MISSISSIPPI LEGISLATURE

2020 Regular Session

To: Judiciary, Division A

By: Senator(s) Doty

Senate Bill 2850

(COMMITTEE SUBSTITUTE)

AN ACT TO AMEND SECTIONS 91-1-1, 91-5-35, 91-7-1, 91-7-33, 91-17-412 AND 91-17-501, MISSISSIPPI CODE OF 1972, TO ALLOW A WILL TO BE ADMITTED TO PROBATE AS MUNIMENT OF TITLE ONLY BY FILING SIGNED AND SWORN PETITIONS WITHOUT NECESSITY OF ADMINISTRATION; TO AMEND SECTION 91-7-322, MISSISSIPPI CODE OF 1972, TO REVISE THE THRESHOLD UNDER WHICH PAYMENT OF PERSONAL PROPERTY CAN BE MADE UPON AFFIDAVIT OF SUCCESSOR; AND FOR RELATED PURPOSES.

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

     SECTION 1.  Section 91-1-1, Mississippi Code of 1972, is amended as follows:

     91-1-1. * * *  What law to govern.  All personal property situated in this state shall descend and be distributed according to the laws of this state regulating the descent and distribution of such property, regardless of all marital rights which may have accrued in other states, and notwithstanding the domicile of the deceased may have been in another state, and whether the heirs or persons entitled to distribution be in this state or not. The widow of such deceased person shall take her share in the personal estate according to the laws of this state.  Territorial Application.  This chapter applies to the property of decedents domiciled in this state and real property of nonresidents located in this state.

     SECTION 2.  Section 91-5-35, Mississippi Code of 1972, is amended as follows:

     91-5-35.  (1)  When a person dies testate owning at the time of death real property in the State of Mississippi and his will purports to devise such realty, then said will may be admitted to probate, as a muniment of title only, by petition signed and sworn * * * to by all beneficiaries named in the will, and the spouse of such deceased person if such spouse is not named as a beneficiary in the will, without the necessity of administration or the appointment of an executor or administrator with the will annexed, provided it be shown by said petition that:

          (a)  The value of the decedent's * * * personal probate estate in the State of Mississippi at the time of his or her death, exclusive of any interest in real property and exempt property set forth in Section 91-7-117, did not exceed the sum * * * of Ten Thousand Dollars ($10,000.00), exclusive of exempt property set forth in Section 91-7-322; and

          (b)  All known debts of the decedent and his estate have been paid, including estate and income taxes, if any.

     (2) * * *  If any beneficiary to any will admitted to probate pursuant to this section shall be under a disability, then the petition may be signed for him by one of his parents or his legal guardian.  The petition shall be signed and sworn by the personal representative, including (a) an executor, (b) an administrator with the will annexed, or (c) other personal representative serving in a foreign jurisdiction.  If there is no such serving executor, administrator with the will annexed, or other personal representative, then it shall be signed and sworn by (i) the spouse of the decedent, if then living, and (ii) the devisees of the Mississippi real property, whether specific or residuary, but excluding persons holding mere contingent remainder interests in the real property.

     (3)  The petition may be signed for and on behalf of the spouse of the decedent, or a beneficiary under the will of the decedent, by a person acting in a representative capacity in accordance with Section 91-8-303.

     ( * * *34)  The probate of a will under this section shall in no way affect the rights of any interested party to petition for a formal administration of the estate or to contest the will as provided by Section 91-7-23, Mississippi Code of 1972, or the right of anyone desiring to contest a will presented for probate as provided by Section 91-7-21, or as otherwise provided by law.

     ( * * *45)  This section shall apply to wills admitted to probate from and after July 1, * * * 1984 2020, notwithstanding that the testator or testatrix may have died on or before July 1, * * * 1984 2020.

     SECTION 3.  Section 91-7-1, Mississippi Code of 1972, is amended as follows:

     91-7-1.  Wills shall be proved in and letters testamentary thereon granted by the chancery court of the county in which the testator had a fixed place of residence. If he had no fixed place of residence and land be devised in the will, it shall be proved in and letters granted by the chancery court of the county where the land, or some part thereof, is situated. * * *  If the testator had no fixed place of residence and personal property only be disposed of by the will, it may be proved in and letters granted by the chancery court of the county where the testator died, or of the county in which some part of the property may be.

     SECTION 4.  Section 91-7-33, Mississippi Code of 1972, is amended as follows:

     91-7-33.  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 any foreign country, and affecting or disposing of real 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 5.  Section 91-17-412, Mississippi Code of 1972, is amended as follows:

     91-17-412.  (a)  To the extent that a trustee accounts for receipts from the sale of timber and related products pursuant to this section, the trustee shall allocate the net receipts:

 * * * (1)  To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest;

(2)  To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;

(3)  To or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in paragraphs (1) and (2); or

(4)  To principal to the extent that advance payments, bonuses, and other payments are not allocated pursuant to paragraph (1), (2), or (3).  first to principal, based upon the volume of the timber at the time of transfer to the trust or decedent's estate.  The balance shall be allocated eighty percent (80%) to income and the balance to principal.

     (b)  In determining net receipts to be allocated pursuant to subsection (a), a trustee shall deduct * * * and transfer to principal a reasonable amount for depletion., including, but not limited to, the following expenses related to the sale of timber and related products from gross receipts:

          (1)  Management expenses;

          (2)  Legal and accounting expenses and fees;

          (3)  Sales commissions;

          (4)  Reforestation expenses; and

          (5)  Any necessary timber stand improvement expense that is recognized and accepted as good forest management practice at the time of sale.

     (c)  This chapter applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.

     (d)  If a trust owns an interest in timberland on January 1, 2013, the trustee may allocate net receipts from the sale of timber and related products as provided in this chapter or in the manner used by the trustee before January 1, 2013. If the trust acquires an interest in timberland after January 1, 2013, the trustee shall allocate net receipts from the sale of timber and related products as provided in this chapter.

     SECTION 6.  Section 91-17-501, Mississippi Code of 1972, is amended as follows:

     91-17-501.  A trustee shall make the following disbursements from income to the extent that they are not disbursements to which Section 91-17-201(2)(B) or (C) applies:

          (1)  One-half (1/2) of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee;

          (2)  One-half (1/2) of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests;

          (3)  All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest; and

          (4)  Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

     With regard to subsections (1) and (2) of this section, a trustee may allocate more or less if income or principal is insufficient to satisfy this allocation during the year.

     SECTION 7.  Section 91-7-322, Mississippi Code of 1972, is amended as follows:

     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, or in a manner as directed by the successor, 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) Seventy-five Thousand Dollars ($75,000.00);

          (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 * * *.;

          (e)  Directing the manner of distribution of the debt or property; and

          (f)  Acknowledging the successor's obligation to distribute the debt or property to those having a superior right to same.

     (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 any child of the decedent;

          (c)  If there is no surviving spouse or children of the decedent, then to * * * descendants per stripes any grandchild of the decedent; or

          (d)  If there is no surviving spouse, children or * * * descendants per stripes grandchildren 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)  Except as otherwise provided in Sections 93-20-209 and 93-20-431, the representative of a minor or incapacitated adult as defined in subsection (3) of this section 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 8.  This act shall take effect and be in force from and after July 1, 2020.