What to Expect if There’s No Will in Mississippi
It’s important to know that "intestacy laws" will determine how the deceased person’s property is divided when someone dies without a will (or alternative estate planning document) – not a vengeful relative who is determined to tell you ("He would have wanted this" or "He would have wanted me to have that.").
If you die without a will, the law of the state where you are domiciled (Mississippi) will control the distribution of your property. Basically, if you are married, each spouse gets half of everything . If you are not married, but have children, your children will inherit everything. If there are no children, the property will go to your parents, siblings, grandparents, aunts and uncles.
If you have minor children, a guardian will need to be appointed for them and your estate could be turned over to the court for administration.
It is very important, however, to note that beneficiaries named on life insurance policies and retirement plans (401K, IRA, etc.), will be distributed to those beneficiaries outside of probate.
Who Receives Property Under Mississippi’s Intestate Succession Laws?
In Mississippi, the law of descent and distribution controls those who inherit property when the deceased either died without a will (intestate) or the will did not devise all property of the decedent. Under Mississippi Code section 91-1-3, in the absence of a will, when a person dies, his/her estate descends in the following order:
(1) If the decedent leaves no children or parents, his estate descends in equal shares to each of his brothers and sisters, and to the children of each deceased brother or sister, in equal parts to such children per stirpes.
(2) If the decedent leaves children or parents, his estate descends as follows:
(a) If the decedent leaves children or grandchildren, his estate descends in equal shares to such children and grandchildren, and to the children of any deceased child or grandchild, in equal parts per stirpes. If the decedent has no children or grandchildren, but leaves parents, his estate descends in equal parts to such parents. If the decedent has no children, grandchildren or parents, his estate descends to the siblings of the decedent and the children of the decedent’s deceased siblings, per stirpes; provided that if at the time of the death the decedent leaves no children or parents, but has surviving grandparents or their descendants, then and in such case his estate descends in equal parts to the grandparents of the decedent and the descendants of the grandparents of the decedent, per stirpes.
(3) If there is no person entitled to any part of the estate under the provisions of subsection (2) of this section, the estate descends as follows:
(a) To the parents, brothers and sisters of the decedent in equal parts, and to the children of the decedent’s deceased brothers or sisters, per stirpes.
(b) If the decedent leaves no children, parents, brothers or sisters, then to the grandparents of the decedent and the children of the deceased grandparents, per stirpes.
(c) If the decedent leaves no surviving grandparents or surviving children or grandchildren of the grandparents, but leaves surviving any aunts or uncles, the estate descends to such aunts and uncles and to the children of the decedent’s deceased aunts and uncles, per stirpes.
(d) If there is no surviving aunts or uncles of the decedent, but the decedent has surviving great-uncles or great-aunts, the estate descends to such great-uncles and great-aunts, or their descendants, per stirpes.
(4) If there is no person entitled to any part of the estate under the provisions of subsections (1), (2), or (3) of this section, the estate descends as follows:
(a) To the relatives of the half-blood of the decedent in the same degree as are those of the whole blood.
(b) If the decedent leaves no surviving relatives of the half-blood the estate passes to the next of kin in the nearest degree of the whole blood.
Surviving Spouse’s Rights in Mississippi
When a person dies without a will, her estate is distributed according to our laws of intestate succession. See Mississippi Code Sections 91-1-3 and 91-1-27. The general rule under Mississippi law is that a surviving spouse gets everything if there are no children or other close relatives of the decedent.
Sec. 91-1-3. Distributive shares when spouse survives
The surviving spouse takes:
(a) If there is no one else survive, the whole estate.
(b) If there are one or both of parents of the decedent survive, one-half of the estate.
(c) If there are two or more of the decedent’s brothers and/or sisters and no parent, one-third of the estate.
(d) If there is one brother and/or sister of the decedent and no parent, one-half of the estate.
(e) If there is one or more of the decedent’s children or their descendants and no parent, the first $100,000.00, plus one-half of the balance of the estate.
