Heirship Proceedings

Although property may be transferred from the estate of someone who died without a will to his or her heirs at law by operation of law, those who later acquire property from the heirs may want proof that no one else can claim an interest in the property. No one wants to buy a lawsuit. This is especially true in the case of real estate.

For example, assume that Uncle Joe dies leaving one known child - Junior - and no spouse. Under Mississippi intestacy law, his interest in his home passes entirely to Junior. A deed is prepared and Junior is given legal ownership of the property. But because Junior lives in another state, Junior decides to sell the property to Buyer. A few weeks after Buyer acquires the property, he gets a call from Jackie, Uncle Joe's daughter from a prior relationship that Uncle Joe had never mentioned. Jackie claims now wants to set aside Junior's conveyance to Buyer, claiming that her one-half interest in the home was without her consent. Although Buyer bought the property in good faith, he now finds himself in the position of having to defend his title against an unknown heir.

Because of the risk that an unknown heir will later claim an interest in the property, a mechanism is needed to ensure buyers (and, perhaps more significantly, title insurance companies) that there are no unknown heirs. This mechanism is an heirship proceeding, also called a suit to determine heirs. After a hearing, the chancellor will usually issue an Order Establishing Heirs, which gives buyers (and title insurance companies) the assurance they need that no unknown heirs will later claim an interest in the property conveyed.

To commence an heirship proceeding, a Petition to Establish Heirs is filed with the chancery court in the county in which the decedent died or owned real property. After the Petition to Establish Heirs has been filed, a date is set with the chancery court for a hearing on the Petition and unknown heirs are summoned to appear at the hearing through publication in a local newspaper. The Summons to Unknown Heirs generally states the time and date of the hearing, which should occur at least 30 days after the Summons to Unknown Heirs is first published in the local newspaper. Because known heirs generally sign a Waiver of Process and Joinder in Petition to Establish Heirs, it is generally unnecessary to serve them with personal notice to appear at the hearing. However, if there are known heirs that will not waive service of process, they should be served with notice of the hearing.

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