What is Probate?
If the deceased owned any property that does not pass by beneficiary designation (like a life insurance policy or a retirement account), or real estate (land) that does not automatically pass to a surviving joint owner, probate will nearly always be required. If a person's estate is worth $75,000.00 or less and they owned no real estate at all, under Mississippi law, probate may be avoided by the use of a small estate affidavit. Very few estates qualify for this, because most people own their home. A great way to avoid probate for many people is a revocable living trust.
A step-by-step look at probate
After someone dies, what steps must be taken for their property to be distributed? The following will provide you with an idea, but the steps listed below are by no means all-inclusive. Probate is not something you can do yourself. Court rules require that every probate estate be handled by an attorney. A petition is filed with the Chancery Court* in the county where the deceased resided. If there is a Will, we ask the Court to admit the Will to probate and to grant Letters Testamentary to the named Executor. The will is filed with the Court, and becomes a public document available for anyone to view in the Clerk's office, or in most Mississippi* counties, even online on the Chancery Clerk's website. If there is no will, we ask the Court to appoint an Administrator and grant Letters of Administration.
Remember that this is not an all-inclusive list of the steps that must be taken in the probate process. Disagreements as to who should be named as Executor or Administrator, or as to who should inherit from the deceased may mean that probates become very complicated, very lengthy, and very expensive. Remember that as a practical matter, even the simplest probate takes about nine months, and complicated ones can continue on, even for years. In addition to being complicated, time-consuming, and expensive, from even a cursory reading of the above it is obvious that probate also results in a huge loss of privacy. These are some of the reasons that many individuals and families make the wise choice to avoid having to go through probate. While our firm strives to help families to avoid the probate process, we regularly assist families who unfortunately find that they must deal with the probate of a family member who may have done their estate planning via a will, or may have done no planning at all. Contact one of our attorneys for a consultation to determine the proper steps that must be taken.
* While Mississippi law provisions are cited here, we assist clients in Mississippi, Louisiana, and Tennessee with estate planning and probate matters
Probate is the legal process that must be followed when someone dies to make sure that the deceased person's property (their estate) goes to those the deceased wanted to receive it (their beneficiaries) if the deceased left a Will. If there is no Will, then the Court is required to determine who will inherit (their heirs at law) according to applicable state law. Contrary to what a lot of people think, leaving a Will when you die does not allow your estate avoid probate.
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