As mentioned in my previous article on the general probate process in Mississippi, the term “probate” technically only refers to the process of proving a will as valid.[1] However, it is most commonly used as a catch-all term to encapsulate the entire probate and estate administration processes, both for testate and intestate estates. The main goal of the probate process is to obtain an order declaring a will to be the valid will of a decedent. Once the will has been probated, the estate can be opened, and the administration process should begin. The process of administering an estate of a decedent who died without a will, or intestate, follows a similar procedure.
Opening the Estate
The first step in administering an estate in Mississippi is to petition the court to appoint an executor or administrator and issue.[2] The term “executor” refers to an individual designated to administer an estate in the will, while “administrator” refers to an individual who was not designated to administer the estate in the decedent’s will but nonetheless is selected to do so, whether because those named in the will do not serve or because the decedent died without a will. The term “personal representative” is generally used to refer to either an executor or administrator, as the case may be.
While it might be inconceivable that some personal representatives would want to handle the entire estate administration process without retaining a lawyer, the rules of the chancery courts of Mississippi require them to be represented by an attorney if they are not one themself.[3] The personal representative is an officer of the court and holds a fiduciary relationship to all parties having an interest in the estate, including both the creditors and the heirs.[4] The personal representative must act in good faith and employ such vigilance, sagacity, diligence, and prudence as prudent persons of discretion and intelligence employ in their own affairs.[5]
Where the will appoints an individual to serve as executor, and such individual is willing to serve, he or should be appointed, provided he or she is over the age of 18, of sound mind, and not a convicted felon.[6] Where the will does not name an executor, or the individuals named are unable or unwilling to serve, the court will appoint an administrator c.t.a. (cum testamento annexo, which is latin for “with the will annexed”). The court generally follows the rules for appointing an administrator of an intestate estate when determining who to appoint as administrator c.t.a. of a testate estate.[7]
For intestate estates, a decedent’s surviving spouse has a statutory right to be appointed administrator unless disqualified or incompetent.[8] This right extends for 30 days from the death of the decedent, and anyone else appointed during that time is subject to removal if the surviving spouse applies.[9] After the surviving spouse, the decedent’s relatives who stand to inherit the estate are the preferred group, and the court is to select the one best calculated to manage the estate from those in their group who apply.[10] This is likewise a statutory right which would extend for the same 30-day period.[11]
Beyond the surviving spouse and those who stand to inherit the estate, the decision of whom to appoint is within the discretion of the court.[12] A stranger, a Mississippi trust company, or a national bank may be appointed within the 30-day period, and a creditor or other suitable person may be appointed after the 30-day period. [13] Similar to the executor, an administrator must be over the age of 18, of sound mind, and not a convicted felon.[14]
Once the personal representative has been selected, they must take an oath and may be required to post bond. The oath varies slightly between a testate and intestate estate, but primarily concerns the personal representative promising to administer the estate according to the law. Mississippi law generally requires a personal representative to post bond equal to the value of the decedent’s estate with sureties actable to the court.[15] This can be waived by the decedent in the will or, in the case of an intestate estate, by the judge if the administrator is the sole heir or if all heirs are competent and ask by sworn petition that the bond be waived.[16]
After taking the oath and posting any bond necessary, the personal representative can be issued letters testamentary (for testate estates) or letters of administration (for intestate estates or for an administrator c.ta.).[17] These aren’t actually letters, rather they are formal documents issued by the court granting the personal representative the authority to act on behalf of the estate. Once the letters are issued, the estate is generally considered “opened,” and the administration process can really begin. Often the entire process of opening the estate is handled in conjunction with the probating of the will, such that everything can be streamlined into as few documents and hearings as possible.
Administration of the Estate
The actual administration of the estate can vary depending on the individual facts of each case, but there are several statutory requirements that must be met before the estate can be closed. While not required by statute, the personal representative typically applies for a tax ID number for the estate, which is similar to a social security number for the estate and is used to open bank accounts and file tax returns on behalf of the estate. As one of the duties of the personal representative is to shepherd the decedent’s assets to the beneficiaries, they must gather all assets passing as part of the estate. This includes collecting all assets of the estate in the possession of anyone other than the personal representative and ensuring that all bank accounts and other funds (which do not pass outside of the estate) are transferred from the decedent’s personal accounts to the estate bank account.
The personal representative must file an inventory, verified by oath, of the money and property owned by the decedent at the time of death, listing with reasonable detail, and indicating as to each listed item, its market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.[18] This inventory is generally required within 90 days of the issuance of the letters, unless further time is allowed by the court.[19] Similar to the bond requirement, the inventory requirement can be waived by the decedent in their will or by the judge upon petition to the court by the administrator (for an intestate estate).[20] Even though it may be waived, the court may later order the personal representative to file an inventory upon the petition of a beneficiary or other interested party if the court determines that the inventory is necessary or advisable.[21]
Perhaps the most important statutory requirement that must be met before an estate can be closed is the process for paying the debts of the decedent that are properly probated. The personal representative begins this process by making reasonably diligent efforts to identify those persons who have a claim against the estate and notifying each such person that they have a right to probate a claim against the estate.[22] The notice must state that the creditor’s claim will be barred if not presented within 90 days from the date that the notice is first published in the local newspaper.[23] Once all known creditors have been notified, the personal representative signs an Affidavit of Notice to Creditors, which his attorney then files with the chancery court stating that all known creditors have been notified.[24] Similarly, if the personal representative is unable to identify of any creditors of the estate, after undertaking reasonably diligent efforts to identify them, an Affidavit to that effect will be filed instead.
