General DefinitionAll estate, real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate. Sec. 91-1-13.
Order of DistributionWhen any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent's share. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any there be; otherwise, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law. There shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate. Sec. 91-1-3.
If a person dies intestate and does not leave children or descendants of children, his widow is entitled to his entire estate, real and personal, after payment of his debts. If a man is survived by a child from a former marriage, his widow will inherit a child's share of his estate. If a woman dies owning property, it will descend to her husband and her children in equal parts. If she has no children then the husband inherits all of her property. Sec. 91-1-7.
If a decedent owned property at his or her death and is not survived by a spouse, it is distributed to children and their descendants with the descendants of the deceased child or grandchild to take the share of the deceased parent. If there is not a surviving child or descendants of children, then to the decedent's siblings and parents, the descendants of siblings share their deceased parent's share. Then, if there are no closer surviving relatives, to the grandparents and uncles and aunts, if any, otherwise to the next of kin. Sec. 91-1-3 and Sec. 91-1-11.
Common Law or Community PropertyMississippi is a common law, elective share state.
CapacityA person must be at least 18 years of age and of sound mind in order to draft a will. Sec. 91-5-1.
DraftingA will must be either signed by and completely in the handwriting of the testator or be written for the testator and signed by 2 or more witnesses. Sec. 91-5-1.
Nuncupative wills are only permissible if made during the last sickness of the deceased. The value bequeathed may not exceed $100 unless it is proved by two witnesses that the testator called on someone to take notice that his or her words is meant to be a will. Sec. 91-5-15. The court will not accept a nuncupative will after 6 months unless the words were reduced to writing within 6 days of their utterance. Sec. 91-5-19.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
ModificationsA will or a portion of a will may be revoked by destruction, cancelation or obliteration same or by the creation of a subsequent will, codicil, or declaration, made in writing. Sec. 91-5-3.
Any will that was made when the testator had no living child and if that child is not provided for by some other means, will have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she has attained the age of 21. If this situation arises, the property will pass through intestacy. Sec. 91-5-3.
Naming of ExecutorThe executor named in the will is entitled to letters of testamentary. To be qualified to receive letters, the named executor must not be under the age of 18, not be of unsound mind or convicted of a felony. Sec. 91-7-35.
If the decedent's will fails to name an executor or the named executor is disqualified, the court will grant letters of administration to any relative who applies with preference given to the surviving spouse and then others entitled to distribution if not disqualified. Or the court may select a stranger, a trust company or a national bank. If such person does not apply for administration within 30 days from the death of an intestate, the court may grant administration to a creditor or to any other suitable person. Sec. 91-7-63.
Submission of WillA will must be submitted to the Chancery Court in the county where the decedent resided at the time of his or her death. Sec. 91-7-1.
Any person in possession of a decedent's will may offer it to the chancery court for probate. If accepted, the court may summons the subscribing witnesses to testify as to the authenticity of the will. Sec. 91-7-3. If no one submits a will for probate and the court learns of a party holding the will, the court may compel the holder to submit the will for probate. Sec. 91-7-5.
NotificationsThe executor must mail a notice to interested known creditors at their last known address, informing them that a failure to submit their claim within 90 days after the first publication of the notice to creditors will bar their claim. Sec. 91-7-145(1).
It is the duty of the executor to publish in a newspaper in the county where the estate is being probated, a notice requiring all persons having claims against the estate to submit their claim to the court. The notice must state the time when the letters were granted and that a failure to submit within 90 days after the first publication of such notice will bar the claim. The notice will be published for three consecutive weeks and proof of publication will be filed with the court clerk. Sec. 91-7-145(2).
InventoryThe executor must, within 90 days of the grant of letters submit an inventory of the money and debts due the deceased which have come to the executor's knowledge, specifying the nature of each debt. Sec. 91-7-93.
The property of the estate of the decedent, other than money and choses in action, must be inventoried and appraised by 3 different persons not related to the deceased or interested in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised. Sec. 91-7-109.
Homestead, Exempt Property, Statutory ShareThe property exempted from sale descends to the surviving spouse and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent's share. If there are no children or grandchildren the property passes to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner. Where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent, and the deceased husband or wife have no surviving children or grandchildren of the last marriage but have children or grandchildren of a former marriage, the homestead of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage, as other property. Sec. 91-1-19.
When a decedent's will does not make satisfactory provisions for a surviving spouse, he or she may, within 90 days, file a renunciation of the will. If so done, the surviving spouse is entitled to the same share he or she would have been entitled to if the decedent had died intestate. However, the surviving spouse is only entitled to 1/2 of the estate of her deceased. Sec. 91-5-25.
Debts and DistributionsThe property of a decedent is useable by the executor to pay the debts, funeral expenses of the deceased, and the expenses of settling the estate. Tangible and intangible personal property of the decedent must be used to satisfy debts prior to the use of real property. However, the lands of the decedent may also be used to the extent debts exceed the value of personal property. Sec. 91-7-91.
To be entitled to a lien or claim on any real property of the decedent, a creditor must, within 3 years and 90 days from the date of the death of the decedent, file with the chancery court notice of the claim. The notice must contain the name of the decedent, a brief statement of the nature, amount and maturity date of the claim and a description of the real property sought to be attached. The requirement for filing of a notice does not apply to any secured creditor with a recorded lien. Sec. 91-7-91.
Mississippi applies an estate tax in an amount equal to the maximum amount of the state death tax credit for federal estate tax. Therefore, Mississippi has not had an estate tax since 2005. Sec. 27-9-5.
Income Tax Charitable Deductions and/or Credits
Mississippi allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Sec. 27-7-17(3)(a) and 27-7-21.
A credit is available for 50% of the costs incurred in appraising property for donation for a specified conservation purpose. The amount of the credit shall not exceed $10,000 in any one donor's lifetime and any unused amount may be carried forward an additional 10 years. Sec. 27-7-22.21(3).
A credit is available for qualified prekindergarten program support contributions paid to approved providers, lead partners or collaboratives, not to exceed $ 1,000,000.00. Any unused portion of the credit may be carried forward for three tax years. The maximum amount of donations accepted by the Department of Revenue shall not exceed $32,000,000. Sec. 27-7-22.37.
Gift Annuity Requirements
Mississippi, a "notification" state, regulates the issuance of charitable gift annuities under Mississippi Code Secs. 79-11-651 through 79-11-661. The statutes provide for exemption from insurance regulation if the charity satisfies certain conditions and notifies the Secretary of State in writing on the date on which the charity enters into its first qualified annuity agreements.
To qualify, the charity must have been in continuous operation for at least three years and have $300,000 in unrestricted assets (cash, cash equivalents or publicly traded securities, exclusive of the assets funding the gift annuity agreement) at the time it enters into the annuity agreement.
Notification ProcessWritten notification must be provided to the Secretary of State on the date on which the charity enters into its first qualified agreement. The notice shall be signed by an officer or director of the organization, identify the organization and certify that the organization is a charitable organization and the annuities issued by the organization are qualified charitable gift annuities.
Disclosure LanguageState disclosure language is required in gift annuity contracts. Sec. 79-11-655. The language must be in a separate paragraph in print no smaller than that used in the gift annuity agreement:
"A qualified charitable gift annuity agreement is not insurance under the laws of the State of Mississippi and is not subject to regulation by the Insurance Commissioner or protected by an insurance guaranty association."
Reserve RequirementsMississippi does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsOnce notification is given to the state, no further reporting is required.
State Contact InformationTanya Webber
MS Secretary of State's Office
P.O. Box 136
Jackson, MS 39205
Phone: (601) 359-1599