Wills and Estates

When someone passes away without a will, he or she dies intestate. All property in the decedent's name passes to the heirs as determined by Section 91-1-1, et. seq. of the Mississippi Code of 1972, as amended. An heirship determination must be made as part of the probate of the decedent’s estate. In Mississippi, generally all property passes to the children of the decedent, with the decedent’s spouse getting a child’s share.

When someone passes away with a will, it is said he or she passed away testate. All property in the decedent’s name passes to the beneficiaries of the last will and testament. An heirship determination is not required.

In order to be legal and valid, the will must be made when the decedent is at least 18 years old and in the presence of two or more witnesses. The witness requirement is not required if the entire will is in the handwriting of the decedent.

What is probate? Probate is the legal process of administering the decedent’s estate. It requires the executor named in the will, or administrator of an intestate estate, to gather and preserve the estate assets, notify the known creditors, and identify and distribute the estate assets to the beneficiaries, or heirs, after payment of required debts. The entire process take several months depending on the complexity of the estate.

Whether or not an estate should be probated is generally dependent on the assets in the estate. Furthermore, if the only asset is real property, one may be able to effect the transfer with an heirship affidavit or a probate for muniment of title purposes only.