January 11, 2012 § 18 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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  • […] with the permission of Chancellor Lawrence Primeaux of Meridian and was originally published on The Better Chancery Practice Blog on January 11, […]

  • Luke says:

    Judge, I have the same question proposed by Mr. Satcher on June 28, 2019. If I have one beneficiary named as the sole beneficiary and reminaing beneficiaries will not receive unless the sole beneficiary passed before the testator, would all beneficiaries need to sign? Or would the sole beneficiary be the only needed signature since the remaining beneficiaries would not have an interest in the estate?

    • Larry says:

      In my opinion, only the sole beneficiary needs to sign. The contingent beneficiaries have no interest in the estate unless he predeceases, so they have no right to protect until that contingency occurs.

      • Luke says:

        Thank you, Judge. That leads me to one more question: if I have an original will signed by two witnessess, but not self-proving, can that will be admitted a muniment of title only, or does the will need to be proved before it can be admitted as muniment only?

      • Larry says:

        The will is being admitted to probate. “Probate” is from the Latin for “prove.” So, yes, you must prove the validity and authenticity of the will by affidavit, self-proving or otherwise.

  • Jay says:

    If one of the beneficiaries to the Will dies, will you have to probate the Will because all beneficiaries can no longer sign and swear?

    • Larry says:

      If the beneficiary’s interest was not extinguished by death, then whoever takes his or her interest under the will steps into the deceased beneficiary’s shoes.

      • John Satcher says:

        Judge Primeaux:
        In regard to Probate by Muniment of Title. The statute states that all beneficiaries shall sign; however, if only one beneficiary was the sole beneficiary, and the other Beneficiaries do not have an interest in the estate, unless the sole Benefiiciary dies before the Testator? If they are not a beneficiary that will receive anything, do they have to sign anyway. The contingent beneficiaries probably would not want to sign, because the Beneficiary that inherited everything may not be happy with what the Testator’s Will provisions. Looks to me like they would be no more entitled to be served vs. un-named children.???

  • […] 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.

      • Mike Kelly says:

        The decedant died in 1991. Does that change your view?

      • Larry says:

        Could be. A property lawyer can tell you whether that would empower the successor trustee. I’m not sure.

      • Cecelia Arnold says:

        I am trying to do an ancillary probate for an attorney out of Tennessee. The only thing the decedent owned in Mississippi was a mineral interest. Can this be handled by a muniment of title?

      • Larry says:

        If the result you are looking for is an adjudication that vests title, muniment will not do it. All muniment of title does is to inject the will officially into the chain of title, so to speak, putting persons searching the title on notice that there is a will and recording its provisions, especially identification of the heirs. If the point is to vest title to the Mississippi mineral interests in the beneficiaries, you should ask the court to admit it to probate as ancillary to a foreign probate, and then go through the complete process. My suggestion is to find out what the Tennessee atty needs, and then proceed accordingly.

  • 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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