MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary A
By: Representative Roberson
AN ACT TO AMEND SECTION 91-7-93, MISSISSIPPI CODE OF 1972, TO CLARIFY THE REQUIREMENTS AND PROCEDURE FOR CONDUCTING AND FILING AN INVENTORY; TO AMEND SECTION 91-7-95, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR FILING A SUPPLEMENTARY INVENTORY; TO AMEND SECTION 91-7-109, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR EMPLOYING AN APPRAISER; TO AMEND SECTION 91-7-117, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR SETTING APART EXEMPT PROPERTY; TO AMEND SECTION 91-7-135, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR SETTING APART ONE YEAR'S SUPPORT FOR FAMILY; TO AMEND SECTION 91-7-141, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR APPORTIONING ONE YEAR'S ALLOWANCE; TO AMEND SECTION 91-7-255, MISSISSIPPI CODE OF 1972, TO CLARIFY A FIDUCIARY'S POWERS TO NEGOTIATE PAPER; TO AMEND SECTION 91-7-277, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR FILING AN ANNUAL ACCOUNT OF ADMINISTRATION; TO AMEND SECTION 91-7-291, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURE FOR FILING A FINAL ACCOUNT OF ADMINISTRATION; TO AMEND SECTION 91-7-297, MISSISSIPPI CODE OF 1972, TO REMOVE REQUIREMENT OF FILING OR PRODUCING LEGAL VOUCHERS FOR FINAL EXAMINATION AND DECREE OF THE COURT; TO INCREASE THE VALUE OF THE ESTATE TO $100,000.00; TO CREATE NEW SECTION 91-7-90, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A STATUTORY ORDER OF ABATEMENT FOR THE SHARES OF DISTRIBUTEES OF THE PROPERTY OF A DECEASED; TO AMEND SECTIONS 91-7-91, 91-7-191, 91-7-195, 91-7-199, 91-7-261 AND 91-7-271, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; TO AMEND SECTION 91-7-322, MISSISSIPPI CODE OF 1972, TO CLARIFY THE DEFINITION OF SUCCESSOR; TO REPEAL SECTION 91-7-257, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR PROPERTY WHICH SHALL NOT BE REMOVED FROM THE STATE BY AN EXECUTOR OR ADMINISTRATOR; TO REPEAL SECTION 91-7-139, MISSISSIPPI CODE OF 1972, WHICH ALLOWS AN EXTENSION FOR FILING APPRAISERS' REPORTS AND SANCTIONS; TO REPEAL SECTION 91-7-137, MISSISSIPPI CODE OF 1972, REQUIRING THE FILING OF THE APPRAISERS' REPORTS; TO REPEAL SECTION 91-7-279, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THE FORMAT FOR FILING VOUCHERS WITH THE COURT; TO REPEAL SECTIONS 91-7-111, 91-7-115 AND 91-7-113, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 91-7-93, Mississippi Code of 1972, is amended as follows:
91-7-93. The executor or
administrator shall, within ninety (90) days of the grant of his letters
unless further time be allowed by the court or clerk, * * * file an inventory, verified by
oath, of the money * * * and
property owned by the decedent at the time of death, listing it with reasonable
detail, and indicating as to each listed item, its market value as of the date
of the decedent's death, and the type and amount of any encumbrance that may
exist with reference to any item.
There shall be no requirement for filing an inventory if the requirement of filing an inventory is waived in the testator's will. The court or the chancellor may also waive the requirement for filing an inventory in an intestate estate upon petition to the court by the administrator. Even though the requirement of filing an inventory is waived in the testator's will or waived by the court or the chancellor upon petition to the court by the administrator in an intestate estate, the court or the chancellor may later order the executor or administrator to file an inventory upon the petition of a beneficiary or other interested party if the court or the chancellor determines that the filing of inventory is necessary or advisable.
SECTION 2. Section 91-7-95, Mississippi Code of 1972, is amended as follows:
91-7-95. * * * If any property not included in the
original inventory comes to the knowledge of the executor or administrator, or
if the executor or administrator learns that the value or description indicated
in the original inventory for any item is erroneous or misleading, he shall
make a supplementary inventory or appraisement showing the market value as of
the date of the decedent's death of the new item or the revised market value or
descriptions, and the appraisers or other data relied upon, if any, and file it
with the court if the original inventory was filed, or furnish copies thereof
or information thereof to persons interested in the new information.
SECTION 3. Section 91-7-109, Mississippi Code of 1972, is amended as follows:
91-7-109. * * * The executor or administrator may employ a
qualified and disinterested appraiser to assist him in ascertaining the fair
market value as of the date of the decedent's death of any asset the value of
which may be subject to reasonable doubt. Different persons may be employed to
appraise different kinds of assets included in the estate. The names and
addresses of any appraiser shall be indicated on the inventory with the item or
items he appraised.
