At Gibson & Mullennix, we understand that not all property and not all probates are million dollar Estates with the ability to pay for appraisers, attorney fees, and other expenses. The probate process can be an expensive one in some cases, but luckily in Mississippi there are a number of alternatives to probate. Today we will examine the Small Estate Affidavit, which allows a an heir at law to accept property on the estate’s behalf with some stipulations in place. Below we have the statute in Mississippi.
A Small Estate Affidavit is governed by § 91-7-322, which states:
“(1) Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment when due of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, as defined herein, upon being presented an affidavit made by the successor stating:
(a) That the value of the entire probate estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed Fifty Thousand Dollars ($50,000.00);
(b) That at least thirty (30) days have elapsed since the death of the decedent;
(c) That no application or petition for the appointment of a personal representative of the decedent is pending, nor has a personal representative of the decedent been appointed in any jurisdiction; and
(d) The facts of relationship establishing the affiant as a successor of the decedent.
(2) For the purposes of this section, “successor” means:
(a) The decedent’s spouse;
(b) If there is no surviving spouse of the decedent, then children of the decedent;
(c) If there is no surviving spouse or children of the decedent, then to descendants per stripes of the decedent;
(d) If there is no surviving spouse, children or descendants per stripes of the decedent, then either parent or any siblings of the decedent; or
(e) If none of the above successors can be found, then to the decedent’s heirs at law.
(3) Any minor or incapacitated adult who is a successor of the decedent may be represented by a guardian, natural or appointed, conservator, custodian, or other personal representative, as appointed by the court or by power of attorney.
(4) The representative of a minor or incapacitated adult as defined in subsection (3) shall receive any property or payments from the decedent’s estate for the sole use and benefit of said minor or incapacitated adult.
(5) The successor of a decedent, upon complying with the provisions of subsection (1) of this section, shall be empowered to negotiate, transfer ownership and exercise all other incidents of ownership with respect to the personal property and instruments described in subsection (1) of this section.
(6) Any person paying, delivering, transferring or issuing personal property or the evidence thereof pursuant to the provisions of subsection (1) of this section shall be discharged and released to the same extent as if such person had dealt with a personal representative of the decedent. Such person shall not be required to see to the proper application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered, in accordance with the provisions of subsection (1) of this section, refuses to pay, deliver, transfer or issue any personal property or evidence thereof to the successor, such property or evidence thereof may be recovered or its payment, delivery, transfer or issuance compelled upon proof of the successor’s right in a proceeding brought in chancery court for such purpose by or on behalf of the persons entitled thereto. Any person to whom payment, delivery, transfer or issuance is made shall be answerable and accountable to the personal representative of the estate, if any, or to any other person having a superior right. Miss. Code § 91-7-322 Payment of indebtedness or delivery of personal property of decedent to decedent’s successor; affidavit of successor (Mississippi Code (2019 Edition))”
Please contact us and allow us to assist you with your probate and estate needs.