Losing a loved one is difficult. It can be even harder if, in addition to dealing with your grief, you are the one tasked with settling your loved one’s estate. But you do not have to do it alone. An experienced Mississippi probate attorney can help make the process as stress-free as possible.
What Is Probate?
When someone dies with or without a will, their estate goes through a process called probate. This is a court case with the purpose of:
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- Gathering the decedent’s assets;
- Determining if the decedent had a valid will;
- Figuring out the value of the decedent’s property;
- Making sure the estate pays its debts and expenses; and
- Transferring the decedent’s property to the heirs according to intestate succession laws if there is no will—and according to the terms of the will if one exists.
The court appoints an administrator for an intestate estate or an executor for an estate governed by a will to handle these tasks with the court’s supervision.
For some small estates, no probate court proceeding is required. Slightly larger estates may qualify for a simplified process.
Certain types of property also do not go through probate at all. For example, if you own property jointly with someone else and the deed includes a “right of survivorship,” the property passes automatically to the other owner when you die. Likewise, if your bank account has a “payable on death” provision, the person you designate can collect the money after your death without going through probate.
Do I Have to Have an Attorney to Probate in Mississippi?
Yes. If the administrator or executor is not an attorney, an attorney must be hired to serve as an advisor. The initial stages of probate proceedings involve knowing how to obtain copies of deeds and access to account balances. A probate lawyer from Mississippi will know what forms and evidence banks and other institutions require before they will release this sensitive personal information.
An attorney also will have the knowledge and experience to provide the court with the correct filings and supporting documentation. Probate often takes a long time, but an experienced attorney can make the process move more quickly and efficiently.
How Long Does Probate Take?
The complexity of the estate largely dictates how long probate will take to complete. An estate with a will and real property, but a total value of less than $75,000, may be distributed in a few months because it does not require a full probate proceeding.
However, probate of large estates may take more than a year to complete. This is because settling the estate can involves things like appraising and selling multiple properties, locating multiple bank and investment accounts, or appraising and managing business assets.
Other factors that affect the duration of probate include:
- Whether anyone contests the will;
- How many creditors submit claims;
- Difficulty locating documents and beneficiaries; and
- Problems accessing assets.
Here again, a seasoned Mississippi probate attorney will know how to overcome some of these challenges to expedite the process.
What Happens When the Estate Involves Debt?
If someone has one or more debts when they die, their representative is responsible for satisfying them before distributing assets. The process of resolving creditor claims involves the following:
- The representative notifies creditors about probate;
- Creditors file claims to collect debt from the estate;
- The representative, usually with the assistance of a probate attorney, reviews all submitted claims to verify their legitimacy;
- If the estate or beneficiaries believe a creditor’s claim is inflated or invalid, they may formally object and have the court review the claim and;
- The representative pays valid claims and denies invalid claims.
Only after the estate satisfies all valid debts do assets get distributed.
How Are Assets Distributed?
If the decedent left a valid will, the will dictates how the executor distributes the assets.
When someone dies without a will, or the will is declared invalid, the court will follow a process called intestate succession in distributing property. While the intestate succession laws cover every scenario, the law governing common situations is as follows:
- If you die with a spouse but no children, your spouse inherits everything;
- If you die with children but no spouse, your property is divided equally between your children;
- If you leave behind a spouse and children, they inherit your property in equal shares;
- If you have no spouse or children, your parents inherit everything; and
- If you do not have a spouse, children, or surviving parents, your siblings inherit equal shares of your estate.
These distribution requirements can result in unintended outcomes, which is why it is advisable to have an attorney prepare a will during your lifetime.
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What Are Common Probate Disputes?
While many probate cases do not inspire disputes, when disputes arise, they complicate an already challenging time. Disagreements among interested parties may lead to family conflict, increased expenses, and asset distribution delays.
Will Contests
Wills often inspire probate disputes, which may involve:
- Lack of testamentary capacity—the will’s creator did not fully understand the nature or consequences of making a will;
- Undue influence or coercion—an individual exerted improper influence over the decedent to make or change the will;
- Fraud or forgery—the creator did not genuinely create the will, or someone altered it without their consent; or
- Ambiguity in will wording—the language of a will is unclear or open to multiple interpretations.
