The Role of the Executor in Probate

Under Mississippi law, a person has broad rights to direct the disposition of his or her assets. Part of this direction usually involves nomination of an executor to administer the probate estate. Section 91-7-47 of the Mississippi Code generally charges the executor with acquiring any part of the decedent’s estate that is not in his possession and managing the estate in the best interest of all concerned, consistent with the will and Mississippi law. Executors must carry out their duties in good faith and as a reasonably prudent person would in the circumstances.

The Mississippi Code sets forth a host of specific applications of the duties of an executor. Although specific questions should be directed to a Mississippi probate attorney, the basic duties of an executor could be summarized as follows:

• Review the Will and Arrange for Probate. The executor must locate and review the will carefully, noting any special instructions. The executor must also select the attorney and accountant that will represent the probate estate. All legal matters involved in probating the will must be handled by a Mississippi probate attorney.

• Gather, Inventory and Value Probate Assets. Once the estate is opened and letters testamentary have been issued, the executor should search for and identify the assets and debts of the decedent. Unless it is waived, the executor should immediately begin a formal inventory of the estate assets. Even if inventory is waived, the executor and the probate attorney will an informal inventory of the probate assets. The estate assets will also need to be appraised unless appraisal is waived or is unnecessary. If inventory and appraisal are not waived, the executor has 90 days from the grant of letters testamentary to file the inventory and appraisal with the chancery court.

• Open an Estate Account and Manage Estate Assets. The executor must open an estate account. In order to do so, the executor will need to obtain a federal tax identification number for the estate. The estate attorney or accountant will usually assist the executor in filing the Application for Employer Identification Number with the IRS (the form can be filled out online fairly quickly).

• Notify Creditors and Pay Debts of the Estate. If the executor finds debts against the probate estate, a letter should be sent to the known creditors as soon as possible. The letter must contain sufficient identifying information to allow the creditors to file a claim against the probate estate in chancery court. Once all known creditors have been notified (or, if there are no known creditors), an Affidavit of Notice to Known Creditors must be filed with the chancery court by the probate attorney. Once the Affidavit of Notice to Known Creditors is filed with the chancery court, a general Notice to Creditors should be published in the local newspaper and proof of publication filed with the court. The notice must tell the creditors that they have a right to probate a claim and that all claims that are not probated within 90 days of publication will be barred. The notice is published in a local newspaper once weekly for three consecutive weeks.

• File Tax Returns and Pay All Outstanding Taxes. Because the executor could be held personally liable for unpaid taxes, the executor should be certain that all tax returns have been filed and all taxes have been paid. The decedent's final income tax return should be filed on Form 1040 reporting all income earned prior to the decedent's death. Income tax returns for the estate (Form 1041) should also be filed to report income earned during each year of estate administration. If the decedent is subject to the estate tax, an estate tax return (Form 706) must also be filed. The estate tax return and the taxes are due nine months from date of death, or with extensions, 15 months. If the decedent made taxable gifts but failed to file a gift tax return (Form 709), the gift tax return should be filed with the estate tax return.

• Distribute Assets to the Beneficiaries and Close the Estate. Once the preceding steps have been taken, the executor should work with the attorney to file a final accounting and close the estate. At the time the estate is closed, the executor will distribute any remaining assets to the beneficiaries of the estate pursuant to the terms of the will. Once the estate can be closed, the executor is generally released from further duties on behalf of the estate.

NOTE: The information provided on this site is provided for illustration and informational purposes only and does not represent a proposal or specific recommendation or create an attorney-client relationship. Mississippi Probate Group, PLLC, does not engage in the practice of law. As a word of caution, the information presented cannot possibly substitute for competent legal advice. Our treatment of the law is general and is not intended as a comprehensive discussion of all relevant issues. Applicability of the law will depend upon your individual circumstances. If you have a particular question about the information presented, you can reach the site’s author by clicking the following link: Mississippi Probate Attorney. For more information, please review our terms of use.

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