MISSISSIPPI LEGISLATURE
2007 Regular Session
To: Judiciary, Division A
By: Senator(s) Doxey
AN ACT TO PROVIDE FOR THE PAYMENT OF DELIVERY OF CERTAIN SMALL ESTATES OF A DECEDENT BY AFFIDAVIT; TO AMEND SECTION 91-7-147, MISSISSIPPI CODE OF 1972, CONCERNING NOTICE TO CREDITORS BY PUBLICATION TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Payment or delivery of small estate of decedent upon affidavit. When any person or corporation (a) indebted to or holding personal estate of a decedent, (b) controlling the right of access to decedent's safe-deposit box or (c) acting as registrar or transfer agent of any evidence of interest, indebtedness, property or right is furnished with a small estate affidavit in substantially the form set forth in subsection (2) of this section, that person or corporation shall pay the indebtedness, grant access to the safe-deposit box, deliver the personal estate or transfer or issue the evidence of interest, indebtedness, property or right to persons and in the manner specified in paragraph X of the affidavit set forth in this section or to an agent appointed as hereinafter set forth.
(2) Small estate affidavit. The small estate shall be in substantially the following form:
"I, __________ (name of affiant) __________, on oath state:
I.
(a) My post office address is: ______________________;
(b) My residence address is: ___________________; and
(c) I understand that, if I am an out-of-state resident, I submit myself to the jurisdiction of Mississippi courts for all matters related to the preparation and use of this affidavit. My agent for service of process in Mississippi is:
NAME ___________________________________________________________
ADDRESS ________________________________________________________
CITY ___________________________________________________________
TELEPHONE (IF ANY)______________________________________________
I understand that if no person is named above as my agent for service or, if for any reason, service on the named person cannot be effectuated, the Clerk of the Chancery Court of ______________ County, Mississippi, is recognized by Mississippi law as my agent for service of process.
II.
The decedent's name is: ___________________________________
III.
The date of the decedent's death was ____________, and I have attached a copy of the death certificate hereto.
IV.
The decedent's place of residence immediately before his death was________________________________________________________.
V.
No letters testamentary or letters of administration are now outstanding on the decedent's estate and no petition for letters is contemplated or pending in Mississippi or in any other jurisdiction, to my knowledge.
VI.
The gross value of the decedent's entire personal estate, including the value of all property passing to any party either by intestacy or under a will, does not exceed Twenty Thousand Dollars ($20,000.00). (Here, list each asset, e.g., cash, stock and its fair market value).
VII.
(Strike either (VII)(a) or (VII(b)).
(a) All of the decedent's funeral expenses have been paid; or
(b) The amount of the decedent's unpaid funeral expenses and the name and post office address of each person entitled thereto are as follows:
NAME ___________________________________________________________
ADDRESS ________________________________________________________
AMOUNT _________________________________________________________
VIII.
There is no known unpaid claimant or contested claim against the decedent, except as stated in paragraph (7).
IX.
(Strike either (IX)(a) or (IX)(b)).
(a) The decedent left no will. The names, places of residence and relationships of the decedent's heirs, and the portion of the estate to which each heir is entitled under the law where decedent died intestate are as follows:
NAME, RELATIONSHIP AND PLACE OF RESIDENCE: _______________________
AGE OF MINORS: _____________
PORTION OF ESTATE: _______________________________________________
(b) The decedent left a will, which has been filed with the clerk of an appropriate court. A certified copy of the will on file is attached. To the best of my knowledge and belief the will on file is the decedent's last will and was signed by the decedent and the attesting witnesses as required by law and would be admissible to probate. The names and places of residence of the legatees and the portion of the estate, if any, to which each legatee is entitled are as follows:
NAME, RELATIONSHIP AND PLACE OF RESIDENCE: _______________________
AGE OF MINORS: _____________
PORTION OF ESTATE: _______________________________________________
(c) Affiant is unaware of any dispute or potential conflict as to the heirship or will of the decedent.
X.
The property described in paragraph (6) of this affidavit should be distributed as follows:
NAME: __________________________________________________________
SPECIFIC SUM OR PROPERTY TO BE DISTRIBUTED: ____________________
The foregoing statement is made under the penalties of perjury.
________________________
Signature of Affiant
(3) Appointment of Agent. If safe deposit access is involved or if sale of any personal property is desirable to facilitate distribution pursuant to the small estate affidavit, all persons named in paragraph (X) of the small estate affidavit, excluding minors and unascertained or disabled persons, may in writing appoint one or more persons as their agent for that purpose. The agent shall have power, without court approval, to gain access to, sell and distribute the property for the benefit of all persons named in paragraph (X) of the affidavit; and the payment, delivery, transfer, access or issuance shall be made or granted to or on the order of the agent.
(4) Release. Upon payment, delivery, transfer, access or issuance pursuant to a properly executed affidavit, the person or corporation is released to the same extent as if the payment, delivery, transfer, access or issuance had been made or granted to the representative of the estate. Such person or corporation is not required to see to the application or disposition of the property; but each person to whom a payment, delivery, transfer, access or issuance is made or given is answerable therefor to any person having a prior right and is accountable to any representative of the estate.
(5) Indemnification. The affiant signing the small estate affidavit prepared pursuant to subsection (2) of this section shall indemnify and hold harmless all creditors and heirs of the decedent and other persons relying upon the affidavit who incur loss because of such reliance. That indemnification shall only be up to the amount lost because of the act or omission of the affiant. Any person recovering under this subsection (5) shall be entitled to reasonable attorney's fees and the expenses of recovery.
(6) Nonresident submission to jurisdiction. The affiant of a small estate affidavit who is a nonresident of Mississippi submits himself or herself to the jurisdiction of Mississippi courts for all matters related to the preparation or use of the affidavit. The affidavit shall provide the name, address and phone number of a person whom the affiant names as his agent for service of process. If no such person is named or if, for any reason, service on the named person cannot be effectuated, the clerk of the chancery court of the county of which the decedent was a resident at the time of his death shall be the agent for service of process.
(7) Effective date. Any action properly taken under this section on or after July 1, 2007, is valid regardless of the date of death of the decedent.
SECTION 2. Section 91-7-147, Mississippi Code of 1972, is amended as follows:
91-7-147. (1) Where the value of an estate shall not be more than Five Thousand Dollars ($5,000.00), the court shall dispense with newspaper notices; and notices in lieu thereof shall be posted for thirty (30) days at the courthouse door and two (2) other public places in the county. Failure of persons having claims against the estate to have their claims probated and registered by the clerk of the court granting letters within ninety (90) days after the date on which notice is posted will bar such claims as provided in Section 91-7-151.
(2) Notice to creditors by publication or otherwise is not required where an estate is paid or delivered under the terms of Section 1 of Senate Bill No. 2480, 2007 Regular Session.
SECTION 3. This act shall take effect and be in force from and after July 1, 2007.