February 18, 2014 § 3 Comments
A lawyer emailed me last week with a quandary. She had prepared a judgment to admit a will to probate 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 firm usually included such language in their judgments. And she asked a most apt question: If you’re not going to adjudicate ownership, what’s the point?
Let’s look at the statute first:
SEC. 91-5-35. Will devising real property admitted to probate as muniment of title only; rights of interested parties unaffected.
(1) When a person dies testate owning at the time of death real property in the state of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:
(a) 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 the sum of Ten Thousand Dollars ($10,000.00), exclusive of exempt property; and
(b) All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.
(2) If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.
(3) The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.
(4) This section shall apply to wills admitted to probate from and after July 1, 1984, notwithstanding that the testator or testatrix may have died on or before July 1, 1984.
Note that the very language of the statute says that ” … said will may be admitted to probate, as a muniment of title only …” The limiting word “only” means that it may be admitted for that sole purpose and for no other purpose. A muniment is documentary evidence. To recast the statute in plain language, then:
The will may be admitted for the sole purpose of serving as documentary evidence of title.
The statute does not contemplate that the will is admitted to adjudicate heirship, or ownership, or anything else. When the judge signs the judgment admitting the will to probate as a muniment of title, that judgment tells people searching the land records that he or she can rely on the will as documentary evidence of title, even though there has been no further, formal administration of the estate.
Subsection (3) underscores the function of the statute. It says that the rights of anyone desiring to contest the will are not affected.
When the will is admitted to probate under this section, it provides evidence of ownership, but not conclusive evidence, because it does not operate to extinguish claims: (1) of any person that the will was fraudulent or made with lack of capacity or the product of undue influence; (2) of illegitimates who could attack the validity of the will; or (3) of creditors who claim that they were not paid.
So, if you’re not going to adjudicate ownership or even heirship, what is the point? Why bother with this procedure? Well, it gives persons who want a complete chain of title, and who don’t have the money or the time for a full administration, a shorthand way to add this particular link to that chain. And, keep in mind that it only applies in certain, limited situations. If the estate doesn’t fit, full administration is the way to go.
Now, what about the inquirer’s concern that her firm has been presenting judgments with adjudications included? I told her if her chancellor will do that, go ahead and include it, but my sense of the consensus among chancellors is that most will not adjudicate anything other than admission of the will as a muniment of title only. If you’re in doubt, pop into your chancellor’s office and ask. Most chancellors will be happy to chat with you about it. Keep subsection (3) in mind, though. That adjudicatory language you included won’t be the final word in any contest.
In this district, we will not sign a judgment that does anything other than admit the will to probate as a muniment of title. That’s how we understand the statute.
What is the practice in your district?
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.