If your loved one passes away in Mississippi without a will, you have a few options for wrapping up their estate. Many of those options will depend on the value of the assets they left behind.
Jump ahead to these sections:
- Mississippi’s Intestacy Laws Explained
- How Does Probate Work in Mississippi If There Is No Will?
- Who Typically Inherits Assets in Mississippi If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in Mississippi
The small estate affidavit offers a fast, easy way to transfer assets for lower-value estates. Unfortunately, Mississippi probate courts require families managing a larger estate to hire an attorney to open a case.
Regardless of which process fits your loved one’s estate, the outcome should be the same — all assets transferred into the heirs’ names.
Mississippi’s Intestacy Laws Explained
Thanks to sensational TV and movie portrayals, we often believe that the probate court and intestacy laws are set up to funnel money to the state or seize a family’s assets. Quite the opposite, the probate procedures and intestacy create a method for transferring someone’s assets to the rightful heirs.
If someone dies without a will in Mississippi, the state’s intestacy laws establish the order of inheritance. Under those laws, only the spouse and biological or legally adopted relatives of the decedent can inherit.
Through the state’s probate process, heirs or other interested parties obtain the authority to transfer the decedent’s assets to their heirs and pay the decedent’s outstanding debts. The intestacy laws decide inheritance based on familial proximity to the decedent, with the surviving spouse being the first person in line to inherit.
How Does Probate Work in Mississippi If There Is No Will?
Mississippi probate law provides a few options for families who need to take care of a loved one’s estate. Unfortunately, dying without a will limits options by removing the state’s simplified probate procedure from the menu of options. Intestate estates only qualify for the small estate affidavit or formal probate.
Small estate affidavit
Heirs of estates valued at less than $50,000 can use a small estate affidavit to collect the decedent’s personal property. The affidavit process takes place outside of court, making it the fastest and easiest option.
The affidavit indicates information about the value and contents of the estate, who is collecting the assets, and that person’s relationship to the decedent.
Heirs must wait at least 30 days from the decedent’s death to use the affidavit. To collect the decedent’s property, heirs must present a copy of the affidavit and a copy of the death certificate to anyone holding the decedent’s assets or belongings.
When using the affidavit to collect money from a bank account, the bank can require the heir to sign a discharge and bond guaranteeing payment to any third-party creditors.
Opening an intestate estate
For large or complex estates for a small estate affidavit, the other option for transferring estate assets is to open probate with the local court. In Mississippi, the probate court is known as the chancery court.
By opening a probate case, an heir or other interested party starts the process for the court’s appointment of an administrator of the estate. The administrator will have the authority to take care of the business and obligations of the estate, including paying bills and creditors, preserving and maintaining assets, and, ultimately, transferring the estate to the heirs.
Besides the transfer of assets, administrators can handle more complex estate issues that sometimes arise, like pursuing a wrongful death lawsuit on behalf of an estate or conducting research into identifying heirs.
Unfortunately, Mississippi is one of the few states that limits the filing of probate cases to licensed attorneys. So, if your loved one’s estate requires the appointment of an administrator to transfer the assets or conduct other business, your first step will be finding an estate attorney.
Your attorney files a petition to appoint an administrator for the estate. Then the court holds a hearing where other heirs or interested parties could object if they disagree with your petition. Ultimately, the court issues letters of administration as proof of your authority to act on behalf of the estate.
One of the first duties of the administrator is to provide notice to creditors, and from there follows a 90-day waiting period where creditors can file their claims against the estate. Finally, after paying debts and divvying up the estate, the probate attorney can file the petition to close the estate and end the administration.
Non-probate transfers
If opening a probate case sounds daunting, there may be another solution for your loved one’s estate. Non-probate transfers remove property from someone’s probate estate, reducing the need for formal probate and the estate's value. This means more estates qualify to proceed by affidavit.
Non-probate transfers encompass the many ways a property can pass on to a previously designated beneficiary. These transfers can be completed with proof of the decedent’s death and the beneficiary’s ID.
Non-probate transfers would have been established during the decedent’s life, but it’s very common for people to designate beneficiaries even when they don’t engage in other types of estate planning. Banks and other financial institutions make it simple for anyone opening a new account to designate a payable-on-death beneficiary.
Besides payable-on-death beneficiaries for bank accounts, other common non-probate property transfers include life insurance proceeds, retirement and pension accounts, and investment accounts. Additionally, look for real or personal property titled “owned jointly with right of survivorship.” The “right of survivorship” clause signals that the surviving owner becomes the sole owner upon the other owner’s death.
