Probate is a legal process that is required to settle the affairs of a decedent. In Mississippi probate court is part of the District Court system and has jurisdiction over probate matters. The steps required to complete probate and the estate administration process are routine and are carried out by the court appointed personal representative. However, as with any legal matter disputes do sometimes occur. With probate matters, disputes typically center on questions regarding the legitimacy of the will, questions on interpreting terms of the will, and questions related to the actions of the personal representative or other fiduciary.
One of the goals of probate is proving or validating the will. The court will not probate a will that is not valid. When a will is filed with the court along with a petition for probate, the law requires that those who have an interest in the estate receive notification. This allows them to participate in the proceedings and object to probate if they believe that the will is not valid. Note, that only “interested parties” have standing to initiate a will contest. Interested parties include beneficiaries named in the will, beneficiaries of a prior will, and intestate heirs.
The legal grounds for a will contest include:
- Improper execution. The necessary formalities were not followed. Mississippi Code Ann. § 75-2-502.
- Lack of testamentary capacity. The testator was not at least 18 years old or was not of sound mind. Mississippi Code Ann. § 75-2-501
- Undue influence. The testator was manipulated into making a particular will.
- Duress. The testator only made the will because of facing actual or threatened harm.
If the objectant prevails, the will will not be probated. The court will either probate a prior or later valid will, if there is one, or the estate will be intestate and Mississippi’s law of intestate succession will apply. Mississippi Code Ann. § 75-2-101.
Note that Mississippi law does not uphold no contest clauses or will contest penalty clauses unless the challenge of the will is frivolous. Mississippi Code Ann. § 75-2-515.
The personal representative is a fiduciary with respect to the estate. A fiduciary is a person who is entrusted to care for the interests of someone else. They are required to perform their responsibilities with honesty and the utmost care. If an interested party such as a beneficiary or heir believes that the personal representative has acted improperly, they can file a lawsuit based on a claim of breach of fiduciary duty. If the court finds that the fiduciary did breach their fiduciary duty, that personal representative may be held personally liable for any harm to the estate. Mississippi Code Ann. § 75-3-711
The personal representative may not be the only fiduciary. Other fiduciaries include trustees, accountants, attorneys, and guardians.
Spouse’s Elective Share
Under Mississippi law, a surviving spouse has the right to claim an elective share amount equal to the value of either (a) 1/3 of the augmented estate or, (b) a supplemental elective share amount. Mississippi Code Ann. § 75-2-202. The surviving spouse must make the elective share election within nine months after the date of decedent’s death, or within six months after the probate of decedent’s will, whichever occurs later. The petition for elective share must be filed in the court and mailed or delivered to the personal representative, if any.
Disputes over the elective share may occur if the surviving spouse and the personal representative disagree on the calculation of the amount of the elective share or whether the surviving spouse made the election in the proper manner.
Expenses of Probate Litigation
As representative of estate, the personal representative has an interest in any litigation involving the estate and has a duty to represent the estate’s interests. Thus, the personal representative is entitled to be reimbursed for expenses and fees related to the litigation. Mississippi Code Ann. § 75-3-719