Alternatives to formal probate exist in Mississippi, primarily usable when the decedent left no will.
The four main alternatives to formal probate include:
Heirship Affidavit
Small Estate Affidavit
Transfer on Death Deed
Payable on Death Provisions for Certain Assets
Understanding the differences between these alternatives is crucial.
Better to Have A Will
To will or not to will is not the question. In my opinion, there is no excuse not to have a will in Mississippi, even if your estate ultimately requires no formal probate process. A will is normally the least expensive way to let your family and the state know where you want your property to go. The alternatives outlined can be of value in the unfortunate case in which no will exists.
Heirship Affidavit
The Heirship Affidavit is usually used when the person dies without a will, has left only real estate, and there is no other way to conclusively prove the heirs. The Heirship Affidavit is best signed by one or more family members and at least one unrelated person who knew the decedent and the decedent’s family history.
The Heirship Affidavit is used to link title of the real estate from the decedent to the heirs sufficiently that title companies will be willing to issue a title policy based upon it. However, it is not always possible to determine whether the Heirship Affidavit will be accepted. Mississippi title companies are not likely to accept an Heirship Affidavit made earlier than three years after the death so that all suits against the estate will be barred by the passage of time.
Small Estate Affidavit
The Small Estate Affidavit is available only to those estates which contain less than $75,000 in assets. This method may be used to transfer personal property, a legal document establishing a debt or other obligation, stock, and similar property. The Small Estate Affidavit usually applies to estates without a will and in which the estate has not been admitted to probate.
Those entitled to sign and file the affidavit are the surviving spouse, the adult with whom minor children are residing, adult children, or a parent of the decedent entitled to the assets. The affidavit may be given to any person who owes the decedent, and that person is required to transfer the property or pay the debt to the heirs. If the property is in the form of a legal instrument document which creates an obligation, the rights under the instrument are transferred to the heirs.
Transfer on Death Deed
A transfer on death deed is relatively new to Mississippi. It does exactly what the name suggests and allows a person to deed real estate to whoever they choose, but it only takes effect when the person passes. In addition, it is revocable and can be changed. The transfer on death deed automatically transfers title to real estate to the individuals named by the deceased person.
Understanding these alternatives can help you make informed decisions about managing and distributing your estate, especially if no formal will exists. Always consider consulting with a legal professional to ensure that your estate planning aligns with Mississippi laws and your personal wishes.
Written By
Zachary Madison
Attorney at Law
Comentarios