exemption and spousal allowance should be considered.  Questions of this nature usually require the advice of a Mississippi probate attorney.