The personal representative must then publish the above referenced notice to creditors in the local newspaper, once a week for three consecutive weeks.[25] This publication serves as notice to both the notified known creditors and any unknown creditors of the decedent and proof of such publication must be filed with the clerk.[26] If there is no newspaper of general circulation in the county, the notice may be posted at the courthouse door and three other public places in the county.[27] The date of first publication starts a 90-day period during which creditors can submit claims, and any claims not submitted during such period will be barred.[28] After the 90-day creditor period expires, the personal representative and his attorney should consider the probated claims and determine whether to pay or contest any such claims.[29]
In a similar vein, the personal representative should ensure that all tax returns are filed and all amounts due are paid prior to distributing property to beneficiaries. Effective as of July 1, 2020, the new Mississippi Uniform Estate Tax Apportionment Act essentially provides that federal and state estate taxes should be apportioned ratably, based on the value of the “apportionable estate” among those persons with an interest in the estate.[30] This means that if those taxes are not paid, the government can collect against the beneficiaries who received the property from the estate for their proportionate share of the estate tax. For more details on the Mississippi Uniform Estate Tax Apportionment Act see Josh Sage’s article and Charles Allen’s article on Mississippi’s recent changes to our estate, trust, and probate laws.[31] However, the Mississippi Uniform Estate Tax Apportionment Act merely acts in addition to, rather than superseding, the federal government’s claims under the federal priority statute.[32] Where there is a possibility that amounts will be due from the decedent to the federal government, including amounts related to the federal income or estate taxes, the personal representative needs to be sure that all such amounts are paid before any assets are distributed to beneficiaries because he can be held personally liable in such an instance.[33] As evidenced by Gray Edmondson’s recent discussion of the Estate of Lee case, in which the Tax Court found that an executor could be held personally liable for the $536,151 estate tax obligation of the decedent where, after receiving notice of the potential tax liability, the executor made a distribution that rendered the estate insolvent.[34]
Closing
Once all the assets have been gathered and debts and taxes have been paid, all that is left is to close the estate and distribute the assets among the beneficiaries. This is accomplished by a petition, often followed by a hearing, then an order that the estate is to be closed, the executor is to distribute the property among the beneficiaries, and then the executor is discharged. If all of the beneficiaries are willing to sign joinders and waivers to the petition, many courts often will not require a hearing and instead will just issue the order, although this varies from district to district. If any beneficiary will not sign a joinder and waiver, a hearing must be held and they must be served with process. While not required, it is best practice for the personal representative to require each beneficiary execute a receipt and release acknowledging the assets they will receive satisfy their right to distributions from the estate, thereby reducing the likelihood that the personal representative will have future issues with the distribution of the assets. The personal representative will then distribute the assets and file a final accounting with the court, after which the estate administration process is generally finished.[35] In the coming months, expect to see the final article in this series covering some of the potential issues and complicates for both the probate and estate administration processes.
[1] Devin Mills, “Mississippi Probate Review” (July 9, 2020), https://esapllc.com/2022-ms-probate-review/.
[2] Note that all references herein will be to the masculine gender of terms.
[3] Miss. Chancery Court Rule 6.01.
[4] In re Estate of Carter, 912 So. 2d 138 (Miss. 2005).
[5] Harper v. Harper, 491 So. 2d 189, 194 (Miss. 1986).
[6] Miss. Code Ann. § 91-7-35.
[7] Miss. Code Ann. § 91-7-39.
[8] Miss. Code Ann. § 91-7-63.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Miss. Code Ann. § 91-7-65.
[15] Miss. Code Ann. §§ 91-7-41 & 91-7-67.
[16] Miss. Code Ann. § 91-7-63.
[17] Miss. Code Ann. § §§ 91-7-35 & 91-7-63.
[18] Miss. Code Ann. § 91-7-65.
[19] Id.
[20] Id.
[21] Id.
[22] Miss. Code Ann. § 91-7-145(1).
[23] Id.
[24] Miss. Code Ann. § 91-7-145(2).
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Miss. Code Ann. § 91-7-165.
[30] Miss. Code Ann. § 91-25-1.
[31] Josh Sage, “Legislative Update: Mississippi Uniform Estate Tax Apportionment Act” (July 9, 2020), https://esapllc.com/ms-apportionment-act2020/; Charles Allen, ” Mississippi Adopts Much Needed Updates to Estate, Trust, and Probate Laws” (June 30, 2020), https://esapllc.com/ms-sb2850-sb2851/.
[32] 31 U.S.C. § 3713, see also Treas. Reg. § 20.2002-1.
[33] Id.
[34] Gray Edmondson, “Executor Liability for Decedent’s Tax Obligations” (August 12, 2021), https://esapllc.com/executor-liability-for-decedents-tax-obligations-lee2021/#_ftn1.
[35] Miss. Code Ann. § 91-7-291.
