January 11, 2012 § 8 Comments

MCA § 91-5-35 allows you to admit a will to probate as a muniment of title only (muniment = evidence or writing that enables one to defend title to an estate or a claim to rights or privileges, according to Webster). It’s an effective procedure where the decdent owned only real property in Mississippi, and especially where the decedent was a resident in another state and owned nothing but realty here.  

The statute enables the beneficiaries to dispense with the formalities of probate and have a judgment recorded that preserves the chain of title.

Your client can take advantage of the statute if the decedent died testate owning real property in Mississippi at the time of death, and the will purports to devise the real property.  

But you have to do it right. Here’s what the statute requires:

  • The petition must be signed and sworn to by all beneficiaries named in the will, and by the spouse if not named in the will.
  • The petition must recite that the value of the decedent’s personal estate in Mississippi at the time of death, exclusive of any interest in real property, was less than $10,000, not including exempt property.
  • The petition must recite that all of the known debts of the decedent and estate have been paid, if any, including any estate and income taxes.
  • Any beneficiary under a legal disability must sign the petition by legal guardian or parent. 
  • Since the petition is sworn, and since the statute lays down specific requirements, it is a good idea to include all of the statutory prerequisites (e.g., that the decedent died owning real property in the state of Mississippi, that no estate or income taxes are due, etc.), and to track the language of the statute verbatim. If I were doing it, I would simply draft my petition tracking the statute phrase for phrase.

I have seen lawyers come to grief over their petitions simply because they got creative. One tried to argue with me that this sentence was enough to qualify under the statute: “The only property the decedent owned at the time of death is the real property described herein.” That’s not good enough, in my opinion, because there must be shown in the petition that “The value of the decedent’s personal estate in the state of Mississippi at the time of his or her death, exclusive of any interest in real property, did not exceed … etc.”). Again: I suggest that you simply track verbatim the language of the statute as far as you can.

I have never had to present live testimony beyond the sworn petition to obtain a judgment under the statute, and I do not require it; however, I have heard that some chancellors do require testimony, so you need to find out how your chancellor does it before you set aside time to present your petition.

The statute specifically provides that the procedure does not deprive any interested party of the right to a formal administration of the estate, or to file a will contest. Thus, probate as a muniment is not an effective, shorthand substitute for actual probate of a will. 

Where to file? That should be governed by MCA § 91-7-3.

Caveat: Do not include language in your judgment that adjudicates ownership, heirship or anything of the sort. An adjudication that the petitioners are all of the named beneficiaries in the will, and that the property is admitted to probate as a muniment of title only is all that the statute contemplates.

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  • […] as a muniment of title. Before she finalized it, she checked this blog and read with confusion my post on the subject that cautioned against including language adjudicating heirship or ownership. She said that her […]

  • Mike Kelly says:

    In the case of an Alabama Resident, deceased, with their Will probated in Alabama but a disclaimer clause provide for a Disclaimer Trust to be set up (property in Mississippi was disclaimed). A copy of the disclaimer document, deed of the executor(conveying property to the Trust), and certificate of Trust were filed with the Chancery Court. The Will itself was not probated in Mississippi. Is filing these documents enough for the successor trustee to convey property or does the route of Muniment of Title need to be followed? Should the Muniment of Title go to the next of kin or to the Trust, then the Trust convey the property to the beneficiaries?

    • Larry says:

      I don’t think muniment will do the job for you. I have a post coming next week about muniment that may make this clear for you. Another possibility is to admit the foreign will to probate. And I had a lawyer in another county have me sign a judgment enrolling a foreign judgment for probate of a estate that he said would authorize someone to convey some oil interests.

  • Katy says:

    If real property of the decedent is mortgaged, but the estate otherwise qualifies, can the will be probated as muniment of title?

    In the State of Texas the prohibition that all of the known debts of the decedent and estate have been paid, if any, also specifically excludes secured debts.

    The plain language of the Mississippi statute does not appear to give us this exception, but if the beneficiary is an heir at law as well as the beneficiary, thus qualifying under the federal prohibition of triggering the due on sale clause of the loan with the heir making the real property his or her homestead, do you think the Mississippi law could allow the probate as muniment of title in the case of secured debt against the real property?

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