Once a testator dies, the executor will need to submit the last will and testament to the court for probate. If you are a beneficiary or personal representative, this information is for you.
Who may propound (request) probate?
Any one interested in the Will (which includes the executor, beneficiaries and heirs at law). 91-7-3
In order to probate the Mississippi Will, the court requires an affidavit from any subscribing witness to the Will. This may be accepted in substitute for the witnesses’ personal attendance, but only where the Will is not contested. 91-7-9
The probate court will admit the Will to probate if it appears to have been duly executed (signed and witnessed in accordance with legal requirements). 91-7-13
Who is the executor?
The person named in the testator’s Mississippi Last Will. However, if no person is named or if all the executors renounce their position, then the court will appoint an administrator?
Who is entitled to be an administrator?
If no one is specified as executor under the Will, the court will grant letters of administration to the relative who applies for same (giving preference to the spouse and then to such others as may be next entitled to distribution) or if the kindred are incompetent, the court may appoint a stranger. If no person applies within 30 days, then the court may appoint a creditor or any other suitable person. 91-7-63
Rights & Responsibilities of executor or administrator
If there is a Mississippi Last Will and Testament annexed, the executor or administrator appointed:
- Has the right to possess all of the personal estate (unless otherwise directed in the Will);
- May possess the real estate as necessary to execute the Will;
- Must acquire possession of any part of the personal estate that may be withheld from him/her;
- Must manage the estate for the best interest of those concerned, consistently with the Mississippi Will and the law;
- Shall have proper appraisements made;
- Return true and complete inventories;
- Collect all debts due to the estate;
- Pay all debts owing;
- Settle his/her account as often as the law requires;
- Pay the legacies and bequests from the estate. 91-7-47
Probate by Agreement of Beneficiaries
The state legislation allows a testator’s Mississippi Will to be admitted to probate using a petition signed and sworn by all the beneficiaries named in the Will (and by the testator’s spouse if unnamed) if:
- The deceased owned real property in the State of Mississippi at the time of death;
- The Will disposes of such real property;
- The deceased’s personal estate is $10,000 or less (excluding exempt property);
- All debts and taxes have been paid.
If probate is granted under this section, then:
- Neither administration of the estate nor appointment of an executor or administrator are necessary;
- The Will is admitted to probate as a muniment of title only;
- Interested parties or anyone desiring the contest the Will retain the right to do so. 91-5-35
Mississippi Estate Tax
The estate tax return is no longer required to be filed with the Mississippi Department of Revenue. This is because for the estate of decedents dying after 2004, the state death tax credit is replaced with a deduction for state death taxes. For deaths which occurred prior to 1 January, 2005, the estate tax return forms needed are either 94-101 or 94-103 depending on the date of death.