House Bill 686

AN ACT TO CREATE THE ANCILLARY PROBATE PROCEDURE ACT; TO PROVIDE THAT AN APPLICATION MAY BE FILED BY A NONRESIDENT FOR LETTERS TESTAMENTARY OR OF ADMINISTRATION; TO PROVIDE THAT JUDGES OF PROBATE MAY APPOINT A NONRESIDENT AS AN EXECUTOR; TO REQUIRE THAT BEFORE A JUDGE OF PROBATE MAY ISSUE LETTERS TESTAMENTARY TO A NONRESIDENT CERTAIN REQUIREMENTS MUST BE FULFILLED; TO PROVIDE THAT A NONRESIDENT MAY BE APPOINTED WHEN A NONRESIDENT DIES IN THIS STATE; TO PROVIDE FOR THE COLLECTION OF DEBTS AND DEPOSITS BY A NONRESIDENT PERSONAL REPRESENTATIVE; TO PROVIDE THAT A NONRESIDENT EXECUTOR OR ADMINISTRATOR HAS A RIGHT TO MAINTAIN A CIVIL ACTION; TO PROVIDE THAT SERVICE OF PROCESS MAY BE MADE UPON A NONRESIDENT EXECUTOR OR ADMINISTRATOR IF HE OR SHE IS FOUND WITHIN THIS STATE; TO PROVIDE THAT A FOREIGN EXECUTOR OR ADMINISTRATOR HAS THE RIGHT TO MAINTAIN A CIVIL ACTION AND RECOVER OR RECEIVE PROPERTY WITHIN THIS STATE; TO PROVIDE A DEFINITION FOR THE TERM "FOREIGN EXECUTOR OR ADMINISTRATOR"; TO AMEND SECTIONS 91-7-33, 91-7-257 AND 91-7-259, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Ancillary Probate Procedure Act."

SECTION 2. An application filed by a nonresident executor or administrator for letters testamentary or of administration must set forth his name and post office address; but the address given may, at any time, be changed by such nonresident executor or administrator. The change of address shall be shown by a written statement setting forth his present post office address, signed by such executor or administrator, or his attorney and filed and recorded in the court granting the letters.

SECTION 3. A judge of probate is authorized to issue letters testamentary to a person named as executor in a will regularly probated who is a nonresident of this state, if such person gives the same bond and surety, and the same terms, conditions and requirements are met as required by law of citizens of this state. However, such letters testamentary or of administration may be revoked as prescribed in Section 91-7-89.

SECTION 4. In addition to the requirements of Section 91-7-33, when a will has been probated in another state or territory, before issuing letters testamentary to a nonresident executor, the judge of probate must require him to file in court a copy of the will under which he is appointed, together with a certificate of the judge of the court in which the will was probated, that shows that such will was regularly proved and established and that letters testamentary were issued to him in accordance with the laws of the state or territory in which such original letters were granted, and also to give bond and surety upon the same terms, conditions and requirements as are required by law of citizens of this state. However, if it appears from the will that the testator, by an express provision in the will, has exempted the applicant from giving bond as executor, such bond must not be required, except in the cases specified in Section 91-7-45. The certified copy of the foreign letters must be filed and recorded.

SECTION 5. When any nonresident dies, leaving assets in this state, if no application for letters of administration is made by a relative or creditor entitled to such assets, an administrator of his estate, appointed by the competent authority of the state or territory of his domicile, shall be entitled to letters of administration on such estate in this state, upon the production of the letters granted to him by the state or territory of his intestate's domicile, duly certified as required by law, in preference to any other person, upon his giving like bond and surety and upon the same terms, conditions and requirements as are required by law of citizens of this state. The certified copy of his foreign letters shall be filed and recorded in the office of the judge of probate issuing letters in this state.

SECTION 6. When letters are granted to a nonresident executor or administrator, the assets of the estate upon which such letters are granted, which may be within this state at the date of such letters, shall in all respects be administered and settled as if such letters had been issued to a resident executor or administrator.

SECTION 7. The personal representative of a deceased person, by appointment of a court having jurisdiction in any state other than the State of Mississippi, may receive and collect any indebtedness or bank deposit owing to the deceased by any person who is a resident of this state, and such personal representative may execute a release, discharge and satisfaction of such indebtedness. Such personal representative, at the time of or before making such collection and satisfaction, release or discharge, shall file for record in the probate office of the county where the debtor resides a certified copy of the letters testamentary or of administration issued to such personal representative, certified in accordance with 28 USCA, Section 1738, but no such collection shall be made until the lapse of sixty (60) days from the date of the death of the deceased, and no such collection shall be made if proceedings are pending for the grant of letters testamentary or of administration in or have been issued by any court having jurisdiction in this state.

SECTION 8. Nonresident executors or administrators appointed under the provisions of this act may, by giving security for costs as required by law of nonresidents, bring and maintain civil actions in the courts of this state in all respects as may be done by resident executors and administrators.

SECTION 9. Civil actions may be brought against nonresident executors and administrators in their representative character, in all cases, in the county in which letters were granted.

SECTION 10. Service of summons or other process may be made upon nonresident executors and administrators personally if found within the state. Such service may be made in any case by personal service upon them if found within the state, or by filing in the probate court that granted the testamentary letters a copy of the summons or other process and by sending a copy thereof through the mail to such executor or administrator and serving a copy thereof upon a resident surety, if there be one, as provided in Section 11 of this act.

