September 27, 2010 § 20 Comments

  • _____ Judgment opening the estate or admitting will to probate is filed, and there is no contest.
  • _____ Oath of Executor/Administrator filed. 
  • _____ The Executor/Administrator has properly filed his or her bond, or it was waived by the will or by sworn petition of all heirs with entry of a court order authorizing the waiver.
  • _____ Letters Testamentary or of Administration issued.
  • _____ The affidavit of known creditors required by MCA § 91-7-145 was properly executed by the Executor/Administrator and filed before publication to creditors.
  • _____ Publication of Notice to Creditors was made in “some newspaper in the county” that meets the criteria in MCA § 13-3-31, for three consecutive weeks, and it has been more than ninety days since the first publication.
  • _____ Inventory and appraisement were done and timely filed, or were waived by the will or by all heirs by sworn petition with order so waiving.
  • _____ All accountings were timely filed and approved by court order (other than the final accounting, which is now before the court), or waived by the will or excused by the court.
  • _____ In the case of an administration, publication for unknown heirs has been completed, and a judgment determining heirs has been presented, or will be presented in advance of presenting the final accounting.
  • _____ All interested parties to this estate have been served with the petition to close and all other closing documents, including the final account, and they have joined in the petition or have been duly served with a Rule 81 summons, and there is a proper return or properly executed waiver or joinder for each interested party.
  • _____ All probated claims have been paid, and evidence of such payment is in the court file, or the probated claims will be paid in the course of closing the estate, and a final report will be filed evidencing payment.
  • _____ The attorney’s fees and expenses, as well as those of the Executor/Administrator have been disclosed to all interested persons, and they have no objection.


September 17, 2010 § 4 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Necessity to join specific or general legatees in petition to close the estate:

If a beneficiaries who have received specific or general bequests under the will have signed receipts, or the personal representative has produced cancelled checks showing the bequests have been satidfied, it is not necessary to have the beneficiaries join in the petition to close the estate; only the approval of the residuary beneficiaries would be essential.

Timely probate of will:

An extended period of time after the death of the testator does not prevent a will from being probated.  Harrison v. Gatewood, 51 So.2d 59 (Miss. 1951).  

Statement of compliance:

When closing the estate, the court order authorizes payment of final expenses and distribution of the remaining assets of the estate.  It is a common practice that, once the order is signe the assets are distributed and the estate is accepted as being closed.  A Statement of Compliance, however, may be appropriate.  It would state that the final expenses have been paid and the final distributions made, and it should be filed with the court.   


September 14, 2010 § 6 Comments

Before the contestants in a will contest may proceed, the proponents of the will must first establish their position that the will is valid.

In Estate of Holmes, 961 So.2d 674, 679 (Miss. 2007), the Mississippi Supreme Court stated:

The proponents of the will meet their burden of proof by the offering and receipt of the will into evidence and the record of probate. [Citation omitted] The proponents make a prima facie case solely on this proof. Id. The burden then shifts to the contestants to overcome the prima facie case, but the burden of proof remains with the proponents to show by a preponderance of the evidence that the testator had capacity. Id.

The proponents typically make a prima facie case by admitting into evidence the will, the witness affidavits, the order granting letters testamentary, and the letters testamentary.

In order to determine testamentary capacity, the trial court must consider three factors:

  1. Whether the testator had the ability at the time of making his will to understand the nature and effect of his acts.
  2. Whether the testator had the ability at the time of making his will to understand the natural objects or persons to receive his bounty and their relation to him; and
  3. Whether the testator was capable of determining at the time of making the will what disposition he desired to make of his property.  Estate of Holmes, Id.

“In considering all the evidence, some testimony will receive greater weight. The testimony of subscribing witnesses receives greater weight than the testimony of witnesses who were not present at the will’s execution … The date of execution is the most important date, given that we recognize that a testator may not possess capacity one day and within several days have the capacity to execute a valid will.”  Rocco v. Sims, 918 So.2d 864, 871-872 (Miss. App. 2005).

The same capacity that is required to make a valid deed is required the for making a valid will.  Whitworth v. Kines, 604 So.2d 225, 228 (Miss. 1992).   Since the party seeking to set aside a deed must prove by clear and convincing evidence that the grantor lacked mental capacity at the time of execution, and not simply that the grantor suffered general weakness.  In re Conservatorship of Cook, 937 So.2d 467, 470 (Miss. App. 2006), it would follow that the same standard of proof would apply to a case in which the party seeks to set aside a will on the same basis. 



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.  


June 28, 2010 § 2 Comments

[This information comes from the outline of a presentation made by Bob Williford to the Chancery Judges Spring Conference earlier this year.  Used with  his permission.]

Intestate Estates:

  • An Administrator is required to file an annual account and a final account.  §§ 91-7-277 and 291, MCA. 
  • Although the statute does not provide an exception to the filing of a final account, a final accounting may be waived “on good cause shown.”  § 91-7-291, MCA.
  • The Administrator may be relieved of the duty of accounting by waiver of all parties interested in the estate of their right to an accounting.  34 C.J.S. Executors and Administrators, § 834.
  • If all of the heirs of the estate join in a request to waive annual account, the court would seem to have discretion to do so, but the court does have statutory authority to waive the final account. 

Testate Estates:

  • An Executor is required to file annual accounts and a final account.  §§ 91-7-277 and 291, MCA.   
  • case law, however, recognizes that a testator may waive the requirement of both annual and final accounts.  Harper v. Harper, 491 So.2d 189 (Miss. 1986);  Will of McCaffrey v. Fortenberry, 592 So.2d 52 (Miss. 1991); Matter of Holt v. Scott, 806 So.2d 296 (Miss. App. 2001).  BUT consider the following case:  Where accounting was waived in the Will, it was held that administration of the esatte was removed from jurisdiction of the court.  Bryan v. Bryan, 167 So.2d 56 (Miss. 1936). 
  • It is customary to waive accounting even if the Will does not expressly so provde, assuming all of the residuary beneficiaries join in the rtequest.
  • The court may require an account even if waived in the Will.  In re Estate of Carter, 912 So.2d 138 (Miss. 2005).  

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