Published: Wednesday, 20 January 2016 16:54
Written by Jay Hurdle
For various reasons, many Mississippians are hesitant to discuss documents like a will or an advance healthcare directive. Some don’t want to think about their own demise. Others feel like drafting a will is tantamount to admitting death is imminent, and who would want to advance his or her own decline, however superstitiously? In the absence of discussion, misconceptions sprout and are passed along. The following is Misconception #2:
2. All my father’s land is going to stay in the family, so there is no need for any type of probate proceeding.
I hear this statement frequently. It usually arises in the following scenario: The last surviving parent passes away and the children decide not to go through the probate process. “He had no debts” or “She has nothing but land” – so no probate action is taken.
In Mississippi, when a person dies, their property is instantly vested in their heirs at law, whether by a will or by the law of intestate succession (for more on intestate succession, see here). However, this ownership interest does not convey free and clear title to such heirs. The property may be encumbered by debt; often this debt is unknown to family members and sometimes even to the person who died.
Even if the land is not encumbered by debt, many of the privileges of land ownership are inaccessible without clear title to the property. For instance, one of the children may wish to obtain a mortgage to build a house on the property. Or perhaps the heirs want to borrow against a portion of the land.
It is almost certain that one or more of the heirs will require clear title at some point. Nevertheless, many families choose not to probate the claim. Many of these choices are influenced by two factors: (a) perceived cost and (b) lack of education about the probate process.
The eventual result of this failure to probate often shows up in my office: family land that has not been probated for ten, twenty, or thirty or more years. Often called “heir land,” what would have been a simple and relatively inexpensive probate suddenly becomes a massive web of heirs, known and unknown.
For example, say Grandfather Smith owned 1000 acres of property. He died (without a will) after Grandmother, and Grandfather’s children did not probate the property. Years later, Granddaughter Smith wants to borrow against her share of the property. Now Granddaughter must obtain clear title.
Granddaughter knows that Grandfather had six children and that she is one of twenty-two grandchildren. She finds out that Grandfather actually had two children before he was married, and those children have ten grandchildren. Two of Grandfather’s children have died. One of the Grandchildren died tragically early, leaving two children of her own.
What often follows is a search for persons who may range in age from newborn to 100 or more, often scattered across the country. In the process of the search, additional children of Grandfather may be discovered, requiring searches for additional persons.
It’s not unusual for this process to take months or even years.
Once the heirs have all been located and notified of the proceedings, then comes the tedious task of determining what percentage, or share, of the property belongs to each heir. Mississippi distinguishes between heirs of different bloodline distances from the person who died. Property is distributed accordingly and is called distribution per stirpes (as opposed to treating heirs equally, which is called per capita).
For instance, if Grandfather had eight total children and all children were still living, each child would have obtained a 1/8 share, or 125 acres each. However, because the property was not probated, some heirs have died and many have been born. One of the deceased children of Grandfather left behind four living children of her own. Each of these divide her 1/8 share, so each gets a 1/40 share, or 25 acres. This deceased child also had the tragically deceased Grandchild, who left behind two Great-Grandchildren. Each of these Great-Grandchildren divide their deceased parent’s share, and each get 1/80, or 12.5 acres.
Even when this exhausting process is complete, Granddaughter Smith is not done. Some of the land is swamp while the rest is filled with valuable timber. Since the land is not equally valuable, a judge (possibly with the help of a panel of “special commissioners”) may have to decide how it is divided or may even order it sold.
With all the work required to untangle what has become a mess, Granddaughter Smith has incurred significant legal fees and stress. If you are dealing with a land or probate matter, it is important to consult with a qualified attorney. You might just save yourself, or your children, a lot of heartache.
(It should be noted that these examples make certain assumptions for the purposes of illustration, and are not to be used as a definitive guide in your own circumstances.)