Thursday, January 28, 2016

Basic Differences Between Dying With a Will and Dying Without

One of the principal features of my law practice is estate law, particularly probating the estate of a decedent.  Odd as it may sound, death is an aspect of life, and dealing with the entanglements of our loved one’s property following their death is something we will all likely experience.  Questions – good questions – arise from my clients in probate proceedings more often than any other aspect of my practice.  I believe that is the result of the probate laws being so specialized, which creates confusion and uncertainty for those unfamiliar with the idiosyncrasies of the law.

Because probate is so common, and because I have specialized knowledge in the subject, I’ve decided to supplement The Rez News with short – but hopefully helpful – posts explaining certain aspects of the probate procedure.

I begin with a primer on the differences between dying with a Will and dying without.

Intestate Administration.      If an individual dies without a valid Last Will and Testament, they are referred to as dying “intestate”.  Because the decedent did not leave specific instructions on the manner in which his/her property was to be distributed, it will be necessary for a court to determine the legal heirs, i.e., those who are entitled to the decedent’s “stuff”.  At times, the value of the decedent’s property passing through his/her estate is so small, formal court proceedings are unnecessary and seen as a waste of judicial resources.  However, legal proceedings are likely inevitable for those who die in possession of ownership of large tracts of land, significant investments, business interests, or sizable debts.

Those legal proceedings are referred to as “the administration of the intestate estate”.  I will get into more detail in later posts about the administration process, but, in brief, it entails filing a petition to name a person to lead the administration (called “administrator” for the masculine and “administratrix” for the feminine), notifying all those who may have a claim against the decedent (credit card companies, banks, hospitals, etc.) reporting to the court the extent of the decedent’s assets, determining the legal creditors and heirs, and, ultimately, distributing the decedent’s assets under the direction of the court.

Testate Probate.         This occurs when someone dies in possession of a valid Last Will and Testament.  There are numerous requirements for a Last Will and Testament to be valid under Mississippi law (I will discuss those later), requiring a court to first enter an Order accepting the Last Will and Testament to probate.  The word “probate” derives from the Latin word probatio, meaning “proof”.  Once the Last Will and Testament has been accepted by court order, the court will name an Executor to take on the responsibility of guiding the legal probate proceedings.  The Executor (or Executrix for female) is different from the attorney hired by the estate, and is usually the spouse, child, or respected confidant of the decedent.  The decedent enjoys the ability to name their own Executor.  However, that choice is not set in stone.  That person may not qualify under Mississippi law, or they may not desire the responsibility, or they may not even be in existence anymore.  The court has the ultimate discretion, though the wishes of the decedent will be respected absent good reason.  The Executor will then notify those with claims against the decedent, and begin gathering and shepherding the decedent’s property.  Once the creditors’ claims have been dealt with through the court, the Executor can begin the process of distributing the property of the estate.

The above is a gross oversimplification of the legal processes; however, it will give you a general idea of the way it works.  I will explain in more detail in later posts the particular aspects of probate.  If anyone has questions, you are always welcome to email, or call me, free of, 601-992-4477.

1 comment:

Anonymous said...

This was VERY helpful information! Not having to deal with the loss of parents yet, it is nice to have an idea what to expect when the inevitable happens. Thanks for sharing this with us.