A few weeks ago, Mississippi Chancery Judge Larry Primeaux published a cautionary blog post about the recent increase in judicial oversight of the Mississippi probate process. According to Judge Primeaux, “chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.”

As Judge Primeaux notes, the Mississippi Chancery Courts (equivalent of probate courts in other states) are the last line of defense to protect the parties who stand to lose if an estate is mishandled.  In this model:

• The personal representative (executor or administrator) of the estate is responsible to do the right thing;
• The probate attorney is responsible to advise the personal representative about how to do the right thing (and what not to do); and
• The court is responsible to be sure that the right thing gets done.

So what happens when the system fails?

Sometimes not much.  Many inadvertent mistakes can be corrected with a little time and effort.  But when intentional wrongdoing occurs, the results often can’t be undone.  In that case, the parties with an interest in the estate – the beneficiaries, heirs, and creditors – can be left left with little hope of recovery.

I recently closed an estate that had been opened by one of the attorneys mentioned in Judge Primeaux’s post.  Thankfully, no funds were missing. But the estate had been mishandled from day one.  Clear statutory requirements were simply ignored. There’s a good chance that the assigned chancellor would have caught these mistakes before the estate was closed. I caught them first and was able to clean things up and settle the estate.

But where does the blame belong when no one catches the problems with the estate?  I’m glad to hear that the judiciary is tightening up fiduciary oversight, but can we expect our judges to catch every mishandled estate? Can we expect clients to always do the right thing, especially when many of them don’t really understand their fiduciary responsibilities?  Or can we expect attorneys to always police the actions of their clients?

Perhaps the blame lies not with the various actors but with the system itself. No legal system is perfect, but that doesn’t mean that improvement is impossible. Sometimes a naïve question or two can advance the status quo.  Here are a few humble suggestions that I think would improve the current Mississippi probate system.

Require Basic Client Education

Attorneys should be required to provide their clients with a basic, written overview of the Mississippi probate process and their fiduciary responsibilities. The client should also have the opportunity to ask any questions up-front.  This initial review need not be a long, drawn out discussion or even a face-to-face meeting.  But the client should have baseline expectations for how the probate process progresses and should know the dos and don’ts of Mississippi probate and estate administration.

Once the client and attorney have discussed the written overview, they should each sign a statement that the required material (which should be uniform across the state) has been reviewed and understood.  This statement should be filed with the court.  This lets the judge know that the client has been informed of the basics.

In my experience, most clients want to do the right thing but are often confused about their role.  This requirement would clear up most of this confusion.   There will always be bad actors – clients who simply disregard the rules.  A basic education requirement would help ensure that the client was at least aware of his or her responsibilities.

Use Action-Specific Checklists

Many of the motions that are filed in a Mississippi estate administration are routine.  The legal requirements are clear.  The attorney follows the rules, the judge approves the motion.  Simple as that, right?

Well, unfortunately quite a bit slips through the cracks. For example, I recently took over a case where the original will had not been submitted to the court.  The client had the original will, but the attorney had not advised the client of the need to present it to the court.  The judge had admitted the will to probate without having the will or any explanation for its absence.

Oversights like this may be less common if the attorney was required to submit a checklist along with the petitions he submits to a judge.  If, for example, the attorney who opened the estate in the above example had to fill out a checklist certifying to the judge that the original will was attached, chances are that the attorney or the judge would have caught the mistake.

I use checklists internally to help keep me on track.  If, for example, I want to ask the judge to approve a sale of real estate, I know that the court will want to know whether any creditor claims were filed, whether the sale of real estate is necessary to pay debts of the estate, and whether all parties in interest have been notified and/or have consented to the sale.  Keeping a checklist of these items helps me be sure that I give the judge what he or she needs to approve my petition.  There’s no reason for the judge not to have the benefit of these checklists as well.

There are some situations where a checklist would do no good.  Not all estates fit into a nice pattern.  But most estate matters that come before judges are routine.  Simple checklists associated with the most common matters would help judges and attorneys to be sure that everything is in order before the judge considers a motion.

We often get questions about how to get Letters Testamentary or Letters of Administration in Mississippi. Often the person has been told by a bank or some other third party that Letters Testamentary or Letters of Administration will be required before a deceased person’s account can be accessed or information given. The clients want to know the quickest way to get this “letter” so that they can access the funds.

Letters Testamentary and Letters of Administration aren’t really “letters” in the common sense of the word. They are documents issued by the court as part of a probate proceeding. The purpose of these documents is to prove to third parties that the court is overseeing the estate. If the deceased person had a valid Mississippi Last Will and Testament, the document is called “Letters Testamentary.” If there is no will (i.e., if the estate is intestate), the document is called “Letters of Administration.”

