title-91•Title 91 — Trusts and Estates
Mississippi Code of 1972 — Title 91. Trusts and Estates
Text as published by FindLaw, current as of 2025-01-01.
Miss. Code Ann. § 1-1-9 asserts that copyright in the Mississippi Code of 1972, including catchlines, section numbering, source lines and annotations, is owned by the State of Mississippi.
Chapter 1 Descent and Distribution
§ 91-1-1
This chapter applies to the property of decedents domiciled in this state and real property of nonresidents located in this state.
§ 91-1-3
When any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent's share. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any there be; otherwise, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law. There shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate.
§ 91-1-5
There shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree.
§ 91-1-7
(1) If a husband dies intestate and does not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee simple, after payment of his debts; but where the deceased husband leaves a child or children by that or a former marriage, or descendants of such child or children, his widow shall have a child's part of his estate, in either case in fee simple. If a married woman dies owning any real or personal estate not disposed of, it shall descend to her husband and her children or their descendants if she has any surviving her, either by a former husband or by the surviving husband, in equal parts, according to the rules of descent. If she has children and there also are descendants of other children who have died before the mother, the descendants shall inherit the share to which the parent would have been entitled if living, as coheirs with the surviving children. If she has no children or descendants of them, then the husband shall inherit all of her property.
(2) The provisions of Section 91-1-33 are applicable in determining whether a child of a decedent is living at the time of the decedent's death.
§ 91-1-9
If any cestui que trust shall die leaving a trust in lands, tenements, or hereditaments in fee simple or in freehold, the trust shall descend as real estate if not disposed of by will, or if not inconsistent with the declaration of the trust.
§ 91-1-11
(1) Except as provided in subsection (2) of this section, when any person shall die possessed of goods and chattels or personal estate not bequeathed, the same shall descend to and be distributed among his or her heirs in the same manner that real estate not devised descends.
(2) When any person shall die possessed of goods and chattels or personal estate not bequeathed, the provisions of Section 91-1-33 are applicable in determining whether a child of a decedent is living at the time of the decedent's death.
§ 91-1-13
All estate, real and personal, not devised or bequeathed in the last will and testament of any person shall descend and be distributed in the same manner as the estate of an intestate; and the executor or administrator shall administer the same accordingly.
§ 91-1-15
(1) The following terms shall have the meanings ascribed to them herein:
(a) “Remedy” means the right of an illegitimate to commence and maintain a judicial proceeding to enforce a claim to inherit property from the estate of the natural mother or father of such illegitimate, said claim having been heretofore prohibited by law, or prohibited by statutes requiring marriage between the natural parents, or restrained, or enjoined by the order or process of any court in this state.
(b) “Claim” means the right to assert a demand on behalf of an illegitimate to inherit property, either personal or real, from the estate of the natural mother or father of such illegitimate.
(c) “Illegitimate” means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.
(d) “Natural parents” means the biological mother or father of the illegitimate.
(2) An illegitimate shall inherit from and through the illegitimate's mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father's estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate's estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.
(3) An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate's death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
(i) Such court was in the state of residence of the intestate at the time of the intestate's death;
(ii) The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;
(iii) All known heirs were made parties to the action; and
(iv) Paternity or legitimacy was established by clear and convincing evidence.
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.
(ii) Any part of the natural mother's estate from or through the illegitimate if the illegitimate dies unmarried and without issue, and also predeceases the natural mother. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimate's estate inherited from the mother shall be inherited according to the statutes of descent and distribution.
A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity; provided, however, the failure of an illegitimate to seek or obtain relief under the Mississippi Uniform Law on Paternity shall not diminish or abate the remedy created herein.
(4) The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.
(5) Nothing in this section shall preclude the establishment of paternity solely for the purpose of the illegitimate receiving social security benefits on behalf of the illegitimate's natural father after one (1) year following the natural father's death.
§ 91-1-17
When any of the children of a person dying intestate, or their descendants, shall have received from such intestate, in his lifetime, any real or personal estate by way of advancement, and shall choose to come into the partition and distribution of the estate with the other parceners and distributees, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, descended. Such party bringing such advancement into hotchpot shall thereupon be entitled to his or her proper portion of the whole estate descended, both real and personal; but such advancement shall be valued according to its value at the time said distributee received it.
§ 91-1-19
The property, real and personal, exempted by law from sale under execution or attachment shall, on the death of the husband or wife owning it, descend to the survivor of them and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent's share; and if there be no children or grandchildren of the decedent, to the surviving wife or husband; and if there be no such survivor, to the children and grandchildren of the deceased owner. Where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent, and the deceased husband or wife have no surviving children or grandchildren of the last marriage but have children or grandchildren of a former marriage, the homestead of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage, as other property.
§ 91-1-21
If there shall not be either a surviving wife or husband or children or grandchildren of the decedent, the exempt property shall be liable for the debts of the decedent and be disposed of in all respects as other property of such decedent.
§ 91-1-23
Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent.
§ 91-1-25
If any person wilfully cause or procure the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.
§ 91-1-27
In all cases in which persons have died, or may hereafter die, wholly or partially intestate, having property, real or personal, any heir at law of such deceased person, or any one interested in any of the property as to which he shall have died intestate, may petition the chancery court of the county in which said deceased had his mansion house or principal place or residence, or in which any part of his real estate may be situated, in case he was a nonresident, setting forth the fact that said person died wholly or partially intestate, possessed of real or personal property in the State of Mississippi, the names of the heirs at law or next of kin, and praying that the person named in said petition be recognized and decreed to be the heir at law of said deceased.
§ 91-1-29
All the heirs at law and next of kin of said deceased who are not made parties plaintiff to the action shall be cited to appear and answer the same. And in addition thereto a summons by publication shall be made addressed to “The heirs at law of __________, Deceased,” and shall be published as other publications to absent or unknown defendants, and the cause shall be proceeded with as other causes in chancery, and upon satisfactory evidence as to death of said person and as to the fact that the parties to said suit are his sole heirs at law, the court shall enter a judgment that the persons so described be recognized as the heirs at law of such a decedent, and as such be placed in possession of his estate. And said judgment shall be evidence in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.
§ 91-1-31
A judgment so rendered as provided in Section 91-1-29 shall not be assailed collaterally, except for fraud, and shall be binding and conclusive upon all persons cited to appear from the date of its rendition, and upon all persons whomsoever from and after the expiration of two (2) years from the date on which the same was rendered, saving to minors and persons of unsound mind, the right to re-open said cause within one (1) year after attaining majority or being restored to sanity. A judgment so rendered shall thereupon be filed, recorded and indexed by the chancery clerk of the county where rendered in the general deed records of said county, just as if it were a deed of conveyance from said decedent to his heirs at law. And a certified copy of such judgment may likewise be filed, recorded and indexed in any other county where the decedent owned land at the date of his death.
§ 91-1-33
(1) This section shall be known and may be cited as the “Chris McDill Law.”
(2) For purposes of this section, the following words shall have the meaning herein ascribed unless the context clearly requires otherwise:
(a) “Assisted reproductive technology” means a method of preserving fertility or attempting pregnancy through means other than by sexual intercourse, including, but not limited to, the following:
(i) Intrauterine, intracervical, or vaginal insemination;
(ii) Donation of gametes;
(iii) Donation of embryos;
(iv) Receiving of gametes;
(v) Receiving of embryos;
(vi) In vitro fertilization;
(vii) Embryo transfer; and
(viii) Intracytoplasmic sperm injection.
(b) “Personal property” means goods and chattels or personal estate.
(3) When any person shall die possessed of personal property not bequeathed before the start of a pregnancy by assisted reproductive technology resulting in the birth of an individual who lives at least one hundred twenty (120) hours after birth, that individual is deemed to be living at the time of the decedent's death and shall be entitled to a child's part of the decedent's personal property as provided in this section if the decedent's personal representative and the court, not later than six (6) months after the decedent's death, received notice or had actual knowledge of an intent to use the decedent's genetic material in the assisted reproduction; and
(a) The embryo was in utero not later than thirty-six (36) months after the decedent's death; or
(b) The individual was born not later than forty-five (45) months after the decedent's death.
(4)(a) This section shall only be applicable if there is a record signed by the decedent and the person who intends to use the decedent's genetic material in the assisted reproductive technology that the decedent consented to the use of the decedent's genetic material in assisted reproductive technology after the death of the decedent.
(b) There shall be a rebuttable presumption that the decedent did not consent to the use of the decedent's genetic material in the assisted reproductive technology if the decedent was divorced or legally separated at the time of the decedent's death from the person who wishes to use the decedent's genetic material in the assisted reproductive technology.
(5) An individual deemed to be living at the time of the decedent's death under subsection (3) of this section shall be entitled to a child's part of the decedent's personal property, or the equivalent value thereof. If more than one (1) individual is deemed to be living at the time of the decedent's death under subsection (3) of this section, each individual shall be entitled to an equal share of a child's part of the decedent's personal property, or the equivalent value thereof.
(6)(a) Upon receipt of notice or the actual knowledge required under subsection (3) of this section, the court shall:
(i) Set aside a child's part of the decedent's personal property, or the equivalent value thereof, for distribution to an individual deemed to be living at the time of the decedent's death under subsection (3) of this section;
(ii) Distribute the remainder of the decedent's estate, except for the set-aside child's part of the decedent's personal property, or the equivalent value thereof, according to the statutes of descent and distribution; and
(iii) Enter an order closing the estate for all purposes except the distribution of the set-aside part of the decedent's personal property or the equivalent value thereof.
(b) If an individual is deemed to be living at the time of the decedent's death under subsection (3) of this section, the court shall distribute the set-aside portion of the decedent's personal estate according to subsection (5) of this section. If no individual is deemed living at the time of the decedent's death under subsection (3) of this section, the court shall distribute the set aside portion of the decedent's personal estate as is otherwise provided according to the statutes of descent and distribution.
(7) It is the intent of the Legislature that an individual deemed to be living at the time of the decedent's death under subsection (3) of this section shall be eligible for federal benefits under subchapter II of Chapter 7 of Title 42 of the United States Code.
Chapter 3 Uniform Simultaneous Death Law
§ 91-3-1
This chapter may be cited as the Uniform Simultaneous Death Law.
§ 91-3-3
This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact the Uniform Simultaneous Death Law.
§ 91-3-5
Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.
§ 91-3-7
Where two (2) or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
§ 91-3-9
Where there is no sufficient evidence that two (2) joint tenants have died otherwise than simultaneously the property so held shall be distributed one half ( 1/2 ) as if one had survived and one half ( 1/2 ) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
§ 91-3-11
Where the insured and the beneficiary in a policy of life or accident insurance have died and there is insufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
§ 91-3-13
This chapter shall not apply to the distribution of the property of a person who has died before July 1, 1956.
§ 91-3-15
This chapter shall not apply in the case of wills, living trusts, deeds, contracts of insurance or other contracts wherein provision has been made for distribution of property different from the provisions of this chapter.
Chapter 5 Wills and Testaments
§ 91-5-1
Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.
§ 91-5-3
A devise so made, or any clause thereof, shall not be revocable but by the testator or testatrix destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or declaration, in writing, made and executed. Every last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child, or if the testator leave his wife enceinte of a child who shall be born, shall have no effect during the life of any such after-born child and shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained twenty-one years. The estate, both real and personal, so devised shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament in case of the death of such child before marriage, or without issue capable of inheriting, and under the age of twenty-one years. When a testator shall leave children born and his wife enceinte, the posthumous child or children, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father's estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.
§ 91-5-5
If a testator or testatrix, having a child or children born at the time of making and publishing his or her last will and testament, shall, at his or her death, leave a child or children born after the making and publishing such last will and testament, the child or children so after-born, if unprovided for by settlement and neither provided for nor disinherited, but only pretermitted, by the last will and testament, shall succeed to the same portion of the father's or mother's estate as such child or children would have been entitled to if the father or mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament, in the same manner as is provided in the case of posthumous children.
§ 91-5-7
Whenever any estate of any kind shall or may be devised or bequeathed by the last will and testament of any testator or testatrix to any person being a child or descendant of such testator or testatrix, and such devisee or legatee shall, during the lifetime of such testator or testatrix, die testate or intestate, leaving a child or children, or one or more descendants of a child or children, who shall survive such testator or testatrix, in that case, such devise or legacy to such person so situated as above mentioned, and dying in the lifetime of the testator or testatrix, shall not lapse, but the estate so devised or bequeathed shall vest in such child or children, descendant or descendants, of such devisee or legatee in the same manner as if a legatee or devisee had survived the testator or testatrix and had died intestate.
§ 91-5-9
If any person be a subscribing witness to a will wherein any devise or bequest is made to him and the will cannot otherwise be proven, such devise or bequest shall be void, and the witness shall be competent as to the residue of the will as if a devise or bequest had not been made to him, and he may be compelled to testify. If such witness would have been entitled to any share of the testator's estate in case the will were not established, then so much of such share shall be saved to the witness as shall not exceed the value of the devise or bequest made to him in the will.
§ 91-5-11
(1) A devise or bequest in a will duly executed pursuant to the provisions of Section 91-5-1 of Mississippi Code of 1972 may be made to the trustee of a trust which is evidenced by a written instrument in existence when the will is made and which is identified in the will. Such devise or bequest shall not be invalid because the trust is amendable or revocable, or both, by the settlor or any other person or persons; nor because the trust instrument or any amendment thereto was not executed in the manner required for wills; nor because the trust was amended after execution of the will. Unless the will provides otherwise, such devise or bequest shall operate to dispose of the property under the terms and provisions of the instrument creating the trust, including any amendments or modifications in writing made at any time before or after the making of the will and before the death of the testator, and the property shall not be deemed held under a testamentary trust. An entire revocation of the trust prior to the testator's death shall invalidate the devise or bequest.
(2) The provisions of this section shall apply to all devises or bequests made in any will duly executed according to said section of any testator dying after May 6, 1958, whether the will is executed before or after that date.
(3) The term “will” in this section shall include and refer to the term “codicil”.
§ 91-5-13
Any creditor shall be a competent subscribing witness to a last will and testament; but any special provision in favor of such creditor in the will, either by admitting the debt or by providing for its payment or by giving it a preference, shall be void, and such claim shall stand as though the provision had not been made.
§ 91-5-15
A nuncupative will shall not be established unless it be made in the time of the last sickness of the deceased at his or her habitation or where he or she hath resided for ten days next preceding the time of his or her death, except when such person is taken sick from home and die before his or her return to such habitation, nor where the value bequeathed exceeds One Hundred Dollars ($100.00) unless it be proved by two witnesses that the testator or testatrix called on some person present to take notice or bear testimony that such is his or her will, or words to that effect.
§ 91-5-17
The probate of any nuncupative will shall not be taken, or letters testamentary granted thereon, until after the expiration of fourteen days from the time of the decease of the testator or testatrix, nor until the widow, if any, and next of kin, if resident in this state, have been summoned to contest the same if they think proper.
§ 91-5-19
After six months have elapsed from the time of speaking the alleged testamentary words, testimony shall not be received to probate a nuncupative will unless the words, or the substance thereof, shall have been reduced to writing within six days after speaking the same.
§ 91-5-21
Any person of sound mind eighteen years of age or older and being in the armed forces of the United States of America, in active service at home or abroad or being a mariner at sea, may devise, dispose of, and bequeath his goods and chattels or property, real and personal, anything in this chapter to the contrary notwithstanding.
Any will executed prior to July 23, 1968, which conforms to the requirements of this section shall be valid; provided, however, that the testator of said will must be alive at said date.
§ 91-5-23
Any provision by the will of the husband or wife for the other shall be construed to be in bar of any share of the real or personal estate of the testator, unless it be otherwise expressed in the will.
§ 91-5-25
When a husband makes his last will and testament and does not make satisfactory provision therein for his wife, she may, at any time within ninety (90) days after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: “I, A B, the widow of C D, hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate.” Thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half ( 1/2 ) of the real and personal estate of her deceased husband. The husband may renounce the will of his deceased wife under the same circumstances, in the same time and manner, and with the same effect upon his right to share in her estate as herein provided for the widow.
§ 91-5-27
If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or wife, as in case of unsatisfactory provision in the will of the husband or wife for the other of them. In such case a renunciation of the will shall not be necessary, but the rights of the survivor shall be as if the will had contained a provision that was unsatisfactory and it had been renounced.
§ 91-5-29
In case the wife have a separate property at the time of the death of her husband, equal in value to what would be her lawful portion of her husband's real and personal estate, and he have made a will, she shall not be at liberty to signify her dissent to the will or to renounce any provision or bequest therein in her favor and elect to take her portion of his estate. If her separate property be not equal in value to what would be the value of her portion of her husband's estate, then she may signify her dissent to the will, as in other cases provided by law, and claim to have the deficiency made up to her, notwithstanding the will. The court in which the will is probated may appoint three commissioners to ascertain, by valuation of the estate, what her lawful portion thereof would be worth; and the commissioners shall also value her own separate estate and report their valuation to the court. Whereupon the court shall make the proper order for allowing her to share in her husband's real and personal estate to make up the deficiency after the following rule: if her separate property be equal in value to two thirds of what she would be entitled to, she shall have one third of her lawful portion of the land and one third of what would be her distributive share of the personalty; if her separate property be worth half in value what she would be entitled to, then she shall be entitled to half her lawful portion of real estate and half of what would be her distributive share of the personalty; if her separate property be worth only one third in value what she would be entitled to, then she shall be entitled to two thirds of her lawful portion of real estate and two thirds of what would be her distributive share in the personalty. This section shall not preclude or prevent any married woman from renouncing the provisions of her husband's will and electing to take her lawful portion if her separate property do not amount in value to one fifth of what she would be entitled to. This section shall apply to a husband renouncing the will of his wife, and shall govern as to his right to share in her estate in such case.
§ 91-5-33
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
This shall not defeat the title of a bona fide purchaser for value of the property so devised, who acquired the same after one year from the probation of the will without notice that the person to whom the same was devised so caused or procured the death of the testator.
§ 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, 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 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 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) 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.
(4) 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.
(5) This section shall apply to wills admitted to probate from and after July 1, 2020, notwithstanding that the testator or testatrix may have died on or before July 1, 2020.
Chapter 7 Executors and Administrators
§ 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.
§ 91-7-3
When any last will and testament is exhibited to be proved, the court may take the probate thereof, and any one interested in a will may propound it for probate. Summons may be issued by the clerk for the subscribing witnesses, or for other witnesses, to be examined as to such will.
§ 91-7-5
The chancery court of the proper county, on being informed that any person has the last will and testament of a testator or testatrix, may compel such person to produce it.
§ 91-7-7
The due execution of the will, whether heretofore or hereafter executed, must be proved by at least one (1) of the subscribing witnesses, if alive and competent to testify. If none of the subscribing witnesses can be produced to prove the execution of the will, it may be established by proving the handwriting of a testator and of the subscribing witnesses to the will, or of some of them. The execution of the will may be proved by affidavits of subscribing witnesses. The affidavits may be annexed to the will or may be a part of the will, and shall state the address of each subscribing witness. Such affidavits may be signed at the time that the will is executed.
§ 91-7-9
The affidavit of any subscribing witness to a will, made before and certified by any officer in the state competent to administer oaths, shall be received as a substitute for the personal attendance of the affiant to prove the will where there is no contest about it.
§ 91-7-10
Where there is not contest about it, a holographic will or codicil may be proved at the time of presentment for probate by the affidavits, made before an officer in the state authorized to administer oaths, of at least two (2) persons, in no wise interested in the estate of the testator or testatrix, attesting to the authenticity of the will or codicil and the competency of the testator or testatrix to make testamentary disposition of his or her property; provided, however, that such affiants shall be persons familiar with the handwriting and signature of the testator or testatrix, and the affidavits so presented shall contain statements made on the personal knowledge of such affiants attesting that such handwriting and such signature are genuine and were made and done by the testator or testatrix; and in such case the affidavits made and presented in conformity herewith may be received as a substitute for the personal attendance of witnesses to prove such will or codicil.
§ 91-7-11
When any will shall be exhibited for probate and any witness who attested the will shall reside out of the state or be not found, either of the following methods may be used to prove the execution of the will, to wit:
(a) A commission may issue to take his or her deposition, as in other cases of nonresident witnesses, to which the will shall be attached. Before such original will shall be sent abroad for proof, the clerk shall make and certify to a true copy thereof and file the copy in his office, and such certified true copy shall have the same legal force and effect of the original will and may be substituted for the original will should the original will be lost. Provided, however, where there is no contest, the affidavit of such nonresident subscribing witness may be made before any officer competent to administer oaths in the state where such nonresident witness may be found.
(b) Or, in lieu of sending the original will abroad for such proof, the clerk may have made a photostatic copy of said original will and certify to same as being a photostatic copy of said original will and send said certified photostatic copy of said original will abroad, instead of the original will; and in which case, the clerk shall file the original will in his office.
§ 91-7-13
If the will shall appear to have been duly executed, it shall be admitted to probate. All testimony taken in probating it shall be reduced to writing and filed and carefully preserved in the clerk's office.
§ 91-7-15
In addition to the manner in which wills may be proved and admitted to probate in the State of Mississippi under other laws, any will executed by any member of the armed forces of the United States during the Korean War, or any other war, may be proved and admitted to probate, and letters testamentary thereon granted, by the chancery court or the chancellor in vacation of the county in which such testator lived when he became a member of such armed forces, or by the chancery court or the chancellor in vacation of the county in which such testator owned land at the time of his death, on the affidavit of any reliable person or persons sufficient to satisfy the chancellor that the testator is dead, that the writing propounded for probate was signed by the testator as his last will and testament, that the affidavit or testimony of the subscribing witnesses to such will cannot reasonably be obtained, and that there is good reason for such will to be then probated.
§ 91-7-17
The rejection of an ex parte application to probate a will shall not bind any one or extinguish any right.
§ 91-7-19
Any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will. At the request of either party to such proceeding, an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.
§ 91-7-21
Any one desiring to contest a will presented for probate may do so before probate by entering in the clerk's office in which it shall be presented his objection to the probate thereof, and causing all parties interested and who do not join him in such objection to be made parties defendant. Thereupon the issue devisavit vel non shall be made up and tried, and proceedings had as in other like cases. When an objection to the probate of a will has been made in writing, filed with the clerk, probate shall not be had of such will without notice to the objector.
§ 91-7-23
Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not. If some person does not appear within two years to contest the will, the probate shall be final and forever binding, saving to infants and persons of unsound mind the period of two years to contest the will after the removal of their respective disabilities. In case of concealed fraud, the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been, first known or discovered.
§ 91-7-25
In any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties.
§ 91-7-27
On the trial of an issue made up to determine the validity of a will which has been duly admitted to probate, such probate shall be prima facie evidence of the validity of the will.
§ 91-7-29
On the trial of such issue, the proponent of the will shall have the affirmative of the issue and be entitled to all the rights of one occupying such position. The witnesses shall be examined orally before the jury, except where in the circuit court depositions would be admissible; and the testimony taken on the probate of the will shall be admissible if the witnesses who delivered it be dead, out of the state, or have since become incompetent.
§ 91-7-31
All original wills, after probate thereof, shall be recorded and remain in the office of the clerk of the court where they were proved, except during the time they may be removed to any other court under proper process, from which they shall be duly returned to the proper office. Authenticated copies of such wills may be recorded in any county in this state.
§ 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.
§ 91-7-35
The executor named in any last will and testament, whether made in this state or out of it and admitted to probate here on an authenticated copy or on the original, shall be entitled to letters testamentary thereon if not legally disqualified. A person shall not be capable of being executor who, at the time when letters testamentary ought to be granted, is under the age of eighteen years, of unsound mind, or convicted of a felony.
§ 91-7-37
The age of eighteen (18) years shall be the age of majority of an executor, executrix, administrator or administratrix. In case letters testamentary or of administration shall be granted to any one under twenty-one (21) years, the bond executed by such person for the performance of the duties shall be as valid and binding as if such person were of full age.
§ 91-7-39
If there be no executor named in any last will and testament, or if the executors named all renounce the executorship or, being required to qualify, shall all refuse or fail to do so or shall refuse or wilfully neglect, for the space of forty days after the death of the testator, to exhibit the will and testament for probate or shall all be disqualified, then administration with the will annexed shall be granted to the person who would be entitled to administer according to the rule prescribed for granting administration. Before granting such administration, each executor named in the will and testament who has not renounced the executorship shall be summoned to show cause why administration should not be granted. If any executor named be absent from the state at the time of the probate of the will and administration should be granted during his absence, such executor shall be allowed forty days after his return to make application for letters testamentary and, on his qualifying, the letters of administration shall be revoked; and the administrator shall deliver all the estate which has come to his hands to the executor and settle the account of his administration.
§ 91-7-41
Every executor or administrator with the will annexed, at or prior to the time of obtaining letters testamentary or of administration, shall take and subscribe the following oath, viz.:
“I do swear that the writing exhibited by me is the true last will and testament of ___, as far as I know and believe, and that I, if and when appointed as executor, will well and truly execute the same according to its tenor, and discharge the duties required by law.” In the case of an administrator with the will annexed, then say “I, as administrator, will,” and “when appointed as administrator, will” etc.
He will also give bond in such penalty as will be equal to the full value of the estate, and with such sureties as may be approved of by the court or by the clerk, payable to the state, with the following conditions, viz.:
“The condition of this bond is, that if the above bound ___, as executor of the last will and testament of ___, shall well and truly execute the will as far as the same may be consistent with law, and faithfully discharge all the duties required of him by law, then this obligation shall be void.” If the obligor be administrator with the will annexed, then say “the above bound ___, as administrator with the will of ___ annexed, will,” etc.
§ 91-7-43
If the executor be a residuary legatee, he may, instead of the bond required of other executors, give bond payable to the state in a sum, with two or more sureties, to the satisfaction of the court or clerk, conditioned to pay all the debts and legacies of the testator within one year. In such case the executor shall not be required to return an inventory or appraisement, but he shall file with his petition a sworn statement of the amount of the indebtedness of the testator, so far as he can ascertain the same. The giving of such bond shall not discharge the estate of the testator from liability for the payment of his debts; and such bond shall be subject to suits in the same manner as the bond required of other executors.
§ 91-7-45
If the testator, by will, direct that his executor shall not be required to give bond, then none shall be required unless the court or the clerk, at the time of granting the letters or afterwards, shall have reason to require bond, in which event it shall be the duty of the court or clerk to require bond with sufficient sureties. If any creditor of such testator petition the court or the clerk in vacation, under oath, stating his claim and that he believes he is in danger of losing his demand, or some of it, by the bad management of said estate or by the personal insolvency of the executor, such executor, having had five days' notice of the petition, shall be required to give a bond with sureties, to be approved by the court or clerk in vacation, payable to said creditor in a sufficient sum to cover his legal demand, and conditioned to save him from all loss by reason of any act or omission of such executor. Instead of such bond, the executor may give bond as if he had not been relieved from it by the will. If the bond required in either case be not given, it shall be the duty of the court or clerk to remove the executor and grant letters of administration, with the will annexed, to some other person.
§ 91-7-47
(1) Every executor or administrator with the will annexed, who has qualified, shall have the right to the possession of all the personal estate of the deceased, unless otherwise directed in the will; and he shall take all proper steps to acquire possession of any part thereof that may be withheld from him, and shall manage the same for the best interest of those concerned, consistently with the will, and according to law. He shall have the proper appraisements made, return true and complete inventories except as otherwise provided by law, shall collect all debts due the estate as speedily as may be, pay all debts that may be due from it which are properly probated and registered, so far as the means in his hands will allow, shall settle his accounts as often as the law may require, pay all the legacies and bequests as far as the estate may be sufficient, and shall well and truly execute the will if the law permit. He shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor.
(2) In addition to the rights and duties contained in this section, he shall also have those rights, powers and remedies as set forth in Section 91-9-9.
§ 91-7-49
Whenever any last will and testament shall empower and direct the executor as to the sale of property, the payment of debts and legacies, and the management of the estate, the directions of the will shall be followed by the executor, and the provisions herein contained shall not so operate as to require the executor to pursue a different course from that prescribed in the will, if it be lawful. If land be directed by the will to be sold, the sale shall be made and the proper conveyance executed by the executors, or such of them as shall undertake the execution of the will, or by the person appointed by the will to execute the trust. If the executor fail to qualify or die before he execute the will, and if the person appointed fail to execute the trust, the sale shall be made by the administrator with the will annexed. The executor shall, in all cases, make publication for creditors to probate their claims, as required in the administration of the estates of intestates and with like effect, any provision of the will to the contrary notwithstanding.
§ 91-7-51
The receipt by an executor or any trustee, whether under a will or other instrument, for any money payable to him in the execution of his trust shall discharge the person paying it from any liability to see to the application of the money, unless otherwise expressly provided in the instrument which creates the trust.
§ 91-7-53
Whenever it shall be necessary for the care and preservation of the estate of a decedent before the grant of letters testamentary, or of administration, to the person entitled thereto, the chancery court or chancellor in vacation, or the clerk of such court, on the petition of any creditor or other interested person, shall appoint a suitable person to be known as “temporary administrator.” The person named as executor or the person apparently entitled to letters of administration may be appointed temporary administrator, unless the court shall find that the circumstances require the appointment of a different person.
Whenever an appeal shall be taken from the grant of letters testamentary, or of administration, or whenever a last will and testament shall be contested, the chancery court or chancellor in vacation, on petition of any interested person, may appoint a temporary administrator if it shall appear necessary for the protection of the rights of the parties, and may make such appointment on such terms and impose such conditions as may seem proper.
The powers of such temporary administrator may be special or general, as the court may find proper, and he may be authorized to take charge of, preserve, and administer the estate until the appeal or contest shall be determined. Letters may be issued to him in ordinary form, except that he shall be therein designated as temporary administrator, and any terms or conditions imposed shall be stated therein; and the letters shall state that he is to act only until another appointment shall be made, either temporary or permanent.
§ 91-7-55
Before the temporary administrator shall act as such, he shall take and subscribe an oath at or prior to the time of his appointment to faithfully discharge the duties required of him by law as such temporary administrator, and shall give bond, payable to the state, in such penalty and with such sureties as may be approved by the court or clerk, conditioned for the faithful discharge of the duties required of him as such temporary administrator by law or by order of the court or clerk. Thereupon, the estate shall be appraised as now provided by law upon the grant of letters testamentary or of administration, unless the same shall be dispensed with by the court or clerk. The temporary administrator shall make and return to the court a complete inventory of the estate, as is required by law to be made by executors in general or regular administrators, and, as soon as practicable, shall publish the notice provided by law to be published by executors and administrators, requiring creditors to have their claims against the estate probated and registered. All the provisions of the law governing such notice, the proof and registering of claims, and the bar of such as are not proved and registered shall apply when the notice is published by the temporary administrator, as when published by an executor or a general or regular administrator. When the temporary administrator shall have published such notice, no further notice to creditors to have their claims probated and registered shall be given or published upon any subsequent grant of letters testamentary or of administration; and where the estate has been appraised upon the appointment of a temporary administrator, no other appraisement shall be made upon the grant of letters testamentary or of the administration thereafter, unless the court or clerk shall deem the appraisement necessary or advisable.
§ 91-7-57
The temporary administrator shall have power, and it shall be his duty, to collect the goods, chattels, personal property and debts of the decedent and to give acquittances for debts and liabilities upon payment. He may sue and be sued in all cases in which a general or regular administrator may sue or be sued; and suits brought by or against him shall not abate by the termination of his authority, but may be prosecuted by or against the executor or administrator thereafter appointed, and judgments recovered by or against him may be enforced by or against the executor or regular administrator thereafter appointed. The court, or chancellor in vacation, may at any time authorize the temporary administrator to sell such of the estate as may be perishable, likely to deteriorate in value, or be expensive to keep, and to dispose of any crops for cash, and to account for such property sold or disposed of. The court or chancellor, in ordering the sale of such property, shall take into consideration any disposition thereof by last will and testament, in case there be such, and shall order the sale of such property or not, as may be best for the parties in interest. After ninety (90) days from the time the temporary administrator was appointed and the time for probating claims has expired, the court or chancellor in vacation may order the temporary administrator to pay the claims of creditors and to hold the balance of the estate to await the ultimate probate or defeat of such last will and testament. In case the court, or chancellor in vacation, shall order the temporary administrator to pay creditors and make distribution, or to do either, he shall have all the powers and rights for the purpose over the estate, real and personal, that are conferred by law upon general or regular administrators; and all laws governing the acts and duties of a general or regular administrator shall then apply to and govern the temporary administrator.
§ 91-7-59
On the grant of letters testamentary or of administration, the powers of a temporary administrator shall cease, and it shall be his duty at once to settle his accounts with the court or chancellor in vacation and to deliver all the estate that may be in his hands to the person to whom letters testamentary or of administration shall have been granted. In case of refusal, the court or chancellor may proceed against him by attachment and impose a fine, as for a contempt, not exceeding twenty percent (20%) upon the amount of the estate in his hands; and his bond may be put in suit by the executor or administrator. The temporary administrator shall, at the same time, furnish the executor or administrator with a list of all judgments or suits to which he is a party. The court, or chancellor in vacation, may allow the temporary administrator such compensation as may be just, not exceeding five percent (5%) on the amount of the estate inventoried by him.
§ 91-7-61
If necessary, an administrator may be appointed to institute and conduct suits, whose power shall cease when the litigation is entirely closed and who shall only account for the proceeds of the suit.
§ 91-7-63
(1) Letters of administration shall be granted by the chancery court of the county in which the intestate had, at the time of his death, a fixed place of residence. If the intestate did not have a fixed place of residence, then by the chancery court of the county where the intestate owned land. If the intestate did not have a fixed place of residence and did not own land, then by the chancery court of the county where the intestate died. The court shall grant letters of administration to the relative who may apply, preferring first the husband or wife and then such others as may be next entitled to distribution if not disqualified, selecting amongst those who may stand in equal right the person or persons best calculated to manage the estate; or the court may select a stranger, a trust company organized under the laws of this state, or of a national bank doing business in this state, if the kindred be incompetent. If such person does not apply for administration within thirty (30) days from the death of an intestate, the court may grant administration to a creditor or to any other suitable person.
(2) In addition to the rights and duties of the administrator contained in this chapter, he shall also have those rights, powers and remedies as set forth in Section 91-9-9.
§ 91-7-65
Letters of administration shall not be granted to a person under the age of eighteen (18) years, of unsound mind, or convicted of any felony.
§ 91-7-67
The person to whom administration is granted, at or prior to the granting thereof, shall take and prescribe the following oath:
“I do swear that ___, deceased, died without any will, as far as I know or believe, and that I, if and when appointed, will well and truly administer all the goods, chattels, and credits of the deceased, and pay his debts as far as his goods, chattels, and credits will extend and the law requires me, and that I will make a true and perfect inventory of the said goods, chattels, and credits, and a just account, when thereto required. So help me God.”
He shall give bond in a penalty equal to the value of all the personal estate, with such sureties as may be approved by the court or clerk, payable to the state, with condition in form or to the effect following, to wit:
“The condition of this bond is, that if the above bound ___, as administrator of the goods, chattels, rights, and credits of ___, deceased, shall faithfully discharge all the duties required of him by law, then this obligation shall be void.”
The chancellor, in termtime or in vacation, may waive or reduce the bond if the administrator is the decedent's sole heir or if all the heirs are competent and present their sworn petition to waive or reduce such bond.
§ 91-7-68
Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent's estate in the manner required by law. Such fiduciary's bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting.
§ 91-7-69
If an executor or administrator die, resign, be removed, or become incompetent, letters of administration de bonis non with the will annexed, or de bonis non, shall be granted to the person entitled, and he shall proceed in the administration of the estate. The letters, bond, and oath shall be in the common form, substituting proper words to show the character of the administration. The executor of an executor shall not be entitled, in right of his office, to administration de bonis non of the first estate; but such executor, or the administrator of an executor, or the executor or administrator of an administrator shall settle the accounts of his testator or intestate in the administration of the first estate, and for that purpose shall be amenable to the jurisdiction of the court.
§ 91-7-71
Every administrator de bonis non shall be entitled to all choses in action taken or held by any former executor or administrator, and may institute suit therefor and, if necessary, enjoin the former executor or administrator from collecting the same. He may sue on the bond of any former executor or administrator of the estate, where the estate is insolvent or where suit and recovery may be necessary for the payment of the debts of the estate, for any money due by the former executor or administrator and which should have been accounted for and paid over by him. Where it shall be necessary for the payment of debts of the estate, an administrator de bonis non may except to the final account of a former executor or administrator, or surcharge and falsify an annual or partial settlement of such former executor or administrator, or file and maintain a bill to review any order or decree of the court allowing the account of such executor or administrator, in the same manner that distributees or legatees may do. The court or chancellor may require of an administrator de bonis non an additional bond to cover the money sought to be recovered by any such proceedings.
§ 91-7-73
It shall be the duty of the chancellor to appoint for each county of his district an officer to be styled “county administrator,” to hold his office four years, and whose appointment shall be entered on the minutes of the court.
§ 91-7-75
Before a county administrator shall perform any of the duties or functions of the office, and before any letters shall be granted to him, he shall execute and file in the office of the clerk of the chancery court a bond with two (2) or more sufficient sureties, to be approved by the chancellor in termtime or vacation, in a penalty of Five Thousand Dollars ($5,000.00) payable to the state, conditioned that he will discharge all the duties of the office of county administrator, which bond may be sued on at the instance of any person interested. He shall also take an oath at or prior to the granting of letters of administration, to be filed in the clerk's office, to administer according to law every estate which may be committed to his charge, and that he will account for and pay over all monies in his hands by virtue of his office when thereto required by order of the court.
§ 91-7-77
Whenever it shall appear that the penalty of the bond of the county administrator, as fixed, is not sufficient in amount to secure a faithful discharge of the duties of the office, it shall be the duty of the court or the chancellor, or the clerk in vacation, after five days' notice given, to require him to give an additional bond in such penalty as the chancellor or clerk may deem sufficient to secure the rights of all parties interested; and on noncompliance, he may be removed from office.
