Probate, a word that strikes fear into the hearts of untold masses. Everyone knows that probate is an extremely complex, time consuming, and expensive process. But is it really? Certainly, in many circumstances it can be, but such is not always the case. In this article, I will outline the basics of the probate process in Mississippi, with future articles addressing the estate administration process as well as potential complications and variations such as holographic wills, will contests, and wills of nonresidents.
What is Probate?
Probate is actually the process of having a decedent’s will be legally declared as effective by a court order. After the will has been probated, a testate (decedent died with a valid will) estate can be opened and administered. If the decedent died without a valid will, then there is no will to probate, but an intestate estate will likely still need to be opened and administered. The main purpose of the probate process is to ensure that assets are validly transferred from the decedent to the proper transferees. The process is especially important for assets which have a title, as once the decedent is dead, he or she can no longer validly execute a transfer document (such as a deed to real property).
Often the term “probate” is used as a catch all term, to refer to the process of declaring a will as effective, opening an estate, as well as the administration of the resulting testate estate, or in the case of a decedent who died without a will, the process of opening and administering an intestate estate. The law regarding the probate of wills is also intertwined with the law regarding will contests. A will contest is a lawsuit between those interested parties who believe the writing is the decedent’s valid will and those interested parties who do not so believe. Will contests and intestate estates will be discussed further in future articles.
Initiating the Probate Process
The first requirement for initiating the probate process is to confirm jurisdiction and select a proper venue. In Mississippi, the chancery courts have exclusive jurisdiction over all estate administrations, both testate and intestate.[1] The primary venue of both testate and intestate estates is the county in which the decedent resided.[2] If the decedent did not have a fixed place of residence in Mississippi, but his or her will devises real property, then venue is proper in the county where the real property is situated.[3] Specifics related to probating wills of individuals who are not residents of Mississippi will be discussed further in a future article.
Next arises the question of who can admit the will to be probated? Mississippi allows any interested party to probate a will, with the term “interested party” including anyone with any direct, legitimate interest in having the will probated. This includes a devisee, the person named as executor in the will, or even a creditor of the decedent.
The probate process is often formally initiated by the filing of a petition with the chancery court setting forth pertinent facts and praying for an order adjudicating the validity of the will presented and appointing someone to execute the will. The filing of the petition is referred to as “propounding” the will for probate.
Proving a Will
Before a court will enter an order declaring a will to be legally effective, it must be proven that the will was validly executed while the decedent had testamentary capacity.[4] The burden of presenting this proof is upon those who desire to have the will probated.[5] Proof of valid execution requires a showing that the will was duly executed by the decedent and attested to by two credible witnesses in the decedent’s presence. Valid execution must be proven by at least one of the subscribing witnesses, if alive and competent to testify.[6] If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by evaluating the handwriting of decedent and the witnesses.[7] Proof of testamentary capacity requires a showing that the decedent was of sound and disposing mind and over the age of eighteen at the time the will was executed.
In most situations the will may be proven by affidavits of the subscribing witnesses.[8] It has become common practice for attorneys to have affidavits executed by the witnesses at the same time the will is executed, to reduce the likelihood of needing to track down the witnesses to have them testify or execute an affidavit about a will years after its execution. Affidavits will not suffice if the will is being contested however.[9]
Common Form vs Solemn Form
Mississippi follows the common-law practice of permitting a will to be probated in two ways, the less formal common form probate and the more formal solemn form probate. The fundamental differences between the two pertain to the parties involved in, and therefore bound by, the probate. The proponent of the will may select whichever method he or she wishes.
Common form probate is a one-sided proceeding, involving only the petitioner and those who join in the petition. No one is given legal notice of the proceeding, and the petitioner is only required to notify the parties named in the will.[10] Since there are no additional parties beyond those named in the will, common form typically enjoys significantly fewer delays than solemn form. Once the petitioner is actually in front of a judge, the entire process can often be handled in a few minutes. In fact, the proceedings can be handled and the order issued by a chancery clerk, although order’s by a clerk are not final until approved by a judge.[11]
Probate in common form, while quicker and simpler than solemn form, comes with an important drawback. It is not binding on those who were not a party to the proceeding.[12] Interested parties may contest the will at any time within two years after probate.[13] For orders issued by a chancery clerk, the two-year period begins when the clerk issues the order, not upon the judge’s later approval. Often times, judges will wait until the two-year period has passed before approving such orders.
