The probate process involves creditor notifications and built-in delays that make it a time-consuming and often frustrating process. However, this process is not difficult to understand. The Mississippi probate process begins when the estate is “opened” in Chancery Court. When the deceased person died with a Will, we call the estate a “testate” estate. When the person died without a Will, we call the estate an “intestate” estate. Testate estates are administered by Executors. Intestate estates are administered by Administrators. In order for the Chancery Court to recognize the estate, a Mississippi probate attorney begins the following process:
- The attorney must prepare the opening documents that must be filed with the Court. These documents include a Petition for Appointment of Administrator or Executor and for Issuance of Letters of Administration (for intestate estates) or Letters Testamentary (for testate estates).
- Once opening documents have been recorded with the clerk of court, the Mississippi probate attorney schedules and attends a hearing in which an Order is signed by the assigned Judge that grants the opening Petition and Letters.
- Next, the Oath must be signed by the Executor or Administrator of the estate and filed with the Court. This Oath is a promise by the Executor or Administrator to carry out his or her duties as administrator of the estate.
- Once all initial documents have been approved by the Judge, the Court Clerk issues the “Letters” to the executor or administrator of the estate. This document officially appoints a person to act on behalf of the estate and take care of any open affairs of the deceased.
Once the executor or administrator of the estate has been appointed, administration of the estate begins. In this phase of the Probate process, the Court builds in time-delays to make sure that any known or unknown creditors of the deceased have an opportunity to be paid and unknown heirs have an opportunity to step forward and be recognized. The process of estate administration starts with:
- Creditor Notification – As part of the creditor notification, the attorney and executor of the estate must first notify any known creditors of the estate and allow them to probate a claim against the estate to receive payment. Next, an Affidavit of Notice to Creditors must be filed with the Chancery Court to recognize that all known creditors have been notified properly. For unknown creditors, the estate must publish a Notice to Creditors in the local newspaper (in the county in which the estate is open). Once the first notice is published, the built-in 90 day delay begins during which time creditors can submit claims against the estate. After 90 days, the probate attorney identifies which claims were filed, and the estate has the opportunity to pay or contest any claims.
After all debts have been paid, the estate’s assets must be valued and distributed according to the Will (if applicable), and records should be kept of any funds coming in or leaving the estate. After all assets have been administered, the estate is ready to close. The process to close an estate is much like the process to open it.
- The Mississippi probate attorney presents a Petition to Close the estate at a hearing at the Chancery Court.
- Usually the heirs to the estate are in agreement with the distribution of estate assets and will sign a Waiver and Joinder to the Petition to Close. When this is true, the Petition can be presented to the Court without further notice to anyone. However, in those circumstances that an heir does not agree, the executor or administrator must set the Petition for hearing and present evidence of why the estate should be distributed as requested in the Petition. Any objecting heir can oppose the proposed distribution.
- Once the Petition has been recognized by the Judge unopposed, or the Judge has heard all of the evidence and objections from objecting heirs, an Order will usually be granted directing the executor or administrator as to how estate assets should be distributed.
- Once the Court enters an order approving estate distribution, the executor or administrator then distributes the estate assets as directed by the Court. Once distributed the executor or administrator is relieved from all further duties in the estate. Once all steps in the final Order have been taken, the estate is officially closed.