§ 91-7-79
When it shall appear that any person has died, in this state or out of it, and has left real or personal property in this state, and some person has not applied for letters testamentary or of administration, the administration of the estate, after the expiration of sixty days from the death of such person, shall be committed to the county administrator, to whom letters of administration, administrator de bonis non, administration with the will annexed, or as the case may require, shall be granted. He shall administer the estate, as in other cases, under the direction of the court, with the same rights and liabilities as executors and other administrators. The county administrator shall not be bound to incur or be liable for costs, except such as the estate in his hands, in excess of his commissions shall be sufficient to pay. On the final settlement of the estate, he shall be allowed by the court, as his commissions, a sum not to exceed ten percent (10%) on the whole estate administered. The county administrator may also be appointed temporary administrator pending an appeal from the grant of letters testamentary or of administration, and administrator to institute suit in proper cases. He shall be liable in all cases on his official bond for his acts, and another bond need not be executed by him in any case unless, his official bond being insufficient, the court shall require an additional bond, or where he may be required to give bond to account for the proceeds of a sale of land.
§ 91-7-81
Should the county administrator resign his office or otherwise vacate it, he shall forthwith file an account of his administration in each case. Should such officer die, settlements of all estates committed to him shall be made by his executor or administrator.
§ 91-7-83
If it appears that any person has died, in this state or out of it, and has left property, and some person will not qualify as executor or administrator, the court, or clerk in vacation, shall appoint the sheriff to be administrator, who shall administer the estate. The sheriff shall not be bound to incur any cost except out of the estate, and he shall be allowed not more than ten percent (10%) on the amount thereof. Any sheriff who may be appointed administrator shall make settlement of his administration, if he hath not done so before, at the termination of his office and deliver whatever property he may have of the estate at the time to his successor in office, or to such other person as may be appointed administrator. His official bond as sheriff shall be security for his faithful administration of such estate, and he shall not be required to execute any other bond, except to account for the proceeds of a sale of land.
§ 91-7-85
Every executor or administrator may be removed if he become disqualified, or for improper conduct in office, at the instance of any person interested, on five days' notice to such executor or administrator; or may surrender the trust, and thereupon shall give the proper notice to the distributees or legatees and settle with the court. In case of removal or resignation, administration shall be granted as in case of the death of the executor or administrator, and with like effect. An executor or administrator who may be removed, or who may surrender his trust, shall continue to be answerable to the court until his final settlement and satisfaction be made, and until that time shall be liable on his bond.
§ 91-7-87
If a will shall be found and probated and letters testamentary be granted thereon, the same shall be a revocation of the administration; but acts lawfully done by the administrator without actual notice of such revocation shall be valid and binding.
§ 91-7-89
If letters testamentary or of administration be granted to any person not a resident of the state, or if any executor or administrator after his appointment remove out of the state, and if such executor or administrator refuse or neglect to settle his accounts annually or neglect the due administration thereof in any other respect, the court, after publication made and proof thereof as in other cases, or personal notice, may revoke the letters of such executor or administrator and proceed to grant administration de bonis non as if such executor or administrator had died or resigned.
§ 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.
§ 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 91-7-90. However, 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.
§ 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.
§ 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.
§ 91-7-97
In case an inventory be returned by a temporary administrator, the executor or administrator who may succeed to the administration shall, within ninety days after the grant of his letters, either return a new inventory in place of the collector's inventory or file a written acknowledgment of the receipt of the articles contained in the first inventory and consent to be answerable for the same.
§ 91-7-99
If there be more than one executor, administrator, or temporary administrator, they shall all join in returning the inventories. If one or more refuse to do so, the others may return them, and the power and authority of the person so refusing shall thereafter cease. Those who return the inventory shall proceed in the administration, unless the delinquent, within sixty days, assign a reasonable excuse which the court may deem satisfactory.
§ 91-7-101
The naming of an executor in a will shall not operate to extinguish any claim which the deceased had against him, but it shall be the duty of every such executor accepting the trust to give in such claim in the list of debts. On his failure to give in such claim or any part thereof, any person interested in the estate may allege the facts by petition to the court, and the court shall decide on the validity of the claim, if it be denied. When the claim is established, the executor shall account for it as a debtor to the estate, and not otherwise; and in the same way and subject to all the foregoing provisions, an administrator shall give in a claim against himself.
§ 91-7-103
If the goods, chattels, and effects are improperly withheld from the executor or administrator, then he shall not be answerable for a failure to return the inventories herein required until the goods, chattels, and effects, or some part thereof, have been received. If the executor or administrator shall have cause to believe that any of the assets of the estate are concealed or have been or are wrongfully withheld from him, or that any person has in his possession or under his control any records, books, or documents containing evidence concerning such assets and the ownership thereof, or has knowledge or information thereof otherwise, then it shall be the duty of such executor or administrator to forthwith proceed by a summary petition before the court or chancellor against all persons suspected of having concealed or wrongfully withheld such assets, as well as all persons having books, records, documents, or information relating thereto, for a discovery of the assets of the estate and all adverse claim thereto, if any. All persons made parties to such petition may be compelled by attachment for contempt to discover under oath by answer filed or testimony given, either or both at such time and place as the court or chancellor may direct, all the facts known to them concerning the assets of the estate and of all adverse claims thereto, if any. If on the hearing it shall appear that any person has property or assets of the estate to which there is no adverse claim, the court or chancellor may direct it to be delivered to the executor or administrator, who shall forthwith account therefor in his inventory. No decree shall be rendered in such proceeding concerning any adverse claim set up by any person to any of the assets. The costs of such proceeding shall be borne by the estate.
§ 91-7-105
If any executor, administrator, or temporary administrator fail to return proper inventories within the time prescribed by law or by order of the court, a summons returnable in not less than five days may, on application of any person interested, be issued for such executor, administrator, or collector to show cause why such inventory hath not been returned. If the summons be returned executed and such party do not appear or, appearing, fail to show good cause, the court, or clerk in vacation, shall revoke the letters and grant administration anew.
§ 91-7-107
If any person interested discover that the inventory returned does not contain a full account of all the property, goods, chattels, and effects of the deceased, such person may, on petition to the court, have the executor, administrator, or temporary administrator cited to appear and show cause why an additional inventory should not be returned. If, on hearing, the court be satisfied that a true inventory was not originally returned, it may order the executor or administrator to return a new one; and on his failure to do so, his letters may be revoked. If the title to any property not inventoried be in dispute, it shall be sufficient for the executor, administrator, or collector so to report; and he shall not be required to return an additional inventory until the title be settled in his favor. It shall also be the duty of every executor and administrator to return additional inventories at least once in each year of the increase of the property of the estate, if there be any such increase.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 91-7-143
An executor or administrator of a solvent estate may defray the necessary and reasonable expenses of the maintenance and education of legatees or distributees who are minors and have no guardian, and may be allowed a credit therefor against the shares of the estate to which such minors are entitled on distribution. Before making such expenditures, he shall obtain the order of the court, or of the chancellor in vacation, authorizing him to make them.
§ 91-7-145
(1) The executor or administrator shall make reasonably diligent efforts to identify persons having claims against the estate. Such executor or administrator shall mail a notice to persons so identified, at their last known address, informing them that a failure to have their claim probated and registered by the clerk of the court granting letters within ninety (90) days after the first publication of the notice to creditors will bar such claim as provided in Section 91-7-151.
(2) The executor or administrator shall file with the clerk of the court an affidavit stating that such executor or administrator has made reasonably diligent efforts to identify persons having claims against the estate and has given notice by mail as required in subsection (1) of this section to all persons so identified. Upon filing such affidavit, it shall be the duty of the executor or administrator to publish in some newspaper in the county a notice requiring all persons having claims against the estate to have the same probated and registered by the clerk of the court granting letters, which notice shall state the time when the letters were granted and that a failure to probate and register within ninety (90) days after the first publication of such notice will bar the claim. The notice shall be published for three (3) consecutive weeks, and proof of publication shall be filed with the clerk. If a paper be not published in the county, notice by posting at the courthouse door and three (3) other places of public resort in the county shall suffice, and the affidavit of such posting filed shall be evidence thereof in any controversy in which the fact of such posting shall be brought into question.
(3) The filing of proof of publication as provided in this section shall not be necessary to set the statute of limitation to running, but proof of publication shall be filed with the clerk of the court in which the cause is pending at any time before a decree of final discharge shall be rendered; and the time for filing proof of publication shall not be limited to the ninety-day period in which creditors may probate claims.
§ 91-7-147
Where the value of an estate shall not be more than Five Hundred Dollars ($500.00), the court shall dispense with newspaper notices; and notices in lieu thereof shall be posted for thirty (30) days at the courthouse door and two (2) other public places in the county. Failure of persons having claims against the estate to have their claims probated and registered by the clerk of the court granting letters within ninety (90) days after the date on which notice is posted will bar such claims as provided in Section 91-7-151.
§ 91-7-149
Any person desiring to probate his claim shall present to the clerk the written evidence thereof, if any, or if the claim be a judgment or decree, a duly certified copy thereof, or if there be no written evidence thereof, an itemized account or a statement of the claim in writing, signed by the creditor, and make affidavit, to be attached thereto, to the following effect, viz.: That the claim is just, correct, and owing from the deceased; that it is not usurious; that neither the affiant nor any other person has received payment in whole or in part thereof, except such as is credited thereon, if any; and that security has not been received therefor except as stated, if any. Thereupon, if the clerk shall approve, he shall indorse upon the claim the words following: “Probated and allowed for $__________ and registered this ___ day of __________, A.D., ,” and shall sign his name officially thereto. Probate registration and allowance shall be sufficient presentation of the claim to the executor or administrator; provided, that should the clerk probate and allow and register the claim, but fail or neglect to indorse thereon the words, “Probated and allowed for $ and registered the ___ day of __________, A.D., ,” and officially sign his name thereto, the court may, upon proper showing, allow the clerk to indorse on the claim, nunc pro tunc, the words, “Probated and allowed for $ and registered, this the ___ day of __________, A.D., __________,” and sign his name officially thereto. If the claim be based upon a demand of which there is no written evidence or upon an itemized account, the statement of said claim or the itemized account shall be retained and kept by the clerk among the official papers pertaining to the estate; and if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim either the original thereof or a duplicate of such original in the discretion of the creditor. If the original writing is presented to the clerk, it may be withdrawn by the creditor, and the clerk shall make a duplicate thereof. No specific writing or certificate shall be required to be made by the clerk on either the original writing or the duplicate retained by the clerk. In no instance shall an original writing be required to be presented to the clerk unless (a) a question is raised by the personal representative of the estate, or by any party in interest, as to the authenticity of the original or (b) in the circumstances it would be unfair to admit into evidence the duplicate in lieu of the original. In either of the above situations, the court or chancellor, upon good cause being shown, may require the creditor to produce the original before the court or clerk for the inspection of the personal representative or other party in interest, who may examine the original and who may make photographic copies thereof under the supervision of the clerk.
Notwithstanding the foregoing, any record, voucher, claim, check, draft, receipt, writing, account, statement, note or other evidence which may be furnished, filed, probated, presented or produced, or required to be produced, by a federally regulated bank, thrift or trust company shall be deemed to be an original admitted, furnished, filed, probated, presented, or produced for all purposes and with the same effect as the original, if such financial institution produces a copy of such evidence from a format of storage commonly used by financial institutions, whether electronic, imaged, magnetic, microphotographic or otherwise.
§ 91-7-151
All claims against the estate of deceased persons, whether due or not, shall be registered, probated and allowed in the court in which the letters testamentary or of administration were granted within ninety (90) days after the first publication of notice to creditors to present their claim. Otherwise, the same shall be barred and a suit shall not be maintained thereon in any court, even though the existence of the claim may have been known to the executor or administrator. Where the affidavit is made in good faith and the claim is registered, probated and allowed by the clerk but the affidavit is defective or insufficient, the court may allow the affidavit to be amended so as to conform to the requirements of the statute, at any time before the estate is finally settled; whereupon the probate shall be as effective and the claim as valid against the estate as if the affidavit had been correct and sufficient in the first instance.
§ 91-7-153
The presentation of a claim, and having it probated and registered as required by law, shall stop the running of the general statute of limitations as to such claim, whether the estate be solvent or insolvent.
§ 91-7-155
It shall be the duty of an executor or administrator to speedily pay the debts due by the estate out of the assets, if the estate be solvent; but he shall not pay any claim against the deceased unless the same has been probated, allowed, and registered.
§ 91-7-157
An executor or administrator shall pay all taxes that may be due on real and personal property belonging to the estate.
§ 91-7-159
The executor, trustee, or other fiduciary having discretionary powers under a last will and testament or transfer in trust shall be authorized to enter into agreements with the commissioner of internal revenue of the United States of America and other taxing authorities to exercise the fiduciary's discretion so that the assets to be distributed in satisfaction of a bequest or transfer in trust will be selected in such a manner that cash and other properties distributed will have an aggregate fair market value representative of the pecuniary legatee's or transferee's proportionate share of the appreciation or depreciation in value to the date, or dates, of distribution of all property then available for distribution in satisfaction of such bequest or transfer. It is the purpose of this section to authorize such fiduciary to enter into any agreement that may be necessary or advisable in order to secure for federal estate tax purposes the maximum marital deduction available under the Internal Revenue Laws of the United States of America, and to do and perform all acts incident to such purpose.
§ 91-7-161
The executor or administrator may pay any debt, duly probated, allowed and registered, which is not due. After ninety (90) days from the grant of letters, the creditor shall accept payment thereof and give a full discharge therefor, upon the payment or tender to him of an amount equal to what the debt would have been had it been made payable on the day the payment or tender is made.
§ 91-7-163
An executor or administrator shall not be allowed to retain any part of the assets in payment of his own claim against the deceased, unless the same be probated and registered as other claims and passed by the court. Every such claim shall stand upon an equal footing with other claims of the same nature.
§ 91-7-165
The executor or administrator, legatee, heir, or any creditor may contest a claim presented against the estate. The court or clerk may refer the same to auditors, who shall hear and reduce to writing the evidence on both sides, if any be offered, and report their findings with the evidence to the court. Thereupon the court may allow or disallow the claim, but such proceeding shall not be had without notice to the claimant.
§ 91-7-167
A creditor of a decedent who has a lien of any kind on property of the decedent shall not be barred of his right to enforce the lien against the property by a failure to present his claim and have it probated and registered, but shall be barred of all claim to be satisfied out of the assets not affected by such lien. A person claiming to have a lien on any property of the decedent may be made a party to any proper proceeding by the executor or administrator or a creditor to test the validity of such claim to a lien, and to determine upon the right of such claim. This may be in a proceeding to sell property, which may be ordered to be sold free from such lien, or subject to it; and the decree may be made as to a sale and disposition of the proceeds of the sale of the property, as may be according to the rights of parties before the court.
§ 91-7-169
The court or chancellor may, on the application of an executor or administrator, decree the sale of the crop growing at the time of the death of the testator or intestate, upon such terms and in such manner as may be deemed best. If the interest of the estate would be promoted by the cultivation and completion of the crop, on application therefor by the executor or administrator, it shall be so ordered by the court or chancellor; and in such case the executor or administrator shall take charge of the farm and manage the same until the crop be completed and gathered, retaining for that purpose so much of the property thereon as may be necessary. The proceeds shall be assets in his hands, the necessary expenses being first deducted; and, in either case, the executor or administrator shall render a true account of the crop. In case of the sale of the growing crop, the purchaser thereof may at all reasonable times enter upon the lands to cultivate and gather the same.
§ 91-7-171
The court or chancellor, upon the application of executor or administrator, may allow him to cultivate or lease the farm or lands of the decedent for a period of not exceeding fifteen months from the grant of letters testamentary or of administration, if the interest of the estate, in the opinion of the court or chancellor, would be promoted thereby; or the court or chancellor, upon the application of the executor or administrator, may allow him to cultivate or lease the farm or lands of the decedent from year to year for the purpose of paying the debts of the decedent.
§ 91-7-173
The chancery court or the chancellor in vacation shall have the power to authorize the executor or administrator of a decedent, when not contrary to the provisions of a will, to continue as a going concern for a period of not exceeding three (3) years after the grant of letters, the business in which the decedent was engaged at the time of his death and, where such business is a mercantile or other business of like nature, to allow the purchase of goods in small quantities necessary to replenish the stock and promote the sale thereof, and to permit the sale of the stock of goods at retail in the regular course of business. Said stock of goods, however, shall not be sold at less than cost thereof, except by a previous order of the court or chancellor.
§ 91-7-175
The court or clerk may order the sale of perishable property on such notice as may be prescribed, whether required for the payment of debts or not.
§ 91-7-177
The court, or the chancellor in vacation, may authorize the executor or administrator to sell personal property at a private sale.
§ 91-7-179
The executor or administrator, without an order therefor, may sell for cash, either at public or private sale, perishable goods or chattels or livestock of the decedent, whether it be necessary for the payment of debts and expenses of administration or not. He may likewise sell any personal property of the decedent necessary for the payment of the debts and expenses, but he shall realize therefor at least the appraised value of such property.
§ 91-7-181
An executor or administrator may sell the interest of his testator or intestate in a ship, vessel, steamboat, other water craft, or other property which he cannot produce, without the same being present at the time and place of sale.
§ 91-7-183
If it be necessary to sell personal property for the payment of debts, or in case there are no debts and it is to the best interest of all parties concerned, the executor or administrator shall file a petition for an order of sale in which the reasons for the same shall be made known. In case there are no debts, five days' notice to the parties in interest who have not joined in said petition shall be given of the time and place of hearing said petition, or publication made, as provided by law, for nonresident or unknown defendants in chancery. If the court or chancellor in vacation be satisfied that a sale is necessary or proper, an order may be made for the sale of part or the whole of the personal estate; and if a part be ordered sold, the court or chancellor in vacation in selecting such part shall have in view the best interest of the creditors and distributees. The executor or administrator shall advertise in three or more public places in the county ten days before the sale, and shall sell the property designated in the order at public sale to the highest bidder, either for cash or credit, as the order of sale may direct. The executor or administrator shall not become the purchaser of any property which he may sell, either directly or indirectly, nor shall any executor or administrator take the estate or any part thereof at the appraised value.
§ 91-7-185
Whenever personal property shall be sold by an executor or administrator, he shall make report thereof in writing to the next term of the court, stating the time and place of sale, the name of the purchaser, and the amount of the purchase-money, and shall satisfy the court that the directions prescribed in the order for sale, if the sale be under an order, were followed. Thereupon the court shall confirm the sale, unless cause be shown to the contrary. If such sale be not reported at the next term, the court may compel the making of such report at a subsequent term, and may confirm or set aside the same. Any executor or administrator failing to make report in due time may be fined for a contempt, not exceeding One Hundred Dollars ($100.00).
§ 91-7-187
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.
§ 91-7-189
If a person purchase land and die before paying therefor, the court may order the sale of personal property for the payment of the debt due for the land. If the personal property will not be sufficient, if sold, to pay the debt, or if it be advisable that the land be sold in preference to personal property to make payment therefor, the court may order the sale of such land on such terms as may be proper. In such case the vendor of the deceased and his assignee of the debt, if any, shall be made defendants to the petition for the sale of the land.
§ 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 91-7-90.
§ 91-7-193
The fact that the insufficiency of the personal estate arose from the waste of the executor or administrator shall not be a defense to an application to sell land to pay debts, if such executor or administrator and sureties on his bond as such, if any, are insolvent or nonresidents of this state.
§ 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 91-7-90.
§ 91-7-197
When a petition shall be filed to sell or lease land to pay debts or otherwise affecting the real estate of a deceased person, all parties interested shall be cited by summons or publication, which shall specify the time and place of hearing the petition. If the petition be filed by a creditor or by a purchaser to correct a mistake in the description of the land, the executor or administrator shall be cited.
§ 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 91-7-90.
§ 91-7-201
If any mistake shall be made in the description of any land of a decedent sold or leased, either in the petition, decree, or other part of the proceedings, the same may be corrected by the court on petition of the creditor or purchaser or his assigns, and on citation to the executor or administrator.
§ 91-7-203
A decree for the sale or lease of land shall not be made if any person interested will give bond, describing therein the land sought to be sold, payable to the executor or administrator in a sum to be fixed and with sureties approved by the court, conditioned to pay all the debts duly registered against the estate and the expenses of the administration, so far as the personal estate of the deceased shall be insufficient to pay the same. Such bond shall be filed among the papers of administration and entered on the minutes of the court, and shall have the force and effect of a judgment, upon which execution and other necessary process may be issued in the name of the executor or administrator, after the expiration of six months from the date it shall have been given, against the obligors therein from time to time, until such debts and expenses of administration be paid or the penalty of the bond exhausted. The same may be levied on the lands described in the bond, and the entire interest of the deceased therein may be sold as if the court had decreed the sale in the first instance; and the property of the sureties on said bond may be sold for whatever the land may be insufficient to pay. Instead of enforcing said bond, the executor or administrator or any creditor may petition anew for the sale of the land, as if such bond had not been given; and after the sale under such proceedings, the bond may be enforced, in the manner provided, for whatever the land may be insufficient to pay, and no other bond shall be allowed to prevent a decree for a sale or lease of the land.
§ 91-7-205
(1) Except as otherwise provided in subsection (2) of this section, whenever an executor or administrator sells land pursuant to a decree of the court or chancellor in vacation, said executor or administrator shall execute bond with sufficient sureties in an amount equal to the proceeds of the sale of the land. Said bond shall be executed any time before confirmation of sale, either by the court or chancellor in vacation, and may be approved by the court, chancellor in vacation, or the clerk of the chancery court. Such bond shall be payable to the state and shall be conditioned for the faithful application of the proceeds of the sale. When, however, decree ordering the sale of land shall fix an amount or estimated amount to be paid in cash before confirmation, the executor or administrator shall, before sale, execute bond with sufficient sureties to cover such amount or estimated amount to be paid in cash, conditioned for the faithful application of the same which bond may be approved by the court, the chancellor in vacation, or the clerk of the chancery court.
After the expiration of the time in which all claims against the estate of deceased persons must be registered, probated and allowed as provided in Section 91-7-151, Mississippi Code of 1972, the chancellor may waive all or any part of the bond when all the beneficiaries to the proceeds of the sale petition the court to authorize the sale and waive the necessity of a bond.
(2) At the discretion of the court or chancellor, all or any part of the bond described in subsection (1) of this section may be waived but, in such case, the chancellor shall make adequate and sufficient provision for the maintenance and safety of the assets of the estate. Upon waiver of such bond, the court or chancellor may require the proceeds from the sale of land to be held in trust by an executor, administrator or other qualified person and may require such proceeds to be maintained as otherwise ordered by the court in such manner as the court may direct, consistent with the provisions of this subsection.
§ 91-7-207
If an executor or administrator who has been ordered to sell land of a decedent fail to give the bond required, the court may, after five days' notice to the executor or administrator, direct a master or special commissioner to make the sale, who shall give bond with sureties, as the executor or administrator was required to do, and make sale and report it and, after a confirmation of the sale, convey the land as the executor or administrator might have done under the decree. The master or commissioner shall be allowed by the court such commissions as would accrue from the sale to the executor or administrator, or such compensation as the court may order.
§ 91-7-209
Where the property of a decedent shall be sold by order of the court in which the estate is being administered, and the price paid at such sale for the property has been applied to the payment of debts for which the property might lawfully have been sold, or has been distributed to the heirs, legatees, or distributees, or to the guardians of such as have guardians, the property, if such sale were illegal, shall be charged in favor of the purchaser and his assigns with a lien for the purchase-money paid for it at such sale, and interest thereon. Such lien may be enforced in chancery or may be availed of in defense of any action for the land, in the same manner in which a claim for valuable improvements may be allowed in equity. In case of personal property, the possessor having such lien shall be entitled to retain possession until his claim be paid or tendered, unless the party having the title shall resort to the chancery court to adjust the rights of the parties and to sell said property.
§ 91-7-211
Nothing in Section 91-7-209 shall hinder the application of the doctrine of estoppel to assert title to adult heirs who received a share of the purchase-money of land as heretofore announced and applied in this state. The same rule may be applied to minors, persons of unsound mind, convicts of felony, and other wards whose guardians received for them a share of the purchase-money, whether it were actually applied to the benefit of or received by such person under disability or not.
§ 91-7-213
When an executor or administrator shall discover that the personal property will not be sufficient to pay the debts of the decedent and the expenses of the administration of the estate, he may file a petition in the chancery court in which the estate is being administered, for the purpose of borrowing money to be secured by a deed of trust, mortgage, or other encumbrance on the lands of the decedent, except the exempt property or homestead which shall not be so encumbered save to pay an indebtedness which constitutes a lien on such exempt property or homestead, and then not without the consent of the exemptionist. The money, when so borrowed, shall be used to pay said claims and expenses.
§ 91-7-215
With such petition the executor or administrator shall file and exhibit to the court a true account of the personal estate, debts due from the deceased, the expenses, and a description of the land to be used as security for the money so borrowed. The court, after service of summons or proof of publication of summons, shall hear and examine the allegations and evidence in support of the petition and the objections to and the evidence against it, if any. If on the hearing, the court be satisfied that the personal estate is insufficient to pay the debts of the deceased and said expenses, and that the land ought to be encumbered for such purposes, it may make a decree for the encumbrance of a part or the whole of the land; and when a part only is decreed to be so encumbered, the decree shall specify what part.
§ 91-7-217
In the event the land so encumbered should be thereafter sold by foreclosure or otherwise to satisfy the said debt, interest, attorney's fee, trustee's fees, or expenses of such sale, and there shall exist an overplus of money above the debt, interest, attorney's fees, trustee's fees, and expenses of such sale, the overplus shall be distributed among the heirs according to the law of descent, or among the devisees according to the will. The heir or devisee whose land shall be sold may compel all others holding or claiming under such intestate or testator to contribute in proportion to their respective interests, so as to equalize the burden of loss.
§ 91-7-219
Such decree may be rendered by the presiding chancellor of the court in vacation at any time or place within his district, provided summons has been served on the heirs of the decedent, or devisees under the will of the testator, in the manner provided by law for the service of summons on defendants in chancery for at least ten days before the hearing. In such summons, the time and place of the hearing and the purpose of the proceeding shall be definitely stated; and should the summons be published, such publication shall be completed at least ten days before the hearing.
§ 91-7-221
If any person sell lands, enter into contract to make title, and die before the title be made, then the person to whom the title was to be made, his heirs or assigns, may petition the court which granted the letters on the estate of the vendor, for an order on the executor or administrator to make title agreeably to the contract. After the parties interested have been cited by summons or by publication, the court shall hear the petition and evidence, and may decree that the executor or administrator make title according to the contract.
§ 91-7-223
The administrator, executor, or testamentary trustee may at any time, by and with the consent of the chancery court or the chancellor in vacation, when the chancellor deems it to the best interests of the estate, execute a deed of conveyance conveying any real property formerly owned by the decedent, where said decedent during his lifetime had executed any bond for title, optional contract, or other instrument conferring upon any party the right to purchase and secure title to said real property, where the execution of such conveyance is necessary in order to carry out the terms, provisions, or stipulation of the said bond for title, optional contract, or other instrument.
§ 91-7-225
In case it shall be made to appear to the court that a lease of the lands of the deceased can be made to raise the money necessary for the payment of the debts of the deceased, and that the leasing thereof will be to the interest of the devisees, legatees, heirs, or distributees, the court may, in its discretion, decree the same to be leased. If a lease of the lands, or any part thereof, be decreed, the executor or administrator shall, upon giving the notice as in like case of sale, lease the same at public outcry or privately, as directed by the decree, to the person who will take the lands for the fewest number of years, not exceeding fifteen, and pay, either in cash or at such time as shall be fixed by the decree, the specific sum to be stated therein, equal to the amount of the debts of the deceased to be paid and the expenses of administration. If the lease be on credit, the lessee shall give security for the payment of the sum, to be approved by the executor or administrator.
§ 91-7-227
The chancery court or the chancellor in vacation, when he deems it to the best interest of the estate, may authorize the administrator, executor, or testamentary trustee to renew for a specified time any obligation of the deceased and, if such obligation be secured by encumbrance on any property, to renew such encumbrance upon such property. If it be shown to the interest of the estate, such chancery court or chancellor in vacation may direct said administrator, executor, or testamentary trustee to obtain money to pay off said obligation or encumbrance and to execute a new obligation or encumbrance to secure said money; and such obligation or encumbrance extended, renewed, or made shall be a valid charge on the estate or the property included in said encumbrance. Such encumbrance, whether renewed, extended, or made, shall not include any other property not embraced in the pre-existing encumbrance.
§ 91-7-229
The court or chancellor in vacation, on petition for that purpose, may authorize the executor or administrator to sell or compromise any claim belonging to the estate which cannot be readily collected; but an order authorizing a sale of any claim shall not be made until after six months from the grant of the letters. The court or chancellor shall specify the terms, conditions, and notice of such sale. In compromising any claim, the executor or administrator may receive property, real or personal, in his name as such, and he shall account for the same as assets of the estate. The executor or administrator shall report, in writing, all sales and compromises to the next term of the court.
§ 91-7-231
An executor, administrator, or temporary administrator may maintain any action or suit which shall accrue to him in the due course of administration, on any contract which he is authorized to make as such, or for the recovery of personal property, or for injuries thereto.
§ 91-7-233
Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted. They shall also be liable to be sued in any court in any personal action which might have been maintained against the deceased.
§ 91-7-235
When any decedent shall in his lifetime have committed any trespass, the person injured, or his executor or administrator, shall have the same action against the executor or administrator of the decedent as he might have had or maintained against the testator or intestate, and shall have like remedy as in other actions against executors and administrators. Vindictive damages shall not be allowed, and such action shall be commenced within one year after publication of notice to creditors to probate and register their claims.
§ 91-7-237
When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator. If such executor or administrator, having been duly served with a scire facias or summons five days before the meeting of the court, shall neglect or refuse to prosecute or defend the suit, the court may render judgment in the same manner as if such executor or administrator had voluntarily made himself a party to the suit. The executor or administrator who shall become a party shall be entitled to a continuance of the cause until the next term of the court.
§ 91-7-239
A suit or action shall not be brought against an executor or administrator until after the expiration of ninety (90) days from the date of letters testamentary or of administration.
§ 91-7-241
If any executor or administrator die, resign, or be removed, suits or actions commenced by or against him shall not, for that reason, abate; but the same may be prosecuted by or against his successor, who may make himself a party by proper suggestion or, if he fail to do so, may be brought in by the opposite party by summons or scire facias. Judgments recovered by or against an executor or administrator who has died, resigned, or been removed may be revived for or against his successor in the same way.
§ 91-7-243
Executors, administrators, and temporary administrators shall not be bound to plead specially to any action or suit at law brought against them, but they may give any special matter in evidence under the general issue. An executor or administrator, or the sureties on his bond, shall not be chargeable beyond the amount of the assets of the testator or intestate by reason of any mistake, omission, or false pleading of the executor or administrator.
§ 91-7-245
Any legatee, heir, distributee, or creditor may be admitted by the court to defend any suit against the executor or administrator of the estate in which he is interested, and the case shall be tried and judgment rendered as if the suit had been defended by the executor or administrator; but judgment shall be given against the party for costs incurred in consequence of his becoming a party, if judgment shall be had against the executor or administrator.
§ 91-7-247
When there are two (2) or more administrators of an estate, and one or more of them take all the assets, or the greatest part thereof, and refuse to pay the debts or funeral expenses of the deceased, or to account with the other, the court, on petition of the aggrieved administrator and five (5) days' notice thereof to the other, may make an order requiring the delivery or payment to the aggrieved administrator of the proportionate share of the estate to which he is entitled. To enforce compliance, the court may revoke the letters of the administrator in default, and may fine him not exceeding One Hundred Dollars ($100.00) or imprison him not exceeding three (3) months as for contempt. Any executor being a residuary legatee may proceed in the same way and with like effect against his co-executor to recover his part of the estate.
§ 91-7-249
If any person shall alienate or embezzle any of the goods, chattels, personal property, or money of a person deceased, before taking out letters testamentary or of administration, such person shall be liable to the action of creditors and other persons aggrieved, as being executor in his own wrong.
§ 91-7-251
The executor or administrator of an executor de son tort shall be liable to a recovery to the extent of the value of the property received or held by such executor de son tort, if sufficient assets shall have been received to pay the same. Any one who may have become liable as executor de son tort in any other state shall be liable to be sued in this state as such by any creditor, legatee, or distributee.
§ 91-7-253
No executor, administrator, guardian, receiver or other fiduciary appointed by or acting pursuant to the authority of any chancery court may borrow or use for his own benefit, directly or indirectly, any of the funds or property of the estate committed or entrusted to him by such court, nor purchase or acquire, directly or indirectly, any interest therein adverse to any creditor or beneficiary of such estate. Nor may he loan the same, or any part thereof, to any parent, brother, sister, son, daughter of, or one in loco parentis to the ward or himself, nor to any attorney or agent representing him or such estate, nor to the wife or any child of such attorney or agent. Nor may any court or chancellor authorize or ratify any such prohibited use, acquisition or loan.
Provided, however, the above prohibitions shall not extend to prohibit the investment by a banking corporation of the funds of an estate committed or entrusted to it in time certificates of deposit, provided such be approved by the chancellor, and the banking corporation shall first secure such certificates of deposit in excess of the portion insured by the Federal Deposit Insurance Corporation, as provided in section 81-5-33, Mississippi Code of 1972.
§ 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.
§ 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 91-7-90. Before any decree for sale is made, the devisees or heirs shall be made parties to the proceeding.
§ 91-7-263
Any creditor of the decedent may represent to the court that the estate is insolvent, and thereupon the executor or administrator and heirs or devisees shall be summoned to answer whether or not it be insolvent. If it shall be found so, like proceedings shall be had as when an estate is represented to be insolvent by the executor or administrator.
§ 91-7-265
Where an estate is found to be insolvent after a sale of all the property, real and personal, it may be decreed to be insolvent and be proceeded with accordingly.
§ 91-7-267
If an estate be declared insolvent after the executor or administrator has made publication to the creditors to present their claims and have them probated and registered, another publication to present claims shall not be necessary. If an estate be declared insolvent before the executor or administrator has made such publication, the court shall order the executor or administrator to make publication, requiring the creditors to present their claims within ninety (90) days and have them probated and registered. Any creditor who shall not register his claim by the day stated in the publication shall be forever barred.
§ 91-7-269
When the time for probating and registering claims has elapsed, the court shall cause notice to be inserted for three successive weeks in some newspaper published in the county that at a time fixed the claims will be taken up for examination and adjudication by the court or by the clerk in vacation, as the order may designate, that all claims not required by law to be probated and registered must be filed with the clerk by the day named in the notice, and that all creditors may attend. At the time appointed the court shall examine into the validity of each claim which has been probated and registered and such other claims as may have been filed with the clerk. The executor or administrator or any creditor may object to any claim, and the court shall hear evidence in support of the objection, shall allow any claim that should be allowed, and shall reject in whole or in part any which is in whole or in part not well founded. It shall not be necessary for any creditor to refile with the clerk any claim which has been duly probated and registered within the time and in the manner required by law. All other claims, unless filed with the clerk by the day named in the notice, shall not be allowed; but lawful claims, not required to be probated and registered, which are not filed with the clerk by the day named in the notice shall not be barred as to any surplus that remains after paying in full all claims allowed by the court at the examination and adjudication named in the notice. Provided, however, that in cases where the executor or administrator shall have, prior to the adjudication of insolvency, paid any claim or claims, whether probated and registered or not, such executor or administrator shall have the right by the day named in the notice, to file with the clerk a verified itemized statement of the amount which has been paid thereon, and obtain allowance therefor in the same amount to which the creditor or creditors, whose claim or claims had been so paid, would have been entitled had such creditor filed the claim.
§ 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 91-7-90. 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.
§ 91-7-273
A suit or action which may be pending against an executor or administrator at the time the estate is reported insolvent shall not, on that account, abate, but may be prosecuted to final judgment. The judgment shall constitute a claim against the estate, if probated and registered as other claims, but shall not have priority over general creditors. If any such suit be undetermined when the claims are to be examined and allowed by the court and the distributive shares ascertained and declared, such examination and allowance may be postponed until the suit be finally determined, or the validity of the claims sued on may be determined by the chancery court.
§ 91-7-275
A suit or action shall not be brought against an executor or administrator on any claim against the decedent after the estate has been declared insolvent.
§ 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.
§ 91-7-281
In annual and final settlements, the executor, administrator, or guardian shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate, if the court be of the opinion that the services were proper and rendered in good faith. Where the executor, administrator, or guardian acts also as attorney, the court may allow such executor, administrator, or guardian credit for his reasonable compensation as attorney in lieu of his compensation as executor, administrator, or guardian.
§ 91-7-283
Unless the court or chancellor has, by order entered on the minutes, designated another annual term for that purpose, it shall be the duty of the clerk at the first term of the chancery court of his county in each year to make up a complete and impartial list of all executors and administrators and guardians who have failed to present and settle their accounts within the year preceding. In each and every such case, the clerk shall enter the same on the motion docket and thereby move the court for an order on the defaulter; and the court shall, in each and every such case, order a citation to be issued for the defaulter and for the surety or sureties on his bond, returnable forthwith or at the next term of court. On the return thereof, unless sufficient cause be shown for such failure and that the same was not the result of negligence or contumacy, the court shall proceed against the delinquent executor, administrator, or guardian for a contempt, and may also remove him from office. If there be no such defaulter, the clerk shall so report and obtain an order reciting his said report to that effect, which order shall be entered on the minutes of the term. If there be any defaulter and the clerk shall fail to fully prepare the list and to enter the motions herein required, he shall not be entitled to any allowance for attendance on the term nor to any annual compensation for ex officio services to the court. Any allowance by the court contrary to the terms of this section may nevertheless be recovered from the said clerk on his bond by the state tax commission, or by any other office similarly empowered, for the benefit of the county treasury; in addition to which, the clerk shall be liable on his bond at the suit of any party in interest who has been damaged in any case by the said failure of the clerk.