A clear, well-documented will can help reduce the potential for such disputes, but when conflicts do arise, experienced legal guidance is essential.
Personal Representatives
Another potential issue in probate involves the personal representative (administrator or executor) responsible for administering the estate. Issues related to the representative may include disputes about the representative’s:
- Appointment,
- General conduct, or
- Management of debts or assets.
A probate attorney can help identify and document potential issues with the representative.
Creditors
Creditors are legally entitled to collect their valid debts from an estate, leading to potential issues with:
- Verification that claims are based on legitimate debts,
- Prioritizing conflicting claims, and
- Proper asset valuation.
Creditors can also challenge the representative’s conduct.
Asset Distribution
Probate asset distribution can become contentious, particularly when the estate plan is unclear. Common points of dispute include:
- Differing interpretations of the will,
- Disagreements over asset valuation, and
- Disagreements over specific property.
A probate attorney can guide you through asset disputes, whether that means negotiation, mediation, or litigation.
What If the Estate Plan and the Estate Do Not Align?
In some instances, discrepancies arise between the estate plan and the assets the decedent owns. When an estate has discrepancies compared to its estate plan, the actual property, accounts, and financial obligations do not match what was outlined in the will or other estate planning documents. These differences can lead to confusion, disputes among heirs, and complications during probate.
These discrepancies can result from several factors:
- Disorganization of records. Over time, estates can accumulate a variety of documents—some of which may be lost, outdated, or incomplete.
- Undisclosed debts or liabilities. Sometimes, estates may have debts that were not accounted for in the original estate plan.
- Contradictions between probate and non-probate assets. Estates may involve different assets with terms that directly or indirectly contradict.
- Changes in asset composition. The estate may include property or assets acquired or disposed of after the estate plan is created.
- Incorrect or outdated estate plans. Circumstances an estate plan relied on, like a marriage that has since ended in divorce, can cause plans to become outdated.
For example:
- A decedent’s will states that their beach house should go to their eldest daughter, but a year before their death, the decedent sold the beach house and did not update the will;
- A decedent’s estate plan leaves many assets to family members and charities, but at the time of death, significant unpaid medical bills and credit card debt exist;
- A decedent’s estate plan declares that a particular bank account should go to their youngest son, but they previously named a different beneficiary on the account itself;
- A will specifies that a decedent’s business should be divided among their three children, but after drafting the will, the decedent entered into a business agreement stating that their business partner has the right to purchase their share upon their passing; and
- A decedent owned significant cryptocurrency holdings and monetized online accounts but never included them in their estate plan.
Discrepancies can lead to protracted legal battles. A knowledgeable Mississippi probate attorney can review available documents, work closely with financial experts, and, if necessary, work with the court to ensure fair management of the estate.
What Other Related Issues Arise During Probate?
The administrator or executor of an estate must comply with numerous tax obligations. With regard to federal taxes, they usually need to:
- Verify any federal tax debt;
- Request that the IRS file a creditor claim in the probate proceeding;
- File the decedent’s income tax returns for the year of death; and
- Obtain a tax identification number and file an income tax return for the estate.
If the estate operated a business after the owner’s death, the administrator must comply with tax obligations related to the business.
Very large estates may owe estate taxes. Mississippi also imposes its own tax requirements. Your Mississippi probate attorney can help you determine what requirements apply to your loved one’s estate.
Where Do I Find a Mississippi Probate Lawyer?
Whether you are an administrator, executor, beneficiary, or heir, Harris Law Firm, PLLC can help you navigate complex probate proceedings. Dealing with complicated financial issues and mountains of paperwork is daunting at the best of times.
When you have just lost a loved one, it can be overwhelming. Having worked as a licensed clinical social worker and mental health therapist prior to practicing law, Mississippi probate lawyer Katherine Harris Elliott provides particularly empathetic counsel to her clients.
When you are ready to speak with a Mississippi probate attorney who will take the time to get to know you personally and compassionately guide you through probate, contact the Harris Law Firm, PLLC.