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MASSEY, HIGGINBOTHAM, VISE, AND PHILLIPS, P.A.

What is Probate and How Does it Work?

by Mike Massey on August 22, 2012

Probate is a court procedure whereby the estate of a deceased individual is administered so that creditors are paid, assets gathered, and property is distributed to the rightful heirs and beneficiaries.  When probating an estate, there is a systematic statutory process involving certain standard procedural steps, all as more particularly set forth in Miss. Code Ann. § 91-7-1, et seq. (1972, as amended).

Basically, the process of probate will involve an initial meeting with the decedent’s executor or executrix (administrator or administratrix if there was no Will) to gather all the pertinent information concerning heirs, beneficiaries, assets, debts, etc.  Thereafter, a petition will be presented to the Chancery Court of the county where the decedent resided or where property was held to open the estate.  At that point, the original Will will be presented to the court and, if accepted as the true Last Will and Testament, admitted to probate.  The Chancellor may require bond to be posted in the amount of the personal property value or the Will may have waived that requirement.  If the Chancellor finds everything in order, then a pleading entitled Oath of Executrix will be signed and filed whereby the representative swears to faithfully administer the terms of the Will and abide by the duties prescribed by law.  Thereafter, the Chancery Clerk will issue  Letters Testamentary (Letters of Administration in the case of intestate estates) which directs anyone dealing with the duly appointed representative to turn over possession of assets and otherwise deal with the representative of the estate with full confidence in their authority.

Actual written notice will be mailed to any known creditors directing them that they have ninety (90) days after publication of the Notice to Creditors in the local newspaper to probate their claims or their claims will be forever barred.  After providing such notice, a pleading entitled Notice to Creditors will be filed together with an Affidavit stating that actual notice has been provided to all known creditors.  The filed Notice will be published in a newspaper in the county of  general circulation once per week for three consecutive weeks notifying creditors to probate their claims.  During the ninety (90) day time period, the administration of the estate proceeds with the gathering of any assets.  At the end of that time, any properly probated claims are paid and the estate may thereafter be closed.  Thereafter, a Petition to Close the Estate is filed.  Typically, an ex parte hearing occurs at which point the Chancellor determines whether all of the statutory requirements have been met, approves the amount of the administrative expenses, and approves the closure of the estate and distribution of the remaining assets to the heirs and beneficiaries according to the Will or law.  All heirs typically join in the final petition or execute waivers of process.  Upon payment of the beneficiaries, it is prudent to obtain receipts from the beneficiaries which acknowledge receipt and relinquish any further claims against the administrator and estate since a primary benefit of probate is tying up any loose ends.

This is a very condensed version of the basic procedural steps.  In the event of larger estates, estate tax returns may need to be filed, partial distributions may be made in long drawn-out estates, annual accountings may be prepared, checking accounts opened, taxpayer identification numbers obtained, life insurance policies cashed in, stocks sold, real property appraised, auctions held and heirship proceedings held.  In addition, controversies concerning the validity of the Will may also develop.

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