§ 91-7-285
Whenever it shall appear of record, or otherwise, that any executor, administrator, guardian, receiver, or fiduciary appointed by any chancery court is derelict in the performance of any duty required of him by law or the orders of the court or chancellor, or is liable to be punished or removed for any cause prescribed by law, then such court or the chancellor in vacation may, on the application of any interested party or of his or its own motion, order a citation for such executor, administrator, guardian, receiver, or other fiduciary, as the case may be, to be issued by the clerk of the court in which such cause or matter is pending, returnable forthwith or at such time and place, in term time or vacation, as may be specified in such order, to appear and show cause why he should not be removed or punished for contempt, either or both, as may be directed in such order. The citation shall be directed to the sheriff of the county of the residence of such fiduciary, if known to the clerk; otherwise, it shall be directed to the sheriff of the county where such matter or cause is pending, and shall be executed without advance payment of fees.
§ 91-7-287
If the citation be returned unexecuted because such fiduciary cannot be found after diligent search by the sheriff to whom it is directed, then the clerk shall make and file among the papers in the cause an affidavit stating such information as he may have been able to ascertain after diligent inquiry concerning the whereabouts and post office address of such fiduciary. If by such affidavit it shall appear that the whereabouts of such fiduciary is unknown to the clerk or that he is a nonresident of, or absents himself from, this state, then the court or chancellor shall make an order directing the issuance and publication of an alias citation for such fiduciary to appear and show cause why he should not be removed, at a time and place specified therein, not less than thirty days from the date of such order. The sheriff of the county where such matter or cause is pending shall thereupon make publication of such citation by posting a true copy thereof at three public places in his county, one of which shall be at the courthouse, not less than twenty-one days before the return day thereof, and shall make return of the citation showing such publication and the date and places where such copies were posted. If the clerk's affidavit shall show the post office address of such fiduciary, then the clerk shall, at the time of issuing such alias citation for publication, mail postage prepaid a true copy thereof to him at such address and note the fact on his general docket in the same manner and with the same effect as in other like cases. On the return of such alias citation, executed by publication as aforesaid, the court or chancellor shall be as fully empowered to proceed as if such fiduciary had been personally served in this state.
§ 91-7-289
If on the return day it shall appear that the citation has been served in this state, or publication made in the manner required by Section 91-7-287, the court or chancellor may proceed to hear the matter, and may remove or punish such fiduciary, either or both, or make such other order therein as may seem just and proper; or the court or chancellor may continue the matter for further hearing and final determination to such time and place as may be designated in the order of continuance.
§ 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, 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.
§ 91-7-293
The executor or administrator shall file with his final account a written statement, under oath, of the names of the heirs or devisees and legatees of the estate, so far as known, specifying particularly which, if any, are under the age of twenty-one years, of unsound mind, or convict of felony; the places of residence of each and their post-office address if they be nonresidents or, if the post-office address be unknown, the statement must aver that diligent inquiry has been made to learn the same without avail and giving the names and places of residence of the guardians of all who have guardians, so far as known.
§ 91-7-295
The final account so presented, with the statement as to parties, shall remain on file, subject to the inspection of any person interested. Summons shall be issued or publication be made for all parties interested, as in other suits in the chancery court, to appear at a term of the court, or before the chancellor in vacation, not less than thirty (30) days from the service of the summons or the completion of the publication, and show cause, if any they can, why the final account of the executor, administrator, or guardian should not be allowed and approved.
§ 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.
§ 91-7-299
On the final settlement the court shall make allowance to the executor or administrator for the property or the estate which has been lost, or has perished or decreased in value, without his fault; and profit shall not be allowed him in consequence of increase. The court shall allow to an executor or administrator, as compensation for his trouble, either in partial or final settlements, such sum as the court deems proper considering the value and worth of the estate and considering the extent or degree of difficulty of the duties discharged by the executor or administrator; in addition to which the court may allow him his necessary expenses, including a reasonable attorney's fee, to be assessed out of the estate, in an amount to be determined by the court.
§ 91-7-301
When personal property of a deceased person cannot be equally divided in kind, the court may, on petition, decree a sale of such property and order a distribution of the proceeds; and such sale may be for cash or on credit, as the court may direct. All parties interested as distributees or legatees shall be cited by summons or by publication, but if the value of the property do not exceed Five Hundred Dollars ($500.00), notice to the distributees or legatees shall not be necessary.
§ 91-7-303
Any person entitled to a distributive share of an intestate's estate, or to a legacy under a last will and testament, may, at any time after the expiration of six months from the grant of letters testamentary or of administration, petition the court therefor, setting forth his claim; and the administrator or executor and all persons interested as distributees or legatees shall be cited to appear. Upon return of summons executed or publication made, the court may order the administrator or executor to make the distribution or to pay the legacies according to the rights of the parties, as may be adjudged; but the administrator or executor shall not be compelled, before final settlement, to make distribution or to pay any legacy until bond, with sufficient sureties, be given by the distributee or legatee, conditioned to refund his proportionate part of any debts or demands that may afterwards appear against the estate, and the costs of recovering the same.
§ 91-7-305
(1) Whenever under any last will and testament or trust indenture the executor, trustee, or other fiduciary is required to, or has an option to, satisfy a bequest, devise, or transfer in trust to or for the benefit of the surviving spouse of a decedent by a transfer of assets of the estate or trust in kind at the values as finally determined for federal estate tax purposes, the executor, trustee, or other fiduciary shall, in the absence of contrary provisions in such will or trust indenture, satisfy such bequest, devise, or transfer by the distribution of assets, including cash, fairly representative of the appreciation or depreciation in the value of all property available for distribution in satisfaction of such bequest, devise, or transfer.
(2) This section shall apply to wills of decedents dying before or after May 20, 1966, and to trust agreements executed before or after such date; provided, however, that this section shall not be applied so as to require repayment to the fiduciary of any distributions actually made prior to such date, nor to impose any obligation or liability upon the fiduciary by reason of distributions actually made prior to such date.
(3) The enactment of this statute is not intended to imply that the present law of this state, relating to selection of property by fiduciaries in the circumstances herein described, has been otherwise than as set forth in subsection (1) hereof.
§ 91-7-307
If an executor or administrator improperly delay making a final settlement, he shall be summoned to show cause why a final settlement should not be made. On the return of summons executed, if a final settlement be not made or cause shown why it cannot then be made, the court may fine such delinquent in any sum not exceeding Five Hundred Dollars ($500.00) and imprison him not exceeding three months, for a contempt. Any executor or administrator whose letters have been revoked may be dealt with in like manner for failure to make settlement.
§ 91-7-309
Any person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharge and falsify the same, and not after, saving to minors and persons of unsound mind the same time after the removal of their disabilities. Such bills or petitions may be filed without leave of the court or chancellor, and evidence shall be admissible in such cases to show the falsity of the account. Such bills and petitions shall not be governed by the rules applicable to bills of review in chancery, but in such cases it will be the duty of the court to correct any errors of law or fact occurring in the final settlement of the executor, administrator, or guardian.
§ 91-7-311
All bonds required and given in the administration of estate, testate and intestate, and the bond or bonds of the county administrator shall be recorded in the office of the clerk of the chancery court of the county, in a book kept for that purpose, and may be put in suit by any person injured by a breach thereof, he being responsible for costs. Any such bond shall not be void upon the first recovery, but may be sued on from time to time until the whole penalty shall have been recovered. When the whole penalty shall be recovered, the chancery court shall apportion the recovery, according to the rights of parties.
§ 91-7-313
Parties interested in an estate as legatees, distributees, or creditors may, either jointly or severally, institute proceedings upon the bond of the executor or administrator or guardian for a devastavit against the principal and his surety without first having instituted suit against the executor or administrator or guardian to establish a devastavit. When any executor, administrator or guardian is a nonresident of, or shall absent himself from, or conceal himself within this state so that personal service of summons or citation or attachment cannot be made upon him, and such nonresident, absent or concealed executor, administrator, or guardian shall fail to file his accounts and make his settlements as required by law, or shall have unlawfully removed any of the property committed to his trust, or shall have been guilty of any misappropriation or devastavit, it shall be the duty of the court, on the motion of the clerk as elsewhere provided in this chapter, or on the motion of any party in interest, to proceed against the surety or sureties on the bond of said executor, administrator, or guardian, in respect to all of which matters the said surety or sureties shall be taken and held as principal. In proceeding as aforementioned, the default of the said executor, administrator, or guardian in failing to file and settle his accounts as required by law shall be taken as prima facie evidence that the said defaulter has misappropriated the money or property, or both, which may be disclosed by the inventory, appraisement, or by any other of the official papers in the case, or which may be shown by competent evidence outside of said record, to have come into the possession of said defaulter.
§ 91-7-315
If the bond of an executor or an administrator, whether taken at the time of the grant of letters or afterwards, be insufficient, the court or chancellor or clerk may, on five days' notice to the executor or administrator, require him to give a new bond; and in default thereof the letters shall be revoked and administration de bonis non granted to some competent person. If such new bond be given, it shall be cumulative security and shall bind the obligors therein for past as well as future liabilities.
§ 91-7-317
A surety on any bond of an executor, administrator, county administrator, or any other administrator apprehending danger of loss because of his suretyship may petition the court, chancellor, or clerk to require the executor or administrator to give a new bond and that he may be discharged from further liability. The court, chancellor, or clerk, on five days' notice to the executor or administrator, shall grant such petition and require a new bond, within a reasonable time, to be prescribed. In case of refusal or failure to give such new bond, the executor or administrator shall be removed and administration de bonis non granted. The acts done by the executor or administrator, and all proceedings that may have been instituted against him, shall be treated and conducted by or against his successor, as in case of the death of an executor or administrator. If the executor or administrator shall give new bond as required, the original bond shall from that time cease to be operative in future, but not as to previous liabilities; and the effect of such new bond shall be to bind the obligors therein for past as well as future liabilities.
§ 91-7-319
Any receiver, assignee, guardian, executor, administrator, or other fiduciary required by law or the order of any court or judge to give bond or other obligation, as such, may include, as a part of the lawful expense of executing this trust, and may receive credit for the sum paid to a guaranty or surety company, authorized under the laws of this state so to do, for becoming his surety on such bond, not to exceed the sum paid for such bond as determined by the rate on file with and approved by the Commissioner of Insurance for such company.
§ 91-7-321
If any person entitled, under a decree of the chancery court, to a distributive share of an estate, or any other funds under the control of the court, shall not apply for it within six months after the decree of the court adjudicating his right thereto, a custodian of such share or interest may be appointed by the court, or the chancellor in vacation, without notice to any one. The court may make such order for the safekeeping or secure investment of the fund as may be proper.
§ 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 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;
(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 any grandchild of the decedent; or
(d) If there is no surviving spouse, children or grandchildren of the decedent, then either parent or any siblings of the decedent.
(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.
§ 91-7-323
When any person, male or female, shall die leaving wages, salary or other compensation due him, it shall be lawful for the debtor to pay said wages, salary or other compensation to the wife or husband, as the case may be, of said deceased creditor if he or she leaves a wife or husband, as the case may be, surviving him or her; and if he or she shall leave no wife or husband surviving him or her, then to his or her children if adults; and if he or she shall leave no children and no wife or husband surviving him or her, then to his or her mother; and if he or she shall leave no wife or husband or children or mother surviving him or her, then to his or her father; and if he or she shall leave no wife or children or husband or mother or father surviving him or her, then to his or her brothers and sisters if adults. If such creditor shall have left no wife, husband, children, nor brothers nor sisters, nor father nor mother surviving him or her, or if any of his or her children surviving him or her shall be minors, or if any of his or her brothers or sisters surviving him or her, entitled to inherit, shall be minors, then it shall be lawful for said debtor to pay said wages, salary or other compensation to the chancery clerk of the county in which said creditor resided at the time of his or her death, or of the county where he or she died.
§ 91-7-325
After the sixty days referred to in Section 91-7-323 have passed, the parties hereinbefore designated as being the person to whom the wages so due the deceased creditor may be paid shall have the right, if they be adults, to maintain a suit to recover the amount due to the deceased creditor. When the party or parties entitled to receive said amount are minors, suit may be brought and maintained for them, by and in the name of the chancery clerk who is entitled to receive same.
§ 91-7-327
Where such wages are paid to the chancery clerk as provided in Sections 91-7-323 and 91-7-325, it shall be the duty of the chancery clerk to pay that portion of the wages of such employee which may belong to the adult children or brothers and sisters of such deceased employe, and to report to the next term of the chancery court who are the minor brothers or sisters or children of said employe and how much is coming to each one of the heirs of said employe. Thereupon the chancery court shall enter an order upon the minutes of the court, directing the payment by the chancery clerk of the shares of such minor children or brothers and sisters of such deceased employe. In any case where the employer shall pay such wages to the chancery clerk, he shall be discharged from all further liability. For receiving and disbursing the wages which may be paid to him, the clerk shall receive the commissions allowed to administrators and executors for collecting and distributing moneys belonging to the estate of a decedent.
§ 91-7-329
Sections 91-7-323 through 91-7-327 shall not apply in cases where the estate of deceased creditor is administered upon.
§ 91-7-331
The word administrator in this chapter shall embrace a temporary administrator whenever the contrary is not clearly inferable from the context.
§ 91-7-501
As used in Sections 91-7-501 through 91-7-523:
(1) “Local administration” means administration by a personal representative appointed in this state pursuant to appointment proceedings.
(2) “Personal representative” means an executor, an administrator with or without the will annexed, or other representative authorized in a court of competent jurisdiction to conduct an estate administration.
(3) “Local personal representative” includes any personal representative appointed in this state by appointment proceedings and excludes foreign personal representatives who acquire the power of a local personal representative under Section 91-7-509.
(4) “Resident creditor” means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.
(5) “Foreign personal representative” means a personal representative appointed by another jurisdiction.
§ 91-7-503
At any time after the expiration of sixty (60) days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and an affidavit made by or on behalf of the personal representative stating:
(1) The date of the death of the nonresident decedent;
(2) That no local administration, or application or petition therefor, is pending in this state; and
(3) That the domiciliary foreign personal representative is entitled to payment or delivery.
§ 91-7-505
Payment or delivery made in good faith on the basis of the proof of authority, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and affidavit releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
§ 91-7-507
Payment or delivery under Section 91-7-503 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
§ 91-7-509
If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a county in which property belonging to the decedent is located, authenticated copies of his appointment, including the admitted will and letters testamentary or letters of administration or substantial equivalent, authenticated under the Acts of Congress under 28 U.S.C.A. Section 1739, and any official bond he has given. A domiciliary foreign personal representative is subject to the estate administration requirements and obligations set forth in Title 91, Chapter 7, Mississippi Code of 1972.
§ 91-7-511
A domiciliary foreign personal representative who has complied with Section 91-7-509 may exercise as to assets in this state all powers of a local personal representative, and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
§ 91-7-513
The power of a domiciliary foreign personal representative under Section 91-7-503 or Section 91-7-511 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 91-7-509, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. A person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall not be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this state.
§ 91-7-515
In respect to a nonresident decedent, the provisions of this chapter govern:
(1) Proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and
(2) The status, powers, duties and liabilities of any local personal representative and the rights of claimants, purchasers, distributees and others in regard to a local administration.
§ 91-7-517
A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by: (1) filing authenticated copies of his appointment as provided in Section 91-7-509; or (2) receiving payment of money or taking delivery of personal property under Section 91-7-503; or (3) doing any act as a personal representative in this state that would have given the state jurisdiction over him as an individual. Jurisdiction under paragraph (1) is limited to the money or value of personal property collected.
§ 91-7-519
In addition to jurisdiction conferred by Section 91-7-515, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately before death.
§ 91-7-521
(a) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, requesting a return receipt signed by addressee only. Notice by ordinary first-class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or his decedent immediately before death.
(b) If service is made upon a foreign personal representative as provided in subsection (a), he shall be allowed at least thirty (30) days within which to appear or respond.
§ 91-7-523
An adjudication rendered in any jurisdiction in favor of or against any foreign personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.
Chapter 8 Mississippi Uniform Trust Code
§ 91-8-101
This chapter may be cited as the Mississippi Uniform Trust Code.
§ 91-8-102
This chapter applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust.
§ 91-8-103
In this chapter:
(1) “Action,” with respect to an act of a trustee, includes a failure to act.
(2) “Ascertainable standard” means a standard relating to an individual's health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
(3) “Beneficial interest” means a distribution interest or a remainder interest; provided, however, a beneficial interest specifically excludes a power of appointment or a power reserved by a settlor.
(4) “Beneficiary” means a person that:
(A) Has a present or future beneficial interest in a trust, vested or contingent; or
(B) In a capacity other than that of trustee, holds a power of appointment over trust property.
(5) “Beneficiary surrogate” means a person, including a trust protector or trust advisor, other than a trustee, designated by the settlor in the trust instrument or in a writing delivered to the trustee, or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument to receive notices, information, and reports otherwise required to be provided to a beneficiary under Section 91-8-813(a) and (b), or to represent a beneficiary under Section 91-8-303(8).
(6) “Charitable trust” means a trust, or portion of a trust, created for a charitable purpose described in Section 91-8-405(a).
(7) “Conservator” means a person appointed by the court to administer the estate of a minor or adult individual as defined in Section 93-20-102.
(8) “Directed trust” means a trust where through the terms of the trust, one or more persons are given the authority to direct or consent to a fiduciary's actual or proposed investment decision, distribution decision, or any other decision of the fiduciary.
(9) “Distribution interest” means:
(A) An interest, other than a remainder interest, held by an eligible distributee or permissible distributee under a trust and may be a current distribution interest or a future distribution interest;
(B) A distribution interest is classified as either a mandatory interest, a support interest or a discretionary interest; and although not the exclusive means to create each such respective distribution interest, absent clear and convincing evidence to the contrary, use of the example language accompanying the following definitions of each such respective distribution interest results in the indicated classification of distribution interest:
(i) A mandatory interest means a distribution interest in which the timing of any distribution must occur within one (1) year from the date the right to the distribution arises and the trustee has no discretion in determining whether a distribution shall be made or the amount of such distribution; example distribution language indicating a mandatory interest includes, but is not limited to:
a. All income shall be distributed to a named beneficiary; or
b. One Hundred Thousand Dollars ($100,000.00) a year shall be distributed to a named beneficiary;
(ii) A support interest means a distribution interest that is not a mandatory interest but still contains mandatory language such as “shall make distributions” and is coupled with a standard capable of judicial interpretation; example distribution language indicating a support interest includes, but is not limited to:
a. The trustee shall make distributions for health, education, maintenance, and support;
b. Notwithstanding the distribution language used, if a trust instrument containing such distribution language specifically provides that the trustee exercise discretion in a reasonable manner with regard to a discretionary interest, then notwithstanding any other provision of this subparagraph defining distribution interests, the distribution interest shall be classified as a support interest;
(iii) A discretionary interest means any interest that is not a mandatory or a support interest and is any distribution interest where a trustee has any discretion to make or withhold a distribution; example distribution language indicating a discretionary interest includes, but is not limited to:
a. The trustee may, in the trustee's sole and absolute discretion, make distributions for health, education, maintenance, and support;
b. The trustee, in the trustee's sole and absolute discretion, shall make distributions for health, education, maintenance, and support;
c. The trustee may make distributions for health, education, maintenance, and support;
d. The trustee shall make distributions for health, education, maintenance, and support; however, the trustee may exclude any of the beneficiaries or may make unequal distributions among them; or
e. The trustee may make distributions for health, education, maintenance, support, comfort, and general welfare;
f. A discretionary interest may also be evidenced by:
-
Permissive distribution language such as “may make distributions”;
-
Mandatory distribution language that is negated by the discretionary distribution language contained in the trust such as “the trustee shall make distributions in the trustee's sole and absolute discretion”;
g. An interest that includes mandatory distribution language such as “shall” but is subsequently qualified by discretionary distribution language shall be classified as a discretionary interest and not as a support or a mandatory interest;
(C)(i) To the extent a trust contains distribution language indicating the existence of any combination of a mandatory, support and discretionary interest, that combined interest of the trust shall be divided and treated separately as follows:
a. The trust shall be a mandatory interest only to the extent of the mandatory distribution language;
b. The trust shall be a support interest only to the extent of such support distribution language; and
c. The remaining trust property shall be held as a discretionary interest;
(ii) For purposes of this subparagraph (C), a support interest that includes mandatory distribution language such as “shall” but is subsequently qualified by discretionary distribution language, shall be classified as a discretionary interest and not as a support interest.
(10) “Environmental law” means a federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment.
(11) “Excluded fiduciary” means any trustee, trust advisor, or trust protector to the extent that, under the terms of a trust:
(A) The trustee, trust advisor, or trust protector is excluded from exercising a power, or is relieved of a duty; and
(B) The power or duty is granted or reserved to another person.
(12) “Fiduciary” means:
(A) A trustee, conservator, guardian, agent under any agency agreement or other instrument, an executor, personal representative or administrator of a decedent's estate, or any other party, including a trust advisor or a trust protector, who is acting in a fiduciary capacity for any person, trust, or estate;
(B) For purposes of subparagraph (A), an agency agreement includes, but is not limited to, any agreement under which any delegation is made, either pursuant to Section 91-8-807 or by anyone holding a power or duty pursuant to Article 12;
(C) For purposes of the definition of fiduciary in Section 91-8-103, fiduciary does not mean any person who is an excluded fiduciary as such is defined in Section 91-8-103.
(13) “Guardian” means a person appointed by the court to make decisions regarding the support, care, education, health, and welfare of a minor or adult individual as defined in Section 93-20-102. The term does not include a guardian ad litem.
(14) “Interests of the beneficiaries” means the beneficial interests provided in the terms of the trust.
(15) “Internal Revenue Code” means the Internal Revenue Code of 1986, as in effect on July 1, 2014, or as later amended.
(16) “Jurisdiction,” with respect to a geographic area, includes a state or country.
(17) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(18) “Power of appointment” means:
(A) An inter vivos or testamentary power to direct the disposition of trust property, other than a distribution decision made by a trustee or other fiduciary to a beneficiary;
(B) Powers of appointment are held by the person to whom such power has been given, and not by a settlor in that person's capacity as settlor.
(19) “Power of withdrawal” means a presently exercisable general power of appointment other than a power: (A) exercisable by a trustee and limited by an ascertainable standard; or (B) exercisable by another person only upon consent of the trustee or a person holding an adverse interest.
(20) “Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.
(21) “Qualified beneficiary” means a beneficiary who, on the date the beneficiary's qualification is determined:
(A) Is a distributee or permissible distributee of trust income or principal;
(B) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in subparagraph (A) terminated on that date without causing the trust to terminate; or
(C) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
(22) “Remainder interest” means an interest under which a trust beneficiary will receive property held by a trust outright at some time during the future.
(23) “Reserved power” means a power held by a settlor.
(24) “Revocable,” as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.
(25) “Settlor” means a person, including a testator, who creates, or contributes property to, a trust. If more than one (1) person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion.
(26) “Spendthrift provision” means a term of a trust which restrains both voluntary and involuntary transfer of a beneficiary's interest.
(27) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band recognized by federal law or formally acknowledged by a state.
(28) “Successors in interest” means the beneficiaries under the settlor's will, if the settlor has a will, or in the absence of an effective will provision, the settlor's heirs at law.
(29) “Terms of a trust” means the manifestation of the settlor's intent regarding a trust's provisions as expressed in the trust instrument or as may be established by other evidence that would be admissible in a judicial proceeding.
(30) “Trust advisor” means any person described in Section 91-8-1201(a).
(31) “Trust instrument” means an instrument executed by the settlor that contains terms of the trust, including any amendments thereto.
(32) “Trustee” includes an original, additional, and successor trustee, and a cotrustee.
(33) “Trust protector” means any person described in Section 91-8-1201(a).
§ 91-8-104
(a) Subject to subsection (b), a person has knowledge of a fact if the person:
(1) Has actual knowledge of it;
(2) Has received a notice or notification of it; or
(3) From all the facts and circumstances known to the person at the time in question, has reason to know it.
(b) An organization that conducts activities through employees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having responsibility to act for the trust, or would have been brought to the employee's attention if the organization had exercised reasonable diligence. An organization exercises reasonable diligence if it maintains reasonable routines for communicating significant information to the employee having responsibility to act for the trust and there is reasonable compliance with the routines. Reasonable diligence does not require an employee of the organization to communicate information unless the communication is part of the individual's regular duties or the individual knows a matter involving the trust would be materially affected by the information.
§ 91-8-105
(a) Except as otherwise provided in the terms of the trust, this chapter governs the duties and powers of a trustee or any other fiduciary under this chapter, relations among trustees and such other fiduciaries, and the rights and interests of a beneficiary. The terms of a trust may expand, restrict, eliminate, or otherwise vary the duties and powers of a trustee, any such other fiduciary, relations among any of them, and the rights and interests of a beneficiary; however, nothing contained in this subsection shall be construed to override or nullify the provisions of subsection (b). The rule of statutory construction that statutes in derogation of the common law are to be strictly construed shall have no application to this section. Except as restricted by subsection (b), pursuant to this section, courts shall give maximum effect to the principal of freedom of disposition and to the enforceability of trust instruments.
(b) The terms of a trust prevail over any provision of this chapter except:
(1) The requirements for creating a trust;
(2) The duty of a trustee to act in good faith in accordance with the terms and purposes of the trust and the interests of the beneficiaries;
(3) The requirement that a trust and its terms be for the benefit of its beneficiaries as the interests of such beneficiaries are defined under the terms of the trust, and that the trust have a purpose that is lawful and possible to achieve;
(4) The power of the court to modify or terminate a trust under Sections 91-8-410 through 91-8-416;
(5) The effect of a spendthrift provision and the rights of certain creditors and assignees to reach a trust as provided in Article 5 of the Uniform Trust Code (Title 91, Chapter 8, Article 5, Mississippi Code of 1972);
(6) The power of the court under Section 91-8-702 to require, dispense with, or modify or terminate a bond;
(7) The power of the court under Section 91-8-708(b) to adjust a trustee's compensation specified in the terms of the trust which is unreasonably low or high;
(8) Subject to subsection (d), the duty under Section 91-8-813(b) to notify beneficiaries of an irrevocable trust (including anyone who holds a power of appointment) who have attained twenty-five (25) years of age that the trust has been established as set forth in Section 91-8-813(b);
(9) Subject to subsection (d), the duty under Section 91-8-813(a)(1) and (2) to keep the beneficiaries (including anyone who holds a power of appointment) informed and to respond to the request of a beneficiary of an irrevocable trust for trustee's reports and other information reasonably related to the administration of the trust;
(10) The effect of an exculpatory term under Section 91-8-1008;
(11) The rights under Sections 91-8-1010 through 91-8-1013 of a person other than a trustee or beneficiary;
(12) Periods of limitation for commencing a judicial proceeding;
(13) The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice; and
(14) The subject-matter jurisdiction of the court and venue for commencing a proceeding as provided in Sections 91-8-203 and 91-8-204.
(c) Any purpose enunciated as a material purpose of a trust in that trust's trust instrument shall be treated as a material purpose of that trust for all purposes of this chapter.
(d) Notwithstanding subsection (b)(8) and (9) of this section, the duties of a trustee to give notice, information and reports under Section 91-8-813(a) and (b) may be waived or modified in the trust instrument or by the settlor of the trust, or a trust protector or trust advisor that holds the power to so direct, directs otherwise in a writing delivered to the trustee in any of the following ways:
(1) By waiving or modifying such duties as to all qualified beneficiaries during the lifetime of the settlor or the settlor's spouse;
(2) By specifying a different age at which a beneficiary or class of beneficiaries must be notified under Section 91-8-813(b); or
(3) With respect to one or more of the beneficiaries, by designating a beneficiary surrogate to receive such notice, information and reports who will act in good faith to protect the interests of the beneficiary or beneficiaries.
§ 91-8-106
The common law of trusts and principles of equity supplement this chapter, except to the extent modified by this chapter or another statute of this state.
§ 91-8-107
(a) The validity, construction and administration of a trust are determined by the law of the jurisdiction designated in the terms of the trust instrument.
(b) In the absence of a controlling designation in the terms of the trust, the laws of the jurisdiction where the trust was executed determine the validity of the trust, construction of the trust instrument and the laws of descent, while the laws of the principal place of administration determine the administration of the trust.
§ 91-8-108
(a) Without precluding other means for establishing a sufficient connection with the designated jurisdiction, the terms of a trust designating the principal place of administration are valid and controlling if:
(1) A trustee's principal place of business is located in or a trustee is a resident of the designated jurisdiction;
(2) All or part of the administration occurs in the designated jurisdiction; administration includes, but is not limited to:
(A) Maintenance of some trust records physically in the designated jurisdiction;
(B) Wholly or partly preparing or arranging for the preparation, either on an exclusive or a nonexclusive basis, in the designated jurisdiction of an income tax return that must be filed for the trust; or
(3) Some or all of the trust assets are deposited in the designated jurisdiction or physical evidence of the assets is held in the designated jurisdiction and the trust is being administered by a person defined in subsection (a)(1). For purposes of this subsection (a)(3), “deposited in the designated jurisdiction,” includes assets being held in any checking account, time deposit, certificate of deposit, brokerage account, trust company fiduciary account, or other similar account or deposit that is located in the designated jurisdiction.
(b) Except as otherwise expressly provided by the terms of a governing instrument specifically addressing the governing law for trust administration or by court order, the laws of this state shall govern the administration of a trust while the trust is administered in this state. Without precluding other means for establishing that a trust is administered in this state, if any of the activities described in subsection (a) occur in this state, the trust is administered in this state.
(c) A trustee shall administer the trust at a place appropriate to its purposes, its administration, and the interests of the beneficiaries; however, a trustee shall not be required, in the absence of a court order, to transfer the trust's principal place of administration to another state or to a jurisdiction outside the United States even though such other state or jurisdiction outside the United States could also be appropriate to its purposes, its administration, and the interests of the beneficiaries.
(d) Without precluding the right of the court to order, approve, or disapprove a transfer, the trustee may transfer the trust's principal place of administration to another state or to a jurisdiction outside the United States, if the transfer is to a place appropriate to the trust's purposes, its administration, and the interests of the beneficiaries.
(e) The trustee shall notify the qualified beneficiaries of a proposed transfer of a trust's principal place of administration to another state or to a jurisdiction outside the United States not less than sixty (60) days before initiating the transfer. The notice of proposed transfer must include:
(1) The name of the jurisdiction to which the principal place of administration is to be transferred;
(2) The address and telephone number at the new location at which the trustee can be contacted;
(3) An explanation of the reasons for the proposed transfer;
(4) The date on which the proposed transfer is anticipated to occur; and
(5) The date, not less than sixty (60) days after the giving of the notice, by which the qualified beneficiary must notify the trustee of an objection to the proposed transfer.
(f) The authority of a trustee under this section to transfer a trust's principal place of administration terminates if a majority of the qualified beneficiaries described in Section 91-8-103 notify the trustee of an objection to the proposed transfer on or before the date specified in the notice.
(g) In connection with a transfer of the trust's principal place of administration, the trustee may transfer some or all of the trust property to a successor trustee designated in the terms of the trust or appointed pursuant to Section 91-8-704.
§ 91-8-109
(a) Notice to a person under this chapter or the sending of a document to a person under this chapter must be accomplished in a manner reasonably suitable under the circumstances and likely to result in receipt of the notice or document. Permissible methods of notice or for sending a document include first-class mail, personal delivery, delivery to the person's last-known place of residence or place of business, or a properly directed electronic message.
(b) Notice otherwise required under this chapter or a document otherwise required to be sent under this chapter need not be provided to a person whose identity or location is unknown to and not reasonably ascertainable by the trustee.
(c) Notice under this chapter or the sending of a document under this chapter may be waived by the person to be notified or sent the document.
(d) Notice of a judicial proceeding must be given as provided in the applicable rules of civil procedure.
§ 91-8-110
A charitable organization expressly designated to receive distributions under the terms of a charitable trust has the rights of a qualified beneficiary under this chapter if the charitable organization, on the date the charitable organization's qualification is being determined:
(1) Is a distributee or permissible distributee of trust income or principal;
(2) Would be a distributee or permissible distributee of trust income or principal if the interests of other distributees or permissible distributees then receiving or eligible to receive distributions terminated on that date without causing the trust to terminate; or
(3) Would be a distributee or permissible distributee of trust income or principal if the trust terminated on that date.
§ 91-8-111
(a) Except as otherwise provided in subsection (b), the trustee and qualified beneficiaries may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.
(b) A nonjudicial settlement agreement is valid only to the extent it does not violate a material purpose of the trust and includes terms and conditions that could be properly approved by the court under this chapter or other applicable law.
(c) Matters that may be resolved by a nonjudicial settlement agreement include:
(1) The interpretation or construction of the terms of the trust;
(2) The approval of a trustee's report or accounting;
(3) Direction to a trustee to refrain from performing a particular act or the grant to a trustee of any necessary or desirable power;
(4) The resignation or appointment of a trustee and the determination of a trustee's compensation;
(5) Transfer of a trust's principal place of administration;
(6) Liability of a trustee for an action relating to the trust;
(7) The extent or waiver of bond of a trustee;
(8) The governing law of the trust; and
(9) The criteria for distribution to a beneficiary where the trustee is given discretion.
(d) Any qualified beneficiary or trustee may request the court to approve a nonjudicial settlement agreement, to determine whether the representation as provided in Article 3 was adequate, and to determine whether the agreement contains terms and conditions the court could have properly approved.
§ 91-8-112
The rules of construction that apply in this state to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.
§ 91-8-201
(a) The court may intervene in the administration of a trust to the extent its jurisdiction is invoked by an interested person or as provided by law.
(b) A trust is not subject to continuing judicial supervision unless ordered by the court.
(c) A judicial proceeding involving a trust may relate to any matter involving the trust's administration, including, but not limited to, a proceeding to:
(1) Request instructions;
(2) Determine the existence or nonexistence of any immunity, power, privilege, duty or right;
(3) Approve a nonjudicial settlement;
(4) Interpret or construe the terms of the trust;
(5) Determine the validity of a trust or of any of its terms;
(6) Approve a trustee's report or accounting or compel a trustee to report or account;
(7) Direct a trustee to refrain from performing a particular act or grant to a trustee any necessary or desirable power;
(8) Review the actions or approve the proposed actions of a trustee, including the exercise of a discretionary power;
(9) Accept the resignation of a trustee;
(10) Appoint or remove a trustee;
(11) Determine a trustee's compensation;
(12) Transfer a trust's principal place of administration or a trust's property to another jurisdiction;
(13) Determine the liability of a trustee for an action relating to the trust and compel redress of a breach of trust by any available remedy;
(14) Modify or terminate a trust;
(15) Combine trusts or divide a trust;
(16) Determine liability of a trust for debts of a beneficiary and living settlor;
(17) Determine liability of a trust for debts, expenses of administration, and statutory allowances chargeable against the estate of a deceased settlor;
(18) Determine the liability of a trust for claims, expenses and taxes in connection with the settlement of a trust that was revocable at the settlor's death; and
(19) Ascertain beneficiaries and determine to whom property will pass upon final or partial termination of a trust.
§ 91-8-202
(a) By accepting the trusteeship of a trust having its principal place of administration in this state or by moving the principal place of administration to this state, the trustee submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.
(b) With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this state are subject to the jurisdiction of the courts of this state regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.
(c) This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.
§ 91-8-203
(a) Except as provided in subsections (b) and (c), the chancery court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
(b) Any other court granted statutory equitable jurisdiction has concurrent jurisdiction with the chancery court in any proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust.
(c) The chancery court has concurrent jurisdiction with other courts of this state in other proceedings involving a trust.
§ 91-8-204
(a) Except as otherwise provided in subsection (b), venue for a judicial proceeding involving a trust is in the county of this state in which the trust's principal place of administration is or will be located and, if the trust is created by will and the estate is not yet closed, in the county in which the decedent's estate is being administered.
(b) If a trust has no trustee, venue for a judicial proceeding for the appointment of a trustee is in a county of this state in which a beneficiary resides, in a county in which any trust property is located, and if the trust is created by will, in the county in which the decedent's estate was or is being administered.
§ 91-8-205
(a) A trustee may file an accounting of the trustee's administration of a trust in court at any time and seek a partial or final settlement thereof or, upon petition of an interested party, a court may order a trustee to render an accounting of the trustee's administration of a trust and require a partial or final settlement thereof. Notice of such judicial proceeding shall be provided to the trustee and each beneficiary, or representative thereof pursuant to Article 3, as provided by the applicable rules of civil procedure.
(b) A trust accounting must be a reasonably understandable report from the date of the last accounting or, if none, from the date upon which the trustee became accountable, or other such date the court may set, which provides reasonable detail of the transactions affecting the administration of the trust, and which adequately discloses the following information:
(1) The accounting must identify the trust, the trustee furnishing the accounting, and the time period covered by the accounting.
(2) The accounting must show all receipts and disbursements occurring during the accounting period. Gains and losses realized during the accounting period must also be shown.
(3) The accounting, to the extent feasible, must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two (2) values, (A) the asset acquisition value or carrying value, and (B) the estimated current value, if feasible. The accounting must identify each known noncontingent liability with an estimated current amount of the liability if known.
(4) To the extent feasible, the accounting must show the significant noncash transactions affecting the assets of the trust, including name changes in investment holdings, adjustments to carrying value, or stock splits.
(5) The accounting must reflect the allocation of receipts and disbursements between income and principal when the allocation affects the interest of any beneficiary of the trust.
(c) Any order or judgment of the court on such accounting and partial or final settlement shall be final and conclusive as to all matters occurring during the accounting period, and appeals therefrom shall and must be taken in the manner provided for from any other final judgment of the court.
§ 91-8-301
(a) Notice to a person who may represent and bind another person under this article has the same effect as if notice were given directly to the other person.
(b) The consent of a person who may represent and bind another person under this article is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.
(c) Except as otherwise provided in Sections 91-8-411 and 91-8-602, a person who under this article may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor's behalf.
(d) A settlor may not represent and bind a beneficiary under this article with respect to the termination or modification of a trust under Section 91-8-411(a).
§ 91-8-302
To the extent there is no material conflict of interest between the holder of a power of appointment and the persons represented with respect to the particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
§ 91-8-303
To the extent there is no material conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A conservator or guardian may represent and bind the estate that the conservator or guardian controls;
(2) A conservator or guardian may represent and bind the ward if a conservator or guardian of the ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A personal representative of a decedent's estate may represent and bind persons interested in the estate;
(6) A parent may represent and bind the person's minor or unborn child if a conservator or guardian for the descendant has not been appointed;
(7) A grandparent may represent the grandparent's grandchild if that grandchild is not already represented by a parent under paragraph (6);
(8) A person designated by the settlor either in the trust instrument or in a writing delivered to the trustee, or designated in a writing delivered to the trustee by a trust protector or trust advisor with power under the terms of the trust instrument to represent the beneficiaries of the trust, may represent and bind the beneficiaries; and
(9) Any person acting in a fiduciary capacity shall exercise all rights and powers granted to a fiduciary under the Revised Uniform Fiduciary Access to Digital Assets Acts created under Chapter 23, Title 91.
