Settling Small Estates (MS)
In Mississippi, small estates can bypass probate by using a small estate affidavit for personal property, and a muniment of title for real property. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a Mississippi estate has gross value <$75,000, you can use the small estate process to settle an estate with no court involvement.
Requirements
To use the small estate process, the following conditions must be true:
- The estate's assets have a gross value <$75K in total (prior to July 1, 2020 the limit was $50K)
- At least 30 days have passed since the death
- No petition has already been made to the court to officially appoint a personal representative
In determining the value of the estate, you should value assets as of the date of death, and ignore any unsecured debts. Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the small estate process:
- Prepare a Small Estate Affidavit (changing the county name as appropriate), have it notarized, and attach a copy of the death certificate and the will (if any)
- Obtain possession of estate assets by presenting the affidavit to current custodians (real estate cannot be transferred via small estate affidavit)
- Settle the estate in the normal way (pay debts, distribute remaining assets)
- Submit an Affidavit Form 78-014 to the DMV for any vehicles (note that the document title is misleading, and refers to any estate where a will has not been probated).
See MS Code § 91-7-322 and
Muniment of Title
A Muniment of Title is similar to a Small Estate Affidavit, but is used to transfer real property (i.e., real estate).
Requirements
You can use a Muniment of Title if:
- A valid will exists that devises (i.e., assigns) real property to someone
- The value of any personal property in the estate is <$75,000 (prior to July 1, 2021 the limit was $10K)
- All known estate debts have been resolved
In determining the value of personal property (i.e., everything except real estate), you should value assets as of the date of death. Do not include exempt property or any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To transfer real estate via a Muniment of Title:
- Submit to the court a Petition for Muniment of Title (see below)
- The court will issue an Order of Muniment of Title
- Record the Muniment of Title with the county deeds office
Petition
A petition for Muniment of Title must:
- State the name, residence, and date of death of the decedent
- State your interest (e.g., named in the will as personal representative, heir, etc.)
- State that the value of any personal property in the estate is <$10,000 (not including exempt property)
- State that all estate debts have been paid, including any estate and income taxes
- List the names and addresses of the beneficiaries named in the will, and have each such heir sign the petition (disabled heirs may have their legal guardians or one of their parents sign for them)
- If a surviving spouse is not named as a beneficiary in the will, then he or she must also sign the petition
- As of 2021, it may be possible for a person named as executor in the will to sign on behalf of everyone above (check with the local court)
- Provide the legal description of the real property being claimed, and who is rightfully entitled to it according to the will (by percentage)
- Request that the court issue an order of Muniment of Title for the real property
Attach a certified death certificate, a copy of the will, and have every signature notarized.
See MS Code § 91-5-35 and MS 2020 SB-2850 Section 2.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in MS, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to MS Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow MS probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In Mississippi, the local Chancery Court handles wills and estate matters.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in MS.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in MS.
Finally, in case you're interested, details about handling small estates in other states can be found here: