Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed Mississippi attorney for guidance specific to your situation.
Detailed Answer
When someone dies owning real property, that land or home must often pass through probate to become part of the decedent’s estate and eventually reach heirs or beneficiaries. Under Mississippi law, you must follow specific steps to ensure real property is properly included in the probate estate.
1. Confirm Ownership and Title Status
First, review the deed and public records. Determine whether the decedent owned the property as:
- Tenants in common: Each owner has a fractional interest; intestate or testamentary succession governs the decedent’s share.
- Joint tenancy with right of survivorship: The decedent’s interest automatically passes to the surviving joint tenant and generally avoids probate.
- Transfer-on-death deed (TOD): If a valid Miss. Code Ann. § 91-15–1 et seq. TOD deed exists, the real property passes outside probate to the named beneficiary.
If the property is held in joint tenancy or via a TOD deed, it may not enter probate. To include real property in the estate, decedents should hold title as tenants in common or in their sole name.
2. Open Probate and Appoint a Personal Representative
File a petition in the chancery court of the county where the decedent resided. This petition asks the court to:
- Admit the will (if one exists) to probate.
- Appoint an executor (named in the will) or an administrator (if there is no will).
See Miss. Code Ann. § 91-7-17 for will admission requirements and § 91-7-47 for administrator appointment.
3. Inventory and Appraisement of Real Property
Within 90 days of appointment, the personal representative must file an inventory listing all estate assets, including real property. The property must be appraised at fair market value on the date of death.
Refer to Miss. Code Ann. § 91-7-173 for inventory procedures.
4. Address Liens, Mortgages, and Taxes
Before distributing property, clear any outstanding mortgages, liens, or back taxes. The personal representative may sell assets or use liquid funds in the estate to pay debts and tax obligations.
5. Transfer Title via Deed
Once debts are settled and the court approves distribution, the personal representative executes a deed transferring title from the estate to the beneficiary or heir. This deed must:
- Name the personal representative as grantor.
- Name the beneficiary or heir as grantee.
- Be acknowledged before a notary.
- Be recorded in the county land records.
6. Close Probate and Distribute Assets
After distributing property, file a final accounting and petition for discharge of the personal representative. Once the court approves, the estate closes, and the beneficiaries hold clear title.
Helpful Hints
- Review the decedent’s deed history before filing probate papers.
- Check if a TOD deed or joint tenancy exists to avoid surprises.
- File the inventory on time to prevent court sanctions.
- Work with a title company for accurate deed preparation and recording.
- Keep detailed records of all communications and filings with the court.