(f) If there is no other relative of the decedent mentioned in this section, one-half of the estate.
If the decedent is survived by a wife, whether the widow or a widow still having the right of dower or homestead, such widow, unless she shall renounce her rights as provided above, shall take one-half of all real estate which the husband possessed at any time during coverture and also one-half of all the rents and profits generated by the real estate during coverture.
If the decedent is survived by a husband but he has made no provision for his wife either by will or otherwise, she shall have her dower and homestead in and to all the real estate owned by him, notwithstanding the benefit of which the husband, by will, might have otherwise been able to exclude her.
What Rights Do Children Have to An Intestate Estate?
Children have a strict right to inherit if they had a parent die without a will. The law prefers children inherit from their parents, even if they are adults at the time of the parent’s death. Section 91-1-1 provides for the distribution of a decedent’s property when the decedent has no spouse, children or parents.
Under this section, any surviving children would receive equal shares of the estate. If a parent has more children than the number of shares allocated to each child, the remaining children share their father or mother’s share of the estate. An example will illustrate this:
Example: Assume a parent dies without a will and is survived by five children. Each of the children would receive 1/5th of the estate. Assume further that there are seven total living children. Under Section 91-1-1, the estate would be divided into seven shares with each of the seven children inheriting one share.
The law does not treat adopted children differently than biological children. In both situations, the children receive equal shares of the estate. However, the intestate share will not include adoptive parents or other family members of the adoptive parents or descendants of the adoptive parents.
Stepchildren and Cohabiting Partners under the Law
Generally speaking, stepchildren and unmarried partners do not have an inheritance right in Mississippi. This is true whether the deceased left no will (in which case the estate will be distributed under Mississippi’s intestacy rules), or whether the deceased left a will that simply made no provision for those persons.
Here’s a breakdown of each category.
STEPCHILDREN Under Mississippi law, only biological children and adopted children inherit directly from their parents upon their death. Since a stepparent does not legally "parent" his or her stepchildren, a stepchild has no direct inheritance rights in the deceased step-parent’s estate.
For example, let’s say Mom and Dad were married and had a daughter, Jane. Mom and Dad later divorced, and Dad remarried Sally. Dad never had any other children. Dad dies. Dad failed to leave a will and his estate is divided according to the intestacy laws of Mississippi. Jane will inherit everything Dad owned, because she is his legal child. Sally, even though married to Dad at his time of death, is not Jane’s mother so she gets nothing. Even though Jane may certainly choose to give her stepmother a share of estate assets, the law imposes no obligation on her to do so.
Sally would have a right to inherit from Dad’s estate only if Dad had adopted her and she therefore had the same legal status as Dad’s biological child. Adoption is a permanent and involuntary transfer of custody wherein the adoptive parent becomes the legal guardian of the child, and the natural parents relinquish their natural parental rights. Because of the significant rights and obligations that arise from the relationship, adoption of a spouse’s child by remarriage is not automatic. A court must grant permission. In the above scenario, if Dad had adopted Sally, then Jane would not inherit everything because Sally would be Jane’s legal parent and thus entitled to a share of the estate.
WILL If Dad had left a will, he could have provided for either of the situations above; i.e. providing in his will that Sally get a share of his estate, or not providing anything for Sally. In fact, Dad could have deliberately chosen not to provide for either Jane or Sally-regardless of whether the law required him to do so.
What does this mean for your estate planning needs? It means you can write a will specifically naming any and all individuals you want to inherit from you, regardless of any legal relationships. You can decide to bequeath your estate to your children, but not your stepchildren. Or you can bequeath your estate to your grandchildren or to your favorite charity. It’s your call.
What about Estate Debts and Expenses?
Debt obligations follow you even in death. If probate assets are sufficient to pay all creditors, then the debts will be paid before any distribution. In other words, the new owner will take it subject to any debts that exist.
Here are the order of payment rules for probate assets:
- Cost of administration.
- Funeral expenses up to $1,500.
- Wages for last 10 days of employment up to $1,500.