SECTION 4. Section 91-7-117, Mississippi Code of 1972, is amended as follows:
91-7-117. It shall be the
duty of the * * *
executor or administrator to set apart to the widow and children, or to
the widow if there be no children, or to the children if there be no widow,
such personal property as is exempt by law from execution * * *.
The action of the * * * executor or administrator shall not be necessary
to the title of the widow and children to the exempt property, which shall vest
in them by operation of law on the death of the husband and father.
SECTION 5. Section 91-7-135, Mississippi Code of 1972, is amended as follows:
91-7-135. It shall be the
duty of the * * *
court or the chancellor to set apart out of the effects of the decedent,
for the spouse and children who were being supported by the decedent, or for
the spouse if there be no such children, or for such children if there be no
spouse, one (1) year's provision, including such provision as may be embraced
in the exempt property set apart. If there be no provisions, or an
insufficient amount, the * * *appraiser court or the chancellor shall * * *
determine the sum necessary for the comfortable support of the spouse
and children, or spouse or children, as the case may be, for one (1) year. * * *
SECTION 6. Section 91-7-141, Mississippi Code of 1972, is amended as follows:
91-7-141. The * * * court or the chancellor may
apportion the one (1) year's allowance, or any part of it, according to
the situation, rights, and interests of any of the children or the widow, and
may direct the payment of any portion of the allowance which may be found
necessary or proper to any of them.
SECTION 7. Section 91-7-255, Mississippi Code of 1972, is amended as follows:
91-7-255. * * * An executor, administrator,
guardian, receiver, or other fiduciary appointed by or acting pursuant to the
authority of any chancery court may sell, assign, or transfer any note, bill of
exchange, bond, stock certificate, or other negotiable paper belonging to the
estate committed or entrusted to him by such court * * * under
the standard of care applicable to trustees as set forth in Section 91-8-101 et
seq. If the exercise of power concerning the estate is improper, the personal
representative is liable to interested persons for damage or loss resulting
from breach of his fiduciary duty to the same extent as a trustee of an express
trust under the Mississippi Uniform Trust Code.
SECTION 8. Section 91-7-277, Mississippi Code of 1972, is amended as follows:
91-7-277. Every executor or
administrator, at least once in each year or oftener if required by the court,
shall present under oath an account of his administration, showing the
disbursements, every item of which and the amount thereof to be distinctly
stated * * *, and it shall also show the receipts of money and
from what sources. The failure to account annually shall be a breach of the
administration bond, for which it may be put in suit, or the executor or
administrator may be removed; but the court may, on application and on cause
shown, extend the time for accounting. * * *
The court shall examine all such accounts * * * and if satisfied that the account is just and true, it
shall decree the same approved and allowed as a correct annual settlement. * * *
* * *
There shall be no requirement for filing annual accounts if the requirement of filing accountings is waived in the testator's will. The court or the chancellor may also waive the requirement for filing annual accounts in an intestate estate upon petition to the court by the administrator. Even though the requirement of filing annual accounts is waived in the testator's will or waived by the court or the chancellor upon petition to the court by the administrator in an intestate estate, the court or the chancellor may later order the executor or administrator to file annual accounts upon the petition of a beneficiary or other interested party if the court or the chancellor determines that the filing of annual accounts is necessary or advisable.
SECTION 9. Section 91-7-291, Mississippi Code of 1972, is amended as follows:
91-7-291. When the estate
has been administered by payment of the debts and the collection of the assets,
it shall be the duty of the executor or administrator, unless the court or
chancellor, on cause shown, shall otherwise order, to make and file a final
settlement of the administration by making out and presenting to the court,
under oath, his final account, which shall contain a distinct statement of all
the balances of the annual accounts, either as debits or credits, all other
charges and disbursements * * *supported by legal vouchers, amounts received and not
contained in any previous annual account, and a statement of the kind and
condition of all assets in his hands. * * * There shall
be no requirement for filing a final account if the requirement of filing
accountings is waived in the testator's will. The court or the chancellor may
also waive the requirement for filing a final account in an intestate estate
upon petition to the court by the administrator. Even though the requirement
of filing accountings or the final account is waived in the testator's will or
waived by the court or the chancellor upon petition to the court by the
administrator in an intestate estate, the court or the chancellor may later
order the executor or administrator to file a final account upon the timely
petition of a beneficiary or other interested party if the court or the
chancellor determines that the filing of a final account is necessary or
advisable and the petition is timely filed.
SECTION 10. Section 91-7-297, Mississippi Code of 1972, is amended as follows:
91-7-297. If process be
returned executed, or publication has been made, the court shall examine the
final account so presented and filed, hear the evidence in support of it, and
the objections and evidence against it. If the court shall be satisfied that
the account is correct * * *, it shall make a final decree of approval and allowance,
and shall, at the same time, order the executor or administrator to make
distribution of the property in his hands. In proceedings for a final
settlement, the court may allow any party interested to surcharge and falsify
any annual or partial settlement of the executor or administrator.