§ 91-8-304
(a) Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no material conflict of interest between the representative and the person represented.
(b) Unless otherwise represented, whenever survivorship of another person is an express or implied condition of receiving property from a trust, the successor contingent remainder beneficiary may be represented and bound by the presumptive remainder beneficiary upon whose death the rights of the successor contingent remainder beneficiary depend, but only to the extent there is no material conflict of interest between the presumptive remainder beneficiary and the successor contingent remainder beneficiary.
§ 91-8-305
(a) If the court determines that an interest is not represented under this article, or that the otherwise available representation might be inadequate, the court may appoint a guardian ad litem or other representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. A guardian ad litem or other representative may be appointed to represent several persons or interests.
(b) A guardian ad litem or other representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
(c) In making decisions, a guardian ad litem or other representative may consider general benefit accruing to the living members of the individual's family.
§ 91-8-401
A trust may be created by:
(1) Transfer of property to another person as trustee or a transfer in the name of the trust during the settlor's lifetime or by will or other disposition taking effect upon the settlor's death;
(2) Declaration by the owner of property that the owner holds identifiable property as trustee;
(3) Exercise of a power of appointment in favor of a trustee;
(4) A court pursuant to its statutory or equitable powers; or
(5) By an agent or attorney-in-fact under a power of attorney that:
(A) Expressly grants authority to create the trust; or
(B) Grants the agent or attorney-in-fact the authority to act in the management and disposition of the principal's property that is as broad or comprehensive as the principal could exercise for himself or herself and that does not expressly exclude the authority to create a trust. An agent or attorney-in-fact may file a petition for the court to determine whether a power of attorney described in this section grants the agent or attorney-in-fact authority that is as broad or comprehensive as that which the principal could exercise for himself or herself.
§ 91-8-402
(a) A trust is created only if:
(1) The settlor has capacity to create a trust;
(2) The settlor indicates an intention to create the trust;
(3) The trust has a definite beneficiary or is:
(A) A charitable trust;
(B) A trust for the care of an animal, as provided in Section 91-8-408; or
(C) A trust for a noncharitable purpose, as provided in Section 91-8-409;
(4) The trustee has duties to perform; and
(5) The same person is not the sole trustee and sole beneficiary.
(b) A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.
(c) A power in a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.
(d) A settlor is deemed to have the capacity to create a trust if:
(1) The trust is created by an agent of the settlor under a power of attorney as described in Section 91-8-401(5); and
(2) The settlor had capacity to create a trust at the time the power of attorney was executed.
§ 91-8-403
A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation:
(1) The settlor was domiciled, had a place of abode, or was a national;
(2) A trustee was domiciled or had a place of business; or
(3) Any trust property was located.
§ 91-8-404
A trust may be created only to the extent its purposes are lawful and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries as the interests of such beneficiaries are defined under the terms of the trust.
§ 91-8-405
(a) A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.
(b) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent it can be ascertained.
(c) The settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.
§ 91-8-406
A trust is void to the extent its creation was induced by fraud, duress, or undue influence.
§ 91-8-407
(a) Except as provided in subsection (b) and except as required by a statute other than this chapter, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.
(b)(1) No trust of or in any real property can be created except by a written instrument signed by the party who declares or creates such trust (the “settlor”), or by his last will, in writing. Every writing declaring or creating a trust in real property, other than a last will, may be acknowledged and proved as other writing and filed for record with the clerk of the chancery court in which the real property, or part of it, is located, and the filing shall serve as constructive notice of the existence and terms of the trust from and after filing.
(2) In lieu of filing the trust instrument or other writing declaring or creating a trust in real property, there may be filed with the clerk of the chancery court in which the real property, or part of it, is located a memorandum of trust signed by the settlor, trustee, or successor trustee and acknowledged or proved as other writings and the filing of the memorandum of trust shall serve as constructive notice of the existence and terms of the trust from and after filing. The memorandum shall contain substantially all of the following information:
(A) The name of the trust;
(B) The street and mailing address of the office, and the name and street and mailing address and telephone number of the trustee;
(C) The name and street and mailing address and telephone number of the settlor of the trust;
(D) A legally sufficient description of all interests in real property owned by or conveyed to the trust;
(E) The anticipated date of termination of the trust or the event upon which the trust will be terminated; and
(F) The general powers granted to the trustee, which may be by reference to the statutory powers granted to the trustee under the terms of the trust instrument.
The memorandum may also contain the name and street and mailing address and telephone number of any successor trustee. The memorandum of trust may be filed with the clerk of the appropriate chancery court either before or after a deed of conveyance of real property to the trust or trustee, in his capacity as such. The memorandum need not comply with subparagraph (D) if filed before or contemporaneously with a conveyance of any real property to the trust or trustee in his capacity as such, and need not be amended upon a subsequent conveyance of real property to the trust or trustee in his capacity as such, so long as the deed of conveyance is recorded in the appropriate county, and the recording of the deed of conveyance to the trust or trustee, as the case may be, shall constitute compliance with subparagraph (D). In addition, the deed of conveyance may also serve as a memorandum of trust, or an amendment to the memorandum of trust, as the case may be, so long as the deed of conveyance contains the information required for a memorandum of trust as set forth in this subsection (b).
(3) The settlor may amend the memorandum if the trust to which it relates is subject to a power of amendment or revocation by the settlor; otherwise, only the then-serving trustee may amend the memorandum. The memorandum of amendment shall set forth the amendment to the original memorandum with particularity. The amended memorandum of trust may be made effective on a future date, which must be a date certain. The memorandum of amendment may be signed by the creator, trustee or successor trustee, as the case may be, and acknowledged or proved as other writings and filed for record with the clerk of the chancery court where the original memorandum is of record. The filing of the memorandum of amendment shall serve as constructive notice of the existence and terms of the amendment from and after filing.
(4) The provision of Sections 89-5-24 and 89-5-33 shall apply to any trust instrument, memorandum, or amendment that is to be recorded under this subsection (b).
(5) The provisions of this subsection (b) shall have no application to trusts of personal property, or to any trust arising or resulting by implication of law out of a conveyance of land. The failure to file a copy of the trust instrument, memorandum or deed of conveyance shall not affect the validity of the trust or the trust instrument.
(6) A certificate of trust containing the information set forth in Section 91-9-7 that was filed before July 1, 2014, shall be considered constructive notice of the existence and terms of the trust from and after its filing, and the filing of a memorandum of trust under this subsection (b) shall not be necessary.
(c)(1) All property originally brought into the trust or subsequently acquired by purchase or otherwise, on account of the trust, is trust property.
(2) Unless the contrary intention appears, property acquired with trust funds is trust property.
(3) Any estate in real property may be acquired in the trust name. Title so acquired can be conveyed in the trust name or by the trustees, as trustees of the trust.
(4) A conveyance to a trust in the trust name, though without words of inheritance, passes the entire interest in the property of the grantor unless the language of the conveyance reflects an intent to the contrary.
§ 91-8-408
(a) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one (1) animal alive during the settlor's lifetime, upon the death of the last surviving animal.
(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. In addition, a person having a demonstrated interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.
(c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.
§ 91-8-409
Except as otherwise provided in Section 91-8-408, Section 41-43-51 or by another statute, the following rules apply:
(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. The trust may not be enforced for more than twenty-one (21) years;
(2) A trust authorized by this section may be enforced by a person appointed under the terms of the trust, or if no person is so appointed, by a person appointed by the court.
(3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.
§ 91-8-410
(a) In addition to the methods of termination prescribed by Sections 91-8-411 through 91-8-414, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful or impossible to achieve.
(b) A proceeding to approve or disapprove a proposed modification or termination under Sections 91-8-411 through 91-8-416, or trust combination or division under Section 91-8-417, may be commenced by a trustee or beneficiary. The settlor of a charitable trust may maintain a proceeding to modify the trust under Section 91-8-413.
(c) Nothing in this section or this chapter is intended to create or imply a duty for a trustee to make or seek approval of a modification, termination, combination or division, and a trustee is not liable for not making or seeking approval of a modification, termination, combination or division.
§ 91-8-411
(a) During the settlor's lifetime, a noncharitable irrevocable trust may be modified or terminated by the trustee upon consent of all qualified beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust if the settlor does not object to the proposed modification or termination. The trustee shall notify the settlor of the proposed modification or termination not less than sixty (60) days before initiating the modification or termination. The notice of modification or termination must include:
(1) An explanation of the reasons for the proposed modification or termination;
(2) The date on which the proposed modification or termination is anticipated to occur; and
(3) The date, not less than sixty (60) days after the giving of notice, by which the settlor must notify the trustee of an objection to the proposed modification or termination.
(b) Following the settlor's death, a noncharitable irrevocable trust may be terminated upon consent of all of the qualified beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the qualified beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
(c) Upon termination of a trust under subsection (a) or (b), the trustee shall distribute the trust property as agreed by the qualified beneficiaries.
(d) If not all of the qualified beneficiaries consent to a proposed modification or termination of the trust under subsection (a) or (b), the modification or termination may be approved by the court if the court is satisfied that:
(1) If all of the qualified beneficiaries had consented, the trust could have been modified or terminated under this section; and
(2) The interests of a qualified beneficiary who does not consent will be adequately protected.
(e) Solely for purposes of this section, the term “noncharitable irrevocable trust” refers to a trust that is not revocable by the settlor with respect to which:
(1) No federal or state income, gift, estate or inheritance tax charitable deduction was allowed upon transfers to the trust; and
(2) The value of all interests in the trust owned by charitable organizations does not exceed five percent (5%) of the value of the trust.
(f) Notwithstanding subsection (a), the trustee may seek court approval of a modification or termination.
§ 91-8-412
(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor's probable intention.
(b) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or wasteful or impair the trust's administration.
(c) Upon termination of a trust under this section, the trustee shall distribute the trust property in a manner consistent with the purposes of the trust.
§ 91-8-413
(a) Except as otherwise provided in subsection (b), if a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, obsolete or ineffective:
(1) The trust does not fail, in whole or in part;
(2) The trust property does not revert to the settlor or the settlor's successors in interest; and
(3) The court may apply cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner that fulfills as nearly as possible the settlor's charitable intent and purposes.
(b) A provision in the terms of a charitable trust that would result in distribution of the trust property to a noncharitable beneficiary prevails over the power of the court under subsection (a) to apply cy pres to modify or terminate the trust only if, when the provision takes effect:
(1) The trust property is to revert to the settlor and the settlor is still living; or
(2) Fewer than twenty-one (21) years have elapsed since the date of the trust's creation.
§ 91-8-414
(a) After notice to the qualified beneficiaries, the trustee of a trust consisting of trust property having a total value less than One Hundred Fifty Thousand Dollars ($150,000.00) may terminate the trust if the trustee concludes that the value of the trust property is insufficient to justify the cost of administration.
(b) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration.
(c) Upon termination of a trust under this section, the trustee shall distribute the trust property to or for the benefit of the beneficiaries, in such shares as the trustee, or the court in a court proceeding, determines, after taking into account the interests of income and remainder beneficiaries so as to conform as nearly as possible to the intention of the settlor, but a trust that qualified for the marital deduction for tax purposes shall only be distributed to the spouse of the settlor for whom the trust was created.
(d) This section does not apply to an easement for conservation or preservation.
(e) This section shall not limit the right of a trustee, acting alone, to terminate a trust in accordance with applicable provisions of the governing instrument.
§ 91-8-415
The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intention if it is proved by clear and convincing evidence what the settlor's intention was and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.
§ 91-8-416
To achieve the settlor's tax objectives, the court may modify the terms of a trust in a manner that is not contrary to the settlor's probable intention. The court may provide that the modification has retroactive effect.
§ 91-8-417
(a) After notice to the qualified beneficiaries, a trustee may combine two (2) or more trusts into a single trust or divide a trust into two (2) or more separate trusts, if the result does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust. In addition to any other combination or division the result of which does not impair the rights of any beneficiary or adversely affect achievement of the purposes of the trust, a combination or division pursuant to subsection (d) of this section shall not be considered as impairing the rights of any beneficiary or adversely affecting the achievement of the purposes of the trust. If the trusts to be combined or divided have different trustees, the trustees may negotiate the terms of the combined or divided trusts, including which trusts will be the surviving trust or trusts, who will be the trustee or trustees of the surviving trust or trusts and any other matter relating to the operation of the surviving trust or trusts.
(b) In addition to combining two (2) or more trusts into a single trust or dividing a trust into two (2) or more separate trusts, a trustee, after notice to the qualified beneficiaries, may segregate by allocation to a separate account or trust a specific amount from, a portion of, or a specific asset included in the trust property of any trust to reflect a disclaimer, to reflect or result in differences in federal tax attributes, to satisfy any federal tax requirement, to make federal tax elections, to reduce potential generation-skipping transfer tax liability, or for any other tax planning purposes or other reasons.
(c) A separate trust created by severance or segregation must be treated as a separate trust for all purposes from the effective date in which the severance or segregation is effective. The effective date of the severance or segregation may be retroactive. In managing, investing, administering, and distributing the trust property of any separate account or trust and in making applicable tax elections, the trustee may consider the differences in federal tax attributes and all other factors the trustee believes pertinent and may make disproportionate distributions from the separate trusts or accounts created.
(d) A trust or account created by consolidation, severance, or segregation under this section shall not be considered as impairing the rights of a beneficiary if the trust is held on terms and conditions that are substantially equivalent to the terms of the trust before consolidation, severance, or segregation so that the aggregate interests of each beneficiary are substantially equivalent to the beneficiary's interests in the trust or trusts before consolidation, severance, or segregation. In determining whether a beneficiary's aggregate interests are substantially equivalent, the trustee shall consider the economic value of those interests to the extent they can be valued, considering actuarial factors as appropriate. If a beneficiary's interest cannot be valued with any reasonable degree of certainty because of the nature of the trust property, the terms of the trust, or other reasons, the trustee shall base the determination upon such other factors as are reasonable and appropriate under the facts and circumstances applicable to that particular trust, including the purposes of the trust. However, the terms of any trust before consolidation, severance or segregation which permit qualification of that trust for an applicable federal tax deduction, exclusion, election, exemption, or other special federal tax status must remain identical in the consolidated trust or in each of the separate trusts or accounts created by severance or segregation.
(e) A trustee who acts in good faith is not liable to any person for taking into consideration differences in federal tax attributes and other pertinent factors in administering trust property of any separate account or trust, in making tax elections, and making distributions pursuant to the terms of the separate trust.
(f) Income earned on a consolidated or severed or segregated amount, portion, or specific asset after the consolidation or severance is effective passes with that amount, portion or specific asset.
(g) This section applies to all trusts whenever created, whether before, on, or after July 1, 2014, and whether the trusts are inter vivos or testamentary, are created by the same or different instruments, by the same or different persons and without regard to where created or administered.
(h) This section does not limit the right of a trustee acting in accordance with the applicable provisions of the governing instrument to divide or consolidate trusts.
(i) Nothing contained in this section shall be construed as granting to any trustee a general power of appointment over any trust not otherwise expressly granted in the trust instrument.
§ 91-8-501
This Article 5 applies to a creditor's or assignee's claims and ability to reach mandatory, support and discretionary interests regardless of whether such interests are subject to a spendthrift provision. To the extent not otherwise prohibited by this Article 5, the court may authorize a creditor or assignee of the beneficiary to reach the beneficiary's distribution interest by attachment of present or future distributions to or for the benefit of the beneficiary or other means. The court may limit the award to such relief as is appropriate under the circumstances.
§ 91-8-502
(a) Except as provided in Section 91-8-505, if the trust instrument provides that a beneficiary's interest in a trust is not subject to voluntary or involuntary transfer, the beneficiary's interest in the trust may not be transferred and is not subject to the enforcement of a money judgment until paid to the beneficiary.
(b) A term of a trust providing that the interest of a beneficiary is held subject to a “spendthrift trust,” or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.
(c) A spendthrift provision applies to all beneficial interests, including distribution interests whether with respect to income or principal or both, and remainder interests.
(d) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision, and a creditor or assignee of the beneficiary may not reach the interest or a present, future or prospective distribution by the trustee before its receipt by the beneficiary. Similarly, a creditor or assignee of the beneficiary may not force a distribution from the trust. This subsection (d) remains applicable regardless of the beneficiary's potential right to force a distribution under Section 91-8-814.
(e) Notwithstanding any other provision of this section to the contrary or whether a beneficiary has an outstanding creditor, a trustee, cotrustee, or other fiduciary of a trust subject to a spendthrift provision may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary. A trustee, cotrustee or other fiduciary is not liable to any creditor for paying the expenses of a beneficiary under a trust subject to a spendthrift provision. This subsection (e) remains applicable whether the beneficiary for whom the direct payment was made held a mandatory, support, discretionary or remainder interest.
§ 91-8-503
(a) A discretionary interest is neither a property interest nor an enforceable right; it is a mere expectancy.
(b) Relative to a discretionary interest, whether or not a trust contains a spendthrift provision:
(1) A creditor or assignee cannot force or otherwise reach a distribution with regard to a discretionary interest;
(2) A creditor or assignee cannot require a trustee, cotrustee or other fiduciary to exercise the trustee's, cotrustee's or other fiduciary's discretion to make a distribution with regard to a discretionary interest;
(3) Whether or not a beneficiary has any outstanding creditors or assignees, a trustee, cotrustee or other fiduciary of a discretionary interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary;
(4) A trustee, cotrustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a discretionary interest;
(5)(A) Whether or not a beneficiary holding a discretionary interest is also a trustee, cotrustee or other fiduciary, subsections (b)(1) through (4) remain applicable if:
(i) The beneficiary-fiduciary does not have the discretion to make or participate in making distributions to such beneficiary-fiduciary;
(ii) The beneficiary-fiduciary's discretion to make or participate in making distributions to such beneficiary-fiduciary is limited by an ascertainable standard; or
(iii) The beneficiary-fiduciary's discretion to make or participate in making distributions to such beneficiary-fiduciary is exercisable only with the consent of a cotrustee or another person holding an adverse interest.
(B) A creditor or assignee may compel or otherwise reach a distribution only to the extent the creditor or assignee may compel or otherwise reach a distribution if the beneficiary was not acting as a trustee, cotrustee or other fiduciary.
§ 91-8-504
(a) Whether or not the terms of a trust contain a spendthrift provision, the following rules apply:
(1) During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors.
(2) Except as provided in the Mississippi Qualified Disposition in Trust Act and subsections (a)(3) through (5) regarding an irrevocable special needs trust, a creditor or assignee of the settlor of an irrevocable trust may reach the maximum amount that can be distributed to or for the settlor's benefit. If a trust has more than one (1) settlor, the amount the creditor or assignee of a particular settlor may reach may not exceed the settlor's interest in the portion of the trust attributable to that settlor's contribution.
(3) For the purposes of this section, “irrevocable special needs trust” means an irrevocable trust established for the benefit of one or more disabled persons, which includes, but is not limited to, an individual who is disabled as defined in 42 U.S.C. Section 1382c(a), as well as an individual who is disabled as defined in any similar federal, state or other jurisdictional law or regulation, or has a condition that is substantially equivalent to one that qualifies the person as disabled under such a provision, even if not officially found to be disabled by a governmental body, if one (1) of the purposes of the trust, expressed in the trust instrument or implied from the trust instrument, is to allow the disabled person to qualify or continue to qualify for public, charitable or private benefits that might otherwise be available to the disabled person. The existence of one or more nondisabled remainder beneficiaries of the trust does not disqualify it as an irrevocable special needs trust for the purposes of this section.
(4) A creditor or assignee of the settlor of an irrevocable special needs trust, as defined in subsection (a)(3), may not reach or compel distributions from the special needs trust, to or for the benefit of the settlor of the special needs trust, or otherwise, whether or not the irrevocable special needs trust complies with, and irrespective of the requirements of, the Mississippi Qualified Disposition in Trust Act.
(5) Notwithstanding any law to the contrary, neither a creditor nor any other person shall have any claim or cause of action against the trustee or other fiduciary, or an advisor of an irrevocable special needs trust. For purposes of this subsection (a)(5), an advisor of an irrevocable special needs trust includes any person involved in the counseling, drafting, preparation, execution or funding of an irrevocable special needs trust.
(6) After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable immediately preceding the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, and the expenses of the settlor's funeral and disposal of remains subject to the following:
(A) With respect to claims, expenses, and taxes in connection with the settlement of the settlor's estate, any claim of a creditor that would be barred against the fiduciary of a settlor's estate, the estate of the settlor, or any creditor or beneficiary of the settlor's estate shall be barred against the trust property of a trust that was revocable at the settlor's death, the trustee of the revocable trust, and the creditors and beneficiaries of the trust.
(B) Unless a personal representative of the settlor's estate has been appointed or an application or petition for appointment of a personal representative of the settlor's estate is pending, the trustee at any time may give notice to any person the trustee has reason to believe may have a claim against the settlor at death, at the claimant's last known address. The notice shall contain the name and address of the trustee to whom the claim must be presented and provide information that failure to present the claim to the trustee within ninety (90) days of the date of the notice will forever bar the claim. If the person fails to present the claim in writing within ninety (90) days from the date of the notice, then the person is forever barred from asserting or recovering on the claim from the trustee, the trust property and the creditors and beneficiaries of the trust. A person who presents a claim on or before the date specified in the notice may not later increase the claim following the expiration of the ninety-day period.
(C) Unless a personal representative of the settlor's estate has been appointed or an application or petition for appointment of a personal representative of the settlor's estate is pending, a trustee may also publish in some newspaper in the county of the decedent's last residence a notice requiring all persons having unknown claims against the settlor to present their claims to the trustee, which notice shall state that failure to present the claim to the trustee within ninety (90) days of the date after the first publication of the notice will forever bar the claim. The notice must be published for three (3) consecutive weeks, and proof of publication must be maintained with the books and records of the trust. If a person fails to present a claim in writing within ninety (90) days from the date of first publication, that person shall be forever barred from asserting or recovering on the claim from the trustee, the trust property and the creditors and beneficiaries of the trust. A person who presents a claim on or before ninety (90) days from first publication may not later increase the claim following the expiration of the ninety-day period.
(D) In addition to subsection (a)(6)(B) and (a)(6)(C), if a claim is not presented in writing to the personal representative of the settlor's estate or to the trustee: (i) within six (6) months from the date of the appointment of the initial personal representative of the settlor's estate; or (ii) if no personal representative is appointed within six (6) months from the settlor's date of death and a claim is not presented in writing to the trustee within six (6) months from the settlor's date of death, a trustee is not chargeable for any assets that the trustee may pay or distribute in good faith in satisfaction of any lawful claims, expenses, or taxes or to any beneficiary before the claim was presented. A payment or distribution of assets by a trustee is deemed to have been made in good faith unless the creditor can prove that the trustee had actual knowledge of the claim at the time of the payment or distribution. The six-month period shall not be interrupted or affected by the death, resignation, or removal of a trustee, except that the time during which there is no trustee in office shall not be counted as part of the period.
(E) A claim presented to the trustee under subsection (a)(6)(B) or (a)(6)(C) must contain substantially the same information as required in Section 91-7-149.
(F) The provisions of Section 91-7-261 detailing the priority of payment of claims, expenses, and taxes from the probate estate of a decedent apply to a revocable trust to the extent the assets of the settlor's probate estate are inadequate and the personal representative or creditor or taxing authority of the settlor's estate has perfected its right to collect from the settlor's revocable trust.
(G) If a personal representative has been appointed for the settlor's estate, assets of the trust shall abate pari passu with assets of the settlor's estate. If no personal representative has been appointed for the settlor's estate, assets of the trust shall abate in the same order of preference as would apply to a decedent's estate.
(H) Nothing in this paragraph (6) obligates a trustee to seek appointment of a personal representative of a settlor's estate, and a trustee is not liable to any beneficiary or other third party for failure to do so.
(b) For purposes of this section during the period a power of withdrawal may be exercised or upon the lapse, release, or waiver of the power, the holder is treated as the settlor of the trust only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of:
(1) The amount specified in Section 2041(b)(2) or 2514(e) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2041(b)(2) and Section 2514(e));
(2) If the donor of the property subject to holder's power of withdrawal is not married at the time of the transfer of property to the trust, the amount specified in Section 2503(b) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2503(b)); or
(3) If the donor of the property subject to holder's power of withdrawal is married at the time of the transfer of property to the trust, twice the amount specified in Section 2503(b) of the Internal Revenue Code of 1986 (26 U.S.C. Section 2503(b)).
(4) A power to withdraw is not considered to exceed the greater of the amounts specified in subsection (b)(1) through (3) if the amount subject to a withdrawal right granted to the holder in any calendar year does not exceed the greater of such amounts even if the total amount subject to the holder's power to withdraw exceeds the greater of such amounts in any subsequent calendar year.
(5) Except to the extent provided in this subsection (b), a person who is the holder of a power of withdrawal is not considered a settlor of the trust by failing to exercise the power of withdrawal, releasing the power of withdrawal, or waiving the power of withdrawal.
(c) For purposes of subsection (a)(2), the following are not considered an amount that may be distributed to or for the settlor's benefit:
(1) The power of a trustee of an irrevocable trust, whether arising under the trust agreement or any other provision of law, to make a distribution to or for the benefit of a settlor for the purpose of reimbursing the settlor in an amount equal to any income taxes payable on any portion of the trust principal and income that are includable in the settlor's personal income under applicable law, as well as distributions made by the trustee under such authority; and
(2) The power of the settlor to exercise any of the powers described in Section 675 of the Internal Revenue Code of 1986 (26 U.S.C. Section 675).
(d) Property contributed to the following trusts is not considered to have been contributed by the settlor, and a person who would otherwise be treated as a settlor or deemed settlor of the following trusts may not be treated as a settlor:
(1) An irrevocable inter vivos marital trust if:
(A) The settlor is a beneficiary of the trust after the death of the settlor's spouse; and
(B) The trust is treated as:
(i) Qualified terminable interest property under Section 2523(f), Internal Revenue Code of 1986; or
(ii) A general power of appointment trust under Section 2523(e), Internal Revenue Code of 1986;
(2) An irrevocable inter vivos trust of which the settlor's spouse is a beneficiary if the settlor is a beneficiary of the trust after the death of the settlor's spouse; or
(3) An irrevocable trust for the benefit of any person to the extent that the property of the trust was subject to a power of appointment in another person, whether the settlor's interest was created by the lapse or exercise of such power.
The effect of this subsection (d) shall be that the power of a trustee, and any benefit resulting to the settlor, whether arising under the trust agreement or any other provision of the law, to make a distribution to or for the benefit of a settlor or to otherwise permit the settlor to use or benefit from trust property following the death of the settlor's spouse, shall not be considered an amount that may be distributed to or for the settlor's benefit for purposes of subsection (a)(2).
(e) A beneficiary is not considered to be a settlor, to have made a voluntary or involuntary transfer of the beneficiary's interest in the trust, or to have the power to make a voluntary or involuntary transfer of the beneficiary's interest in the trust, merely because the beneficiary holds, exercises, waives, releases, or allows to lapse:
(1) A presently exercisable power to:
(A) Consume, invade, appropriate, or distribute property to or for the benefit of the beneficiary, if the power is:
(i) Exercisable only on consent of another person holding an interest adverse to the beneficiary's interest; or
(ii) Limited by an ascertainable standard, including health, education, support, or maintenance of the beneficiary; or
(B) Appoint any property of the trust to or for the benefit of a person other than the beneficiary, a creditor of the beneficiary, the beneficiary's estate, or a creditor of the beneficiary's estate;
(2) A testamentary power of appointment; or
(3) A presently exercisable right described by subsection (b).
(f) For purposes of subsection (a)(2) and subsection (g), a person who becomes a beneficiary of a trust due to the exercise of a power of appointment by someone other than such person shall not be considered a settlor of the trust.
(g)(1) Notwithstanding Section 15-3-115, no person shall bring an action with respect to a transfer of property to a spendthrift trust if the person is a creditor when the transfer is made, unless the action is commenced within the later of two (2) years after the transfer is made or six (6) months after the person discovers or reasonably should have discovered the transfer; and
(2) If subsection (g)(1) applies:
(A) A person is deemed to have discovered the existence of a transfer at the time any public record is made of the transfer, including, but not limited to, a conveyance of real property that is recorded in the office of the county register of deeds of the county in which the property is located or the filing of a financing statement Uniform Commercial Code, or the equivalent recording or filing of either with the appropriate person or official under the laws of a jurisdiction other than this state;
(B) A creditor cannot bring an action with respect to a transfer of property to a spendthrift trust unless that creditor proves by clear and convincing evidence that the settlor's transfer to the trust was made with the intent to defraud that specific creditor; and
(i) Notwithstanding any law to the contrary, a creditor or any other person does not have a claim or cause of action against the trustee, other fiduciary, or an advisor of a spendthrift trust if that claim or cause of action is based in any way on any person making use of the benefits of this subsection (g);
(ii) For purposes of subsection (g)(2)(B), an advisor of a spendthrift trust includes, but is not limited to, any person involved in the counseling, drafting, preparation, execution or funding of a spendthrift trust;
(iii) For purposes of subsection (g)(2)(B)(i), counseling, drafting, preparation, execution or funding of a spendthrift trust includes the counseling, drafting, preparation, execution and funding of a limited partnership, a limited liability company or any other type of entity if interests in the limited partnership, limited liability company or other entity are subsequently transferred to a spendthrift trust;
(3) Notwithstanding subsection (g)(2)(B), in the same manner as provided other than by this section to trusts in general, a beneficiary, settlor, cotrustee, trust advisor or trust protector retains the right to bring a claim against a trustee or against another cotrustee, trust advisor, trust protector or any of their predecessors; however, no such claim shall arise solely because a person used, or attempted to use, the benefits of this subsection (g);
(4) If more than one (1) transfer of property is made to a spendthrift trust, the subsequent transfer of property to the spendthrift trust shall be disregarded for the purpose of determining whether a person may bring an action under this subsection (g) with respect to a prior transfer of property to the spendthrift trust; any distribution to a beneficiary from the spendthrift trust shall be deemed to have been made from the most recent transfer made to the spendthrift trust;
(5) With the exception of a claim brought under subsection (g)(3), notwithstanding any other law, no action of any kind, including, without limitation, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity against the trustee, other fiduciary or advisor of a spendthrift trust if, as of the date the action is brought, an action by a creditor with respect to a transfer of property to the spendthrift trust would be barred under this subsection (g); and
(6) This subsection (g) shall not abridge the rights of a creditor, to the extent otherwise provided by this section, to reach the maximum amount that can be distributed to or for the settlor's benefit under a spendthrift trust.
§ 91-8-505
(a) Relative to a support interest, whether or not a trust contains a spendthrift provision:
(1) Although a beneficiary of a support interest has enforceable rights under Section 91-8-814, those rights do not raise the beneficiary's support interest to the level of a property interest;
(2) No creditor or assignee shall reach that support interest until a distribution from the support interest is actually made to the beneficiary;
(3) After all or a portion of a support interest is distributed to the beneficiary, no portion of the distribution made from the support interest shall be reached by a creditor or assignee of the beneficiary except to the extent that the distribution made from the support interest exceeds the amount necessary for the health, education, maintenance and support of the beneficiary who received the distribution made from the support interest;
(4) In the case of a beneficiary who holds a support interest, the use or enjoyment of property belonging to the trust by that beneficiary shall not be transferred and shall not be reached by creditors or assignees of that beneficiary;
(5) Regardless of whether a beneficiary has any outstanding creditors or assignees, a trustee or other fiduciary of a support interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary; and
(6) A trustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a support interest.
(b) Relative to a mandatory interest, whether or not a trust contains a spendthrift provision:
(1) While a court may order a trustee or other fiduciary to distribute a past-due mandatory distribution to its beneficiary, no court shall order a trustee or other fiduciary to distribute such past-due mandatory distribution directly to a creditor or assignee;
(2) Regardless of whether a beneficiary has any outstanding creditors or assignees, a trustee or other fiduciary of a mandatory interest may directly pay any expense on behalf of the beneficiary and may exhaust the income and principal of the trust for the benefit of the beneficiary;
(3) A trustee or other fiduciary is not liable to any creditor or assignee for paying the expenses of a beneficiary of a mandatory interest.
(c) Although a remainder interest may be an enforceable right, where it is not absolutely certain based on the language of the trust that the remainder interest will be distributed within one (1) year, it shall not be classified as a property interest. This subsection (c) does not affect eligibility for any public assistance program administered by the Department of Human Services.
§ 91-8-506
Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.
§ 91-8-507
(a) A creditor or assignee of a beneficiary does not have the power to reach an interest of a beneficiary or any other person who holds an unconditional or conditional removal or replacement power over a trustee or other fiduciary. Such power over a trustee or other fiduciary is personal to the holder and shall not be exercised by the holder's creditors. No court shall direct a holder to exercise the power.
(b) Subject to Section 91-8-504(b)(3):
(1) A creditor or assignee of a beneficiary may not reach an interest of a beneficiary who is also a trustee, cotrustee or other fiduciary, or otherwise compel a distribution because the beneficiary is then serving as a trustee, cotrustee or other fiduciary; and
(2) A court may not foreclose against a beneficiary's interest described in subsection (a).
§ 91-8-508
Regardless of whether a trust contains a spendthrift provision:
(1) No beneficial interest, power of appointment, or reserved power in a trust shall be judicially foreclosed.
(2) Trust property subject to a power of appointment is not subject to the claims of the creditors of the holder of the power of appointment or to any permitted appointee unless and until such trust property is distributed pursuant to the exercise of such power of appointment and then only to the extent of the claims of the creditors of the appointee.
(3) A creditor or an assignee of a beneficiary of a residuary interest in a trust has no interest in trust property until trust property is actually distributed to such assignee of the residuary interest and therefore trust property is not subject to claims of a creditor of the assignee.
(4) A power of appointment is not a property interest.
§ 91-8-509
Sections 91-8-501 through 91-8-508, Mississippi Code of 1972, constitute Article 5 of the Uniform Trust Code.
§ 91-8-601
The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will. To be effective as a post-death disposition of property transferred during the transferor's life or by the transferor's will to a trust of which the transferor is the settlor or deemed to be the settlor, neither a revocable nor an irrevocable trust existing on or executed after July 1, 2014, has to be executed with the formalities of a will.
§ 91-8-602
(a) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection (a) does not apply to a trust created under an instrument executed before July 1, 2014.
(b) If a revocable trust is created or funded by more than one (1) settlor:
(1) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution;
(3) At the death of one (1) settlor, each surviving settlor shall have the right to revoke the trust as to the surviving settlor's portion of the trust as determined by the type of property in accordance with subsection (b)(1) or (2); and
(4) Upon the revocation or amendment of the trust by fewer than all of the settlors or upon the death of one (1) of the settlors, the trustee shall promptly notify the other settlors of the revocation, amendment or death.
(c) The settlor may revoke or amend a revocable trust:
(1) By substantial compliance with a method provided in the terms of the trust; or
(2) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:
(A) A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) Any other method manifesting clear and convincing evidence of the settlor's intent; however, a written revocable trust may only be amended and revoked by a later written instrument delivered to the trustee.
(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs. However, with respect to community property under subsection (b)(1), the trustee shall deliver the property one-half ( 1/2 ) to each spouse unless the trust instrument specifically states otherwise.
(e) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.
(f) A conservator or guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
(g) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
§ 91-8-603
(a) While a trust is revocable rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
(b) If a revocable trust has more than one (1) settlor, the duties of the trustee are owed to all of the settlors having capacity to revoke the trust.
(c) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.
§ 91-8-604
(a) A person may commence a judicial proceeding to contest the validity of all or part of the terms of a trust that was revocable at the settlor's death within the earlier of:
(1) Two (2) years after the settlor's death; or
(2) One hundred and twenty (120) days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding.
(b) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is subject to liability for doing so only if:
(1) The trustee knows of a pending judicial proceeding contesting the validity of all or part of the terms of the trust; or
(2) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within sixty (60) days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined by a court proceeding to be invalid, in whole or in part, is liable to return to the court any distribution received for proper distribution to the extent that the invalidity applies to the distribution. If the beneficiary refuses to return the distribution after being ordered by the court, the beneficiary shall be liable for all costs incurred for recovery of the distribution.
§ 91-8-701
(a) Except as otherwise provided in subsection (c), a person designated as trustee accepts the trusteeship:
(1) By substantially complying with a method of acceptance provided in the terms of the trust; or
(2) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
(b) A person designated as trustee who has not yet accepted the trusteeship may reject the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have rejected the trusteeship.
(c) A person designated as trustee, without accepting the trusteeship, may:
(1) Act to preserve the trust property if, within a reasonable time after acting, the person sends a rejection of the trusteeship to the settlor or, if the settlor is dead or lacks capacity, to a qualified beneficiary; and
(2) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.
§ 91-8-702
(a) A trustee shall give bond to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.
(b) The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time.
(c) A state or national bank, savings institution, or trust company authorized to exercise fiduciary powers and regulated by the Office of the Comptroller of the Currency, Office of Thrift Supervision, the Mississippi Department of Banking and Consumer Finance, or equivalent state banking supervisors need not give bond, even if required by the terms of the trust.
§ 91-8-703
(a) Cotrustees who are unable to reach a unanimous decision after consultation among all the cotrustees may act by majority decision.
(b) If a vacancy occurs in a cotrusteeship, the remaining cotrustees may act for the trust.
(c) A cotrustee must participate in the performance of a trustee's function and consult with the other cotrustees unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or other temporary incapacity or the cotrustee has properly delegated the performance of the function to another trustee.
(d) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or other temporary incapacity, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.
(e) A trustee may delegate to a cotrustee the performance of a function other than a function that the terms of the trust instrument expressly require the trustees to perform jointly. Unless a delegation was irrevocable, a trustee may revoke a delegation previously made.