This two-year period for contesting is subject to two exceptions.[14] One is for minors and persons of unsound mind, who have two years after the removal of their disabilities in which to contest the will, and the other is for cases of concealed fraud.[15] Mississippi has defined “concealed fraud” as “a case of designed fraud by which a party knowing to whom the right belongs, conceals the circumstances giving that right and by means of concealment enables himself to enter and hold.”[16] Simply not giving a person notice of the common form probate proceeding does not constitute concealed fraud.[17]
On the other hand, solemn form requires the petitioner to make all interested persons a party to the proceedings.[18] All parties to the proceedings must be given legal notice of the proceeding, provided an opportunity to oppose it, and properly served with a Rule 81 summons.[19] Each party has a right to a jury proceeding to determine whether or not the writing is the decedent’s valid will if they so desire.[20]
The main benefit of solemn form is that it is binding on those who are made a party to the proceeding.[21] So while the process itself can take longer, once the proceedings are complete, there is no additional two-year wait period.
Additionally, while there are specific requirements for a probate in solemn form, in practice many of these can be simplified. For example, when dealing with related parties (such as beneficiaries), common practice is to have such parties execute a joinder and waiver to the probate petition. By doing so, they acknowledge receipt of the petition, enter an appearance at any hearings on the petition, waive the necessity of being served, and join the petitioner’s prayer for relief.
Conclusion
The final step in propounding the will, and the entire goal of the probate process, is to get a court order declaring that the will in question is the decedent’s valid will. Upon execution of such an order or decree, the will has been “probated” or, as it is sometimes said, “admitted to probate.” After the will has been probated, it gets recorded by the chancery clerk and a record is kept in the county will book.[22] The chancery clerk’s office retains the original.[23] After a judge has granted the order (or approved a chancery clerk’s order after the two-year period required in common form), the probate process ends, and the estate can be opened and administration can begin. Because of how these processes are interconnected, people often refer to the combination thereof as “probate,” but such is not technically the case. Probate is really just the process of getting the order of validity, which can be accomplished either with a proceeding in common or solemn form, by proving that the will was validly executed while the decedent had testamentary capacity.
If this discussion of the probate process has gotten you incredibly excited to learn about the estate administration process, I apologize for leaving you on a cliffhanger. Be sure to keep your eyes peeled for future articles in which I plan to discuss the basics of opening and administering an estate and other complications related to both processes.
[1] Miss. Const. Art. 6 § 159.
[2] Miss. Code Ann. § 91-7-1.
[3] Id.
[4] Moore v. Parks, 122 Miss. 301, 84 So. 230 (1920).
[5] Martin v. Perkins, 56 Miss. 204, 209, 1878 WL 7358 (1878).
[6] Miss. Code Ann. § 91-7-7.
[7] Id.
[8] Miss. Code Ann. §§ 91-7-7 & 91-7-9.
[9] Miss. Code Ann. § 91-7-9.
[10] Matter of Will of Ratcliff, 315 So. 3d 1025 (Miss. 2021); Davis v. Longo, 315 So. 3d 1080 (Miss. Ct. App. 2021).
[11] Miss. Code Ann. § 9-5-147.
[12] Miss. Code Ann. § 91-7-23.
[13] Id.
[14] Id.
[15] Id.
[16] Last Will and Testament of Winding v. Estate of Winding, 783 So. 2d 707 (Miss. 2001).
[17] Davis v. Longo, 315 So. 3d 1080 (Miss. Ct. App. 2021).
[18] Miss. Code Ann. § 91-7-19.
[19] In re Estate of Kelly, 951 So. 2d 543, 547 (Miss. 2007).
[20] Miss. Code Ann. § 91-7-23.
[21] Id.
[22] Miss. Code Ann. § 9-5-137.
[23] Miss. Code Ann. § 9-7-31.