SECTION 11. The following shall be codified as Section 91-7-90, Mississippi Code of 1972:
91-7-90. (1) Except as provided in subsection (2) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (a) property not disposed of by the will; (b) residuary bequests and devises; (c) general bequests and devises; (d) specific bequests and devises. For purposes of abatement, a general bequest or devise charged on any specific property or fund is a specific bequest or devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general bequest or devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received, if full distribution of the property had been made in accordance with the terms of the will.
(2) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (1), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(3) If the subject of a preferred bequest or devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
SECTION 12. Section 91-7-91, Mississippi Code of 1972, is amended as follows:
91-7-91. The real
property, goods, chattels, personal * * * property, choses in action and
money of the deceased, or which may have accrued to his estate after his death
from the sale of property, real, personal or otherwise, and the rent of lands
accruing during the year of his death, whether he died testate or intestate,
shall be assets and shall stand chargeable with all the just debts, funeral
expenses of the deceased, and the expenses of settling the estate * * *, without any preference
or priority as between real and personal property, and shall abate in the
manner set out in Section 11, House Bill No. 1375, 2019 Regular Session.
However, that in cases where no administration has been or shall be
commenced on the estate of the decedent within three (3) years after his death,
no creditor of the decedent shall be entitled to a lien or any claim whatsoever
on any real property of the decedent, or the proceeds therefrom, against
purchasers or encumbrancers for value of the heirs of the decedent unless such
creditor shall, within three (3) years and ninety (90) days from the date of
the death of the decedent, file on the lis pendens docket in the office of the
clerk of the chancery court of the county in which * * * the land is located notice of his
claim, containing the name of the decedent, a brief statement of the nature,
amount and maturity date of his claim and a description of the real property
sought to be charged * * *
with the claim. The provisions of this section requiring the filing of
notice shall not apply to any secured creditor having a recorded lien on * * * the property.
SECTION 13. Section 91-7-191, Mississippi Code of 1972, is amended as follows:
91-7-191. * * * Whenever it shall be necessary for
an executor or administrator * * * to sell property to pay the debts and expenses of
the estate, he may file a petition in the chancery court for the sale of
the land of the deceased, or so much of it as may be necessary, and exhibit to
the court a true account of the personal estate and debts due from the
deceased, and the expenses and a description of the land to be sold. Any
sale of land shall be subject to the abatement provisions of Section 11, House
Bill No. 1375, 2019 Regular Session.
SECTION 14. Section 91-7-195, Mississippi Code of 1972, is amended as follows:
91-7-195. Any creditor of the decedent whose claim against the estate is registered shall have the right to file a petition, as the executor or administrator may, for the sale of land or personal property of the decedent for the payment of debts. The court shall hear and decide upon such petition, and decree as if the application had been made by the executor or administrator, and may order the executor or administrator to make the sale. Any sale of land shall be subject to the abatement provisions of Section 11, House Bill No. 1375, 2019 Regular Session.
SECTION 15. Section 91-7-199, Mississippi Code of 1972, is amended as follows:
91-7-199. The court, after
service of summons or proof of publication, shall hear and examine the
allegations and evidence in support of the petition and the objections to and
evidence against it, if any. If on such hearing the court be satisfied that
the * * * land
ought to be sold * * * to pay the debts of the descendent and
expenses of the estate, it may make a decree for the sale of a part or the
whole of the land; and when a part only is decreed to be sold, the decree shall
specify what part. If the real estate be so situated that a part cannot be
sold without manifest prejudice to the heirs or devisees, the court may decree
that the whole shall be sold; and the overplus arising from such sale, after
the payment of debts and expenses, shall be distributed amongst the heirs
according to the law of descents, or amongst the devisees according to the
will. * * * The
sale of the land and distribution of the proceeds of the sale shall be subject
to the abatement provisions of Section 11, House Bill No. 1375, 2019 Regular
Session.
SECTION 16. Section 91-7-261, Mississippi Code of 1972, is amended as follows:
91-7-261. The executor or administrator shall take proper steps speedily to ascertain whether the estate be solvent or insolvent. If both the real and personal estate be insufficient to pay the debts of the deceased, he shall exhibit to the court a true account of all the personal estate, assets of every description, the land of the deceased, and all the debts due from the deceased; and if it appears to the court that the estate is insolvent, it shall make an order for the sale of all the property. The proceeds of such sale and all other assets shall be equally distributed among all the creditors whose claims shall be duly filed and established, in proportion to the sums due and owing to them respectively, the expenses of the last sickness, the funeral, and the administration, including commissions, being first paid. The sale of the land and distribution of the proceeds of the sale shall be subject to the abatement provisions of Section 11, House Bill No. 1375, 2019 Regular Session. Before any decree for sale is made, the devisees or heirs shall be made parties to the proceeding.