(f) Except as otherwise provided in subsection (g), a trustee who does not join in an action of another trustee is not liable for the action.
(g) Each trustee shall exercise reasonable care to:
(1) Prevent a cotrustee from committing a serious breach of trust; and
(2) Compel a cotrustee to redress a serious breach of trust.
(h) A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified any cotrustee of the dissent at or before the time of the action is not liable for the action unless the action is a serious breach of trust.
(i) A trustee, trust advisor and trust protector shall keep each cotrustee, trust advisor, trust protector and any other fiduciary reasonably informed about the administration of the trust, to the extent the trustee, trust advisor or trust protector has knowledge that each such cotrustee, trust advisor, trust protector or other fiduciary does not have knowledge of the trustee's, trust advisor's or trust protector's actions, or regarding other material information or the availability of such information, related to the administration of the trust that would be reasonably necessary for each cotrustee, trust advisor, trust protector or other fiduciary to perform his or her duties as a trustee, trust advisor, trust protector or other fiduciary of the trust.
§ 91-8-704
(a) A vacancy in a trusteeship occurs if:
(1) A person designated as trustee rejects the trusteeship;
(2) A person designated as trustee cannot be identified or does not exist;
(3) A trustee resigns;
(4) A trustee is disqualified or removed;
(5) A trustee dies; or
(6) A conservator or guardian is appointed for an individual serving as trustee.
(b) If one or more cotrustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee.
(c) A vacancy in a trusteeship of a noncharitable trust that is required to be filled must be filled in the following order of priority:
(1) By a person designated in the terms of the trust to act as successor trustee;
(2) By a person appointed by unanimous agreement of the qualified beneficiaries; or
(3) By a person appointed by the court.
(d) A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:
(1) By a person designated in the terms of the trust to act as successor trustee;
(2) By a person selected by the unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust if the Attorney General does not affirmatively object within thirty (30) days of receipt of notice of the person selected; or
(3) By a person appointed by the court.
(e) Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust.
§ 91-8-705
(a) A trustee may resign:
(1) Upon at least thirty (30) days' notice to the qualified beneficiaries, the settlor, if living, and all cotrustees; or
(2) With the approval of the court.
(b) In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.
(c) Any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.
§ 91-8-706
(a) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.
(b) The court may remove a trustee if:
(1) The trustee has committed a serious breach of trust;
(2) Lack of cooperation among cotrustees substantially impairs the administration of the trust;
(3) Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or
(4) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.
(c) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under Section 91-8-1001(b) as may be necessary to protect the trust property or the interests of the beneficiaries.
§ 91-8-707
(a) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.
(b) A trustee who has resigned or been removed shall, within a reasonable time, deliver the trust property within the trustee's possession to the cotrustee, successor trustee, or other person entitled to it.
§ 91-8-708
(a) If the terms of a trust do not specify the trustee's, trust advisor's, or trust protector's compensation, and if the settlor, if living, or otherwise a majority of the qualified beneficiaries as defined in Section 91-8-103, have not otherwise agreed with the trustee, trust advisor, or trust protector, a trustee, trust advisor, or trust protector is entitled to compensation that is reasonable under the circumstances.
(b) If the terms of a trust specify the trustee's, trust advisor's, or trust protector's compensation, the trustee, trust advisor, or trust protector is entitled to be compensated as specified in the trust, but the court may allow more or less compensation if:
(1) The duties of the trustee, trust advisor, or trust protector are substantially different from those contemplated when the trust was created; or
(2) The compensation specified by the terms of the trust would be unreasonably low or high.
(c) Factors for the court to consider in deciding upon a trustee's, trust advisor's, or trust protector's compensation shall include the size of the trust, the nature and number of the assets, the income produced, the time and responsibility required, the expertise required, any management or sale of real property or closely held business interests, any involvement in litigation to protect trust property, and other relevant factors.
(d) Subject to the court's authority as provided in subsection (b), regardless of its form of entity, the fees set forth in the published fee schedule of a trustee, trust advisor, or trust protector that is regulated by the Mississippi Department of Banking and Consumer Finance, the equivalent regulatory agency of another state, the Office of the Comptroller of the Currency, or the Office of Thrift Supervision shall be presumed to be reasonable, unless otherwise provided by the terms of the trust.
§ 91-8-709
(a) A trustee, trust advisor, or trust protector is entitled to be reimbursed out of the trust property, with interest as appropriate, for:
(1) Expenses that were properly incurred in the administration of the trust, including the defense or prosecution of any action, whether successful or not, unless the trustee is determined to have willfully or wantonly committed a material breach of trust; and
(2) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.
(b) An advance by the trustee, trust advisor, or trust protector or by a person named in Section 91-8-701(c)(1) of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.
§ 91-8-710
If the terms of the trust require a trustee, trust advisor, or trust protector to follow the direction of a trust advisor or trust protector, and the trustee, trust advisor, or trust protector acts in accordance with the direction, then the trustee, trust advisor, or trust protector so directed shall be treated as an excluded fiduciary.
§ 91-8-711
(a) A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(a), may accept its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-701(a).
(b) A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(b), may reject its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-701(b).
(c) A trust advisor, trust protector, or other fiduciary other than a cotrustee, the cotrustee already being provided for in Section 91-8-701(c), may, without accepting its appointment as the respective fiduciary, carry out the appropriate activities relative to the respective fiduciary as are provided for a trustee under Section 91-8-701(c).
§ 91-8-712
(a)Section 91-8-702 applies to trust advisors, trust protectors, or other fiduciaries other than cotrustees, the cotrustees already being provided for in Section 91-8-702.
(b) When exercising its powers under this section, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.
§ 91-8-713
(a) Except as otherwise provided by the terms of the trust upon obtaining knowledge of a vacancy in the office of trust advisor or trust protector, the trustee shall be vested with any fiduciary power or duty that otherwise would be vested in the trustee but that by the terms of the trust was vested in the trust advisor or trust protector, until such time that the vacancy in the office of trust advisor or trust protector, as applicable, is filled.
(b) The vacancy shall be filled in the same manner as would a vacancy in trusteeship that is required to be filled, either as provided by Section 91-8-704(c) if the trust is a noncharitable trust, or as provided by Section 91-8-704(d) if the trust is a charitable trust.Section 91-8-704(e) shall also apply relative to trust advisors and trust protectors in the same manner as that subsection does to trustees and vacancies in trusteeship.
(c) Notwithstanding subsection (a), a trustee shall not be liable for failing to exercise or assume any power or duty held by a trust advisor or trust protector and conferred upon the trustee by subsection (a) for the one-hundred-twenty-day period immediately following the date the trustee obtains knowledge of the vacancy.
§ 91-8-714
(a) A trust advisor, trust protector, or other fiduciary other than a cotrustee, a cotrustee's resignation already being provided for in Section 91-8-705, may resign its appointment as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-705.
(b) When exercising its powers under this section relative to resignation, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.
§ 91-8-715
(a) A trust advisor, trust protector, or other fiduciary other than a cotrustee, a cotrustee's removal already being provided for in Section 91-8-706, may be removed as the respective fiduciary in a like manner as provided for a trustee under Section 91-8-706.
(b) When exercising its powers under this section relative to removal of the respective fiduciary, the court shall consider the powers, duties, and liabilities relative to the respective fiduciaries other than a cotrustee and whether any of the respective fiduciaries are excluded fiduciaries.
§ 91-8-801
Upon acceptance of a trusteeship, the trustee shall administer the trust until such time as the trust terminates or a successor trustee is appointed and all assets are delivered in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter.
§ 91-8-802
(a) A trustee shall administer the trust solely in the interests of the beneficiaries.
(b) Subject to the rights of persons dealing with or assisting the trustee as provided in Section 91-8-1012 or as may otherwise be allowed under Mississippi law, a sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee's own personal account or which is otherwise affected by a conflict between the trustee's fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:
(1) The transaction was authorized by the terms of the trust;
(2) The transaction was approved by the court;
(3) The beneficiary did not commence a judicial proceeding within the time allowed by Section 91-8-1005;
(4) The beneficiary consented to the trustee's conduct, ratified the transaction, or released the trustee in compliance with Section 91-8-1009; or
(5) The transaction involves a contract entered into or claim acquired by the trustee before the person became or contemplated becoming trustee.
(c) A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with:
(1) The trustee's spouse;
(2) The trustee's descendants, siblings, parents, or their spouses;
(3) An agent or attorney of the trustee; or
(4) A corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee's best judgment.
(d) A transaction not concerning trust property in which the trustee engages in the trustee's individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.
(e) In addition to all other permissible investments and delegatable duties listed in this title, so long as they are fairly priced and in accordance with the interest of the beneficiaries and the interests of the fiduciary's appointment and otherwise comply with the Mississippi Uniform Prudent Investor Act or Article 12 of this chapter, a fiduciary may purchase, sell, hold or otherwise deal with an affiliate or an interest in an affiliated investment, as well as delegate to an affiliate or other agent associated with the fiduciary and, upon satisfaction of the conditions stated in subsection (g), the fiduciary may receive fiduciary compensation from the account at the same rate as the fiduciary would otherwise be entitled to be compensated. These activities shall occur without any presumption of a conflict between personal and fiduciary interests of the trustee or other fiduciary.
(f) As used in this section:
(1) “Affiliate” means any corporation or other entity that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with the fiduciary.
(2) “Affiliated investment” means an investment for which the fiduciary or an affiliate of the fiduciary acts as adviser, administrator, distributor, placement agent, underwriter, broker or in any other capacity for which it receives or has received a fee or commission from the investment or an investment acquired or disposed of in a transaction for which the fiduciary or an affiliate of the fiduciary receives or has received a fee or commission. “Affiliated investment” also means an investment in an insurance contract purchased from an insurance agency owned by, or affiliated with, the fiduciary, or any of its affiliates.
(3) “Delegate to an affiliate or associated agent” means a proper delegation of any duty of the fiduciary to any person or entity that is affiliated with, or associated with, the fiduciary. The action of doing any of the above shall be known as a “delegation to an affiliate or associated agent.”
(4) “Fee or commission” means compensation paid to a fiduciary or an affiliate thereof on account of its services to or on behalf of an investment.
(5) For purposes of this section, “fiduciary” means any fiduciary as defined in Section 91-8-103, as well as any other fiduciary.
(6) “Investment” shall mean any security as defined in Section 2(a)(1) of the Securities Act of 1933, any contract of sale of a commodity for future delivery within the meaning of Section 2(i) of the Commodity Exchange Act, or any other asset permitted for fiduciary accounts pursuant to the terms of the Mississippi Uniform Prudent Investor Act or by the terms of the governing instrument, including by way of illustration and not limitation: shares or interests in a public or private investment fund, including, but not limited to, a public or private investment fund organized as a limited partnership, limited liability company, statutory or common-law business trust, real estate investment trust, joint venture or other general or limited partnership, or an open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940.
(g) A fiduciary seeking compensation pursuant to subsection (e) shall, as is applicable relative to the fiduciary's particular appointment, disclose either: to those persons entitled to be kept informed about the administration of a trust under Section 91-8-813(a), subject to the provisions of Sections 91-8-813(d) and 91-8-105(d); to each principal in an agency relationship; or to all current recipients of statements of any other fiduciary account not described above; all fees or commissions paid or to be paid by the account, or received or to be received by an affiliate arising from such affiliated investment or delegation to an affiliate or associated agent. The disclosure required under this subsection (g) may be given either in a copy of the prospectus or any other disclosure document prepared for the affiliated investment under federal or state securities laws or in a written summary that includes all fees or commissions received or to be received by the fiduciary or any affiliate of the fiduciary and an explanation of the manner in which such fees or commissions are calculated, either as a percentage of the assets invested or by some other method. The disclosure shall be made at least annually unless there has been no increase in the rate at which fees or commissions are calculated since the most recent disclosure. Notwithstanding this subsection (g), no such disclosure is required if the governing instrument or a court order expressly authorizes the fiduciary to invest the fiduciary account in affiliated investments or to perform the delegation to an affiliate or associated agent.
(h) A fiduciary that has complied with subsection (g), whether by making the applicable disclosure or by relying on the terms of a governing instrument or court order, shall have full authority to administer an affiliated investment, including the authority to vote proxies thereon, without regard to the affiliation between the fiduciary and the investment or the fiduciary and delegatee, as the case may be.
(i) In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.
(j) The following transactions, if fairly priced and in accordance with the interest of the beneficiaries and the purposes of the trust, are not presumed to be affected by a conflict between the trustee's personal and fiduciary interest if any investment made pursuant to the transaction otherwise complies with the Mississippi Prudent Investor Act:
(1) An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee, or any of its affiliates;
(2) Payment of reasonable compensation to the trustee, or any of its affiliates;
(3) A transaction between a trust and another trust, decedent's estate, guardianship, or conservatorship of which the trustee is a fiduciary or in which a beneficiary has an interest;
(4) A deposit of trust money in a regulated financial-service institution operated by the trustee or an affiliate;
(5) An advance by the trustee of money for the protection of the trust;
(6) An investment by a trustee in securities of an investment company or investment trust to which the trustee, or its affiliates, provides services in a capacity other than as a trustee provided that any investment made pursuant to the transaction otherwise complies with the Mississippi Prudent Investor Act;
(7) The placing of securities transactions by a trustee through a securities broker that is part of the same company as the trustee, is owned by the trustee, or is affiliated with the trustee;
(8) Any loan from the trustee or its affiliate;
(9) An investment in an insurance contract purchased from an insurance agency owned by, or affiliated with the trustee, or any of its affiliates; or
(10) A delegation and any transaction made pursuant to the delegation from a trustee to an agent that is affiliated or associated with the trustee.
(k) The court may appoint a special fiduciary to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.
§ 91-8-803
If a trust has two (2) or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries' respective interests and the purposes of the trust.
§ 91-8-804
A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
§ 91-8-805
In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, and the skills of the trustee.
§ 91-8-806
A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, shall use those special skills or expertise.
§ 91-8-807
(a) A trustee may delegate duties and powers that a prudent trustee could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
(3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
(b) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care, skill, and caution to comply with the terms of the delegation.
(c) A trustee who complies with subsection (a) is not liable to the beneficiaries or to the trust for an action or inaction of the agent to whom the function was delegated.
(d) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
§ 91-8-808
(a) While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust or contrary to the normal practice of the trustee in regard to the action requested.
(b) If the terms of a trust confer upon a person other than the settlor of a revocable trust power to direct certain actions of the trustee, the trustee shall act in accordance with an exercise of the power.
(c) The terms of a trust may confer upon a trustee or other person a power to direct the modification or termination of the trust.
(d) If a person holds a power to direct pursuant to Article 12 of this chapter, that person is a trust advisor, trust protector, or both. The power holder is subject to all the provisions of Article 12, including any duties prescribed by Article 12 and any provisions that make the power holder a fiduciary. Any trustee or other person that under Article 12 is relieved of any duty or any liability, or is otherwise protected under Article 12, shall be so relieved and otherwise protected.
§ 91-8-809
A trustee shall take reasonable steps to take control of and protect the trust property.
§ 91-8-810
(a) A trustee shall keep adequate records of the administration of the trust.
(b) A trustee shall keep trust property separate from the trustee's own property.
(c) Except as otherwise provided in subsection (d), a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.
(d) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of two (2) or more separate trusts.
§ 91-8-811
(a) A trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust.
(b) A trustee may abandon or assign any claim that it believes is unreasonable to enforce to one or more of the beneficiaries of the trust holding the claim.
§ 91-8-812
A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress a breach of trust known to the trustee to have been committed by a former trustee. No successor trustee appointed after the examination of the accounts of a trustee or the waiver of the examination by the beneficiaries shall be responsible for the acts and omissions of the prior trustee.
§ 91-8-813
(a)(1) A trustee shall keep the beneficiaries of the trust that are current mandatory or permissible distributees of trust income or principal, or both, reasonably informed about the administration of the trust and of the material facts necessary for them to protect their interests.
(2) Unless unreasonable under the circumstances, a trustee shall respond in a reasonable amount of time to a qualified beneficiary's request for information related to the administration of the trust. Additionally, a qualified beneficiary shall reimburse the trustee for any reasonable expenses incurred in responding to requests for information.
(3) The requirements of subsection (a) shall also apply to the benefit of anyone who, in a capacity other than that of a fiduciary, holds a power of appointment.
(b) The trustee of an irrevocable or nongrantor trust within sixty (60) days after the acceptance and funding of a trust, excluding nominal funding for the trust to have corpus or the depositing of insurance policies on the life of a living person, shall notify each current income beneficiary, each vested ultimate beneficiary of a remainder interest and anyone who, in a capacity other than that of a fiduciary, holds a power of appointment, that the trust has been established.
(1) The required notice shall:
(A) Be sent by first-class mail or personal delivery; and
(B) Consist of either a complete copy of the document establishing the trust together with the trustee's name, address and telephone number or an abstract of the trust, as the trustee, in the trustee's absolute discretion, may choose.
(2) The abstract shall contain:
(A) The name, address and telephone number of each trustee; and
(B) If for a current income beneficiary:
(i) The number of other current income beneficiaries;
(ii) Whether distributions of income are required or discretionary; and
(iii) Whether distributions of principal are permitted and, if so, for what purpose or purposes; and
(C) If for a remainder beneficiary:
(i) The number of other remainder beneficiaries; and
(ii) The conditions that must be met before the beneficiary's share is distributable.
(D) If for anyone who, in a capacity other than that of a fiduciary, holds a power of appointment, all of the information required by subsection (b) necessary or beneficial for that person to effectively determine whether or not to exercise that power of appointment.
(c) Upon the termination of an interest of any one or more of the current income beneficiaries:
(1) The trustee shall similarly notify the income beneficiaries who are takers of the terminated interest of their interest by sending or delivering them the notice required in subsection (b); and
(2) If at that time the period described in subsection (b) has lapsed, the trustee shall similarly notify anyone who, in a capacity other than that of a fiduciary, holds a power of appointment by sending or delivering to the person the notice required in subsection (b).
(d) A beneficiary may waive the right to a trustee's report or other information otherwise required to be furnished under this section. A beneficiary, with respect to future reports and other information, may withdraw a waiver previously given. Anyone who, in a capacity other than that of a fiduciary, holds a power of appointment has the same power as provided a beneficiary in this subsection to waive reports and other information and to withdraw a waiver previously given.
(e) Subsections (a) and (b) shall not apply to the extent that those provisions are waived or modified in accordance with Section 91-8-105(d).
(f) Subsection (a)(1) and subsection (b) do not apply to a trust created under a trust agreement that became irrevocable before July 1, 2014. Trust law in effect before July 1, 2014, regarding the subject matter of subsection (a)(1) and subsection (b) shall continue to apply to those trusts.
(g) If the trustee of a trust is bound by any written confidentiality restrictions with respect to an asset of a trust, a trustee may require that any beneficiary who is eligible to receive information pursuant to this or any other section of this chapter about the asset shall agree in writing to be bound by the confidentiality restrictions that bind the trustee before receiving the information from the trustee.
(h) A trust advisor, trust protector, or other fiduciary designated by the terms of the trust shall keep each excluded fiduciary designated by the terms of the trust reasonably informed about:
(1) The administration of the trust with respect to any specific duty or function being performed by the trust advisor, trust protector, or other fiduciary to the extent that the duty or function would normally be performed by the excluded fiduciary or to the extent that providing the information to the excluded fiduciary is reasonably necessary for the excluded fiduciary to perform its duties; and
(2) Any other material information that the excluded fiduciary would be required to disclose to the specified beneficiaries under subsection (a) without regard to whether the terms of the trust relieve the excluded fiduciary from providing the information to qualified beneficiaries. Neither the performance nor the failure to perform of a trust advisor, trust protector, or other fiduciary designated by the terms of the trust as provided in this subsection shall affect the limitation on the liability of any excluded fiduciary provided by Article 12 of this chapter.
§ 91-8-814
(a) Relative to exercise of powers over discretionary and other interests:
(1) “Improper motive” means to demonstrate action such as the following:
(A) A trustee refusing to make or limiting distributions to beneficiaries other than the trustee due to the trustee's self-interest when the trustee also holds a beneficial interest subject to a discretionary interest; or
(B) A trustee making a distribution in excess of an ascertainable standard to himself or herself as beneficiary when the trustee is restricted by an ascertainable standard in the trust.
(2) Unless otherwise provided in the trust:
(A) If the settlor's spouse is named as a beneficiary, the settlor is still living and the trust is classified as a support trust, then the trustee shall consider the resources of the settlor's spouse, including the settlor's obligation of support, before making a distribution; and
(B) In all other cases, unless otherwise provided in the trust, the trustee need not consider the beneficiary's resources in determining whether a distribution should be made.
(b) The following provisions apply only to discretionary interests:
(1) A discretionary interest is neither a property interest nor an enforceable right; it is a mere expectancy;
(2) A court may review a trustee's distribution discretion only if the trustee acts dishonestly, acts with an improper motive, or fails to act, if under a duty to do so;
(3) A reasonableness standard shall not be applied to the exercise of discretion by the trustee with regard to a discretionary interest;
(4) Other than for the three (3) circumstances listed in subsection (b)(2), a court has no jurisdiction to review the trustee's discretion or to force a distribution; and
(5) Absent express language in the trust instrument to the contrary, if the distribution language in a discretionary interest permits unequal distributions between beneficiaries or distributions to the exclusion of other beneficiaries, the trustee may distribute all of the accumulated, accrued, or undistributed income and principal to one (1) beneficiary in the trustee's discretion.
(c) The following provisions apply only to mandatory or support interests:
(1) A beneficiary of a mandatory or a support interest has an enforceable right to a distribution pursuant to a court's review;
(2) A trustee's distribution decision may be reviewed for unreasonableness, dishonesty, improper motivation, or failure to act, if under a duty to do so; and
(3) In the case of a support interest, nothing in this section shall raise a beneficiary's support interest to the level of a property interest.
(d) Unless otherwise provided in subsection (f), and unless the terms of the trust expressly indicate that a rule in this subsection does not apply:
(1) A person other than a settlor who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit may exercise the power only in accordance with an ascertainable standard; and
(2) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.
(e) A power that is limited or prohibited by subsection (d) may be exercised by a majority of the remaining trustees whose exercise of the power is not so limited or prohibited. If the power of all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.
(f) Subsection (d) shall not apply to:
(1) A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as defined in Section 2056(b)(5) or 2523(e) of the Internal Revenue Code, was previously allowed;
(2) Any trust during any period that the trust may be revoked or amended by its settlor; or
(3) A trust if contributions to the trust qualify for the annual exclusion under Section 2503(c) of the Internal Revenue Code.
§ 91-8-815
(a) A trustee, without authorization by the court, may exercise:
(1) Powers conferred by the terms of the trust; and
(2) Except as limited by the terms of the trust:
(A) All powers over the trust property which an unmarried competent owner has over individually owned property;
(B) Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property; and
(C) Any other powers conferred by this chapter.
(b) The exercise of a power is subject to the fiduciary duties prescribed by this article.
§ 91-8-816
(a) Any references contained in a will or trust incorporating by reference the powers enumerated in Section 91-9-101 et seq. will incorporate by reference the powers contained in this section.
(b) Unless the terms of the instrument expressly provide otherwise and without limiting the authority conferred by Section 91-8-815, a trustee may:
(1) Collect trust property and accept or reject additions to the trust property from a settlor or any other person;
(2) Acquire or sell property, for cash or on credit, at public or private sale;
(3) Exchange, partition, or otherwise change the character of trust property;
(4) Deposit trust money in an account in a regulated financial-service institution;
(5) Borrow money, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;
(6) With respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital;
(7) With respect to stocks or other securities, exercise the rights of an absolute owner, including the right to:
(A) Vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement;
(B) Hold a security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery;
(C) Pay calls, assessments, and other sums chargeable or accruing against the securities, and sell or exercise stock subscription or conversion rights; and
(D) Deposit the securities with a depository or other regulated financial-service institution;
(8) With respect to an interest in real property, construct or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plats and adjust boundaries;
(9) Enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust;
(10) Grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired;
(11) Insure the property of the trust against damage or loss and insure the trustee, the trustee's agents, and beneficiaries against liability arising from the administration of the trust;
(12) Abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration;
(13) With respect to possible liability for violation of environmental law:
(A) Inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property;
(B) Take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of governmental enforcement;
(C) Decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law;
(D) Compromise claims against the trust which may be asserted for an alleged violation of environmental law; and
(E) Pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law;
(14) Pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust;
(15) Pay taxes, assessments, compensation of the trustee and of employees and agents of the trust, and other expenses incurred in the administration of the trust;
(16) Exercise elections with respect to federal, state, and local taxes, including allocating capital gains to distributable net income;
(17) Select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds;
(18) Make loans out of trust property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances, where the trustee has a lien on future distributions for repayment of those loans;
(19) Pledge trust property to guarantee loans made by others to the beneficiary;
(20) Appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed;
(21) Pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary or applying it for the beneficiary's benefit, or by:
(A) Paying it to the conservator or guardian of the beneficiary's estate or, if there is no conservator or guardian of the beneficiary's estate, to the conservator or guardian of the beneficiary;
(B) Paying it to the beneficiary's custodian under the Uniform Transfers to Minors Act, and, for that purpose, creating a custodianship or custodial trust;
(C) If the trustee does not know of a conservator, guardian, custodian, or custodial trustee, paying it to an adult relative or other person having legal or physical care or custody of the beneficiary, to be expended on the beneficiary's behalf; or
(D) Managing it as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution;
(22) On distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation and basis for income tax purposes;
(23) Resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution;
(24) Prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property and the trustee in the performance of the trustee's duties;
(25) Sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee's powers;
(26) On termination of the trust, exercise the powers appropriate to windup the administration of the trust and distribute the trust property to the persons entitled to it;
(27) Employ persons, including attorneys, auditors, investment advisors or agents, even if they are associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary; and
(28)(A) A trustee may insure the life of any person in which the trustee of the trust has an insurable interest as set forth in Section 83-5-251.
(B) A trustee may retain any life insurance policy contributed to a trust by a settlor, or purchased by the trustee upon the request of the settlor, as an asset of the trust without regard to any lack of diversification caused thereby and without regard to the terms and conditions of the life insurance policy. The trustee shall not be liable for lack of diversification to any beneficiary of a trust for the trustee's retention of the life insurance policy.
(C) With respect to a life insurance policy owned by the trust a trustee may:
(i) Borrow funds from any party, including an insurance company, for the purpose of paying premiums on any policy of insurance owned by the trust and enter into a “split dollar” or other similar arrangement;
(ii) Collaterally assign any policy to a creditor of the trust;
(iii) Exercise any and all rights under any life insurance policy, including the power to pay, forego or adjust the amount of any premium payments, adjust the type and amount of death benefit, receive or apply dividends to premiums or purchase additional insurance, and allocate policy values among any subaccounts available under any variable or similar policy; and
(iv) With the consent of the insured, to sell any policy to a third party in a life settlement or viatical settlement transaction.
§ 91-8-817
(a) Upon termination or partial termination of a trust, the trustee may send to the beneficiaries a proposal for distribution. The right of any beneficiary to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within thirty (30) days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection. For the purpose of determining the date a proposed distribution was sent, if exact confirmation is unavailable it can be assumed it was received five (5) days after the date of mailing.
(b) Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.
(c) A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent:
(1) It was induced by improper conduct of the trustee; or
(2) The beneficiary, at the time of the release, did not know of the material facts relating to the alleged breach and the trustee had actual knowledge of the facts relating to the alleged breach.
§ 91-8-901
Title 91, Chapter 9, Article 13, the Mississippi Uniform Prudent Investor Act, is incorporated in this chapter by reference.
§ 91-8-1001
(a) A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of trust.
(b) To remedy a breach of trust that has occurred or may occur, the court may:
(1) Compel the trustee to perform the trustee's duties;
(2) Enjoin the trustee from committing a breach of trust;
(3) Compel the trustee to redress a breach of trust by paying money, restoring property, or other means;
(4) Order a trustee to account;
(5) Appoint a special fiduciary to take possession of the trust property and administer the trust;
(6) Suspend the trustee;
(7) Remove the trustee as provided in Section 91-8-706;
(8) Reduce or deny compensation to the trustee;
(9) Subject to Section 91-8-1012, void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds; or
(10) Order any other appropriate relief whether provided elsewhere in this chapter, available at common law or under equity principles.
§ 91-8-1002
(a) A trustee who commits a breach of trust is liable to the beneficiaries affected for:
(1) The greater of:
(A) The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred; or
(B) The profit the trustee made by reason of the breach; and
(2) Any measure of damages otherwise provided by law.
(b) Except as otherwise provided in this subsection (b), if more than one (1) trustee is liable to the beneficiaries for a breach of trust, a trustee is entitled to contribution from the other trustee or trustees. A trustee is not entitled to contribution if the trustee was substantially more at fault than another trustee or if the trustee committed the breach of trust in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. A trustee who received a benefit from the breach of trust is not entitled to contribution from another trustee to the extent of the benefit received.
§ 91-8-1003
Absent a breach of trust, a trustee is not liable to a beneficiary for a loss or depreciation in the value of trust property or for not having made a profit.
§ 91-8-1004
(a) In a judicial proceeding involving the administration of a trust, the court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.
(b) In a nonjudicial proceeding involving the administration of a trust, the trustee may pay fees, other reasonable costs, and expenses from trust assets where all of the parties to the proceeding agree in writing.
(c) In a mediation or arbitration proceeding involving the administration of a trust, the mediator or arbitrator may award fees, other reasonable costs, and expenses against the assets of the trust.
§ 91-8-1005
(a) A beneficiary may not commence a proceeding against a trustee for breach of trust more than one (1) year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust.
(b) A report adequately discloses the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or beneficiary's representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(c) If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trustee for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the trustee;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(d) A trustee may not commence a proceeding against a cotrustee or a former trustee for breach of trust more than one (1) year after the date the trustee or a representative of the trustee was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.
(e) A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trustee or the trustee's representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(f) If subsection (d) does not apply, a judicial proceeding by a trustee against a cotrustee or former trustee for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the cotrustee or a former trustee;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(g) A trust advisor or trust protector may not commence a proceeding against a trustee or a former trustee for breach of trust more than one (1) year after the date the trust advisor or trust protector or the respective representative of each was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.
(h) A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trust advisor or trust protector or the respective representative of each knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(i) If subsection (g) does not apply, a judicial proceeding by a trust advisor or trust protector against a trustee or former trustee for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the trustee or a former trustee;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(j) Notwithstanding subsections (d) through (i), no trustee, trust advisor, or trust protector may commence a proceeding against a trustee or a former trustee if, under subsections (a) through (c) of this section, none of the beneficiaries may commence a proceeding against the cotrustee or former trustee for the breach of trust.
§ 91-8-1006
A trustee who acts in reasonable reliance on the terms of the trust as expressed in the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from the reliance.
§ 91-8-1007
If the happening of an event, including marriage, divorce, performance of educational requirements, or death, affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee's lack of knowledge.
§ 91-8-1008
(a) A provision of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:
(1) Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
(2) Was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.
(b) Except for provisions intended to provide protection for carrying out a stated purpose in the trust instrument, an exculpatory provision drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the exculpatory provision is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.
§ 91-8-1009
A trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach, unless:
(1) The consent, release, or ratification of the beneficiary was induced by improper conduct of the trustee; or
(2) At the time of the consent, release, or ratification, the beneficiary did not know of the material facts relating to the breach and the trustee had actual knowledge of the facts relating to the alleged breach.
§ 91-8-1010
(a) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee's fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.
(b) Except as otherwise provided in subsection (a) or (c), the debts, obligations and liabilities incurred by a trustee by reason of the ownership, management, or control of trust property in the trustee's fiduciary capacity, shall be enforceable solely against the trust and its property, without any obligation or liability personally being borne by any trustee of the trust.
(c) Except as otherwise limited by state law, a trustee is personally liable for torts committed in the course of administering a trust only if the trustee is personally at fault.
(d) A claim based on a contract entered into by a trustee in the trustee's fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee's fiduciary capacity, whether or not the trustee is personally liable for the claim.
§ 91-8-1011
(a) Except as otherwise provided in subsection (c) or unless personal liability is imposed in the contract, a trustee who holds an interest as a general partner in a general or limited partnership is not personally liable on a contract entered into by the partnership after the trust's acquisition of the interest if the fiduciary capacity was disclosed in the contract or in a statement previously filed pursuant to the Uniform Partnership Act, Title 79, Chapter 13, Mississippi Code of 1972, or the Mississippi Limited Partnership Act, Title 79, Chapter 14, Mississippi Code of 1972.
(b) Except as otherwise provided in subsection (c), a trustee who holds an interest as a general partner is not personally liable for torts committed by the partnership or for obligations arising from ownership or control of the interest unless the trustee is personally at fault.
(c) The immunity provided by this section does not apply if an interest in the partnership is held by the trustee in a capacity other than that of trustee.
(d) If the trustee of a revocable trust holds an interest as a general partner, the settlor is personally liable for contracts and other obligations of the partnership as if the settlor were a general partner.
§ 91-8-1012
(a) A person other than a beneficiary who in good faith assists a trustee, or who in good faith and for value deals with a trustee, without actual knowledge that the trustee is exceeding or improperly exercising the trustee's powers is protected from liability as if the trustee properly exercised the power.
(b) A person other than a beneficiary who in good faith assists a trustee or deals with a trustee is not required to inquire into the extent of the trustee's powers or the propriety of their exercise.
(c) A person who in good faith delivers assets to a trustee need not ensure their proper application.
(d) A person other than a beneficiary who in good faith assists a former trustee, or who in good faith and for value deals with a former trustee, without actual knowledge that the trusteeship has terminated, is protected from liability as if the former trustee were still a trustee.
(e) Comparable protective provisions of other laws relating to commercial transactions or transfer of securities by fiduciaries prevail over the protection provided by this section.
§ 91-8-1013
(a) Instead of furnishing a copy of the trust instrument to any person to evidence the existence and validity of the trust, the trustee may furnish to the person a certification of trust, signed by the trustee or trustees having signature authority as identified in paragraph (6) of this subsection, attested by a notary public, and shall contain the following:
(1) An affirmation of the current existence of the trust and the date on which the trust came into existence;
(2) The identity of the settlor or settlors;
(3) The identity and address of the currently acting trustee or trustees and may contain the identity and address of the named successor trustee or trustees or a statement that no successor is named;
(4) The administrative or managerial powers of the trustee in a pending transaction or relevant to the request;
(5) The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust;
(6) When there are multiple trustees or multiple successor trustees, the signature authority of the trustees indicating whether all or less than all of the currently acting trustees are required to sign in order to exercise various powers of the trustee;
(7) Where there are successor trustees designated, a statement detailing the conditions for their succession or a statement that a third party may rely on the authority of one or more successors without proof of their succession;
(8) The trust's Taxpayer Identification Number, whether a social security number or Employer Identification Number, but only if the trust's identification number is essential to the transaction for which the request for the trust document is made;
(9) The name in which title to trust property may be taken; and
(10) A statement that, to the best of the trustee's knowledge, the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect.
(b) The certification of trust shall not be required to contain the dispositive provisions of a trust that set forth the distribution of the trust estate.
(c) The trustee offering the certification of trust may provide copies of all or any part of the trust document and amendments, if any. Nothing in this section is intended to require or imply an obligation to provide dispositive provisions of the trust or a copy of the entire trust documents and amendments.
(d) A person who acts in reliance upon a certification of trust without knowledge that the representations contained therein are incorrect is not liable to any person for so acting. A person who does not have actual knowledge that the facts contained in the certification of trust are incorrect may assume without inquiry the existence of the facts contained in the certification. Actual knowledge shall not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying on the trust certification. Nothing contained in this section shall limit the rights of the beneficiaries of the trust against the trustee. Any person relying on the certification of trust shall be indemnified from the assets of the trust to the extent of the share of the trust attributable to the beneficiary or beneficiaries bringing any action against the person for any costs, damage, attorney fees, or other expenses incurred in defending any action against the person arising for the transaction to which a certification of trust related.
(e) A person's failure to request a certification of trust does not affect the protections provided that person in this section. No inference that the person has not acted in good faith or that the person was negligent may be drawn from the failure of the person to request a certification of trust. Nothing in this section is intended to create an implication that a person is liable for acting in reliance on a certification of trust under circumstances where the requirements of this section are not satisfied.
(f) Nothing in this section shall be construed to require a third party, when presented with a trust certificate, to enter into a contract with a trustee relating to trust assets or obligations, or to preclude a third party from demanding as a precondition to any contract that the trustee provide additional information in order to clarify any ambiguities or inconsistencies in the trust certificate.
(g) This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.
§ 91-8-1014
(a) For the purposes of this section, “no-contest provision” includes a “no-contest provision,” “in terrorem provision” or “forfeiture provision” of a trust instrument. A “no-contest provision” means a provision that, if given effect, would reduce or eliminate the interest of any beneficiary of the trust who, directly or indirectly, initiates or otherwise pursues:
(1) Any action to contest the validity of the trust or the terms of the trust;
(2) Any action to set aside or vary the terms of the trust;
(3) Any action to challenge the acts of the trustee or other fiduciary of the trust in the performance of the trustee's or other fiduciary's duties as described in the terms of the trust; or
(4) Any other act or proceedings to frustrate or defeat the settlor's intent as expressed in the terms of the trust.
(b) With regard to whether the beneficiary sought, received or relied upon legal counsel, a no-contest provision shall be enforceable according to the express terms of the no-contest provision without regard to the beneficiary's good or bad faith in taking the action that would justify the complete or partial forfeiture of the beneficiary's interest in the trust under the terms of the no-contest provision unless probable cause exists for the beneficiary taking such action on the grounds of:
(1) Fraud;
(2) Duress;
(3) Revocation;
(4) Lack of testamentary capacity;
(5) Undue influence;
(6) Mistake;
(7) Forgery; or
(8) Irregularity in the execution of the trust instrument.
