Know the law? Dying without a will...
Mississippi Law of Intestate Succession
The Mississippi assets of a person who dies intestate (without a Last Will and Testament) are distributed in accordance with a default system known as Mississippi laws of intestacy or intestate succession. These laws also apply to a person with a poorly-drafted will that does not dispose of all of his or her assets. Mississippi intestate law applies to all assets (including real estate) located in Mississippi.
Mississippi’s laws of intestacy pass a decedent’s assets to his or her heirs at law — a group that includes the decedent’s spouse and blood relatives (those descended from common ancestors and adopted children). These individuals are divided into four groups:
Spouse and children. If the decedent has a spouse and children, the decedent’s assets are divided into equal shares for the spouse and the children. The descendants of any deceased child inherit that child’s share. If the decedent has a spouse but no children, the entire estate passes to the spouse.
Parents, Siblings, and Descendants of Siblings. If the decedent has no spouse or children, his or her assets are distributed among his or her parents, siblings, or descendants of siblings. Each parent or sibling is given one share of the decedent’s estate. If any of the siblings predecease the decedent, that sibling’s share passes to his or her descendants.
Grandparents, Uncles, and Aunts. If the decedent has no spouse, child, parents, siblings, or descendants of siblings, his estate passes to his grandparents, uncles, and aunts in equal shares. Unlike the previous categories, the share of a deceased aunt or uncle does not pass to his or her descendants.
Blood Relatives of Highest Degree. In the rare event that there are no individuals in any of the previous categories, the decedent’s assets are distributed in accordance with degrees of kinship as established by civil law. This rather convoluted process involves going up the family tree to a common ancestor, then back down the tree to the descendants of that ancestor, counting degrees for each step in the ascending and descending family line.
Intestate Estate Administration
Most of the provisions of the Mississippi Code that apply to testate estates also apply to intestate estates. So a Mississippi intestate estate administration is procedurally similar to the probate of a will in Mississippi. But there are a few significant differences:
In an intestate proceeding, the law makes assumptions about which individuals should share in the decedent’s estate. These individuals are referred to as the decedent’s heirs at law. The application of these rules is fairly mechanical and doesn’t leave much of an opportunity to change who can receive the assets.
If the estate is intestate, the probate attorney files an Heirship Suit (or Suit to Establish Heirs), discussed below. The purpose of this proceeding is to define the group of individuals with an interest in the decedent’s estate. Heirship suits are not always required in testate estates since the will specifies who receives the assets, but some counties require Heirship Suits for both testate and intestate estates.
In most testate estates, the will waives bond. In an intestate estate, bond is required as a matter of law unless all of the heirs at law join in the petition to waive bond. This often results in the additional expense of having to post a fiduciary bond.
A person’s will usually names a person to serve as executor of his or her estate. But in an intestate estate, the court must appoint someone to serve as administrator. The spouse is given preference, but the court will appoint others if the spouse delays in administering the estate.
Intestate estate administrations use different terminology than testate probate proceedings. Although “probate” and “estate administration” are often used interchangeably, an intestate proceeding is technically an estate administrationinstead of a probate. The executor/executrix (testate) becomes and administrator/administratrix (intestate) and Letters Testamentary (testate) become Letters of Administration (intestate).
The Heirship Suit (Suit to Establish Heirs)
If a person dies without a will, Mississippi’s laws of intestacy distribute the person’s estate to his or her heirs at law. But this raises a practical issue: how can third parties know who the heirs at law are? What would stop one child from claiming that he is the only heir when there are actually more children involved? Those who later acquire property from an heir may want proof that no one else can claim an interest in the property. No one wants to buy a lawsuit.
The Heirship Suit solves this problem by providing a judicial determination of a person’s heirs at law. This gives third parties something to rely on to know that they are dealing with all of the heirs involved.
To establish heirs, the probate attorney files a Petition to Establish Heirs with the chancery court in the county where the decedent died or owned property. Known heirs will usually join in the petition, and notice is published in the local newspaper to deal with any claims by unknown heirs. The probate attorney will then attend a hearing and obtains an Order Establishing Heirs, which serves as a judicial recognition of the decedent’s heirs at law.