Is a Mississippi Probate Proceeding Necessary?

A will is an instrument of title – like a deed to a home. Although the deed transfers title to your assets to your heirs, court recognition is usually necessary to provide third parties with the assurance that the heirs have good title to the inherited assets. Probate is the legal process where the will is declared valid, assuring third parties that title has effectively passed. In other words, the Mississippi probate process operates to make your will legally effective. Probate also brings closure to the estate and cuts off creditors so that any claims against the property do not follow the property into the hands of your heirs.

Although Mississippi law does not provide an exception to the need for probate of a decedent’s will, a Mississippi probate proceeding may be unnecessary under some circumstances. For example, if an estate consists of entirely jointly owned property that passes to the survivor under contract principles, there may be no need for a Mississippi probate proceeding. Examples of this type of arrangement include life insurance contracts, some retirement plans, and jointly owned bank accounts.

Probate can also be avoided through proper pre-death planning, usually involving the use of living trusts (also called revocable trusts). As the name suggests, living trusts are effective during a person’s life (as opposed to testamentary trusts, which only become effective at death). Living trusts allow a person to transfer all of their assets to the trust during their lifetime while retaining full control of the transferred assets. At death, all of the decedent’s assets are owned by the living trust, so the decedent effectively has no Mississippi probate estate. For more on probate avoidance, see our section on Avoiding Mississippi Probate.

Mississippi law does provide several exceptions from estate administration (as distinguished from the need for probate of the will):

• Personal property owed to the deceased not in excess of $30,000 may be delivered to heirs or successors of the decedent by affidavit. This would include items such as debts, obligations, stocks, or choses in action, as long all all of them, when aggregated, are less than $30,000.
• Certain bank accounts may be transferred to designated persons without the necessity of estate administration.
• No administration is required for an estate to collect wages that the decedent earned but were not yet paid at the decedent’s death.
• A will may be probated as a muniment of title if the value of the decedent’s personal property is no more than $10,000 and all known debts of the estate have been paid. Both residents and nonresidents can use the muniment of title procedure.

Dying without a will does not avoid probate. Even if a person dies without a valid will (called dying intestate), his or her estate will still go through the probate procedure. A person who dies with an invalid or partially valid will is also considered to have died intestate. Mississippi intestate law generally distributes property equally among the surviving spouse and children, then to parents and close family members. However, because each state has different default categories of intestate beneficiaries and because state laws are subject to change, relying on the Mississippi intestate distribution scheme is risky. It is important to have a valid will or trust in place before death to avoid these uncertainties.

A competent Mississippi Estate Attorney should always be consulted to determine whether probate is necessary and where the will should be admitted to probate.

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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