SECTION 11. Citations to make settlements and other citations or notices to such nonresident executors and administrators, and all writs or legal process, including executions on decrees and judgments, may be served by depositing a copy in a sealed envelope, postage prepaid, in a post office at or near the court or office issuing such process, such envelope to be plainly addressed and directed to such nonresident executor or administrator at the place and by the name furnished by him upon the filing of his application for letters, or thereafter as provided in Section 2 of this act and, when the sureties, or either of them, reside in the state, and their place of residence is known, by the service of a copy of such writ or process upon one (1) of such sureties. When service is had by depositing a copy of the writ or process in the post office only and not accompanied by service upon a surety, such service shall not take effect until the expiration of ten (10) days from the date of mailing such copy. If the post office address of such nonresident executor or administrator is not furnished as required by Section 2 of this act, service on one (1) of his sureties is sufficient. If such post-office address is not so furnished and if there be no resident surety, notice of such writ or process may be given by publication in a newspaper published in the county wherein the proceedings are had for two (2) consecutive weeks, and a copy thereof must be sent by mail to such nonresident executor or administrator, if his post office address can be ascertained; and, if in such case there be no newspaper published in the county, the notice may be given by posting a copy thereof at the door of the courthouse for fifteen (15) days. The sheriff or other officer executing the writ or process must make return thereof according to the facts.

SECTION 12. If an execution is returned as provided in Section 11 of this act and there is no property of a nonresident executor or administrator, or property not sufficient to satisfy the same, is found in the county in which the execution is issued, the sureties on his bond shall be liable in all respects as in cases of a return of no property found on executions issued against resident executors or administrators.

SECTION 13. The judge of probate, in determining the amount of the bond that a foreign executor or administrator should give, may examine him under oath, and such bond, when given, stands as security, for any person injured.

SECTION 14. Any foreign executor or administrator who has obtained letters of administration in this state, as authorized by Sections 1 through 12 of this act, may maintain civil actions and recover or receive property in this state as follows:

(a) By recording, at any time before judgment or the receipt of the property, a copy of his letters, duly authenticated according to the laws of the United States, in the office of the judge of probate of the county in which such civil action is brought or property received; or

(b) By giving bond, with at least two (2) good and sufficient sureties, payable to and approved by such judge of probate, in such amount as he may prescribe, to be determined with reference to the value of the property to be recovered or received and conditioned to faithfully administer such recovery or property according to law.

As used in this section "foreign executor or administrator" means an individual who has obtained letters testamentary or of administration on the estate of a person who was not, at the time of his death, an inhabitant of this state or in any other state.

SECTION 15. No civil action brought by any foreign executor or administrator, under the provisions of Section 14 of this act, must be abated, barred or affected by the grant of letters of administration in this state, either prior or subsequent to the institution of such action; but, in such case, the administrator appointed in this state may, if necessary for the protection of creditors, distributees, or legatees, who are resident in this state, intervene in such action and shall be entitled to recovery.

SECTION 16. Before a judgment is rendered in a civil action brought by a foreign executor or administrator, the plaintiff must prove that he has complied in all respects with the provisions of Section 14 of this act, and if he fails to do so, then he shall not recover.

SECTION 17. A delivery of property or the recovery of judgment, under the provisions of Section 14 of this act, is a protection to the defendant or to the person delivering the property, to the extent of such judgment or the value of such property.

SECTION 18. Section 91-7-33, Mississippi Code of 1972, is amended as follows:

91-7-33. In addition to the requirements of Section 4 of this act, authenticated copies of wills proven according to the laws of any of the states of the union, of the territories, of the District of Columbia, or of any foreign country, and affecting or disposing of property within this state, may be admitted to probate in the proper court. Such will may be contested as the original might have been if it had been executed in this state, or the original will may be proven and admitted to record here.

SECTION 19. Section 91-7-257, Mississippi Code of 1972, is amended as follows:

91-7-257. Except as provided in Section 17 of this act, an executor or administrator shall not remove any of the property of the estate out of this state. If a chancellor or clerk of a chancery court shall be satisfied, by petition or otherwise in termtime or vacation, that any executor or administrator is about to remove the property of the estate out of this state, he shall issue a precept to the sheriff of the proper county, commanding him to seize the property about to be removed and hold the same until legally disposed of; and the letters of such executor or administrator may be revoked, on due notice, and administration de bonis non granted to some other person. In case of any such removal, suit may be forthwith instituted on the bond by any of the distributees or creditors of the estate; and, on satisfactory evidence of the removal of the property out of the state, judgment shall be rendered for the full value thereof and such other damages as the parties suing shall have sustained.

SECTION 20. Section 91-7-259, Mississippi Code of 1972, is amended as follows:

91-7-259. In addition to the requirements of Sections 1 through 17 of this act, executors and administrators who have qualified in other states or countries may sue in the courts of this state, or may receive without suit and give a valid acquittance for any property of, or debts due to, their testators or intestates, after filing in the office of the clerk of the chancery court of the county where there may be some person indebted to the decedent or having some of his effects in possession, a certified copy of the record of the appointment and qualification of the executor or administrator according to the law of the state or country where he is qualified, and a certificate of the officer before whom he is liable to account as such that he is there liable to account for the thing sued for or received.

SECTION 21. This act shall take effect and be in force from and after July 1, 2011.