As an initial matter, it is important to determine whether Letters Testamentary or Letters of Administration are really necessary. Often the client is dealing with a low-level bureaucrat at a financial institution who isn’t familiar with the nuances of Mississippi law. In some circumstances, an alternative to probate could make Letters of Administration or Letters Testamentary unnecessary.

If Letters are necessary, then the estate will need to go through probate. Although the Letters are issued fairly early in the process, the client can’t stop there. Once the estate is opened with the court, the client will have taken an Oath to fully administer the estate. This requires creditors to be notified, inventories to be filed, and further documents to be presented to the court to close the estate. Failure to diligently see the estate through to a conclusion will make the client liable to the court.

Since the Mississippi Chancery Court Rules require an attorney to represent all estates in Mississippi probate proceedings, an attorney will need to be consulted early to be sure that the right documents are filed. The documents required to open a Mississippi estate differ depending on whether the estate is testate or intestate.

Opening a Testate Estate

The following documents are typically required to open a testate estate in Mississippi:

• The original Last Will and Testament (or proof of why a photocopy should be accepted due to the unavailability of the original)
• A Petition for Probate of Will and Issuance of Letters Testamentary
• An Affidavit of Subscribing Witness (Proof of Will) (Most attorneys now include this as part of the will itself, so it is not usually necessary to file this as a separate document)
• A Civil Cover Sheet (some counties have other specific probate worksheets that they prefer)
• Waivers and Joinders by each person named in the will.

Once these documents are presented to the court, the attorney will usually attend a hearing to present the Petition for Probate of Will and Issuance of Letters Testamentary to the judge. If everything is in order, the judge will sign an Order admitting the will and providing for the issuance of Letters Testamentary upon oath and, if required, bond of the executor.

After the Order is issued, the executor will sign and the attorney will file an Oath in the form required by Miss. Code Ann. § 91-7-41.  If bond is not waived in the will or is otherwise required by the court, a fiduciary bond must be issued and filed as well.  The attorney can then present Letters Testamentary to the Chancery Clerk for issuance. The Letters Testamentary serve as proof that the executor has been duly appointed to act on behalf of the estate.

Opening the Intestate Estate

The documents differ slightly for an intestate estate due to the fact that there is no will to prove. An heirship suit (discussed above) is also necessary to identify the persons who will share in the decedent’s estate. Although the heirship suit can be brought before or during the estate administration, it is usually initiated at the time that the estate is opened. The following documents are usually required to open an intestate estate:

• A Petition for Grant of Letters of Administration
• A Petition to Establish Heirs
• A Civil Cover Sheet (some counties have other specific probate worksheets that they prefer)
• Waivers and Joinders by each heir at law

After the initial documents are filed, the opening of an intestate estate is procedurally similar to the opening of a testate estate.  The biggest difference is the lack of a will to waive the requirement of posting bond. In many cases, bond may still be waived if there are no assets other than real estate or if all heirs at law are adults and join in the petition to request that bond be waived.

The deadline for bringing a will contest or challenging a probate or estate administration in Mississippi depends in large part on what type of estate administration is being used.

Mississippi recognizes two forms of estate administration: solemn form and common form.  The two types of proceedings are distinguished by the type of notice that is provided to the interested parties.  “Interested parties” would include the beneficiaries listed in a Mississippi Last Will and Testament and possibly the spouse if he or she is left out of the will.  For an intestate estate, “interested parties” would include a person’s heirs at law.

A common form probate is an informal, one-sided proceeding in which the executor presents the will for probate without formal notice to interested parties.  This avoids the delay associated with having to arrange for legal service of formal notice on each party.  The attorney will usually present affidavits of subscribing witnesses (if no self-proving affidavit is attached to the will) and waivers and joinders from each interested person (heirs of an intestate estate or beneficiaries of a will).

Probate in common form is popular due to its relative brevity. Most Mississippi probates are done in common form.  There is a downside, though: probate in common form is not binding on anyone who is not a party to the proceeding. Interested parties have two years from the conclusion of the probate proceeding to contest the probate proceeding. This leaves the estate open to a challenge for a two year period.

If a contest is likely, many attorneys will bring a second form of proceeding, called a solemn form probate.  In a solemn form probate, the attorney will name all interested persons as parties to the proceeding and serve them with formal notice.  A trial may be held to establish the validity of the decedent’s will.

Solemn form probate proceedings are binding on anyone that is made a party.  When the proceeding ends, that’s it. The interested parties are not allowed to bring a contest at a later time because they have already had their day in court. This can bring finality to the probate. But because of the additional work required, solemn form probate proceedings can be much more expensive than common form probate proceedings.