Archive for the ‘Probate’ Category

Property Located in Mississippi Must be Probated in Mississippi

Tuesday, November 10th, 2009

If you are the executor of an estate which possesses property situated in Mississippi, you must probate that will in Mississippi.

Mississippi law is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate.

See Mississippi Code Annotated, Section 91-1-1 (Rev. 2004); Estate of High v. Cobb et al. No. 2008-CA-00799-COA.

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Probating a Lost Foreign Will

Tuesday, November 10th, 2009

The Mississippi Court of Appeals recently found that Section 91-7-33 Miss. Code Ann. does not bar the initial proving of a lost foreign will in Mississippi where the will disposes of property in Mississippi. See In the Matter of the Estate of Artis High, Deceased: Arbella High Watt v. Gracie Cobb, Joe High and David High No. 2008-CA-00799-COA.

The Court of Appeals reversed a Chancery Court decision which held that where the testator was domiciled in another state, and the will was a lost will, the will could not be probated in Mississippi until it was first probated in the state of domicile.

The Court of Appeals emphasized that part of Section 91-7-33 which provides that the original “may be proven,” and aptly pointed out that the statute does not include mandatory language such as the word “must.”

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Ademption by Extinction

Friday, October 23rd, 2009

A Will cannot bequeath property that the Testator does not possess. For example, if a Father decides to leave a house to his daughter by specific bequest in his Will, but then sells the house to someone else prior to his death, the bequest of the house to his daughter as contained in the Will is of no effect. This is what is known as Ademption by Extinction. See Welch v. Welch, 113 So. 197 (1927); Estate of Matthews, 791 So.2d 213, 218 (2001); Reddit v. Redditt, 820 So.2d 782 (Miss.Ct.App. 2002).

Ademption is a good reason to regularly review your Will and other estate planning documents, in order to ensure your plan will still be effective at your death. I usually recommend clients review their estate planning documents at least once a year.

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Estates in the News

Tuesday, September 15th, 2009

A couple estates have been in the news recently.

Mississippi native Steve McNair’s wife recently filed an inventory in his estate. According to the inventory, the estate’s estimated value is $19.6 million. I’m curious how much legal fees have been incurred by McNair’s failure to leave a Will. An inventory is often waived in a Will. Since McNair died intestate (without a will) his administrator, in this case his wife, was required to provide an inventory to the court. In an estate the size of McNair’s, this was probably costly, or at the very least time consuming.

Also in the news is the battle among Martin Luther King, Jr.’s heirs. I’ll bet Martin Luther King, Jr., one of the great men in our country’s history, never dreamed his family would fight over his estate one day. This is yet another example of the importance planning your estate. Who says probate isn’t interesting?

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Notice to Creditors

Tuesday, September 15th, 2009

One important function of probate is the Notice to Creditors. A Notice to Creditors performs the function implied by its title: It notifies creditors of the decedent that an estate has been opened in a given Chancery or Probate court and that all creditors have 90 days from the first publication of the Notice to Creditors in which to file any claim against the estate. Pursuant to Section 91-7-151 of the Mississippi Code Ann., any claim not registered within 90 days from first publication is barred, and no suit can be maintained as to that claim. However, existing liens on a property owned by the decedent can still be enforced even if the lien-creditor failed to present the claim. See Section 91-7-167 Mississippi Code Ann.

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