August 18, 2010 § 9 Comments

[This outline is based on the 15th Chancery Court District Newsletter published by Chancellor Ed Patten]

Statutory order of preference for appointment of Administrator.  § 91-7-63, MCA.

  • Surviving spouse.
  • Next of kin, if not otherwise disqualified.
  • Other third party, bank or trust company.
  • If no application is made within 30 days of the decedent’s death, administration may be granted to a creditor or other suitable person.
  • If no application is made and the decedent left property in Mississippi, county administrator or sheriff may be appointed.  § 91-7-79 and -83, MCA.

Oath and Bond.

  • At the time that Letters of Administration are granted, the Administrator must take and subscribe the oath set out in § 91-7-41, MCA.
  • At the same time the Administrator must also post a bond in the full value of the personal estate unless al heirs are competent and consent to waive or reduce bond, or unless the Administrator is the sole heir.  § 91-7-67, MCA.

Notice to Creditors.

Administrator has the responsibility to provide notice to creditors in the order and form prescribed in § 91-7-145, MCA:

  • Adminisrator must make a reasonably diligent effort to identify creditors having a claim against the estate, and to mail them actual notice of the 90-day time period within which to file a claim.  
  • Administrator must file affidavit of known creditors and attest to having served actual notice on them. 
  • After the affidavit of known creditors has been filed, Administrator publishes notice to creditors in a local newspaper notifying them that they have 90 days within which to file a claim against the estate.  The notice must run three times, once per week for three consecutive weeks, and must include the name of the estate and the court file number.
  • Administrator must file proof of the newspaper publication with the court.
  • Publication may be waived by the court in small estates with a value not more than $500.

Inventory and Appraisal.

  • Unless excused by the court, the Administrator must complete and file inventory and appraisal within 90 days from the grant of Letters of Administration.  § 91-7-145, MCA.

Determination of Heirs.

  • An action to determine heirs must be brought before the estate may be closed.
  • Publication process to the unknown heirs of the decedent must be made.
  • Determination of heirship requires 30 days’ process and should be to a day certain so tha the unknown heirs may be called.

Interim Hearings.

  • Held as necessary to meet needs of the estate or to resolve interlocutory conflicts among the parties.
  • A hearing to determine heirs may be necessary if any previously-unknown heir appears and claims heirship and the claim is disputed by the other heirs.
  • A hearing to adjudicate whether to pay probated claims may be necessary if there is any dispute as to the validity or timeliness of the claims.

Petition to Close Estate and Discharge Administrator.

  • The attorney must file a cerificate that there are no probated claims, or that the probated claims have been satisfied.
  • Final account is filed with petition, unless excused by the court.
  • All parties in interest are summoned to a hearing on the final account and petition to close.  § 91-7-295, MCA.
  • If approved, the court enters judgment for final distribution of any property in the Administrator’s care.  § 91-7-297, MCA.
  • Upon court’s approval, the Administrator is allowed a reasonable fee for services and reimbursement of attorney’s fees.  § 91-7-299, MCA.  

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  • Kim says:

    “The attorney must file a certificate that there are no probated claims, or that the probated claims have been satisfied.”

    Could you point me to the statute or rule requiring said certificate? I am not finding any examples and this is something I need to do. Thanks

    • Larry says:

      As noted at the beginning of the post, that material came from Judge Patten’s newsletter for lawyers practicing in his courts. Apparently, he imposes that requirement on lawyers in his district. I am not aware of a statutory or rule requirement to that effect, but it is a widespread practice, particularly among older lawyers. It’s just a wise thing to do. You are documenting for the court that there are no probated claims for the court to address, which relieves the judge of the duty to locate the probate docket and satisfy herself of the fact. There is no particular form; most certificates I have seen bear the style of the case, a brief statement, and the signature of the lawyer; the statement usually says that the lawyer has personally inspected the probate docket, and that there are no unsatisfied probated claims. You can go into greater detail if you like, or if your judge prefers. In the alternative, you may include a paragraph in your petition to close the estate, which the administrator will sign.

  • Allyson says:

    If you happen to come across something similar with Insolvent Estates could you please share? I came across one very recently that is obviously going to be insolvent with only a small amount of assets ($10,000+/-) with $6,000+ in probate claims as well as $6,000+ being bequeathed to various parties.

  • Jean Catalanotto says:

    Thank you Judge Primeaux! I am referred to as a “seasoned” paralegal, but your blog lays out estate law so perfectly clear, I’ve copied and saved every entry you’ve posted. You know it’s the paralegals’ and assistants’ responsibility to draft most, if not all, of estate pleadings. I really like to do it right the 1st time.

    Thanks again for all you do.

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