(c) Subsection (b) shall not apply to:
(1) Any action brought solely to challenge the acts of the trustee or other fiduciary of the trust to the extent that the trustee or other fiduciary has committed a breach of fiduciary duties or breach of trust;
(2) Any action brought by the trustee or any other fiduciary serving under the terms of the trust, unless the trustee or other fiduciary is a beneficiary against whom the no-contest provision is otherwise enforceable;
(3) Any agreement among the beneficiaries and any other interested persons in settlement of a dispute or resolution of any other matter relating to the trust, including, without limitation, any nonjudicial settlement agreement;
(4) Any action to determine whether a proposed or pending motion, petition, or other proceeding constitutes a contest within the meaning of a no-contest provision;
(5) Any action brought by a beneficiary or on behalf of any such beneficiary for a construction or interpretation of the terms of the trust; or
(6) Any action brought by the Attorney General for a construction or interpretation of a charitable trust or a trust containing a charitable interest if a provision exists in a trust purporting to penalize a charity or charitable interest for contesting the trust if probable cause exists for instituting proceedings.
(d) Pursuant to this section, courts shall enforce the settlor's intent as reflected in a no-contest provision to the greatest extent possible.
§ 91-8-1101
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 91-8-1102
The provisions of this chapter governing the legal effect, validity, or enforceability of electronic records or electronic signatures, and of contracts formed or performed with the use of such records or signatures, conform to the requirements of Section 102 of the Electronic Signatures in Global and National Commerce Act (15 USC Section 7002) and supersede, modify, and limit the requirements of the Electronic Signatures in Global and National Commerce Act.
§ 91-8-1103
If any provision of this chapter or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
§ 91-8-1106
(a) Except as otherwise provided in this chapter:
(1) This chapter applies to all trusts created before, on, or after July 1, 2014;
(2) This chapter applies to all judicial proceedings concerning trusts commenced on or after July 1, 2014;
(3) This chapter applies to judicial proceedings concerning trusts commenced before July 1, 2014, unless the court finds that application of a particular provision of this chapter would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this chapter does not apply and the superseded law applies;
(4) Any rule of construction or presumption provided in this chapter applies to trust instruments executed before July 1, 2014, unless there is a clear indication of a contrary intent in the terms of the trust; and
(5) An act done before July 1, 2014, is not affected by this chapter.
(b) If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before July 1, 2014, that statute continues to apply to the right even if it has been repealed or superseded.
§ 91-8-1107
(a) Absent clear and convincing evidence, no settlor of an irrevocable trust may be deemed to be the alter ego of a trustee of such trust.
(b) None of the following factors, by themselves or in combination, may be considered sufficient evidence for a court to conclude that the settlor controls a trustee, or is the alter ego of a trustee of such trust:
(1) Any combination of the factors listed in Section 91-8-1108 regarding dominion and control over a trust;
(2) Isolated occurrences where the settlor has signed checks, made disbursements, or executed other documents related to the trust as a trustee, a trust advisor or a trust protector, when in fact the settlor was not a trustee, trust advisor or trust protector;
(3) Making any requests for distributions on behalf of beneficiaries; or
(4) Making any requests to the trustee to hold, purchase, or sell any trust property.
§ 91-8-1108
In the event a person challenges a settlor's or a beneficiary's influence over a trust, none of the following factors, alone or in combination, shall enter into a determination that dominion and control over a trust exists:
(1) The settlor or a beneficiary is serving as a trustee, a trust advisor, a trust protector, or other fiduciary as described in this Title 91;
(2) The settlor or a beneficiary holds an unrestricted power to remove or replace a trustee, a trust advisor, a trust protector, or other fiduciary;
(3) The settlor or a beneficiary is a trust administrator, a general partner of a partnership, a manager of a limited liability company, an officer of a corporation, or holds any other managerial function relative to any type of entity specified in this section, or relative to any other type of entity not so specified, and part or all of the trust property consists of an interest in such entity;
(4) A person related by blood or adoption to the settlor or a beneficiary is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
(5) The settlor's or a beneficiary's agent, accountant, attorney, financial advisor, or friend is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
(6) A business associate is appointed as a trustee, a trust advisor, a trust protector, or other fiduciary;
(7) A beneficiary holds any power of appointment over any or all of the trust property;
(8) The settlor holds a power to substitute property of equivalent value for property held by the trust, regardless of whether such power is:
(A) Held in a fiduciary or nonfiduciary capacity;
(B) Exercisable with or without the approval of any person in a fiduciary capacity; or
(C) Exercisable with or without the approval of any person having an interest adverse to such settlor;
(9) A trustee, a trust advisor, a trust protector or other fiduciary has the power to loan trust property to the settlor for less than a full and adequate rate of interest or without adequate security;
(10) Any language relative to the power to make any distribution provides for any discretion relative to such distribution;
(11) The trust has only one (1) beneficiary eligible for current distributions; or
(12) The beneficiary is serving as a cotrustee, or as a trust advisor or trust protector under Article 12, or as any other fiduciary.
§ 91-8-1109
Notwithstanding the provisions of this chapter that may otherwise be applicable to a trust, no provision thereof shall apply to any special needs trust, supplemental needs trust, or other similar trust established for a person with a disability as a beneficiary, including, without limitation, any trust established pursuant to the provisions of 42 USC Section 1396(p)(d)(4)A or C, as amended from time to time, or other similar federal or state statute, to the extent that the provision would disqualify the trust beneficiary at any time from eligibility for public needs-based assistance benefits for which the beneficiary would otherwise qualify.
§ 91-8-1201
(a) A trust protector or trust advisor is any person, and may be a committee of more than one (1) person, other than a trustee, who under the terms of the trust has a power or duty with respect to a trust, including, but not limited to, one or more of the following powers:
(1) The power to modify or amend the trust instrument to achieve favorable tax status or respond to changes in any applicable federal, state, or other tax law affecting the trust, including, but not limited to, any rulings, regulations, or other guidance implementing or interpreting such laws;
(2) The power to amend or modify the trust instrument to take advantage of changes in the rule against perpetuities, laws governing restraints on alienation, or other state laws restricting the terms of the trust, the distribution of trust property, or the administration of the trust;
(3) The power to appoint a successor trust protector or trust advisor;
(4) The power to review and approve a trustee's trust reports or accountings;
(5) The power to change the governing law or principal place of administration of the trust;
(6) The power to remove and replace any trust advisor or trust protector for the reasons stated in the trust instrument;
(7) The power to remove a trustee, cotrustee, or successor trustee, for the reasons stated in the trust instrument, and appoint a successor;
(8) The power to consent to a trustee's or cotrustee's action or inaction in making distributions to beneficiaries;
(9) The power to increase or decrease any interest of the beneficiaries in the trust, to grant a power of appointment to one or more trust beneficiaries, or to terminate or amend any power of appointment granted in the trust;
(10) The power to perform a specific duty or function that would normally be required of a trustee or cotrustee;
(11) The power to advise the trustee or cotrustee concerning any beneficiary;
(12) The power to consent to a trustee's or cotrustee's action or inaction relating to investments of trust assets;
(13) The power to direct the acquisition, disposition, or retention of any trust investment;
(14) The power to terminate all or part of a trust;
(15) The power to veto or direct all or part of any trust distribution;
(16) The power to borrow money with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust;
(17) The power to make loans out of trust property, including, but not limited to, loans to a beneficiary on terms and conditions, including without interest, considered to be fair and reasonable under the circumstances;
(18) The power to vote proxies and exercise all other rights of ownership relative to securities and business entities held by the trust;
(19) The power to select one or more investment advisors, managers or counselors, including, but not limited to, a trustee, and delegate to them any of its powers;
(20) The power to direct the trustee with respect to any additional powers and discretions over investment and management of trust assets provided in the trust instrument;
(21) The power to receive notices, information, and reports otherwise required to be provided to a beneficiary under Section 91-8-813(a) and (b);
(22) The power to represent and bind a beneficiary under Section 91-8-303(8) to the extent there is not material conflict of interest between the trust protector or trust advisor and the beneficiary; and
(23) The power to designate someone to represent and bind a beneficiary under Section 91-8-303(8) to the extent there is no material conflict of interest between the person designated and the beneficiary.
(b) The exercise of a power by a trust advisor or a trust protector shall be exercised in the sole and absolute discretion of the trust advisor or trust protector and shall be binding on all other persons.
(c) Any power of a trust advisor or trust protector to directly or indirectly modify a trust may be granted notwithstanding the provisions of Sections 91-8-410 through 91-8-412 and 91-8-414.
(d) An excluded fiduciary may continue to follow the direction of a trust protector or trust advisor upon the incapacity or death of the grantor of a trust to the extent provided in the trust instrument.
(e) Notwithstanding anything in this section to the contrary, no modification, amendment, or grant of a power of appointment with respect to a trust, all of whose beneficiaries are charitable organizations, may authorize a trust protector or trust advisor to grant a beneficial interest in the trust to any noncharitable interest or purpose.
§ 91-8-1202
(a) A trust advisor or trust protector, other than a beneficiary, is a fiduciary with respect to each power granted to the trust advisor or trust protector. In exercising any power or refraining from exercising any power, a trust advisor or trust protector shall act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
(b) A trust advisor or trust protector is an excluded fiduciary with respect to each power granted or reserved exclusively to any one or more other trustees, trust advisors, or trust protectors.
§ 91-8-1203
By accepting appointment to serve as a trust advisor or trust protector, the trust advisor or the trust protector submits personally to the jurisdiction of the courts of this state even if investment advisory agreements or other related agreements provide otherwise, and the trust advisor or trust protector may be made a party to any action or proceeding relating to a decision, action, or inaction of the trust advisor or trust protector.
§ 91-8-1204
(a) Whenever, pursuant to the terms of a trust, an excluded fiduciary is to follow the direction of a trustee, trust advisor, or trust protector with respect to investment decisions, distribution decisions, or other decisions of the nonexcluded fiduciary, then, except to the extent that the terms of the trust provide otherwise, the excluded fiduciary shall have no duty to:
(1) Review, evaluate, perform investment reviews, suitability reviews, inquiries, or investigations, or in any other way monitor the conduct of the trustee, trust advisor, or trust protector;
(2) Make recommendations or evaluations or in any way provide advice to the trustee, trust advisor, or trust protector or consult with the trustee, trust advisor, or trust protector; or
(3) Communicate with or warn or apprise any beneficiary or third party concerning instances in which the excluded fiduciary would or might have exercised the excluded fiduciary's own discretion in a manner different from the manner directed by the trustee, trust advisor, or trust protector.
(b) Absent provisions in the trust instrument to the contrary, the actions of the excluded fiduciary pertaining to matters within the scope of the trustee, trust advisor, or trust protector's authority, including, but not limited to, confirming that the trustee, trust advisor, or trust protector's directions have been carried out and recording and reporting actions taken at the trustee, trust advisor, or trust protector's direction or other information pursuant to Section 91-8-813, shall be deemed to be administrative actions taken by the excluded fiduciary solely to allow the excluded fiduciary to perform those duties assigned to the excluded fiduciary under the terms of the trust; those administrative actions, as well as any communications made by the excluded fiduciary to the trust advisor, trust protector, or any of their agents or persons they have selected to provide services to the trust, shall not be deemed to constitute an undertaking by the excluded fiduciary to monitor the trustee, trust advisor, or trust protector or otherwise participate in actions within the scope of the trustee's, trust advisor's, or trust protector's authority.
§ 91-8-1205
An excluded fiduciary is not liable, either individually or as a fiduciary, for:
(1) Any loss resulting from compliance with a direction of a trustee, trust advisor, or trust protector, including, but not limited to, any loss from the trustee, trust advisor, or trust protector breaching fiduciary responsibilities or acting beyond the trustee's, trust advisor's, or trust protector's scope of authority;
(2) Any loss resulting from any action or inaction of a trustee, trust advisor, or trust protector; or
(3) Any loss that results from the failure of a trustee, trust advisor, or trust protector to take any action proposed by the excluded fiduciary where the action requires the authorization of the trustee, trust advisor, or trust protector, if an excluded fiduciary who had a duty to propose the action timely sought but failed to obtain the authorization.
§ 91-8-1206
(a) A beneficiary may not commence a proceeding against a trust advisor or trust protector for breach of trust more than one (1) year after the date the beneficiary or a representative of the beneficiary was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.
(b) A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the beneficiary or the beneficiary's representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(c) If subsection (a) does not apply, a judicial proceeding by a beneficiary against a trust advisor or trust protector for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the trust advisor or trust protector;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(d) A trustee may not commence a proceeding against a trust advisor or trust protector for breach of trust more than one (1) year after the date the trustee or a representative of the trustee was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.
(e) A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trustee or the trustee's representative knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(f) If subsection (d) does not apply, a judicial proceeding by a trustee against a trust advisor or trust protector for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the trust advisor or trust protector;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(g) A trust advisor or trust protector may not commence a proceeding against another trust advisor or another trust protector for breach of trust more than one (1) year after the date the trust advisor or trust protector or the respective representative of each was sent a report that adequately disclosed facts indicating the existence of a potential claim for breach of trust.
(h) A report adequately discloses facts indicating the existence of a potential claim for breach of trust if it provides sufficient information so that the trust advisor or trust protector or the respective representative of each knows of the potential claim or has sufficient information to be presumed to know of it, or to be put on notice to inquire into its existence.
(i) If subsection (g) does not apply, a judicial proceeding by a trust advisor or trust protector against another trust advisor or another trust protector for breach of trust must be commenced within three (3) years after the first to occur of:
(1) The removal, resignation, or death of the other trust advisor or other trust protector;
(2) The termination of the beneficiary's interest in the trust; or
(3) The termination of the trust.
(j) Notwithstanding subsections (d) through (i), no trustee, trust advisor, or trust protector may commence a proceeding against a trust advisor or trust protector or another trust advisor or another trust protector if, under either subsections (a) through (c) or Section 91-8-1005(a) through (c), none of the beneficiaries may commence a proceeding against the trust advisor or trust protector for such breach of trust.
Chapter 9 Trusts and Trustees
§ 91-9-401
In the administration of any trust which is a “private foundation,” as defined in Section 509 of the United States Internal Revenue Code, a “charitable trust,” as defined in Section 4947(a)(1) of the United States Internal Revenue Code, or a “split-interest trust,” as defined in Section 4947(a)(2) of the United States Internal Revenue Code, the following acts shall be prohibited:
(a) Engaging in any act of “self-dealing,” as defined in Section 4941(d) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4941(a) of the United States Internal Revenue Code;
(b) Retaining any “excess business holdings,” as defined in Section 4943(c) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4943(a) of the United States Internal Revenue Code;
(c) Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of Section 4944 of the United States Internal Revenue Code, so as to give rise to any liability for the tax imposed by Section 4944(a) of the United States Internal Revenue Code; and
(d) Making any “taxable expenditures,” as defined in Section 4945(d) of the United States Internal Revenue Code, which would give rise to any liability for the tax imposed by Section 4945(a) of the United States Internal Revenue Code.
This section shall not apply either to those split-interest trusts or to amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of Section 4947 of the United States Internal Revenue Code.
§ 91-9-403
In the administration of any trust which is a “private foundation,” as defined in Section 509 of the United States Internal Revenue Code, or which is a “charitable trust,” as defined in Section 4947(a)(1) of the United States Internal Revenue Code, there shall be distributed, for the purposes specified in the trust instrument, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by Section 4942(a) of the United States Internal Revenue Code.
§ 91-9-405
The provisions of Sections 91-9-401 and 91-9-403 shall not apply to any trust to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the instrument governing such trust and that the same may not properly be changed to conform to such sections. The trustee shall not be held liable to anyone for any payments made under Section 91-9-403 prior to such determination.
§ 91-9-407
The trustees of any trust which is a “private foundation” (as defined in Section 509 of the United States Internal Revenue Code), a “charitable trust” (as defined in Section 4947(a)(1) of the United States Internal Revenue Code) or a “split-interest trust” (as defined in Section 4947(a)(2) of the United States Internal Revenue Code) may, without judicial proceedings, amend the governing instrument of such trust expressly to exclude the application of Sections 91-9-401 and 91-9-403, or any portion thereof, by executing a written amendment to such trust and filing a duplicate original of such amendment with the secretary of state of the State of Mississippi, whereupon such section or sections, or any portion thereof, as the case may be, shall not apply to such trust. Neither the trustees nor the trust shall be liable to anyone for any payments made under Section 91-9-403 prior to such amendment.
§ 91-9-409
Nothing in Sections 91-9-401 through 91-9-411 shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust.
§ 91-9-411
All references to sections of the United States Internal Revenue Code shall be to such law as it exists as of April 28, 1972.
§ 91-9-601
(a) Except as otherwise provided in subsection (b), a trustee who invests and manages trust assets owes a duty to the beneficiaries of the trust to comply with the prudent investor rule set forth in this article.
(b) The prudent investor rule, a default rule, may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust. A trustee is not liable to a beneficiary to the extent that the trustee acted in reasonable reliance on the provisions of the trust.
§ 91-9-603
(a) A trustee shall invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.
(b) A trustee's investment and management decisions respecting individual assets must be evaluated not in isolation but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.
(c) Among circumstances that a trustee shall consider in investing and managing trust assets are such of the following as are relevant to the trust or its beneficiaries:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) The expected tax consequences of investment decisions or strategies;
(4) The role that each investment or course of action plays within the overall trust portfolio, which may include financial assets, interests in closely held enterprises, tangible and intangible personal property, and real property;
(5) The expected total return from income and the appreciation of capital;
(6) Other resources of the beneficiaries;
(7) Needs for liquidity, regularity of income, and preservation or appreciation of capital; and
(8) An asset's special relationship or special value, if any, to the purposes of the trust or to one or more of the beneficiaries.
(d) A trustee shall make a reasonable effort to verify facts relevant to the investment and management of trust assets.
(e) A trustee may invest in any kind of property or type of investment consistent with the standards of this article.
(f) A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee's representation that the trustee has special skills or expertise, has a duty to use those special skills or expertise.
§ 91-9-605
A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
§ 91-9-607
Within a reasonable time after accepting a trusteeship or receiving trust assets, a trustee shall review the trust assets and make and implement decisions concerning the retention and disposition of assets, in order to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust, and with the requirements of this article.
§ 91-9-609
A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries.
§ 91-9-611
If a trust has two (2) or more beneficiaries, the trustee shall act impartially in investing and managing the trust assets, taking into account any differing interests of the beneficiaries.
§ 91-9-613
In investing and managing trust assets, a trustee may only incur costs that are appropriate and reasonable in relation to the assets, the purposes of the trust, and the skills of the trustee.
§ 91-9-615
Compliance with the prudent investor rule is determined in light of the facts and circumstances existing at the time of a trustee's decision or action and not by hindsight.
§ 91-9-617
(a) A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in:
(1) Selecting an agent;
(2) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and
(3) Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the terms of the delegation.
(b) The investment agent shall comply with the scope and terms of the delegation and shall exercise the delegated function with reasonable care, skill and caution and shall be liable to the trust for failure to do so. An investment agent who represents that he has special investment skills shall exercise those skills.
(c) A trustee who complies with the requirements of subsection (a) is not liable to the beneficiaries or to the trust for the decisions or actions of the agent to whom the function was delegated.
(d) By accepting the delegation of a trust function from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state.
(e) A cofiduciary may delegate investment and management functions to another cofiduciary if the delegating cofiduciary reasonably believes that the other cofiduciary has greater investment skills than the delegating cofiduciary with respect to those functions. The delegating cofiduciary shall not be responsible for the investment decisions or actions of the other cofiduciary to which the investment functions are delegated if the delegating cofiduciary exercises reasonable care, skill and caution in establishing the scope and specific terms of the delegation and in reviewing periodically the other cofiduciary's actions in order to monitor the cofiduciary's performance and compliance with the scope and specific terms of the delegation.
(f) Investment in a mutual fund is not a delegation of investment function, and neither the mutual fund nor its advisor is an investment agent.
§ 91-9-619
The following terms or comparable language in the provisions of a trust, unless otherwise limited or modified, authorizes any investment or strategy permitted under this article: “Investments permissible by law for investment of trust funds,” “legal investments,” “authorized investments," “using the judgment and care under the circumstances then prevailing that persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital,” “prudent man rule,” “prudent trustee rule,” “prudent person rule,” and “prudent investor rule.”
§ 91-9-621
This article applies to trusts existing on and created after its effective date. As applied to trusts existing on its effective date, this article governs only decisions or actions occurring after that date.
§ 91-9-623
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among the states enacting it.
§ 91-9-625
Sections 91-9-601 through 91-9-627 may be cited as the “Mississippi Uniform Prudent Investor Act.”
§ 91-9-627
If any provision of this article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article which can be given effect without the invalid provision or application, and to this end the provisions of this article are severable.
§ 91-9-701
This article shall be known and may be cited as the Mississippi Qualified Disposition in Trust Act.
§ 91-9-703
As used in this article, unless the context otherwise requires:
(a) “Claim” means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
(b) “Creditor” means, with respect to a transferor, a person who has a claim.
(c) “Debt” means liability on a claim.
(d) “Disposition” means a transfer, conveyance or assignment of property, including a change in the legal ownership of property occurring upon the substitution of one (1) trustee for another or the addition of one or more new trustees. “Disposition” also includes the exercise of a power so as to cause a transfer of property to a trustee or trustees, but shall not include the release or relinquishment of an interest in property that, until the release or relinquishment, was the subject of a qualified disposition.
(e) “Investment advisor” means a person given authority by the terms of a qualified disposition trust to direct, consent to or disapprove a trustee's actual or proposed investment decision.
(f) “Investment decision” means the retention, purchase, sale, exchange, tender, or other transaction affecting the ownership of or rights in investments.
(g) “Person” means an individual, a corporation, an organization, or other legal entity.
(h) “Property” includes real property, personal property, and interests in real or personal property.
(i) “Qualified affidavit” means a sworn affidavit signed by the transferor before making a qualified disposition. In the event of a disposition by a transferor who is a trustee, the affidavit shall be signed by the transferor who made the original disposition to the trustee, or a predecessor trustee, in a form that meets the requirements of subsection (n)(2) and (3) of this section and shall state facts as of the time of the original disposition.
(j) “Qualified disposition” means a disposition by or from a transferor to a qualified trustee or qualified trustees, with or without consideration, by means of a qualified disposition trust, after the transferor executes a qualified affidavit.
(k) “Qualified trustee” means a person who:
(1) In the case of a natural person, is a resident of this state, or, in all other cases, is authorized by the law of this state to act as a trustee and whose activities are subject to supervision by the Mississippi Department of Banking and Consumer Finance, the Federal Deposit Insurance Corporation, the Comptroller of the Currency, or the Office of Thrift Supervision or any successor to them;
(2) Maintains or arranges for custody in this state of some or all of the property that is the subject of the qualified disposition, maintains records for the trust on an exclusive or nonexclusive basis, prepares or arranges for the preparation of required income tax returns for the trust, or otherwise materially participates in the administration of the trust; and
(3) Is not the transferor.
(l) “Spouse” or “former spouse” means only persons to whom the transferor was legally married at, or before, the time the qualified disposition is made.
(m) “Transferor” means a person who, directly or indirectly, makes a disposition or causes a disposition to be made in such person's capacity:
(1) As an owner of property;
(2) As a holder of a power of appointment that authorizes the holder to appoint in favor of the holder, the holder's creditors, the holder's estate or the creditors of the holder's estate; or
(3) As a trustee.
(n) “Qualified disposition trust” means a trust instrument appointing a qualified trustee or qualified trustees for the property that is the subject of a disposition, which instrument:
(1) Expressly incorporates the law of this state to govern the validity, construction and administration of the trust;
(2) Is irrevocable; and
(3) Provides that the interest of the transferor or other beneficiary in the trust property or the income from the trust property may not be transferred, assigned, pledged or mortgaged, whether voluntarily or involuntarily, before the qualified trustee or qualified trustees actually distribute the property or income from the property to the beneficiary.
§ 91-9-705
A qualified affidavit shall state that:
(a) The transferor has full right, title, and authority to transfer the assets to the trust;
(b) The transfer of the assets to the trust will not render the transferor insolvent;
(c) The transferor does not intend to defraud a creditor by transferring the assets to the trust;
(d) The transferor does not have any pending or threatened court actions against the transferor, except for those court actions identified by the transferor on an attachment to the affidavit;
(e) The transferor is not involved in any administrative proceedings, except for those administrative proceedings identified on an attachment to the affidavit;
(f) The transferor does not contemplate filing for relief under the provisions of the federal bankruptcy code;
(g) The assets being transferred to the trust were not derived from unlawful activities; and
(h) The transferor is a named insured of a general liability insurance policy and, if applicable, a professional liability insurance policy, with policy limits of at least One Million Dollars ($1,000,000.00) for each respective policy.
§ 91-9-707
(a) Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity for an attachment or other provisional remedy against property that is the subject of a qualified disposition or for the avoidance of a qualified disposition, unless the action is brought pursuant to the provisions of the Uniform Fraudulent Transfer Act, Section 15-3-101 et seq., and unless the qualified disposition was also made with actual intent to defraud the creditor.
(b)(1) Notwithstanding Section 15-3-115, a creditor's claim under subsection (a) shall be extinguished:
(A) If the person is a creditor when the qualified disposition to a qualified disposition trust is made, unless the action is commenced within the later of two (2) years after the qualified disposition is made or six (6) months after the person discovers or reasonably should have discovered the qualified disposition; or
(B) If the person becomes a creditor after the qualified disposition to a qualified disposition trust is made, unless the action is commenced within two (2) years after the qualified disposition is made;
(2) If subsection (b)(1) applies:
(A) A person shall be deemed to have discovered the existence of a qualified disposition to a qualified disposition trust at the time any public record is made of any transfer of property relative to the qualified disposition, including, but not limited to, the conveyance of real property that is recorded in the office of the chancery clerk of the county in which the property is located or the filing of a financing statement under Chapter 9, Title 75, Mississippi Code of 1972, or the equivalent recording or filing of either with the appropriate person or official under the laws of a jurisdiction other than this state; and
(B) No creditor shall bring an action with respect to property that is the subject of a qualified disposition unless that creditor proves by clear and convincing evidence that the settlor's transfer of the property was made with the intent to defraud that specific creditor.
(c) For purposes of this article, a qualified disposition that is made by means of a disposition by a transferor who is a trustee shall be deemed to have been made as of the time, whether before, on, or after July 1, 2014, the property that is the subject of the qualified disposition was originally transferred to the transferor acting in the capacity of trustee, or any predecessor trustee, in a form that meets the requirements of Section 91-9-703(n)(2) and (3).
(d) Notwithstanding any law to the contrary, a creditor, including a creditor whose claim arose before or after a qualified disposition, or any other person shall have only the rights with respect to a qualified disposition as are provided in this section and Section 91-9-711, and neither a creditor nor any other person shall have any claim or cause of action against the trustee, an advisor of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution, or funding of a trust that is the subject of a qualified disposition. For purposes of this section, counseling, drafting, preparation, execution or funding of a trust that is the subject of a qualified disposition includes the counseling, drafting, preparation, execution and funding of a limited partnership or a limited liability company if interests in the limited partnership or limited liability company are subsequently transferred to the trust that is the subject of a qualified disposition.
(e) Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity against a trustee or an advisor of a trust that is the subject of a qualified disposition, or against any person involved in the counseling, drafting, preparation, execution or funding of a trust that is the subject of a qualified disposition, if, as of the date the action is brought, an action by a creditor with respect to the qualified disposition would be barred under this section.
(f) In circumstances where more than one (1) qualified disposition is made by means of the same qualified disposition trust, then:
(1) The making of a subsequent qualified disposition shall be disregarded in determining whether a creditor's claim with respect to a prior qualified disposition is extinguished as provided in subsection (b); and
(2) Any distribution to a beneficiary shall be deemed to have been made from the latest qualified disposition.
(g) If, in any action brought against a trustee of a trust that is the result of a qualified disposition, a court takes any action whereby the court declines to apply the law of this state in determining the effect of a spendthrift provision of the trust, the trustee of the trust shall immediately upon the court's action and without the further order of any court, cease in all respects to be trustee of the trust and a successor trustee shall succeed as trustee in accordance with the terms of the trust or, if the trust does not provide for a successor trustee and the trust would otherwise be without a trustee, a court of this state, upon the application of any beneficiary of the trust, shall appoint a successor trustee upon the terms and conditions it determines to be consistent with the purposes of the trust and this article. Upon the trustee's ceasing to be trustee, the trustee shall have no power or authority other than to convey the trust property to the successor trustee named in the trust in accordance with this section.
(h) A trust that is the subject of a qualified disposition shall be subject to this section whether or not the transferor retains any or all of the powers and rights described in Section 91-9-709 or serves as an investment advisor pursuant to Section 91-9-717.
(i)(1) Notwithstanding any provision of subsection (a) or (b) to the contrary, the limitations on actions by creditors in law or equity shall not apply and the creditors' claims shall not be extinguished if the transferor is indebted on account of an agreement, judgment, or order of a court for the payment of one or more of the following:
(A) To any person to whom the transferor is indebted on account of an agreement or order of court for the payment of support or alimony in favor of the transferor's spouse, former spouse or children, or for a division or distribution of property in favor of the transferor's spouse or former spouse, but only to the extent of such debt;
(B) To any person who suffers death, personal injury, or property damage on or before the date of a qualified disposition by a transferor, if the death, personal injury, or property damage is at any time determined to have been caused, in whole or in part, by the tortious act or omission of either the transferor or by another person for whom the transferor is or was vicariously liable, but only to the extent of the claim against the transferor or other person for whom the transferor is or was vicariously liable;
(C) To the State of Mississippi or any political subdivision thereof, including, but not limited to, court-ordered restitution in a criminal matter; or
(D) To any creditor in an amount not to exceed One Million Five Hundred Thousand Dollars ($1,500,000.00) if the transferor failed to maintain a One Million Dollar ($1,000,000.00) umbrella policy as required by subsection (l).
(2)(A) A claim provided under this subsection (i) shall be asserted against a trustee only:
(i) Upon a final nonappealable determination of a Mississippi court or a fully domesticated, final nonappealable order of a court of another state that the debt is past due; and
(ii) After the court has determined that the claimant has made reasonable attempts to collect the debt from any other sources of the transferor or that any attempt would be futile.
(B) Nothing in this subsection (i)(2) shall be construed to prohibit the court from making the findings required in subsection (i)(2)(A) in the same proceeding and order.
(j) Subsection (i) shall not apply to any claim for forced heirship, legitime or elective share.
(k) In addition to provisions of subsection (j), to the extent subsection (j) applies to the laws of any foreign country:
(1) Neither a qualified disposition trust nor any disposition made subject to the terms of the qualified disposition trust is subject to the laws of any foreign country, nor is any such qualified disposition trust or the disposition void, voidable, liable to be set aside, or defective in any manner for any reason including, but not limited to:
(A) The law of any foreign country prohibits or does not recognize the concept of a qualified disposition trust; or
(B) The qualified disposition trust or disposition avoids or defeats any right, claim, or interest conferred by the law of a foreign country upon any person by reason of a personal relationship to the settlor or by way of heirship rights or contravenes any rule or law of a foreign country or any foreign country's judicial or administrative order or action intended to recognize, protect, enforce, or give effect to the right, claim, or interest.
(2) Relative to any foreign country or any interest in property arising or originating under the laws of any foreign country:
(A) No form of forced heirship, legitime, forced share or any similar heirship rights or form of transmission or transfer of property from a decedent or from a living person, or any restrictions on transmission or transfer of property from a decedent or a living person is recognized by this state; or
(B) No heirship rights described in subsection (k)(2)(A) conferred under the law of a foreign country shall constitute an obligation or liability, the transfer, conveyance or devise of which, would violate Chapter 3, Title 15, Mississippi Code of 1972; and
(C) Subsection (k)(1) shall apply to all realty or other forms of immovable property physically in this state, as well as to all personal or movable property wherever situated if owned by a qualified disposition trust containing a state jurisdiction provision designating that the law of this state controls the qualified disposition trust;
(3) No judgment or other holding of any judicial body of any foreign country, including, but not limited to, any court, administrative body or other entity or organization purportedly having the power to make judicial or administrative decisions of any foreign country, shall be recognized or enforced or give rise to any equitable forms of relief, including, but not limited to, estoppel, to the extent the judgment or other holding concerns a qualified disposition trust containing a state jurisdiction provision designating that the law of this state controls the qualified disposition trust or to the extent the judgment or other holding concerns property held by the qualified disposition trust.
(4) Subsection (a) applies in addition to all other provisions of this article.
(l) The transferor shall obtain a general liability policy and, if applicable, a professional liability policy, and each policy must have a policy limit of at least One Million Dollars ($1,000,000.00). Policy premiums must be paid by the transferor.
§ 91-9-709
A transferor shall have only the powers and rights conferred by the qualified disposition trust. The powers and rights conferred by the qualified disposition trust upon the transferor are personal powers and rights that may not be exercised by a creditor or any other person, except as expressly permitted by the trust. Except as permitted by Sections 91-9-717 and 91-9-721, the transferor shall have no rights or authority with respect to the corpus of the trust or the income from the trust, and any agreement or understanding purporting to grant or permit the retention of any greater rights or authority shall be void.
§ 91-9-711
(a) A qualified disposition shall be avoided only to the extent necessary to satisfy the transferor's debt to the creditor at whose instance the disposition had been avoided, together with costs, including attorneys' fees, that the court may allow.
(b) In the event any qualified disposition shall be avoided as provided in subsection (a), then:
(1) If the court is satisfied that a qualified trustee has not acted in bad faith in accepting or administering the property that is the subject of the qualified disposition:
(A) The qualified trustee shall have a first and paramount lien against the property that is the subject of the qualified disposition in an amount equal to the entire cost, including attorneys' fees, properly incurred by the qualified trustee in the defense of the action or proceedings to avoid the qualified disposition;
(B) The qualified disposition shall be avoided subject to the proper fees, costs, preexisting rights, claims and interests of the qualified trustee and of any predecessor qualified trustee that has not acted in bad faith; and
(C) For purposes of this subsection (b)(1), it shall be presumed that the qualified trustee did not act in bad faith merely by accepting the property; and
(2) If the court is satisfied that a beneficiary of a trust has not acted in bad faith, the avoidance of the qualified disposition shall be subject to the right of the beneficiary to retain any distribution made upon the exercise of a trust power or discretion vested in the qualified trustee or qualified trustees, which power or discretion was properly exercised prior to the creditor's commencement of an action to avoid the qualified disposition. For purposes of this subsection (b)(2), it shall be presumed that the beneficiary, including a beneficiary who is also a transferor of the trust, did not act in bad faith merely by creating the trust or by accepting a distribution made in accordance with the terms of the trust.
(c) A disposition by a trustee that is not a qualified trustee to a trustee that is a qualified trustee shall not be treated as other than a qualified disposition solely because the trust instrument fails to meet the requirements of Section 91-9-703(n)(1).
(d) In the case of a disposition to more than one (1) trustee, a disposition that is otherwise a qualified disposition shall not be treated as other than a qualified disposition solely because not all of the recipient trustees are qualified trustees.
§ 91-9-713
A spendthrift provision as described in Section 91-9-703(n)(3) shall be deemed to be a restriction on the transfer of the transferor's beneficial interest in the trust that is enforceable under applicable nonbankruptcy law within the meaning of Section 541(c)(2) of the Bankruptcy Code, codified in 11 USCS, Section 541(c)(2), or any successor provision.
§ 91-9-715
(a) For purposes of this article, neither the transferor nor any other natural person who is a nonresident of this state nor an entity that is not authorized by the law of this state to act as a trustee or whose activities are not subject to supervision as provided in Section 91-9-703(k)(1) shall be considered a qualified trustee; however, nothing in this article shall preclude a transferor from appointing one (1) or more advisors, including, but not limited to:
(1) Advisors who have authority under the terms of the trust instrument to remove and appoint qualified trustees or trust advisors;
(2) Advisors who have authority under the terms of the trust instrument to direct, consent to or disapprove distributions from the trust; and
(3) Investment advisors, whether or not the advisors would meet the requirements imposed by Section 91-9-703(k).
(b) For purposes of subsection (a), “advisor” includes a trust “protector” or any other person who, in addition to a qualified trustee, holds one or more trust powers.
§ 91-9-717
A person may serve as an investment advisor notwithstanding that the person is the transferor of the qualified disposition, but the person may not otherwise serve as advisor to a trust that is a qualified disposition trust except with respect to the retention of the veto right permitted by Section 91-9-721(a).
§ 91-9-719
If a qualified trustee of a qualified disposition trust ceases to meet the requirements of Section 91-9-703(k)(1), and there remains no trustee that meets the requirements, the qualified trustee shall be deemed to have resigned as of the time of that cessation, and thereupon the successor qualified trustee provided for in the qualified disposition trust shall become a qualified trustee of the qualified disposition trust, or in the absence of any successor qualified trustee provided for in the qualified disposition trust, then a court of this state shall, upon application of any interested party, appoint a successor qualified trustee.
