According to the Mississippi Probate Lawyers website,"the term 'probate' refers to proving the existence of a valid will, or determining and proving who one's legal beneficiaries are if there is no will." The legal ownership of land transfers to the beneficiaries in either case, but an administrator determines the division of the land in a situation without a valid will.
If a will names an executor, that person will handle the probate process. Without a will, a court typically appoints an administrator. These roles protect the interests of heirs, creditors and claimants on the estate.
Goal of Probate
Probate court seeks to divide the assets of the deceased person in the manner that most people would desire their belongings divided if they had a say in the matter. In most cases, this means that the spouse and children receive the bulk of the real and personal property when the deceased person failed to file a will, states the Mississippi Probate Lawyers website.
When a will or a prenuptial agreement does not exist, the court-designated administrator distributes the real and personal property of the deceased. If a prenuptial agreement exists, according to Bankrate.com, the administrator will distribute the items of the estate as defined by the agreement. The administrator then decides on distribution of any community property and jointly owned real property.
For childless couples in Mississippi, the land passes to the surviving spouse. If the couple had children, ownership of the real property divides equally between the spouse and the children. If a child died before the parent, the child's heirs, if any, receive the portion due that child. With no children or a surviving spouse, the Living Trust Network website says, the line of ownership continues to first the deceased person's parents, then siblings. If none of the aforementioned exist, ownership extends to the grandparents, uncles and aunts.
Having a will avoids the division of land problems that may arise after death, and defining how to divide the estate keeps the court from taking the role of distributing the land. SmartAboutMoney.org suggests that people concerned about post-death land division should place the property in a trust that designates a beneficiary of their choosing.