Monthly Archives: August 2014

Mississippi Executor’s Deed

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Often when probating an estate, the disposition of the decedent’s property to a third party, non-heir will be necessary.  The executor may accomplish such a sale through the execution of an executor’s deed.  An executor’s deed is a deed used by an executor to convey or transfer property out of the estate of a person who died with a will.  An executor’s deed should contain the following information:

  • Executor’s name;
  • Language that the executor is conveying the property in his capacity as executor;
  • The name of the decedent (the person who died and left the will);
  • Language that the deed is being executed pursuant to the terms of the will;
  • Language that the will has been offered for probate;
  • The legal description of the property being conveyed; and
  • The signature of the executor.

The heirs of the decedent should also execute a Quitclaim Deed deed in conjunction with the executor.  This will prevent future challenges to the conveyance by the heirs. An executor’s deed should be recorded in the real estate records of the county in which the property being conveyed is located.

Mississippi Code Ann § 91-7-187. Sale of land in preference to personalty provides that the executor must petition the court for the authority to sell decedents property holding that:

When the estate of any deceased person consists of real and personal property and it shall be necessary to sell a portion thereof, the chancery court, on petition of the executor, administrator, legatees or distributees, being satisfied that it would be to the interest of the distributees or legatees, may decree a sale of the real estate in preference to the personal estate.

Probating a Testate Estate in Mississippi

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 When a person dies with a will, that person has died “testate” which means that a “probate estate” must be opened in the Chancery Court.  In Mississippi, chancery courts have jurisdiction over estate matters.  The probate attorney will initiate the probate process by filing a “Petition to Open Estate”.

If the court finds the Petition meets all requirements imposed by law, letters testamentary are granted to the person who will administer the estate or, the  “executor”.  The letters testamentary are documents evidencing the executor’s power to act on behalf of the estate.   At this time, the executor must execute a statutorily prescribed oath known as the “Oath of Executrix”.

The Executor must then place a “Notice to Creditors” in a publication circulated in the decedent’s county of residence.  Notice to creditors must be published once a week for three consecutive weeks.  If no creditors register a claim against the estate within 90 days, the claim is barred.

Once it is determined that no claims were registered, the estate attorney, will then petition the court to distribute assets and close the estate.  Upon completion of all probate matters, the attorney will then file a “Statement of Compliance” with court.

Subpoena

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A subpoena is a writ issued by the court in which a civil action has been filed.  Subpoenas are issued by the Circuit Clerk and served on a person or entity.  There are generally two types of Subpoenas:  the Subpoena Ad Testificandum, which seeks testimony from the person or entity, or the Subpoena Duces Tecum which seeks documents from the person or entity.

Generally speaking, when a subpoena is to be served upon an individual, the attorney directing the service will hire a process server for service.  As the information or testimony required is time sensitive, an affidavit of service from the process server is returned to the requesting attorney.  The affidavit is then filed with the clerk and made a part of the record.

Upon service of the Subpoena, the receiving party must respond in the manner and time period as ordered.  If the receiving party fails to respond with the requested testimony or document production, the serving party may file a Motion for Contempt and Sanctions.  The party serving the subpoenas can be sanctioned if the court finds that the power was exercised to harass or burden the recipient.

Although considered burdensome by the recipient, Subpoenas are an effective discovery tool in both civil and criminal cases.

Mississippi Tax Sale of Real Estate

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Tax sales take place when there are overdue taxes on real estate. Mississippi tax sales are generally held the last Monday in August with notice by publication.  At the tax sale, the the Chancery clerk utilizes an overbid system wherein taxes are auctioned by competitive bid. Successful bidders will pay the taxes due for the real estate.  Upon payment of those taxes, a lien is placed on the property for the buyer.  A tax lien certificate is issued to the buyer as proof of his claim against the property.

If the the original owner does not redeem the property after two years, the buyer will be given a sales deed making him the record title owner.  To redeem the property, the original owner must pay the amount he owed plus any taxes since paid on the property and interest and fees.

At the end of the redemption period, the county Chancery Clerk must send notice to the original owner that the final sale of the property will take place. By statute, the sheriff is required to serve notice on the original property owner.  Notice must also be sent by registered or certified mail.  Failure to give proper notice could be grounds for invalidating the tax sale.

[1] Miss. Code Ann. § 27-43-3 (Supp. 2009).

Setting Aside A Tax Sale

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Tax sales are disfavored by Mississippi courts.  And because the the Courts require strict adherence to Notice requirements, property owners who have lost property to tax sales have recourse to have tax sales set aside. Mississippi Code Annotated section 27-43-3 (Supp.2009) requires that “notice be given to property owners of a tax sale before a valid tax deed may be issued to the purchaser of the subject property. Under this statute, service of notice must be made by the sheriff, and notice must also be sent by registered or certified mail.” MS Code Ann 27-43-3 (Supp. 2009) requires proper notice be delivered to property owners informing them of a pending tax sale.  If that notice is returned undelivered, the Clerk is required to have notice delivered by the Sheriff.  If that notice is returned undelivered, the clerk must conduct additional search and inquiry to determine the owners address.  If additional search and inquiry does not produce an address for the owner, the clerk must make an affidavit detailing the steps taken to ascertain the owners address.  The affidavit must be made permanent part of the tax sale record.  If the clerk fails to follow these requirements, the land owner may present that evidence in his Petition to Set Aside Tax Sale. The Mississippi Court of Appeals held that ” In Mississippi, it is public policy to favor and protect landowners from [the sale of their land] for taxes.”C.F.P. Properties, Inc. v. Roleh, Inc., 56 So.3d 575 (Miss.App. 2010) citing  Lawrence v. Rankin, 870 So.2d 673, 676 (¶ 13) (Miss.Ct.App.2004). Further, section 27-43-3 ” must be given a strict construction, and its requirements fully satisfied.” Id. at (¶ 14). Failure of the chancery clerk to file the requisite affidavits renders a tax deed void. Id. In the case of Roleh the Chancery court found for the landowner that the lack of an affidavit by the court documenting attempts to provide notice was sufficient grounds to set aside the tax sale.  On appeal, the Court of Appeals affirmed the lower court’s holding and voided the final sale of the commercial property. The Court of Appeals stated that the policy in Mississippi is to favor and protect the original landowner from sale of land for failure to pay taxes.