How to Get Letters Testamentary or Letters of Administration in Mississippi

We often get questions about how to get Letters Testamentary or Letters of Administration in Mississippi. Often the person has been told by a bank or some other third party that Letters Testamentary or Letters of Administration will be required before a deceased person’s account can be accessed or information given. The clients want to know the quickest way to get this “letter” so that they can access the funds.

Letters Testamentary and Letters of Administration aren’t really “letters” in the common sense of the word. They are documents issued by the court as part of a probate proceeding. The purpose of these documents is to prove to third parties that the court is overseeing the estate. If the deceased person had a valid Mississippi Last Will and Testament, the document is called “Letters Testamentary.” If there is no will (i.e., if the estate is intestate), the document is called “Letters of Administration.”

As an initial matter, it is important to determine whether Letters Testamentary or Letters of Administration are really necessary. Often the client is dealing with a low-level bureaucrat at a financial institution who isn’t familiar with the nuances of Mississippi law. In some circumstances, an alternative to probate could make Letters of Administration or Letters Testamentary unnecessary.

If Letters are necessary, then the estate will need to go through probate. Although the Letters are issued fairly early in the process, the client can’t stop there. Once the estate is opened with the court, the client will have taken an Oath to fully administer the estate. This requires creditors to be notified, inventories to be filed, and further documents to be presented to the court to close the estate. Failure to diligently see the estate through to a conclusion will make the client liable to the court.

Since the Mississippi Chancery Court Rules require an attorney to represent all estates in Mississippi probate proceedings, an attorney will need to be consulted early to be sure that the right documents are filed. The documents required to open a Mississippi estate differ depending on whether the estate is testate or intestate.

Opening a Testate Estate

The following documents are typically required to open a testate estate in Mississippi:

• The original Last Will and Testament (or proof of why a photocopy should be accepted due to the unavailability of the original)
• A Petition for Probate of Will and Issuance of Letters Testamentary
• An Affidavit of Subscribing Witness (Proof of Will) (Most attorneys now include this as part of the will itself, so it is not usually necessary to file this as a separate document)
• A Civil Cover Sheet (some counties have other specific probate worksheets that they prefer)
• Waivers and Joinders by each person named in the will.

Once these documents are presented to the court, the attorney will usually attend a hearing to present the Petition for Probate of Will and Issuance of Letters Testamentary to the judge. If everything is in order, the judge will sign an Order admitting the will and providing for the issuance of Letters Testamentary upon oath and, if required, bond of the executor.

After the Order is issued, the executor will sign and the attorney will file an Oath in the form required by Miss. Code Ann. § 91-7-41.  If bond is not waived in the will or is otherwise required by the court, a fiduciary bond must be issued and filed as well.  The attorney can then present Letters Testamentary to the Chancery Clerk for issuance. The Letters Testamentary serve as proof that the executor has been duly appointed to act on behalf of the estate.

Opening the Intestate Estate

The documents differ slightly for an intestate estate due to the fact that there is no will to prove. An heirship suit (discussed above) is also necessary to identify the persons who will share in the decedent’s estate. Although the heirship suit can be brought before or during the estate administration, it is usually initiated at the time that the estate is opened. The following documents are usually required to open an intestate estate:

• A Petition for Grant of Letters of Administration
• A Petition to Establish Heirs
• A Civil Cover Sheet (some counties have other specific probate worksheets that they prefer)
• Waivers and Joinders by each heir at law

After the initial documents are filed, the opening of an intestate estate is procedurally similar to the opening of a testate estate.  The biggest difference is the lack of a will to waive the requirement of posting bond. In many cases, bond may still be waived if there are no assets other than real estate or if all heirs at law are adults and join in the petition to request that bond be waived.