Finally, any property owned by a trust does not go toward a decedent’s probate estate. While most people who have trusts also have wills, it’s not uncommon to learn that someone was the beneficiary of a trust and not the actual owner of the property.
Who Typically Inherits Assets in Mississippi If There Isn’t a Will?
Mississippi intestacy laws follow the same priority as most other states. The spouse and children are the most likely to inherit.
When a married person dies without descendants, the surviving spouse inherits the entire estate. Alternatively, if an unmarried person dies with descendants, the descendants inherit the entire estate.
When both a spouse and descendants survive the decedent, the descendants and spouse split the estate equally. So, if the decedent had one child and a spouse, they each get 50% of the estate. If the decedent had a spouse and three children, each inherits 25% of the estate.
When no spouse or descendants survive the decedent, the decedent’s parents inherit, followed by siblings, grandparents, and aunts and uncles.
Frequently Asked Questions: Dying Without a Will in Mississippi
Probating an estate without a will bring up some common situations and questions. Some families are much more complicated than others, and if intestacy laws don’t seem to fit your family well, be sure to work with an experienced probate attorney for a detailed application of the law to your situation.
What happens when your parent dies without a will?
If your parent dies without a will, their surviving spouse and descendants all inherit equal shares of the estate. If they were unmarried at the time of their death, then only the decedent’s descendants inherit.
The laws of intestacy consider all biological and legally adopted children the descendants. Foster and stepchildren do not inherit when there is no will, regardless of how close their relationship was with the decedent. The intestate estate will be divided into as many shares as the decedent had children.
Inheritance isn’t limited only to the decedent’s children. If any children died before the decedent, their own children can inherit in their place. The children of that adult child divide their parent’s share — they do not inherit individual, full portions like a decedent’s child.
What are a surviving spouse’s rights if there’s no will?
A surviving spouse inherits the entire intestate estate when a decedent dies without a will. Unfortunately, the spouse’s share quickly shrinks under Mississippi law if the decedent had children. The state’s intestacy laws equally divide the estate among the spouse and children. In families with many children, the spouse’s share becomes quite small.
Spouses often take ownership through non-probate transfers. Given that most couples title real estate as joint tenants with right of survivorship, the surviving spouse hopefully retains enough property to support themselves. Spouses are also commonly set up as joint owners of bank accounts.
Are there any probate exemptions if you die without a will in Mississippi?
Mississippi offers the small estate affidavit as the alternative to full probate. The small estate affidavit allows heirs to transfer the decedent's personal property if the estate is worth less than $50,000
Additionally, many types of property transfer via non-probate transfers, which means the property is neither subject to the laws of intestacy nor part of the estate total used to determine whether it meets the small estate qualifications.
How long does probate take when there is no will?
If you open a probate case with the court, expect the process to take at least several months.
Mississippi requires that an attorney file a petition for the appointment of an administrator. If this is the first time you’re working with an attorney, know that it can take longer than you might hope. Your case will be one of several that they are working on, so it can take time for the attorney to prepare the documents for your case, file them, and follow up on communications with you. When interviewing an attorney to handle your case, ask them about their availability and time estimate for your case.
All cases will experience a delay while waiting for a hearing for the appointment of an administrator. Additionally, after publishing notice to creditors, those creditors have 90 days to file a claim.
The time it takes to administer each estate varies on several factors. It often depends on the complexity of the assets and the level of conflict between those involved. Estates with few assets are much easier to conclude than those with businesses that have to be dissolved or sold.
Who is considered next of kin in Mississippi?
A decedent’s next of kin varies based on who survives the decedent. The surviving spouse, children, grandchildren, parents, or siblings of the decedent may be the next of kin, in that order.
When does the state take a dead person’s property?
In Mississippi, as in all states, an intestate estate eventually passes to the state only if no heirs exist. The process, known as escheating to the state, is generally rare because most people have some relative, even if they are distant and far down the family tree.
More commonly, the state holds property for missing heirs or those who cannot be found in the state’s unclaimed property fund.
Estate Planning Can Help You Avoid Mississippi Probate
Mississippi’s reliance on attorneys for filing and conducting probate cases makes it a state where you and your family can greatly benefit from a will and estate planning, even if you think you don’t need a will. Estate planning can help you avoid probate entirely, but it can also ensure all of your family members are taken care of after you are gone.
Sources:
- “Mississippi Code Title 91 - Trusts and Estates.” Mississippi Code Public Access, Lexis Nexis, 2022. Advance.lexis.com.