The word “probate” essentially means “to prove.” To probate a will is simply to prove its validity in court. It is the first step of the Mississippi probate process.
So how do you probate a will in Mississippi? The answer depends on the type of will and how it was prepared.
Most wills are attested wills, meaning that they are signed by the testator and two witnesses. Mississippi law requires the testimony of at least one person who witnessed the will. This testimony is usually in the form of an affidavit (sworn statement).
Most Mississippi estate planning attorneys prepare a Self-Proving Affidavit along with the estate planning documents. This is an affidavit signed by the witnesses at the time the will was executed. The Self-Proving Affidavit is usually kept with the estate planning documents. When the time comes for probate, the required testimony from the witness is already there in the Self-Proving Affidavit. Wills of this nature are said to be “self-proved.”
If the will is not self-proved, someone must track down one of the witnesses and obtain the affidavit. This can be tricky, especially if many years have passed since the document was signed. (We are usually successful in tracking down witnesses if they are still alive.)
If the witnesses cannot be located, there are two options:
- The probate attorney can introduce testimony of people who can speak to the testator’s capacity and and the proper execution of the document. But since execution of a will is usually not a public matter, this may difficult.
- The probate attorney can show that the signatures of the testator and the two witnesses are authentic. This evidence can be in the form of any method permitted under Mississippi law for proving signatures. This is usually done by finding one or more individuals who are not named in the will that can verify that the signatures are authentic. The probate attorney will also introduce evidence that the original witnesses were unavailable.
If either option is available, the will can be admitted to probate. Since Mississippi law favors wills, judges usually allow them to be probated if at all possible. But if the document simply cannot be proved, the estate will need to be administered as if there is no will under Mississippi’s laws of intestacy.
Holographic (Handwritten) Wills
Holographic wills are wills that are entirely handwritten by the testator. To prove a holographic will, the executor must demonstrate that it is entirely in the decedent’s handwriting and that it is signed at the bottom (subscribed). Proof that the testator had testamentary capacity and that the document is wholly in his handwriting is usually in the form of affidavits of disinterested persons.