SECTION 17. Section 91-7-271, Mississippi Code of 1972, is amended as follows:
91-7-271. When the claims are established and the amount of assets ascertained, the court shall adjudge the pro rata share of each creditor, deducting first the preference claims and deducting from debts not due the legal interest from the time of payment up to the time of their maturity; and the executor or administrator shall distribute all money amongst the creditors, in proportion to their demands. The payment of the claims of the creditors shall be subject to the abatement provisions of Section 11, House Bill No. 1375, 2019 Regular Session. A creditor whose pro rata share has been so adjudged, after ten (10) days from the date of the decree ascertaining his share, the same not having been paid, may have execution against the executor or administrator and the sureties on his bond for such sum as may be due him, and costs of execution.
SECTION 18. Section 91-7-322, Mississippi Code of 1972, is amended as follows:
Affidavit of Successor
91-7-322. (1) Except as may be otherwise provided by Sections 81-5-63, 81-12-135, 81-12-137 and 91-7-323, at any time after thirty (30) days from the death of a decedent, any person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall make payment when due of the indebtedness or deliver the tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, as defined herein, upon being presented an affidavit made by the successor stating:
(a) That the value of the entire probate estate of the decedent, wherever located, excluding all liens and encumbrances thereon, does not exceed Fifty Thousand Dollars ($50,000.00);
(b) That at least thirty (30) days have elapsed since the death of the decedent;
(c) That no application or petition for the appointment of a personal representative of the decedent is pending, nor has a personal representative of the decedent been appointed in any jurisdiction; and
(d) The facts of relationship establishing the affiant as a successor of the decedent.
(2) For the purposes of
this section, "successor" means * * *:
(a) The decedent's spouse;
(b) If there is no surviving spouse of the decedent, then children of the decedent;
(c) If there is no surviving spouse or children of the decedent, then to descendants per stripes of the decedent;
(d) If there is no surviving spouse, children or descendants per stripes of the decedent, then either parent or any siblings of the decedent; or
(e) If none of the above successors can be found, then to the decedent's heirs at law.
(3) * * * Any minor or incapacitated adult who
is a successor of the decedent may be represented by a guardian, natural or
appointed, conservator, custodian, or other personal representative, as appointed
by the court or by power of attorney.
(4) The representative of a minor or incapacitated adult as defined in subsection (3) shall receive any property or payments from the decedent's estate for the sole use and benefit of said minor or incapacitated adult.
( * * *5) The successor of a decedent, upon
complying with the provisions of subsection (1) of this section, shall be
empowered to negotiate, transfer ownership and exercise all other incidents of
ownership with respect to the personal property and instruments described in
subsection (1) of this section.
( * * *6) Any person paying, delivering,
transferring or issuing personal property or the evidence thereof pursuant to
the provisions of subsection (1) of this section shall be discharged and
released to the same extent as if such person had dealt with a personal
representative of the decedent. Such person shall not be required to see to
the proper application of the personal property or evidence thereof or to
inquire into the truth of any statement in the affidavit. If any person to
whom an affidavit is delivered, in accordance with the provisions of subsection
(1) of this section, refuses to pay, deliver, transfer or issue any personal
property or evidence thereof to the successor, such property or evidence
thereof may be recovered or its payment, delivery, transfer or issuance
compelled upon proof of the successor's right in a proceeding brought in
chancery court for such purpose by or on behalf of the persons entitled
thereto. Any person to whom payment, delivery, transfer or issuance is made
shall be answerable and accountable to the personal representative of the
estate, if any, or to any other person having a superior right.
SECTION 19. Section 91-7-137, Mississippi Code of 1972, which requires the filing of the appraisers' reports with the court, is repealed.
SECTION 20. Section 91-7-139, Mississippi Code of 1972, which provides for an extension of time for appraisers to perform their duties and sanctions for failure to file an inventory, is repealed.
SECTION 21. Section 91-7-257, Mississippi Code of 1972, which provides for property which shall not be removed from the state by an executor or administer, is repealed.
SECTION 22. Section 91-7-279, Mississippi Code of 1972, which provides the format for filing vouchers with the court, is repealed.
SECTION 23. Section 91-7-111, Mississippi Code of 1972, which provides for the use of three (3) or more appraisers in each county in which property of the personal estate is located, is repealed.
SECTION 24. Section 91-7-115, Mississippi Code of 1972, which requires an oath be taken by the appointed appraisers and allows vacant appraiser positions to be filled, is repealed.
SECTION 25. Section 91-7-113, Mississippi Code of 1972, which provides a required form of warrant for appraisers, is repealed.
SECTION 26. This act shall take effect and be in force from and after July 1, 2019.