What is the process for probate regarding property owned by my deceased husband?

04/14/2009 - Category:Wills and Estates - Probate - State: MS #15998

Full Question:

My husband died April 1, 2009. We had wills and powers of attorney done in Mississippi 4 years ago. We have 2 homes with mortgages and both our names are on these. His name is not on any other property or investments. Do I have to go through probate, file, or present the will in court? The combined worth of both homes is approximately 300,000 with 150,000 mortages.


If the property owned was left in a will the property interest could be transferred by a fiduciary deed signed by the executor or administrator of the estate in the probate process. The answer will depend on the names and ownership indicated in the current deed. Property owned as joint tenants wit hright of survivorship passes automatically to the survivor outside the probate process. If the property is worth more than $50,000, it won't qualify for a small estate administration and a probate petition must be filed.

When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate after a petition to probate the estate is filed with the court in the county where the deceased resided. In cases where the decedent didn't own property valued at more than $50,000, the personal property may go through a small estate administration process, rather than the formal probate process. To dispose of the real property interests of the decedent, the executor or administrator executes an executor's deed or fiduciary deed. For example, if a person who is a co-owner dies. the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining owners. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and automatically will inherit the share of a deceased joint tenant by right of survivorship, without the requirement of going through probate.

On the other hand, if the deed provides for ownership as tenants in common, each owner will own a portion of the property, which may be unequal, but each will have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.

In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."

The following are MS statutes:

§ 91-7-223. Executors and administrators may make deeds of conveyance.
The administrator, executor, or testamentary trustee may at any time, by and with the consent of the chancery court or the chancellor in vacation, when the chancellor deems it to the best interests of the estate, execute a deed of conveyance conveying any real property formerly owned by the decedent, where said decedent during his lifetime had executed any bond for title, optional contract, or other instrument conferring upon any party the right to purchase and secure title to said real property, where the execution of such conveyance is necessary in order to carry out the terms, provisions, or stipulation of the said bond for title, optional contract, or other instrument.
SECTION 1. Section 91-7-322
91-7-322. (1) Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment when due of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, as defined herein, upon being presented an affidavit made by the successor stating:
(a) That the value of the entire estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed Fifty Thousand Dollars ($50,000.00);
(b) That at least thirty (30) days have elapsed since the death of the decedent;
(c) That no application or petition for the appointment of a personal representative of the decedent is pending, nor has a personal representative of the decedent been appointed in any jurisdiction; and
(d) The facts of relationship establishing the affiant as a successor of the decedent.
(2) For the purposes of this section, "successor" means the decedent's spouse; or, if there is no surviving spouse of the decedent, then the adult with whom any minor children of the decedent are residing; or, if there is no surviving spouse or minor children of the decedent, then any adult child of the decedent; or, if there is no surviving spouse or children of the decedent, then either parent of the decedent.
(3) Any person who is the successor of the decedent, because the person is an adult with whom the minor children of the decedent are living, shall receive any property or payments of or for the decedent for the use and benefit of said children.
(4) The successor of a decedent, upon complying with the provisions of subsection (1) of this section, shall be empowered to negotiate, transfer ownership and exercise all other incidents of ownership with respect to the personal property and instruments described in subsection (1) of this section.
(5) Any person paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to the provisions of subsection (1) of this section shall be discharged and released to the same extent as if such person had dealt with a personal representative of the decedent. Such person shall not be required to see to the proper application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered, in accordance with the provisions of subsection (1) of this section, refuses to pay, deliver, transfer or issue any personal property or evidence thereof to the successor, such property or evidence thereof may be recovered or its payment, delivery, transfer or issuance compelled upon proof of the successor's right in a proceeding brought in chancery court for such purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made shall be answerable and accountable to the personal representative of the estate, if any, or to any other person having a superior right.

When a person dies leaving a will that disposes of real property he or she owns in the state of Mississippi, the will may be admitted to probate as a "muniment of title" only by presenting the chancery court with a petition signed and sworn to by all beneficiaries named in the will and, if the decedent's spouse is not named as a beneficiary in the will, by the decedent's spouse. Other requirements include: (1) the value of the decedent's personal property (property other than real estate) in Mississippi cannot exceed $10,000, exclusive of any exempt property; and (2) all known debts of the decedent and his or her estate must be paid first, including estate and income taxes, if any. Muniment of title proceedings are available to both residents and nonresidents.

A muniment of title proceeding generally avoids the need for a full-blown probate proceeding under which an executor must be appointed and creditors must be notified. However, because creditors are not notified in a muniment of title proceeding, such a proceeding does not provide assurance to subsequent transferees that the property is free and clear of all debts. For this reason, title companies often will not insure property that passes to the transferee in this manner, especially if the transfer is fairly recent. This can significantly impair marketability of the property. For this reason, a full probate proceeding is usually required even though a muniment of title proceeding could technically pass title.

The following is a MS statute:

§ 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.
(1) When a person dies testate owning at the time of death real property in the state of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:
(a) The value of the decedent's personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and
(b) All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.
(2) If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.
(3) The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.
(4) This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.

Please see the information at the following links:

http://lawdigest.uslegal.com/wills-and-estates/small-estates/2941/ http://definitions.uslegal.com/p/probate/ http://definitions.uslegal.com/f/fiduciary-deed/ http://definitions.uslegal.com/i/intestate/ http://definitions.uslegal.com/e/executors-and-administrators/ http://definitions.uslegal.com/s/small-estates/ http://lawdigest.uslegal.com/estate-planning/intestacy/ http://lawdigest.uslegal.com/estate-planning/probate-and-executors/ http://lawdigest.uslegal.com/estate-planning/wills-overview/ http://definitions.uslegal.com/r/real-estate-reservation-life-estate-deeds/ http://definitions.uslegal.com/r/remainder-interest/

Please see the forms at the following links:

http://www.uslegalforms.com/ms/MS-SDEED-6.htm http://www.uslegalforms.com/ms/MS-02501.htm http://www.uslegalforms.com/ms/MS-00003.htm http://www.uslegalforms.com/ms/MS-61604.htm http://www.uslegalforms.com/ms/MS-61607.htm http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-MS-B-probate http://www.uslegalforms.com/ms/MS-61579.htm

04/14/2009 - Category: Probate - State: MS #15998

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