- Unpaid medical expenses of no more than $2,500.
- Worker’s compensation death benefits .
- Life insurance proceeds, if payable to the estate.
- Federal estate taxes.
- All other debts.
If the amount of an insurance policy is not enough to pay both funeral expenses and medical expenses, then the funeral bill will get priority. And this priority can be up to $15,000. The insurance money goes to the people who paid the funeral bill and the balance is available to be applied to the medical expenses as if the holder of the policy paid them directly.
The Role of Probate Court in Intestate Succession
Court involvement is critical with estate administrations. If an estate doesn’t have administration from probate court, then there’s no way for creditors to collect from the estate, there’s no way for beneficiaries to require the personal representative to account to the court for the administration, and creditors can pursue the beneficiaries for payment of any debts in the absence of probate administration. So the process of estate administration is essential. Mississippi law requires a probate proceeding in the county where a deceased person resided at the time of death. Real property of an intestate estate handled through a probate proceeding is disbursed according to the statute of descent and distribution. Without a probate proceeding there will not be any authority requiring the distribution of property. So what is the probate process? It involves filing a petition for administration in the circuit or chancery, depending on whether the decedent owned real property. Upon court order, an inventory and accounting are filed with the court providing assets and liabilities of the estate. The court appoints a personal representative and defines the scope of duties. After administration, a final accounting is required and a petition for distribution is filed.
Common Challenges and Disputes in Intestate Succession
When a person passes away in Mississippi without a will, intestacy can give rise to numerous conflicts between heirs. Such disagreements can range from concerns over the validity of the decedent’s parentage to challenges based on allegations of undue influence over the decedent by other family members.
When the decedent’s ability to make decisions was diminished due to mental incapacity or a disease such as Alzheimer’s, challenges to parentage can arise in the probate administration on the grounds that the presumed heirs are not the natural or adopted children of the decedent. Mississippi case law establishes that clear and convincing evidence is required to reallocate an intestate share away from heirs at law. Video testimony from relatives may be required to establish parentage.
Undue influence frequently arises in Mississippi estate disputes where a decedent has failed to execute a will that conforms to his or her intent. Allegations that a child unduly exploited a parent’s weakened state to gain advantage not authorized by law give rise to substantial family conflict in such cases. The executor may seek to set aside the codicil to the will and/or seek to establish a constructive trust in favor of the residuary estate. When sufficient evidence of undue influence is present, it may be possible for the court to declare the beneficiary to be a constructive trustee for the residuary beneficiaries on the ground that he or she stands in a confidential relationship with the decedent.
In situations where the assets of the decedent appear to have been misappropriated prior to death, a separate but related action may be filed for conversion, breach of fiduciary duty or breach of trust. A cause of action for constructive trust may also be appropriate in such cases, which can force disclosure of the whereabouts of the assets.
Problems of administration caused by one or more of the heirs may also give rise to lawsuits against the executor or administrator, especially where the estate is decimated through excessive expenses or poor management. In such cases, the remedy under Mississippi law is to bring a petition to remove the executor or administrator from further service and to request that an alternative administrator be appointed in his or her place.
When family disputes threaten to cause irreparable harm to the value of the estate in cases of Mississippi intestate succession, litigation may be the only realistic solution to the problem. Because of the many potential claims that may be made against the decedent’s estate, consultation with an experienced estate planning attorney is invaluable in effectively addressing such problems.
How to Avoid Intestacy Issues
In addition to grandparents, Mississippi intestacy laws recognize cousins as eligible to inherit under Mississippi law. This means that if you die intestate, your nieces and nephews will have a right to one half of your estate. In other words, your family tree widens if you fail to plan.
Other complications arise when you have children from previous marriages. In those situations , you could end up with three widows battling for a portion of your estate. Under Mississippi law, your children from the first marriage can inherit things of value from your second marriage.
The best way to avoid all of these issues is to create a will. It’s not fun to think about, but having a will prevents your heirs from being uncertain about their future. The decision about how your property will be divided is better left to you than the government.