§ 91-9-721
A qualified disposition trust shall not be deemed revocable on account of its inclusion of one or more of the following:
(a) A transferor's power to veto a distribution from the trust;
(b) A power of appointment, other than a power to appoint to the transferor, the transferor's creditors, the transferor's estate or the creditors of the transferor's estate, exercisable by will or other written instrument of the transferor effective only upon the transferor's death;
(c) The transferor's potential or actual receipt of income, including rights to the income retained in the trust;
(d) The transferor's potential or actual receipt of income or principal from a charitable remainder unitrust or charitable remainder annuity trust as those terms are defined in Section 664 of the Internal Revenue Code of 1986, codified in 26 USCS Section 664, and any successor provision;
(e) The transferor's receipt each year of an amount specified in the trust instrument, the amount not to exceed five percent (5%) of the initial value of the trust or its value determined, from time to time, pursuant to the trust;
(f) The transferor's potential or actual receipt or use of principal if the potential or actual receipt or use of principal would be the result of a qualified trustee's or qualified trustees' acting:
(1) In the qualified trustee's or qualified trustees' discretion. For purposes of this section, a qualified trustee is presumed to have discretion with respect to the distribution of principal unless the discretion is expressly denied to the trustee by the terms of the trust;
(2) Pursuant to a standard that governs the distribution of principal and does not confer upon the transferor a power to consume, invade, or appropriate property for the benefit of the transferor, unless the power of the transferor is limited by an ascertainable standard relating to the health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code of 1986, codified in 26 USCS Section 2041(b)(1)(A) or 26 USCS Section 2514(c)(1), as in effect on July 1, 2014, or as later amended; or
(3) At the direction of an advisor described in Section 91-9-715 who is acting:
(i) In the advisor's discretion; or
(ii) Pursuant to a standard that governs the distribution of principal and does not confer upon the transferor a power to consume, invade, or appropriate property for the benefit of the transferor, unless the power of the transferor is limited by an ascertainable standard relating to the health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or Section 2514(c)(1) of the Internal Revenue Code of 1986, 26 USCS Section 2041(b)(1)(A) or 26 USCS Section 2514(c)(1), as in effect on July 1, 2010, or as later amended;
(g) The transferor's right to remove a trustee or advisor and to appoint a new trustee or advisor; however, the right shall not include the appointment of a person who is a related or subordinate party with respect to the transferor within the meaning of Section 672(c) of the Internal Revenue Code of 1986, 26 USCS Section 672(c), and any successor provision;
(h) The transferor's potential or actual use of real property held under a qualified personal residence trust within the meaning of the term as described in Section 2702(c) of the Internal Revenue Code of 1986, codified in 26 USCS Section 2702(c), and any successor provision;
(i) The transferor's potential or actual receipt of income or principal to pay, in whole or in part, income taxes due on income of the trust if the potential or actual receipt of income or principal is pursuant to a provision in the qualified disposition trust that expressly permits a distribution to the transferor as reimbursement for the taxes and if the distribution would be the result of a qualified trustee's or qualified trustees' acting:
(1) In the qualified trustee's or qualified trustees' discretion or pursuant to a mandatory direction in the qualified disposition trust; or
(2) At the direction of an advisor described in Section 91-9-717, who is acting in the advisor's discretion;
(j) The ability, whether pursuant to direction in the qualified disposition trust or discretion of a qualified trustee to pay, after the death of the transferor, all or any part of the debts of the transferor outstanding at the time of the transferor's death, the expenses of administering the transferor's estate, or any estate or inheritance tax imposed on or with respect to the transferor's estate; and
(k) A qualified trustee's or qualified trustees' authority to make distributions to pay taxes in lieu of or in addition to the power to make a distribution for taxes pursuant to subsection (c), (f), (i), or (j) by direct payment to the taxing authorities.
§ 91-9-723
This article shall apply to qualified dispositions and dispositions by transferors who are trustees made on or after July 1, 2014.
Chapter 11 Fiduciary Security Transfers
§ 91-11-1
This chapter may be cited as the Uniform Act for Simplification of Fiduciary Security Transfers.
§ 91-11-3
In this chapter, unless the context otherwise requires:
(a) “Assignment” includes any written stock power, bond power, bill of sale, deed, declaration of trust, or other instrument of transfer.
(b) “Claim of beneficial interest” includes a claim of any interest by a decedent's legatee, distributee, heir, or creditor, a beneficiary under a trust, a ward, a beneficial owner of a security registered in the name of a nominee, a minor owner of a security registered in the name of a custodian, or a claim of any similar interest, whether the claim is asserted by the claimant or by a fiduciary or by any other authorized person on his behalf, and includes a claim that the transfer would be in breach of fiduciary duties.
(c) “Corporation” means a private or public corporation, association, or trust issuing a security.
(d) “Fiduciary” means an executor, administrator, trustee, guardian, committee, conservator, curator, tutor, custodian, or nominee.
(e) “Person” includes an individual, a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity.
(f) “Security” includes any share of stock, bond, debenture, note, or other security issued by a corporation which is registered as to ownership on the books of the corporation.
(g) “Transfer” means a change on the books of a corporation in the registered ownership of a security.
(h) “Transfer agent” means a person employed or authorized by a corporation to transfer securities issued by the corporation.
§ 91-11-5
A corporation or transfer agent registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent, or correct description of the fiduciary relationship. Thereafter the corporation and its transfer agent may assume without inquiry that the newly registered owner continues to be the fiduciary until the corporation or transfer agent receives written notice that the fiduciary is no longer acting as such with respect to the particular security.
§ 91-11-7
Except as otherwise provided in this chapter, a corporation or transfer agent making a transfer of a security pursuant to an assignment by a fiduciary:
(a) may assume without inquiry that the assignment, even though to the fiduciary himself or to his nominee, is within his authority and capacity and is not in breach of his fiduciary duties;
(b) may assume without inquiry that the fiduciary has complied with any controlling instrument and with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of the transfer; and
(c) is not charged with notice of and is not bound to obtain or examine any court record or any recorded or unrecorded document relating to the fiduciary relationship or the assignment, even though the record or document is in its possession.
§ 91-11-9
A corporation or transfer agent making a transfer pursuant to an assignment by a fiduciary who is not the registered owner shall obtain the following evidence of appointment or incumbency:
(a) In the case of a fiduciary appointed or qualified by a court, a certificate issued by or under the direction or supervision of that court or an officer thereof and dated within sixty (60) days before the transfer; or
(b) In any other case, a copy of a document showing the appointment or a certificate issued by or on behalf of a person reasonably believed by the corporation or transfer agent to be responsible or, in the absence of such document or certificate, other evidence reasonably deemed by the corporation or transfer agent to be appropriate. Corporations and transfer agents may adopt standards with respect to evidence of appointment or incumbency under this paragraph (b) provided such standards are not manifestly unreasonable. Neither the corporation nor transfer agent is charged with notice of the contents of any document obtained pursuant to this paragraph (b) except to the extent that the contents relate directly to the appointment or incumbency.
§ 91-11-11
(1) A person asserting a claim of beneficial interest adverse to the transfer of a security pursuant to an assignment by a fiduciary may give the corporation or transfer agent written notice of the claim. The corporation or transfer agent is not put on notice unless the written notice identifies the claimant, the registered owner, and the issue of which the security is a part, provides an address for communications directed to the claimant, and is received before the transfer. Nothing in this chapter relieves the corporation or transfer agent of any liability for making or refusing to make the transfer after it is so put on notice, unless it proceeds in the manner authorized in subsection (2).
(2) As soon as practicable after the presentation of a security for transfer pursuant to an assignment by a fiduciary, a corporation or transfer agent which has received notice of a claim of beneficial interest adverse to the transfer may send notice of the presentation by registered or certified mail to the claimant at the address given by him. If the corporation or transfer agent so mails such a notice, it shall withhold the transfer for thirty days after the mailing and shall then make the transfer unless restrained by a court order.
§ 91-11-13
A corporation or transfer agent incurs no liability to any person by making a transfer or otherwise acting in a manner authorized by this chapter.
§ 91-11-15
(1) No person who participates in the acquisition, disposition, assignment, or transfer of a security by or to a fiduciary, including a person who guarantees the signature of the fiduciary, is liable for participation in any breach of fiduciary duty by reason of failure to inquire whether the transaction involves such a breach unless it is shown that he acted with actual knowledge that the proceeds of the transaction were being or were to be used wrongfully for the individual benefit of the fiduciary, or that the transaction was otherwise in breach of duty.
(2) If a corporation or transfer agent makes a transfer pursuant to an assignment by a fiduciary, a person who guaranteed the signature of the fiduciary is not liable on the guarantee to any person to whom the corporation or transfer agent by reason of this chapter incurs no liability.
(3) This section does not impose any liability upon the corporation or its transfer agent.
§ 91-11-17
(1) The rights and duties of a corporation and its transfer agents in registering a security in the name of a fiduciary, or in making a transfer of a security pursuant to an assignment by a fiduciary, are governed by the law of the jurisdiction under whose laws the corporation is organized.
(2) This chapter applies to the rights and duties of a person other than the corporation and its transfer agents with regard to acts and omissions in this state in connection with the acquisition, disposition, assignment, or transfer of a security by or to a fiduciary, and of a person who guarantees in this state the signature of a fiduciary in connection with such a transaction.
§ 91-11-19
This chapter does not affect any obligation of a corporation or transfer agent with respect to estate, inheritance, succession, or other taxes imposed by the laws of this state.
§ 91-11-21
This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Chapter 13 Fiduciary Investments
§ 91-13-1
All trustees, guardians, and other fiduciaries in this state, unless prohibited by the will, deed, or trust instrument of the testator or other person establishing the trust, agency, or fiduciary relationship, or unless by any such instrument another mode of investment is prescribed, may, in addition to methods of investment now authorized by law, invest all funds held in trust or for investment as provided in this chapter.
§ 91-13-3
In acquiring, investing, reinvesting, exchanging, retaining, selling, and managing property held in fiduciary capacity, the fiduciary shall exercise the judgment and care under the circumstances then prevailing which men of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property, real, personal, or mixed, and every kind of investment, specifically including, but not by way of limitation, shares or interests in common trust funds, securities of any open-end or closed-end management type investment company or investment trust registered under the Federal Investment Company Act of 1940, as from time to time amended and, in addition, bonds, preferred stocks, or common stocks listed on a national securities exchange registered with the securities and exchange commission, which men of prudence, discretion, and intelligence acquire or retain for their own account. Within the limitations of the foregoing standard, a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase.
§ 91-13-5
Whenever the express terms or limitations set forth in any will, agreement, court order, or other instrument use the terms “legal investment” or “authorized investment” or words of similar import, such words shall be conclusively presumed to mean any investment authorized or permitted by Section 91-13-3.
§ 91-13-6
All trustees, guardians, administrators, executors and other fiduciaries may, without court order, if not prohibited by the instrument, judgment, decree or order establishing the fiduciary relationship, invest or deposit funds held in a fiduciary capacity in time certificates of deposit, savings accounts or other interest-bearing accounts of (a) any state or national bank (including itself, if such fiduciary be a bank) whose main office is located in the state and the deposits of which are insured by the Federal Deposit Insurance Corporation, or (b) any state or federal savings and loan association (including itself, if such fiduciary be a savings and loan association) whose main office is located in the state and the deposits of which are insured by the Federal Savings and Loan Insurance Corporation.
§ 91-13-7
Nothing contained in this chapter shall be construed to limit the power of a court of competent jurisdiction to permit a fiduciary to take any action authorized, or to restrain a fiduciary from taking any action prohibited by a decree of such court, notwithstanding the permissions or restrictions contained in any written instrument under which such fiduciary is acting.
§ 91-13-8
All trustees, guardians, administrators, executors and other fiduciaries, whenever a governing instrument or order directs, requires, authorizes or permits investment in direct obligations of the United States of America, may invest in such obligations either directly or in the form of securities of, or other interests in, any open-end or closed-end management type investment company or investment trust registered under the provisions of 15 U.S.C. Section 80(a)-1 et seq., provided that the portfolio of such investment company or investment trust is limited to direct obligations of the United States of America and to repurchase agreements fully collateralized by direct obligations of the United States of America, and that such investment company or investment trust takes delivery of the collateral for any repurchase agreement, either directly or through an authorized custodian. This section shall not be construed to apply to the investment of any public funds; provided, however, that this section shall be construed to apply to the investment of public funds deposited with a bank trustee acting in a fiduciary capacity in connection with the sale and redemption of bonds, notes and other certificates of indebtedness, notwithstanding Section 31-19-5, Mississippi Code of 1972.
§ 91-13-9
Fiduciaries acting under authority heretofore or hereafter granted shall be subject to the provisions of this chapter.
The powers granted by this chapter to trustees, guardians, and other fiduciaries shall be in addition to the powers existing by virtue of other laws heretofore enacted authorizing investments by fiduciaries.
§ 91-13-11
All bonds and other obligations issued by the Tennessee Valley Authority under the provisions of the Tennessee Valley Authority Act of 1933, as heretofore or hereafter amended, shall be legal investments for trustees and other fiduciaries, for the public employees' retirement system of Mississippi, and for banks, savings banks, trust companies, building and loan associations, and insurance companies organized under the laws of the State of Mississippi. Such bonds and obligations shall be legal securities which may be deposited with and shall be received by all public officers and bodies of this state and all municipalities and political subdivisions for the purpose of securing the deposit of public funds.
Chapter 15 Release of Powers of Appointment
§ 91-15-1
This chapter may be cited as the “release of power of appointment law.”
§ 91-15-3
When used in this chapter, unless the context otherwise requires:
(a) “Power” includes any power to appoint or designate to whom property shall go, any power to invade property, any power to alter, amend, or revoke any instrument under which an estate or trust is held or created or to terminate any right or interest thereunder, and any power remaining where one or more partial releases have heretofore or hereafter been made with respect to a power, whether heretofore or hereafter created or reserved, whether vested, contingent, or conditional, and whether classified in law or known as a power in gross, a power appendant, a power appurtenant, a collateral power, a general, special, or limited power, exclusive or nonexclusive power, or otherwise, and irrespective of when, in what manner, or in whose favor it may be exercised.
(b) “Donee” means any person, whether resident or nonresident of this state, who, either alone or with another, has the right to exercise a power.
(c) “Objects” when used in connection with a power means the person in whose favor the power may be exercised.
(d) “Property” when used in connection with a power means any and all property, whether real or personal, any and all interest in property, and any and all income from property, which is subject to the power, and includes any part of the property, any part of the interest in property, and any part of the income from property.
(e) “Release” means renunciation, relinquishment, surrender, refusal to accept, extinguishment, and any other form of release.
§ 91-15-5
Unless the instrument creating the power specifically provides to the contrary, the donee of a power, whether now existing or hereafter created, may:
(a) At any time completely release his power.
(b) At any time or times release his power: (one) as to any property which is subject thereto; (two) as to any one or more of the objects thereof; or (three) so as to limit in any other respect the extent to which it may be exercised.
§ 91-15-7
A release of a power, whether partial or complete, shall be valid and effective with or without a consideration when the donee executes an instrument evidencing an intent to make the release, signed and acknowledged in the manner prescribed for the execution of deeds, and delivers the instrument or causes it to be delivered, either:
(a) To an adult person who may take any of the property which is subject to the power in the event of its non-exercise, or to one in whose favor it may be exercised after such partial release; or
(b) To any trustee or any co-trustee of the property which is subject to the power; or
(c) By filing the same for recordation in the chancery clerk's office in the county and judicial district thereof in which any of the property is located, or in which either the donee or the trustee in control of the property resides, or in which the trustee has its principal office, or in which the instrument creating the power is probated or recorded.
§ 91-15-9
A release of a power executed prior to April 10, 1946, shall have the same effect as if this chapter had been in effect at the time the release was executed and delivered.
§ 91-15-11
The rights and means provided in this chapter for the release of a power are not exclusive, but are in addition to all other rights and means of a donee to release a power in whole or in part.
§ 91-15-13
Any fiduciary or other person, association, or corporation having the possession or control of any property subject to a power of appointment shall be deemed to have notice of a release of the power when the original or a copy of the release is delivered to such fiduciary or other person, association, or corporation.
§ 91-15-15
Any purchaser or mortgagee of real property subject to a power of appointment, who is without actual notice, shall be deemed to have notice of a release of the power when the original or duplicate original is filed for record in the chancery clerk's office in the county and judicial district thereof in which the particular real property so purchased or mortgaged is located, and when the deed, will, or other instrument creating the power, or a duly attested copy thereof, is recorded in the same office, and an appropriate notation is entered on the margin of the will or deed book where the instrument creating the power is recorded, referring to the deed book and page where the release is recorded.
§ 91-15-17
Clerks of chancery courts are authorized and directed to record releases of powers of appointment in the books provided for the recordation of deeds, to index the same in the current and general indexes, the name of the donee being entered on the grantor index, and to charge therefor at the rate applicable to deeds.
§ 91-15-19
No release shall be invalid or ineffective because of failure to comply with either Section 91-15-13 or Section 91-15-15.
§ 91-15-21
In so far as the provisions of this chapter may conflict with other laws or parts thereof, the provisions of this chapter shall control.
Chapter 17 Mississippi Principal and Income Act of 2013
§ 91-17-101
This chapter may be cited as the Mississippi Principal and Income Act of 2013.
§ 91-17-102
In this chapter:
(1) “Accounting period” means a calendar year unless another twelve-month period is selected by a fiduciary. The term includes a portion of a calendar year or other twelve-month period that begins when an income interest begins or ends when an income interest ends.
(2) “Beneficiary” includes, in the case of a decedent's estate, an heir, legatee, and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
(3) “Fiduciary” means a personal representative or a trustee. The term includes an executor, administrator, successor personal representative, special administrator, and a person performing substantially the same function.
(4) “Income” means money or property that a fiduciary receives as current return from a principal asset. The term includes a portion of receipts from a sale, exchange, or liquidation of a principal asset, to the extent provided in Article 4.
(5) “Income beneficiary” means a person to whom net income of a trust is or may be payable.
(6) “Income interest” means the right of an income beneficiary to receive all or part of net income, whether the terms of the trust require it to be distributed or authorize it to be distributed in the trustee's discretion.
(7) “Mandatory income interest” means the right of an income beneficiary to receive net income that the terms of the trust require the fiduciary to distribute.
(8) “Net income” means the total receipts allocated to income during an accounting period minus the disbursements made from income during the period, plus or minus transfers under this chapter to or from income during the period.
(9) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation, or any other legal or commercial entity.
(10) “Principal” means property held in trust for distribution to a remainder beneficiary when the trust terminates.
(11) “Remainder beneficiary” means a person entitled to receive principal when an income interest ends.
(12) “Terms of a trust” means the manifestation of the intent of a settlor or decedent with respect to the trust, expressed in a manner that admits of its proof in a judicial proceeding, whether by written or spoken words or by conduct.
(13) “Trustee” includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court.
§ 91-17-103
(a) In allocating receipts and disbursements to or between principal and income, and with respect to any matter within the scope of Articles 2 and 3, a fiduciary:
(1) Shall administer a trust or estate in accordance with the terms of the trust or the will, even if there is a different provision in this chapter;
(2) May administer a trust or estate by the exercise of a discretionary power of administration given to the fiduciary by the terms of the trust or the will, even if the exercise of the power produces a result different from a result required or permitted by this chapter;
(3) Shall administer a trust or estate in accordance with this chapter if the terms of the trust or the will do not contain a different provision or do not give the fiduciary a discretionary power of administration; and
(4) Shall add a receipt or charge a disbursement to principal to the extent that the terms of the trust and this chapter do not provide a rule for allocating the receipt or disbursement to or between principal and income.
(b) In exercising the power to adjust under Section 91-17-104(a) or a discretionary power of administration regarding a matter within the scope of this chapter, whether granted by the terms of a trust, a will, or this chapter, a fiduciary shall administer a trust or estate impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the terms of the trust or the will clearly manifest an intention that the fiduciary shall or may favor one or more of the beneficiaries. A determination in accordance with this chapter is presumed to be fair and reasonable to all of the beneficiaries.
§ 91-17-104
(a) A trustee may adjust between principal and income to the extent the trustee considers necessary if the trustee invests and manages trust assets as a prudent investor, the terms of the trust describe the amount that may or must be distributed to a beneficiary by referring to the trust's income, and the trustee determines, after applying the rules in Section 91-17-103(a), that the trustee is unable to comply with Section 91-17-103(b).
(b) In deciding whether and to what extent to exercise the power conferred by subsection (a), a trustee shall consider all factors relevant to the trust and its beneficiaries, including the following factors to the extent they are relevant:
(1) The nature, purpose, and expected duration of the trust;
(2) The intent of the settlor;
(3) The identity and circumstances of the beneficiaries;
(4) The needs for liquidity, regularity of income, and preservation and appreciation of capital;
(5) The assets held in the trust; the extent to which they consist of financial assets, interests in closely held enterprises, tangible and intangible personal property, or real property; the extent to which an asset is used by a beneficiary; and whether an asset was purchased by the trustee or received from the settlor;
(6) The net amount allocated to income under the other sections of this chapter and the increase or decrease in the value of the principal assets, which the trustee may estimate as to assets for which market values are not readily available;
(7) Whether and to what extent the terms of the trust give the trustee the power to invade principal or accumulate income or prohibit the trustee from invading principal or accumulating income, and the extent to which the trustee has exercised a power from time to time to invade principal or accumulate income;
(8) The actual and anticipated effect of economic conditions on principal and income and effects of inflation and deflation; and
(9) The anticipated tax consequences of an adjustment.
(c) A trustee may not make an adjustment:
(1) That diminishes the income interest in a trust that requires all of the income to be paid at least annually to a spouse and for which an estate tax or gift tax marital deduction would be allowed, in whole or in part, if the trustee did not have the power to make the adjustment;
(2) That reduces the actuarial value of the income interest in a trust to which a person transfers property with the intent to qualify for a gift tax exclusion;
(3) That changes the amount payable to a beneficiary as a fixed annuity or a fixed fraction of the value of the trust assets;
(4) From any amount that is permanently set aside for charitable purposes under a will or the terms of a trust unless both income and principal are so set aside;
(5) If possessing or exercising the power to make an adjustment causes an individual to be treated as the owner of all or part of the trust for income tax purposes, and the individual would not be treated as the owner if the trustee did not possess the power to make an adjustment;
(6) If possessing or exercising the power to make an adjustment causes all or part of the trust assets to be included for estate tax purposes in the estate of an individual who has the power to remove a trustee or appoint a trustee, or both, and the assets would not be included in the estate of the individual if the trustee did not possess the power to make an adjustment;
(7) If the trustee is a beneficiary of the trust; or
(8) If the trustee is not a beneficiary, but the adjustment would benefit the trustee directly or indirectly.
(d) If subsection (c)(5), (6), (7), or (8) applies to a trustee and there is more than one (1) trustee, a cotrustee to whom the provision does not apply may make the adjustment unless the exercise of the power by the remaining trustee or trustees is not permitted by the terms of the trust.
(e) A trustee may release the entire power conferred by subsection (a) or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in subsection (c)(1) through (6) or (c)(8) or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in subsection (c). The release may be permanent or for a specified period, including a period measured by the life of an individual.
(f) Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this section unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by subsection (a).
(g)(1) For purposes of this section, and subject to subsection (c) of this section, from time to time a trustee may make a safe-harbor adjustment to increase net trust accounting income up to and including an amount equal to six percent (6%) of the trust's value as defined in subsection (g)(2). If a trustee determines to make this safe-harbor adjustment, the propriety of this adjustment shall be conclusively presumed. Nothing in this subsection (g) prohibits any other type of adjustment authorized under any provision of this section.
(2) A trust's value under subsection (g)(1) shall be calculated as follows:
(i) For trusts in existence for three (3) years or more, the value shall be the average fair market value of the trust assets over the past three (3) years;
(ii) For trusts in existence for at least two (2) years but less than three (3) years, the value shall be the average fair market value of the trust assets over the past two (2) years; and
(iii) For trusts in existence less than two (2) years, the value shall be the fair market value of the trust assets on December 31 of the preceding year.
§ 91-17-105
(a) The court may not order a fiduciary to change a decision to exercise or not to exercise a discretionary power conferred by this chapter unless it determines that the decision was an abuse of the fiduciary's discretion. A fiduciary's decision is not an abuse of discretion merely because the court would have exercised the power in a different manner or would not have exercised the power.
(b) The decisions to which subsection (a) applies include:
(1) A decision under Section 91-17-104(a) as to whether and to what extent an amount should be transferred from principal to income or from income to principal.
(2) A decision regarding the factors that are relevant to the trust and its beneficiaries, the extent to which the factors are relevant, and the weight, if any, to be given to those factors, in deciding whether and to what extent to exercise the discretionary power conferred by Section 91-17-104(a).
(c) If the court determines that a fiduciary has abused the fiduciary's discretion, the court may place the income and remainder beneficiaries in the positions they would have occupied if the discretion had not been abused, according to the following rules:
(1) To the extent that the abuse of discretion has resulted in no distribution to a beneficiary or in a distribution that is too small, the court shall order the fiduciary to distribute from the trust to the beneficiary an amount that the court determines will restore the beneficiary, in whole or in part, to the beneficiary's appropriate position.
(2) To the extent that the abuse of discretion has resulted in a distribution to a beneficiary which is too large, the court shall place the beneficiaries, the trust, or both, in whole or in part, in their appropriate positions by ordering the fiduciary to withhold an amount from one or more future distributions to the beneficiary who received the distribution that was too large or ordering that beneficiary to return some or all of the distribution to the trust.
(3) To the extent that the court is unable, after applying paragraphs (1) and (2), to place the beneficiaries, the trust, or both, in the positions they would have occupied if the discretion had not been abused, the court may order the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries or the trust or both.
(d) Upon petition by the fiduciary, the court having jurisdiction over a trust or estate shall determine whether a proposed exercise or nonexercise by the fiduciary of a discretionary power conferred by this chapter will result in an abuse of the fiduciary's discretion. If the petition describes the proposed exercise or nonexercise of the power and contains sufficient information to inform the beneficiaries of the reasons for the proposal, the facts upon which the fiduciary relies, and an explanation of how the income and remainder beneficiaries will be affected by the proposed exercise or nonexercise of the power, a beneficiary who challenges the proposed exercise or nonexercise has the burden of establishing that it will result in an abuse of discretion.
§ 91-17-201
After a decedent dies, in the case of an estate, or after an income interest in a trust ends, the following rules apply:
(1) A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in Articles 3 through 5 which apply to trustees and the rules in paragraph (5). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.
(2) A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in Articles 3 through 5 which apply to trustees and by:
(A) Including in net income all income from property used to discharge liabilities;
(B) Paying from income or principal, in the fiduciary's discretion, fees of attorneys, accountants, and fiduciaries; court costs and other expenses of administration; and interest on death taxes, but the fiduciary may pay those expenses from income of property passing to a trust for which the fiduciary claims an estate tax marital or charitable deduction only to the extent that the payment of those expenses from income will not cause the reduction or loss of the deduction; and
(C) Paying from principal all other disbursements made or incurred in connection with the settlement of a decedent's estate or the winding-up of a terminating income interest, including debts, funeral expenses, disposition of remains, family allowances, and death taxes and related penalties that are apportioned to the estate or terminating income interest by the will, the terms of the trust, or applicable law.
(3) A fiduciary shall distribute to a beneficiary who receives a pecuniary amount outright the interest or any other amount provided by the will, the terms of the trust, or applicable law from net income determined under paragraph (2) or from principal to the extent that net income is insufficient. If a beneficiary is to receive a pecuniary amount outright and no interest or other amount is provided for by the will or by the terms of the trust, and if the pecuniary amount is not distributed to the beneficiary within one (1) year of the date of death of the testator or the date the income interest ends, then the fiduciary shall distribute to the beneficiary interest on any amount that remains undistributed after the one-year anniversary until the pecuniary amount is distributed in full. The interest rate shall be the IRS midterm applicable federal rate in effect on the date the interest begins to accrue.
(4) A fiduciary shall distribute the net income remaining after distributions required by paragraph (3) in the manner described in Section 91-17-202 to all other beneficiaries, including a beneficiary who receives a pecuniary amount in trust, even if the beneficiary holds an unqualified power to withdraw assets from the trust or other presently exercisable general power of appointment over the trust.
(5) A fiduciary may not reduce principal or income receipts from property described in paragraph (1) because of a payment described in Section 91-17-501 or 91-17-502 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a third party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.
§ 91-17-202
(a) Each beneficiary described in Section 91-17-201(4) is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one (1) distribution of assets to beneficiaries to whom this section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.
(b) In determining a beneficiary's share of net income, the following rules apply:
(1) The beneficiary is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in the undistributed principal assets immediately before the distribution date, including assets that later may be sold to meet principal obligations.
(2) The beneficiary's fractional interest in the undistributed principal assets must be calculated without regard to property specifically given to a beneficiary and property required to pay pecuniary amounts not in trust.
(3) The beneficiary's fractional interest in the undistributed principal assets must be calculated on the basis of the aggregate value of those assets as of the distribution date without reducing the value by any unpaid principal obligation.
(4) The distribution date for purposes of this section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.
(c) If a fiduciary does not distribute all of the collected but undistributed net income to each person as of a distribution date, the fiduciary shall maintain appropriate records showing the interest of each beneficiary in that net income.
(d) A fiduciary may apply the rules in this section, to the extent that the fiduciary considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this section applies to the income from the asset.
§ 91-17-301
(a) An income beneficiary is entitled to net income from the date on which the income interest begins. An income interest begins on the date specified in the terms of the trust or, if no date is specified, on the date an asset becomes subject to a trust or successive income interest.
(b) An asset becomes subject to a trust:
(1) On the date it is transferred to the trust in the case of an asset that is transferred to a trust during the transferor's life;
(2) On the date of a testator's death in the case of an asset that becomes subject to a trust by reason of a will, even if there is an intervening period of administration of the testator's estate; or
(3) On the date of an individual's death in the case of an asset that is transferred to a fiduciary by a third party because of the individual's death.
(c) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under subsection (d), even if there is an intervening period of administration to wind up the preceding income interest.
(d) An income interest ends on the day before an income beneficiary dies or another terminating event occurs, or on the last day of a period during which there is no beneficiary to whom a trustee may distribute income.
§ 91-17-302
(a) A trustee shall allocate an income receipt or disbursement other than one to which Section 91-17-201(1) applies to principal if its due date occurs before a decedent dies in the case of an estate or before an income interest begins in the case of a trust or successive income interest.
(b) A trustee shall allocate an income receipt or disbursement to income if its due date occurs on or after the date on which a decedent dies or an income interest begins and it is a periodic due date. An income receipt or disbursement must be treated as accruing from day to day if its due date is not periodic or it has no due date. The portion of the receipt or disbursement accruing before the date on which a decedent dies or an income interest begins must be allocated to principal and the balance must be allocated to income.
(c) An item of income or an obligation is due on the date the payer is required to make a payment. If a payment date is not stated, there is no due date for the purposes of this chapter. Distributions to shareholders or other owners from an entity to which Section 91-17-401 applies are deemed to be due on the date fixed by the entity for determining who is entitled to receive the distribution or, if no date is fixed, on the declaration date for the distribution. A due date is periodic for receipts or disbursements that must be paid at regular intervals under a lease or an obligation to pay interest or if an entity customarily makes distributions at regular intervals.
§ 91-17-303
(a) In this section, “undistributed income” means net income received before the date on which an income interest ends. The term does not include an item of income or expense that is due or accrued or net income that has been added or is required to be added to principal under the terms of the trust.
(b) When a mandatory income interest ends, the trustee shall pay to a mandatory income beneficiary who survives that date, or the estate of a deceased mandatory income beneficiary whose death causes the interest to end, the beneficiary's share of the undistributed income that is not disposed of under the terms of the trust unless the beneficiary has an unqualified power to revoke more than five percent (5%) of the trust immediately before the income interest ends. In the latter case, the undistributed income from the portion of the trust that may be revoked must be added to principal.
(c) When a trustee's obligation to pay a fixed annuity or a fixed fraction of the value of the trust's assets ends, the trustee shall prorate the final payment if and to the extent required by applicable law to accomplish a purpose of the trust or its settlor relating to income, gift, estate, or other tax requirements.
§ 91-17-401
(a) In this section, “entity” means a corporation, partnership, limited liability company, regulated investment company, real estate investment trust, common trust fund, or any other organization in which a trustee has an interest other than a trust or estate to which Section 91-17-402 applies, a business or activity to which Section 91-17-403 applies, or an asset-backed security to which Section 91-17-415 applies.
(b) Except as otherwise provided in this section, a trustee shall allocate to income money received from an entity.
(c) A trustee shall allocate the following receipts from an entity to principal:
(1) Property other than money;
(2) Money received in one (1) distribution or a series of related distributions in exchange for part or all of a trust's interest in the entity;
(3) Money received in total or partial liquidation of the entity; and
(4) Money received from an entity that is a regulated investment company or a real estate investment trust if the money distributed is a capital gain dividend for federal income tax purposes.
(d) Money is received in partial liquidation:
(1) To the extent that the entity, at or near the time of a distribution, indicates that it is a distribution in partial liquidation; or
(2) If the total amount of money and property received in a distribution or series of related distributions is greater than twenty percent (20%) of the entity's gross assets, as shown by the entity's year-end financial statements immediately preceding the initial receipt.
(e) Money is not received in partial liquidation, nor may it be taken into account under subsection (d)(2), to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.
(f) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity's board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation's board of directors.
§ 91-17-402
A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, Section 91-17-401 or 91-17-415 applies to a receipt from the trust.
§ 91-17-403
(a) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust's general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.
(b) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity, and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust's general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust's general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.
(c) Activities for which a trustee may maintain separate accounting records include:
(1) Retail, manufacturing, service, and other traditional business activities;
(2) Farming;
(3) Raising and selling livestock and other animals;
(4) Management of rental properties;
(5) Extraction of minerals and other natural resources;
(6) Timber operations; and
(7) Activities to which Section 91-17-414 applies.
§ 91-17-404
A trustee shall allocate to principal:
(1) To the extent not allocated to income under this chapter, assets received from a transferor during the transferor's lifetime, a decedent's estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary;
(2) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to this article;
(3) Amounts recovered from third parties to reimburse the trust because of disbursements described in Section 91-17-502(a)(7) or for other reasons to the extent not based on the loss of income;
(4) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income;
(5) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income; and
(6) Other receipts as provided in Part 3 of this article.
§ 91-17-405
To the extent that a trustee accounts for receipts from rental property pursuant to this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee's contractual obligations have been satisfied with respect to that amount.
§ 91-17-406
(a) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.
(b) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one (1) year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one (1) year after it is purchased or acquired by the trustee, an amount received in excess of its purchase price or its value when acquired by the trust must be allocated to income.
(c) This section does not apply to an obligation to which Section 91-17-409, 91-17-410, 91-17-411, 91-17-412, 91-17-414, or 91-17-415 applies.
§ 91-17-407
(a) Except as otherwise provided in subsection (b), a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.
(b) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to Section 91-17-403, loss of profits from a business.
(c) This section does not apply to a contract to which Section 91-17-409 applies.
§ 91-17-408
If a trustee determines that an allocation between principal and income required by Section 91-17-409, 91-17-410, 91-17-411, 91-17-412, or 91-17-415 is insubstantial, the trustee may allocate the entire amount to principal unless one (1) of the circumstances described in Section 91-17-104(c) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in Section 91-17-104(d) and may be released for the reasons and in the manner described in Section 91-17-104(e). An allocation is presumed to be insubstantial if:
(1) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than ten percent (10%); or
(2) The value of the asset producing the receipt for which the allocation would be made is less than ten percent (10%) of the total value of the trust's assets at the beginning of the accounting period.
§ 91-17-409
(a) In this section:
(1) “Payment” means a payment that a trustee may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for future payments. The term includes a payment made in money or property from the payer's general assets or from a separate fund created by the payer. For purposes of subsections (d), (e), (f), and (g), the term also includes any payment from any separate fund, regardless of the reason for the payment.
(2) “Separate fund” includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.
(b) To the extent that a payment is characterized as interest, or a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or an equivalent payment.
(c) If no part of a payment is characterized as interest, a dividend, or an equivalent payment, and all or part of the payment is required to be made, a trustee shall allocate to income ten percent (10%) of the part that is required to be made during the accounting period and the balance to principal. If no part of a payment is required to be made or the payment received is the entire amount to which the trustee is entitled, the trustee shall allocate the entire payment to principal. For purposes of this subsection, a payment is not “required to be made” to the extent that it is made because the trustee exercises a right of withdrawal.
(d) Except as otherwise provided in subsection (e), subsections (f) and (g) apply, and subsections (b) and (c) do not apply, in determining the allocation of a payment made from a separate fund to:
(1) A trust to which an election to qualify for a marital deduction under Section 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or
(2) A trust that qualifies for the marital deduction under Section 2056(b)(5) of the Internal Revenue Code of 1986, as amended.
(e) Subsections (d), (f), and (g) do not apply if and to the extent that the series of payments would, without the application of subsection (d), qualify for the marital deduction under Section 2056(b)(7)(C) of the Internal Revenue Code of 1986, as amended.
(f) A trustee shall determine the internal income of each separate fund for the accounting period as if the separate fund were a trust subject to this chapter. Upon request of the surviving spouse, the trustee shall demand that the person administering the separate fund distribute the internal income to the trust. The trustee shall allocate a payment from the separate fund to income to the extent of the internal income of the separate fund and distribute that amount to the surviving spouse. The trustee shall allocate the balance of the payment to principal. Upon request of the surviving spouse, the trustee shall allocate principal to income to the extent the internal income of the separate fund exceeds payments made from the separate fund to the trust during the accounting period.
(g) If a trustee cannot determine the internal income of a separate fund but can determine the value of the separate fund, the internal income of the separate fund is deemed to equal four percent (4%) of the fund's value, according to the most recent statement of value preceding the beginning of the accounting period. If the trustee can determine neither the internal income of the separate fund nor the fund's value, the internal income of the fund is deemed to equal the product of the interest rate and the present value of the expected future payments, as determined under Section 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the accounting period for which the computation is made.
(h) This section does not apply to a payment to which Section 91-17-410 applies.
§ 91-17-410
(a) In this section, “liquidating asset” means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one (1) year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to Section 91-17-409, resources subject to Section 91-17-411, timber subject to Section 91-17-412, an activity subject to Section 91-17-414, an asset subject to Section 91-17-415, or any asset for which the trustee establishes a reserve for depreciation under Section 91-17-503.
(b) A trustee shall allocate to income ten percent (10%) of the receipts from a liquidating asset and the balance to principal.
§ 91-17-411
(a) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources pursuant to this section, the trustee shall allocate them as follows:
(1) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.
(2) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.
(3) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, ninety percent (90%) must be allocated to principal and the balance to income.
(4) If an amount is received from a working interest or any other interest not provided for in paragraph (1), (2), or (3), ninety percent (90%) of the net amount received must be allocated to principal and the balance to income.
(b) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, ninety percent (90%) of the amount must be allocated to principal and the balance to income.
(c) This chapter applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.
(d) If a trust owns an interest in minerals, water, or other natural resources on January 1, 2013, the trustee may allocate receipts from the interest as provided in this chapter or in the manner used by the trustee before January 1, 2013. If the trust acquires an interest in minerals, water, or other natural resources after January 1, 2013, the trustee shall allocate receipts from the interest as provided in this chapter.
§ 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: 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, 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.
§ 91-17-413
(a) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under Section 91-17-104 and distributes to the spouse from principal pursuant to the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by Section 91-17-104(a). The trustee may decide which action or combination of actions to take.
(b) In cases not governed by subsection (a), proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.
§ 91-17-414
(a) In this section, “derivative” means a contract or financial instrument or a combination of contracts and financial instruments which gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or other market indicator for an asset or a group of assets.
(b) To the extent that a trustee does not account under Section 91-17-403 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.
(c) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.
§ 91-17-415
(a) In this section, “asset-backed security” means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which Section 91-17-401 or 91-17-409 applies.
(b) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment which the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.
(c) If a trust receives one or more payments in exchange for the trust's entire interest in an asset-backed security in one (1) accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust's interest in the security over more than one (1) accounting period, the trustee shall allocate ten percent (10%) of the payment to income and the balance to principal.
§ 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.
§ 91-17-502
(a) A trustee shall make the following disbursements from principal:
(1) The remaining one-half (1/2) of the disbursements described in Section 91-17-501(1) and (2);
(2) All of the trustee's compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale;
(3) Payments on the principal of a trust debt;
(4) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property;
(5) Premiums paid on a policy of insurance not described in Section 91-17-501(4) of which the trust is the owner and beneficiary;
(6) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust; and
(7) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations and other payments made to comply with those laws or regulations, statutory or common-law claims by third parties, and defending claims based on environmental matters.
(b) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.
§ 91-17-503
(a) In this section, “depreciation” means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one (1) year.
(b) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:
(1) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary;
(2) During the administration of a decedent's estate; or
(3) Under this section if the trustee is accounting under Section 91-17-403 for the business or activity in which the asset is used.
(c) An amount transferred to principal need not be held as a separate fund.
§ 91-17-504
(a) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.
(b) Principal disbursements to which subsection (a) applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a third party:
(1) An amount chargeable to income but paid from principal because it is unusually large, including extraordinary repairs;
(2) A capital improvement to a principal asset, whether in the form of changes to an existing asset or the construction of a new asset, including special assessments;
(3) Disbursements made to prepare property for rental, including tenant allowances, leasehold improvements, and broker's commissions;
(4) Periodic payments on an obligation secured by a principal asset to the extent that the amount transferred from income to principal for depreciation is less than the periodic payments; and
(5) Disbursements described in Section 91-17-502(a)(7).
(c) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in subsection (a).
§ 91-17-505
(a) A tax required to be paid by a trustee based on receipts allocated to income must be paid from income.
(b) A tax required to be paid by a trustee based on receipts allocated to principal must be paid from principal, even if the tax is called an income tax by the taxing authority.
(c) A tax required to be paid by a trustee on the trust's share of an entity's taxable income must be paid:
(1) From income to the extent that receipts from the entity are allocated only to income;
(2) From principal to the extent that receipts from the entity are allocated only to principal;
(3) Proportionately from principal and income to the extent that receipts from the entity are allocated to both income and principal; and
(4) From principal to the extent that the tax exceeds the total receipts from the entity.
(d) After applying subsections (a) through (c), the trustee shall adjust income or principal receipts to the extent that the trust's taxes are reduced because the trust receives a deduction for payments made to a beneficiary.
§ 91-17-506
A fiduciary may make adjustments between principal and income to offset the shifting of economic interests or tax benefits between income beneficiaries and remainder beneficiaries which arise from:
(1) Elections and decisions, that the fiduciary makes from time to time regarding tax matters;
(2) An income tax or any other tax that is imposed upon the fiduciary or a beneficiary as a result of a transaction involving or a distribution from the estate or trust; or
(3) The ownership by an estate or trust of an interest in an entity whose taxable income, whether or not distributed, is includable in the taxable income of the estate, trust, or a beneficiary.
§ 91-17-601
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 91-17-602
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
§ 91-17-603
This chapter applies to every trust or decedent's estate existing on January 1, 2013, except as otherwise expressly provided in the will or terms of the trust or in this chapter.
§ 91-17-604
Section 91-17-409 applies to a trust described in Section 91-17-409(d) on and after the following dates:
(1) If the trust is not funded as of January 1, 2013, the date of the decedent's death.
(2) If the trust is initially funded in the calendar year beginning January 1, 2013, the date of the decedent's death.
(3) If the trust is not described in paragraph (1) or (2), January 1, 2013.
Chapter 20 Transfers to Minors
§ 91-20-1
This chapter may be cited as the “Mississippi Uniform Transfers to Minors Act.”
§ 91-20-3
In this chapter:
(a) “Adult” means an individual who has attained the age of eighteen (18) years.
(b) “Benefit plan” means an employer's plan for the benefit of an employee or partner.
(c) “Broker” means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.
(d) “Conservator” means a person appointed or qualified by a court to act as general, limited or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.
(e) “Court” means the chancery court of the county in which the parties reside.
(f) “Custodial property” means (i) any interest in property transferred to a custodian under this chapter and (ii) the income from and proceeds of that interest in property.
(g) “Custodian” means a person so designated under Section 91-20-19 or a successor or substitute custodian designated under Section 91-20-37.
(h) “Financial institution” means a bank, trust company, savings institution or credit union, chartered and supervised under state or federal law.
(i) “Legal representative” means an individual's personal representative or conservator.
(j) “Member of the minor's family” means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle or aunt, whether of the whole or half blood or by adoption.
(k) “Minor” means an individual who has not attained the age of eighteen (18) years.
(l) “Person” means an individual, corporation, organization or other legal entity.
(m) “Personal representative” means an executor, administrator, successor personal representative or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
(n) “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico and any territory or possession subject to the legislative authority of the United States.
(o) “Transfer” means a transaction that creates custodial property under Section 91-20-19.
(p) “Transferor” means a person who makes a transfer under this chapter.
(q) “Trust company” means a financial institution, corporation or other legal entity authorized to exercise general trust powers.
§ 91-20-5
(1) This chapter applies to a transfer that refers to this chapter in the designation under Section 91-20-19(1) by which the transfer is made if at the time of the transfer, the transferor, the minor or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this chapter despite a subsequent change in residence of a transferor, the minor or the custodian or the removal of custodial property from this state.
(2) A person designated as custodian under this chapter is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
(3) A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if at the time of the transfer, the transferor, the minor or the custodian is a resident of the designated state or the custodial property is located in the designated state.
§ 91-20-7
(1) A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor beneficiary upon the occurrence of the event by naming the custodian followed in substance by the words: “As custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act.” The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines or is ineligible to serve. The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment or in a writing designating a beneficiary of contractual rights which is registered with or delivered to the payor, issuer or other obligor of the contractual rights.
(2) A custodian nominated under this section must be a person to whom a transfer of property of that kind may be made under Section 91-20-19(1).
(3) The nomination of a custodian under this section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under Section 91-20-19. Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to Section 91-20-19.
§ 91-20-9
A person may make a transfer by irrevocable gift to, or the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to Section 91-20-19.
§ 91-20-11
(1) A personal representative or trustee may make an irrevocable transfer pursuant to Section 91-20-19 to a custodian for the benefit of a minor as authorized in the governing will or trust.
(2) If the testator or settlor has nominated a custodian under Section 91-20-7 to receive the custodial property, the transfer must be made to that person.
(3) If the testator or settlor has not nominated a custodian under Section 91-20-7, or all persons so nominated as custodian die before the transfer or are unable, decline or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under Section 91-20-19(1).
§ 91-20-13
(1) Subject to subsection (3), a personal representative or trustee may make an irrevocable transfer to another adult or trust company as custodian for the benefit of a minor pursuant to Section 91-20-19, in the absence of a will or under a will or trust that does not contain an authorization to do so.
(2) Subject to subsection (3), a conservator may make an irrevocable transfer to another adult or trust company as custodian for the benefit of the minor pursuant to Section 91-20-19.
(3) A transfer under subsection (1) or (2) may be made only if (a) the personal representative, trustee or conservator considers the transfer to be in the best interest of the minor, (b) the transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement or other governing instrument, and (c) the transfer is authorized by the court if it exceeds Ten Thousand Dollars ($10,000.00) in value.
§ 91-20-15
(1) Subject to subsections (2) and (3), a person not subject to Section 91-20-11 or 91-20-13 who holds property of or owes a liquidated debt to a minor not having a conservator may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to Section 91-20-19.
(2) If a person having the right to do so under Section 91-20-7 has nominated a custodian under that section to receive the custodial property, the transfer must be made to that person.
(3) If no custodian has been nominated under Section 91-20-7, or all persons so nominated as custodian die before the transfer or are unable, decline or are ineligible to serve, a transfer under this section may be made to an adult member of the minor's family or to a trust company unless the property exceeds Ten Thousand Dollars ($10,000.00) in value.
§ 91-20-17
A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this chapter.
§ 91-20-19
(1) Custodial property is created and a transfer is made whenever:
(a) An uncertificated security or a certificated security in registered form is either:
(i) Registered in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”; or
(ii) Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (2);
(b) Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”;
(c) The ownership of a life or endowment insurance policy or annuity contract is either:
(i) Registered with the issuer in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”; or
(ii) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”;
(d) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer or other obligor that the right is transferred to the transferor, an adult other than the transferor or a trust company, whose name in the notification is followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”;
(e) An interest in real property is recorded in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”;
(f) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:
(i) Issued in the name of the transferor, an adult other than the transferor or a trust company, followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”; or
(ii) Delivered to an adult other than the transferor or to a trust company, endorsed to that person followed in substance by the words: “as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act”; or
(g) An interest in any property not described in paragraphs (a) through (f) of this subsection (1) is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (2) of this section.
(2) An instrument in the following form satisfies the requirements of paragraph (a)(ii) and (g) of subsection (1):
“TRANSFER UNDER THE MISSISSIPPI
UNIFORM TRANSFERS TO MINORS ACT
I, __________ (name of transferor or name and representative capacity if a fiduciary) hereby transfer to __________ (name of custodian), as custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act, the following: (insert a description of the custodial property sufficient to identify it).
Dated: __________
(Signature)
__________ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under the Mississippi Uniform Transfers to Minors Act.
Dated: __________
(Signature of Custodian)”
(3) A transferor shall place the custodian in control of the custodial property as soon as practicable.
§ 91-20-21
A transfer may be made only for one (1) minor, and only one (1) person may be the custodian. All custodial property held under this chapter by the same custodian for the benefit of the same minor constitutes a single custodianship.
§ 91-20-23
(1) The validity of a transfer made in a manner prescribed in this chapter is not affected by:
(a) Failure of the transferor to comply with Section 91-20-19(3) concerning possession and control;
(b) Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under Section 91-20-19(1); or
(c) Death or incapacity of a person nominated under Section 91-20-7 or designated under Section 91-20-19 as custodian or the disclaimer of the office by that person.
(2) A transfer made pursuant to Section 91-20-19 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties and authority provided in this chapter, and neither the minor nor the minor's legal representative has any right, power, duty or authority with respect to the custodial property except as provided in this chapter.
(3) By making a transfer, the transferor incorporates in the disposition all the provisions of this chapter and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights and immunities provided in this chapter.
§ 91-20-25
(1) A custodian shall:
(a) Take control of custodial property;
(b) Register or record title to custodial property if appropriate; and
(c) Collect, hold, manage, invest and reinvest custodial property.
(2) In dealing with custodial property, a custodian shall observe the standard of care that would be observed by a prudent person dealing with property of another and is not limited by any other statute restricting investments by fiduciaries. If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise. However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor.
(3) A custodian may invest in or pay premiums on life insurance or endowment policies on (a) the life of the minor only if the minor or the minor's estate is the sole beneficiary, or (b) the life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian, is the irrevocable beneficiary.
(4) A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: “as a custodian for __________ (name of minor) under the Mississippi Uniform Transfers to Minors Act.”
(5) A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of fourteen (14) years.
§ 91-20-27
(1) A custodian, acting in a custodial capacity, has all the rights, powers and authority over custodial property that unmarried adult owners have over their own property, but a custodian may exercise those rights, powers and authority in that capacity only.
(2) This section does not relieve a custodian from liability for breach of Section 91-20-25.
§ 91-20-29
(1) A custodian may deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the custodian considers advisable for the use and benefit of the minor, without court order and without regard to (a) the duty or ability of the custodian personally or of any other person to support the minor, or (b) any other income or property of the minor which may be applicable or available for that purpose.
(2) On petition of an interested person or the minor if the minor has attained the age of fourteen (14) years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
(3) A delivery, payment or expenditure under this section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor.
§ 91-20-31
(1) A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
(2) Except for one who is a transferor under Section 91-20-9, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
(3) Except as provided in Section 91-20-37(6), a custodian need not give a bond.
§ 91-20-33
A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:
(a) The validity of the purported custodian's designation;
(b) The propriety of, or the authority under this chapter for, any act of the purported custodian;
(c) The validity or propriety under this chapter of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
(d) The propriety of the application of any property of the minor delivered to the purported custodian.
§ 91-20-35
(1) A claim based on (a) a contract entered into by a custodian acting in a custodial capacity, (b) an obligation arising from the ownership or control of custodial property, or (c) a tort committed during the custodianship, may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.
(2) A custodian is not personally liable:
(a) On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
(b) For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
(3) A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault.
§ 91-20-37
(1) A person nominated under Section 91-20-7 or designated under Section 91-20-19 as custodian may decline to serve by delivering a valid disclaimer to the person who made the nomination or to the transferor or the transferor's legal representative. If the event giving rise to a transfer has not occurred and no substitute custodian able, willing and eligible to serve was nominated under Section 91-20-7, the person who made the nomination may nominate a substitute custodian under Section 91-20-7; otherwise the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under Section 91-20-19(1). The custodian so designated has the rights of a successor custodian.
(2) A custodian at any time may designate a trust company or an adult other than a transferor under Section 91-20-9 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated or is removed.
(3) A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of fourteen (14) years and to the successor custodian and by delivering the custodial property to the successor custodian.
(4) If a custodian is ineligible, dies or becomes incapacitated without having effectively designated a successor and the minor has attained the age of fourteen (14) years, the minor may designate as successor custodian, in the manner prescribed in subsection (2), an adult member of the minor's family, a conservator of the minor or a trust company. If the minor has not attained the age of fourteen (14) years or fails to act within sixty (60) days after the ineligibility, death or incapacity, the conservator of the minor becomes successor custodian. If the minor has no conservator or the conservator declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
(5) A custodian who declines to serve under subsection (1) or resigns under subsection (3) or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian. The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
(6) A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the conservator of the minor, or the minor if the minor has attained the age of fourteen (14) years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under § 91-20-9 or to require the custodian to give appropriate bond.
§ 91-20-39
(1) A minor who has attained the age of fourteen (14) years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor or a transferor's legal representative may petition the court (a) for an accounting by the custodian or the custodian's legal representative, or (b) for a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under Section 91-20-35 to which the minor or the minor's legal representative was a party.
(2) A successor custodian may petition the court for an accounting by the predecessor custodian.
(3) The court, in a proceeding under this chapter or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
(4) If a custodian is removed under Section 91-20-37(6), the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property.
§ 91-20-41
The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of:
(a) The minor's attainment of eighteen (18) years of age with respect to custodial property transferred under Section 91-20-9 or 91-20-11;
(b) The minor's attainment of eighteen (18) years of age with respect to custodial property transferred under Section 91-20-13 or 91-20-15; or
(c) The minor's death.
§ 91-20-43
This chapter applies to a transfer within the scope of Section 91-20-5 made after its effective date if:
(a) The transfer purports to have been made under the Mississippi Uniform Gifts to Minors Law, Sections 91-19-1 through 91-19-19; or
(b) The instrument by which the transfer purports to have been made uses in substance the designation “as custodian under the Uniform Gifts to Minors Act” or “as custodian under the Uniform Transfers to Minors Act” of any other state, and the application of this chapter is necessary to validate the transfer.
§ 91-20-45
(1) Any transfer of custodial property as now defined in this chapter made before January 1, 1995, is validated notwithstanding that there was no specific authority in the Mississippi Uniform Gifts to Minors Act for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
(2) This chapter applies to all transfers made before January 1, 1995, in a manner and form prescribed in the Mississippi Uniform Gifts to Minors Law except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on January 1, 1995.
§ 91-20-47
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
§ 91-20-49
If any provisions of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end provisions of this chapter are severable.
Chapter 21 Uniform Transfer-On-Death Security Registration Act
§ 91-21-1
This chapter shall be known and may be cited as the “Mississippi Uniform Transfer-on-Death Security Registration Act.”
§ 91-21-3
In this chapter, unless the context otherwise requires:
(a) “Beneficiary form” means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
(b) “Devisee” means any person designated in a will to receive a disposition of real or personal property.
(c) “Heirs” mean those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(d) “Person” means an individual, a corporation, an organization or other legal entity.
(e) “Personal representative” includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.
(f) “Property” includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(g) “Register,” including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
(h) “Registering entity” means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
(i) “Security” means a share, participation, or other interest in property, in a business or in an obligation of an enterprise or other issuer and includes a certificated security, an uncertificated security, and a security account.
(j) “Security account” means:
(i) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner's death;
(ii) An investment or custody account with a trust company or trust division of a bank with trust powers, including the securities in the account, a cash balance in the account and cash, cash equivalents, interest, earnings or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death; or
(iii) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
(k) “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
§ 91-21-5
Only individuals whose registration of a security shows sole ownership by one (1) individual or multiple ownership by two (2) or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form, hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
§ 91-21-7
A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
§ 91-21-9
A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
§ 91-21-11
Registration in beneficiary form may be shown by the words “transfer on death” or the abbreviation “TOD,” or by the words “pay on death” or the abbreviation “POD,” after the name of the registered owner and before the name of a beneficiary.
§ 91-21-13
The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be cancelled or changed at any time by the sole owner or all the surviving owners without the consent of the beneficiary.
§ 91-21-15
On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.
§ 91-21-17
(1) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this chapter.
(2) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this chapter.
(3) A registering entity is discharged from all claims to a security by the estate, creditors, heirs or devisee of a deceased owner if it registers a transfer of the security in accordance with Section 91-21-15 and does so in good faith reliance (a) on the registration, (b) on this chapter, and (c) on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this chapter do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this chapter.
(4) The protection provided by this chapter to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
§ 91-21-19
(1) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this chapter and is not testamentary.
(2) This chapter does not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.
§ 91-21-21
(1) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests (a) for registrations in beneficiary form, and (b) for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for “lineal descendants per stirpes.” This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registration beneficiary form, may be contained in a registering entity's terms and conditions.
(2) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
(a) Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
(b) Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.
(c) Multiple owners-primary and secondary (substituted) beneficiaries: (i) John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown; or (ii) John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.
§ 91-21-23
(1) This chapter shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of these sections among states enacting them.
(2) Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.
§ 91-21-25
This chapter applies to registrations of securities in beneficiary form made before or after July 1, 1997, by decedents dying on or after July 1, 1997.
Chapter 23 Revised Uniform Fiduciary Access to Digital Assets Act
§ 91-23-1
This chapter may be cited as the Revised Uniform Fiduciary Access to Digital Assets Act.
§ 91-23-3
In this chapter the following terms shall have the meanings ascribed in this section, unless the context clearly requires otherwise:
(a) “Account” means an arrangement under a terms of service agreement in which a custodian carries, maintains, processes, receives or stores a digital asset of the user or provides goods or services to the user.
(b) “Agent” means an attorney-in-fact granted authority under a durable or nondurable power of attorney.
(c) “Carries” means engages in the transmission of an electronic communication.
(d) “Catalogue of electronic communications” means information that identifies each person with which a user has had an electronic communication, the time and date of the communication and the electronic address of the person.
(e) “Conservator” means a person appointed by a court to manage the estate of a living individual and includes a guardian appointed by a court to manage the estate of a living individual, and “conservatorship” includes guardianship of the estate of a living individual.
(f) “Content of an electronic communication” means information concerning the substance or meaning of the communication which:
(i) Has been sent or received by a user;
(ii) Is in electronic storage by a custodian providing an electronic-communication service to the public or is carried or maintained by a custodian providing a remote computing service to the public; and
(iii) Is not readily accessible to the public.
(g) “Court” means the chancery court.
(h) “Custodian” means a person that carries, maintains, processes, receives or stores a digital asset of a user.
(i) “Designated recipient” means a person chosen by a user using an online tool to administer digital assets of the user.
(j) “Digital asset” means an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.
(k) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(l) “Electronic communication” has the meaning set forth in 18 USC Section 2510(12).
(m) “Electronic-communication service” means a custodian that provides to a user the ability to send or receive an electronic communication.
(n) “Fiduciary” means an original, additional, or successor personal representative, conservator, agent or trustee.
(o) “Information” means data, text, images, videos, sounds, codes, computer programs, software, databases or the like.
(p) “Online tool” means an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.
(q) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency or instrumentality, or other legal entity.
(r) “Personal representative” means an executor, administrator, special administrator or person that performs substantially the same function under law of this state other than this chapter.
(s) “Power of attorney” means a record that grants an agent authority to act in the place of a principal.
(t) “Principal” means an individual who grants authority to an agent in a power of attorney.
(u) “Protected person” means a ward or other individual for whom a conservator has been appointed and includes an individual for whom an application for the appointment of a conservator is pending.
(v) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(w) “Remote-computing service” means a custodian that provides to a user computer processing services or the storage of digital assets by means of an electronic communications system, as defined in 18 USC Section 2510(14).
(x) “Terms-of-service agreement” means an agreement that controls the relationship between a user and a custodian.
(y) “Trustee” means a fiduciary with legal title to property under an agreement or declaration that creates a beneficial interest in another. The term also includes a successor trustee.
(z) “User” means a person that has an account with a custodian.
(aa) “Will” includes a codicil, testamentary instrument that only appoints an executor and an instrument that revokes or revises a testamentary instrument.
§ 91-23-5
(1) This chapter applies to:
(a) A fiduciary acting under a will or power of attorney executed before, on, or after July 1, 2017;
(b) A personal representative acting for a decedent who died before, on, or after July 1, 2017;
(c) A conservatorship proceeding commenced before, on, or after July 1, 2017; and
(d) A trustee acting under a trust created before, on, or after July 1, 2017.
(2) This chapter applies to a custodian if the user resides in this state or resided in this state at the time of the user's death.
(3) This chapter does not apply to a digital asset of an employer used by an employee in the ordinary course of the employer's business.
§ 91-23-7
(1) A user may use an online tool to direct the custodian to disclose to a designated recipient or not to disclose some or all of the user's digital assets, including the content of electronic communications. If the online tool allows the user to modify or delete a direction at all times, a direction regarding disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of attorney or other record.
(2) If a user has not used an online tool to give direction under subsection (1) or if the custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of attorney, or other record, disclosure to a fiduciary of some or all of the user's digital assets, including the content of electronic communications sent or received by the user.
(3) A user's direction under subsection (1) or (2) overrides a contrary provision in a terms-of-service agreement that does not require the user to act affirmatively and distinctly from the user's assent to the terms of service.
§ 91-23-9
(1) This chapter does not change or impair a right of a custodian or a user under a terms-of-service agreement to access and use digital assets of the user.
(2) This chapter does not give a fiduciary or designated recipient any new or expanded rights other than those held by the user for whom, or for whose estate, the fiduciary or designated recipient acts or represents.
(3) A fiduciary's or designated recipient's access to digital assets may be modified or eliminated by a user, by federal law, or by a terms-of-service agreement if the user has not provided direction under Section 91-23-7.
§ 91-23-11
(1) When disclosing digital assets of a user under this chapter, the custodian may at its sole discretion:
(a) Grant a fiduciary or designated recipient full access to the user's account;
(b) Grant a fiduciary or designated recipient partial access to the user's account sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or
(c) Provide a fiduciary or designated recipient a copy in a record of any digital asset that, on the date the custodian received the request for disclosure, the user could have accessed if the user were alive and had full capacity and access to the account.
(2) A custodian may assess a reasonable administrative charge for the cost of disclosing digital assets under this chapter.
(3) A custodian need not disclose under this chapter a digital asset deleted by a user.
(4) If a user directs or a fiduciary requests a custodian to disclose under this chapter some, but not all, of the user's digital assets, the custodian need not disclose the assets if segregation of the assets would impose an undue burden on the custodian. If the custodian believes the direction or request imposes an undue burden, the custodian or fiduciary may seek an order from the court to disclose:
(a) A subset limited by date of the user's digital assets;
(b) All of the user's digital assets to the fiduciary or designated recipient;
(c) None of the user's digital assets; or
(d) All of the user's digital assets to the court for review in camera.
§ 91-23-13
If a deceased user consented or a court directs disclosure of the contents of electronic communications of the user, the custodian shall disclose to the personal representative of the estate of the user the content of an electronic communication sent or received by the user if the representative gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the death certificate of the user;
(c) A certified copy of letters of administration or letters testamentary of the representative;
(d) Unless the user provided direction using an online tool, a copy of the user's will, trust, power of attorney or other record evidencing the user's consent to disclosure of the content of electronic communications; and
(e) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(ii) Evidence linking the account to the user; or
(iii) A finding by the court that:
-
The user had a specific account with the custodian, identifiable by the information specified in subparagraph (i);
-
Disclosure of the content of electronic communications of the user would not violate 18 USC Section 2701 et seq.,47 USC Section 222, or other applicable law;
-
Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communications; or
-
Disclosure of the content of electronic communications of the user is reasonably necessary for administration of the estate.
§ 91-23-15
Unless the user prohibited disclosure of digital assets or the court directs otherwise, a custodian shall disclose to the personal representative of the estate of a deceased user a catalogue of electronic communications sent or received by the user and digital assets, other than the content of electronic communications, of the user, if the representative gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the death certificate of the user;
(c) A certified copy of letters of administration or letters testamentary of the representative; and
(d) If requested by the custodian:
(i) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(ii) Evidence linking the account to the user;
(iii) An affidavit stating that disclosure of the user's digital assets is reasonably necessary for administration of the estate; or
(iv) A finding by the court that:
-
The user had a specific account with the custodian, identifiable by the information specified in subparagraph (i); or
-
Disclosure of the user's digital assets is reasonably necessary for administration of the estate.
§ 91-23-17
To the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent the content if the agent gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) An original or copy of the power of attorney expressly granting the agent authority over the content of electronic communications of the principal;
(c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(d) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(ii) Evidence linking the account to the principal.
§ 91-23-19
Unless otherwise ordered by the court, directed by the principal or provided by a power of attorney, a custodian shall disclose to an agent with specific authority over digital assets or general authority to act on behalf of a principal a catalogue of electronic communications sent or received by the principal and digital assets, other than the content of electronic communications, of the principal if the agent gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) An original or a copy of the power of attorney that gives the agent specific authority over digital assets or general authority to act on behalf of the principal;
(c) A certification by the agent, under penalty of perjury, that the power of attorney is in effect; and
(d) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the principal's account; or
(ii) Evidence linking the account to the principal.
§ 91-23-21
Unless otherwise ordered by the court or provided in a trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset of the account held in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications.
§ 91-23-23
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose to a trustee that is not an original user of an account the content of an electronic communication sent or received by an original or successor user and carried, maintained, processed, received, or stored by the custodian in the account of the trust if the trustee gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the trust instrument or a certification of the trust under Section 91-8-1013 that includes consent to disclosure of the content of electronic-communications to the trustee;
(c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(d) If requested by the custodian:
(i) A number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(ii) Evidence linking the account to the trust.
§ 91-23-25
Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original user of an account, a catalogue of electronic communications sent or received by an original or successor user and stored, carried or maintained by the custodian in an account of the trust and any digital assets, other than the content of electronic communications, in which the trust has a right or interest if the trustee gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the trust instrument or a certification of the trust under Section 91-8-1013;
(c) A certification by the trustee, under penalty of perjury, that the trust exists and the trustee is a currently acting trustee of the trust; and
(d) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the trust's account; or
(ii) Evidence linking the account to the trust.
§ 91-23-27
(1) After an opportunity for a hearing under Chapter 13, Title 93, Mississippi Code of 1972, the court may grant a conservator access to the digital assets of a protected person.
(2) Unless otherwise ordered by the court or directed by the user, a custodian shall disclose to a conservator the catalogue of electronic communications sent or received by a protected person and any digital assets, other than the content of electronic communications, in which the protected person has a right or interest if the conservator gives the custodian:
(a) A written request for disclosure in physical or electronic form;
(b) A certified copy of the court order that gives the conservator authority over the digital assets of the protected person; and
(c) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the account of the protected person; or
(ii) Evidence linking the account to the protected person.
(3) A conservator with general authority to manage the assets of a protected person may request a custodian of the digital assets of the protected person to suspend or terminate an account of the protected person for good cause. A request made under this section must be accompanied by a certified copy of the court order giving the conservator authority over the protected person's property.
§ 91-23-29
(1) The legal duties imposed on a fiduciary charged with managing tangible property apply to the management of digital assets, including:
(a) The duty of care;
(b) The duty of loyalty; and
(c) The duty of confidentiality.
(2) A fiduciary's or designated recipient's authority with respect to a digital asset of a user:
(a) Except as otherwise provided in Section 91-23-7, is subject to the applicable terms of service;
(b) Is subject to other applicable law, including copyright law;
(c) In the case of a fiduciary, is limited by the scope of the fiduciary's duties; and
(d) May not be used to impersonate the user.
(3) A fiduciary with authority over the property of a decedent, protected person, principal or settlor has the right to access any digital asset in which the decedent, protected person, principal or settlor had a right or interest and that is not held by a custodian or subject to a terms-of-service agreement.
(4) A fiduciary acting within the scope of the fiduciary's duties is an authorized user of the property of the decedent, protected person, principal or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, including Section 97-45-3.
(5) A fiduciary with authority over the tangible, personal property of a decedent, protected person, principal or settlor:
(a) Has the right to access the property and any digital asset stored in it; and
(b) Is an authorized user for the purpose of computer fraud and unauthorized computer access laws, including Section 97-45-3.
(6) A custodian may disclose information in an account to a fiduciary of the user when the information is required to terminate an account used to access digital assets licensed to the user.
(7) A fiduciary of a user may request a custodian to terminate the user's account. A request for termination must be in writing, in either physical or electronic form, and accompanied by:
(a) If the user is deceased, a certified copy of the death certificate of the user;
(b) A certified copy of the letters of administration or letters testamentary of the representative, court order, power of attorney, or trust giving the fiduciary authority over the account; and
(c) If requested by the custodian:
(i) A number, username, address or other unique subscriber or account identifier assigned by the custodian to identify the user's account;
(ii) Evidence linking the account to the user; or
(iii) A finding by the court that the user had a specific account with the custodian, identifiable by the information specified in subparagraph (i) of this paragraph (c).
§ 91-23-31
(1) Not later than sixty (60) days after receipt of the information required under Sections 91-23-13 through 91-23-29, a custodian shall comply with a request under this chapter from a fiduciary or designated recipient to disclose digital assets or terminate an account. If the custodian fails to comply, the fiduciary or designated recipient may apply to the court for an order directing compliance.
(2) An order under subsection (1) directing compliance must contain a finding that compliance is not in violation of 18 USC Section 2702.
(3) A custodian may notify the user that a request for disclosure or to terminate an account was made under this chapter.
(4) A custodian may deny a request under this chapter from a fiduciary or designated recipient for disclosure of digital assets or to terminate an account if the custodian is aware of any lawful access to the account following the receipt of the fiduciary's request.
(5) This chapter does not limit a custodian's ability to obtain or require a fiduciary or designated recipient requesting disclosure or termination under this chapter to obtain a court order which:
(a) Specifies that an account belongs to the protected person or principal;
(b) Specifies that there is sufficient consent from the protected person or principal to support the requested disclosure; and
(c) Contains a finding required by law other than this chapter.
(6) A custodian and its officers, employees and agents are immune from liability for an act or omission done in good faith in compliance with this chapter.
§ 91-23-33
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 91-23-35
This chapter modifies, limits or supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC Section 7001 et seq., but does not modify, limit or supersede Section 101(c) of that act, 15 USC Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 USC Section 7003(b).
Chapter 25 Mississippi Uniform Estate Tax Apportionment Act
§ 91-25-1
This chapter may be cited as the Mississippi Uniform Estate Tax Apportionment Act.
§ 91-25-3
In this chapter:
(1) “Apportionable estate” means the value of the gross estate as finally determined for purposes of the estate tax to be apportioned reduced by:
(A) Any claim or expense allowable as a deduction for purposes of the tax;
(B) The value of any interest in property that, for purposes of the tax, qualifies for a marital or charitable deduction or otherwise is deductible or is exempt; and
(C) Any amount added to the decedent's gross estate because of a gift tax on transfers made before death.
(2) “Chancery court” means the chancery court where the decedent's will is probated in the State of Mississippi.
(3) “Estate tax” means a federal, state, or foreign tax imposed because of the death of an individual and interest and penalties associated with the tax. The term does not include an inheritance tax, income tax, or generation-skipping transfer tax other than a generation-skipping transfer tax incurred on a direct skip taking effect at death.
(4) “Gross estate” means, with respect to an estate tax, all interests in property subject to the tax.
(5) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(6) “Ratable” means apportioned or allocated pro rata according to the relative values of interests to which the term is to be applied. “Ratably” has a corresponding meaning.
(7) “Time-limited interest” means an interest in property which terminates on a lapse of time or on the occurrence or nonoccurrence of an event or which is subject to the exercise of discretion that could transfer a beneficial interest to another person. The term does not include a cotenancy unless the cotenancy itself is a time-limited interest. The term also does not include an interest in property to the extent the beneficiary has the sole right to accelerate, require or elect to receive a distribution of the property.
(8) “Value” means, with respect to an interest in property, fair market value as finally determined for purposes of the estate tax that is to be apportioned, reduced by any outstanding debt secured by the interest without reduction for taxes paid or required to be paid or for any special valuation adjustment.
§ 91-25-5
(a) Except as otherwise provided in subsection (c), the following rules apply:
(1) To the extent that a provision of a decedent's will expressly and unambiguously directs the apportionment of an estate tax, the tax must be apportioned accordingly.
(2) Any portion of an estate tax not apportioned under paragraph (1) must be apportioned in accordance with any provision of a revocable trust of which the decedent was the settlor which expressly and unambiguously directs the apportionment of an estate tax. If conflicting apportionment provisions appear in two (2) or more revocable trust instruments, the provision in the most recently dated instrument prevails. For purposes of this paragraph:
(A) A trust is revocable if it was revocable immediately after the trust instrument was executed, even if the trust subsequently becomes irrevocable; and
(B) The date of an amendment to a revocable trust instrument is the date of the amended instrument only if the amendment contains an apportionment provision.
(3) If any portion of an estate tax is not apportioned under paragraph (1) or (2), and a provision in any other dispositive instrument expressly and unambiguously directs that any interest in the property disposed of by the instrument is or is not to be applied to the payment of the estate tax attributable to the interest disposed of by the instrument, the provision controls the apportionment of the tax to that interest.
(b) Subject to subsection (c), and unless the decedent expressly and unambiguously directs the contrary, the following rules apply:
(1) If an apportionment provision directs that a person receiving an interest in property under an instrument is to be exonerated from the responsibility to pay an estate tax that would otherwise be apportioned to the interest, the tax attributable to the exonerated interest must be apportioned ratably among all the other persons receiving interests in the apportionable estate that are not exonerated from apportionment of the tax.
(2) If an apportionment provision directs that an estate tax is to be apportioned to an interest in property a portion of which qualifies for a marital or charitable deduction, the estate tax must first be apportioned ratably among the holders of the portion that does not qualify for a marital or charitable deduction and then apportioned ratably among the holders of the deductible portion to the extent that the value of the nondeductible portion is insufficient.
(3) Except as otherwise provided in paragraph (4), if an apportionment provision directs that an estate tax be apportioned to property in which one or more time-limited interests exist, other than interests in specified property under Section 91-25-13, the tax must be apportioned to the principal of that property, regardless of the deductibility of some of the interests in that property.
(4) If an apportionment provision directs that an estate tax is to be apportioned to the holders of interests in property in which one or more time-limited interests exist and a charity has an interest that otherwise qualifies for an estate tax charitable deduction, the tax must first be apportioned, to the extent feasible, to interests in property that have not been distributed to the persons entitled to receive the interests. No tax shall be paid from a charitable remainder annuity trust or charitable remainder unitrust described in Section 664 of the Internal Revenue Code (26 U.S.C. Section 664) and created during the decedent's life.
(c) A provision that apportions an estate tax is ineffective to the extent that it increases the tax apportioned to a person having an interest in the gross estate over which the decedent had no power to transfer immediately before the decedent executed the instrument in which the apportionment direction was made. For purposes of this subsection, a testamentary power of appointment is a power to transfer the property that is subject to the power.
§ 91-25-7
To the extent that apportionment of an estate tax is not controlled by an instrument described in Section 91-25-5 and except as otherwise provided in Sections 91-25-11 and 91-25-13, the following rules apply:
(1) Subject to paragraphs (2), (3) and (4), the estate tax is apportioned ratably to each person that has an interest in the apportionable estate.
(2) A generation-skipping transfer tax incurred on a direct skip taking effect at death is charged to the person to which the interest in property is transferred.
(3) If property is included in the decedent's gross estate because of Section 2044 of the Internal Revenue Code of 1986 or any similar estate tax provision, the difference between the total estate tax for which the decedent's estate is liable and the amount of estate tax for which the decedent's estate would have been liable if the property had not been included in the decedent's gross estate is apportioned ratably among the holders of interests in the property. The balance of the tax, if any, is apportioned ratably to each other person having an interest in the apportionable estate.
(4) Except as otherwise provided in Section 91-25-5(b)(4) and except as to property to which Section 91-25-13 applies, an estate tax apportioned to persons holding interests in property subject to a time-limited interest must be apportioned, without further apportionment, to the principal of that property.
§ 91-25-9
Except as otherwise provided in Sections 91-25-11 and 91-25-13, the following rules apply to credits and deferrals of estate taxes:
(1) A credit resulting from the payment of gift taxes or from estate taxes paid on property previously taxed inures ratably to the benefit of all persons to which the estate tax is apportioned.
(2) A credit for state or foreign estate taxes inures ratably to the benefit of all persons to which the estate tax is apportioned, except that the amount of a credit for a state or foreign tax paid by a beneficiary of the property on which the state or foreign tax was imposed, directly or by a charge against the property, inures to the benefit of the beneficiary.
(3) If payment of a portion of an estate tax is deferred because of the inclusion in the gross estate of a particular interest in property, the benefit of the deferral inures ratably to the persons to which the estate tax attributable to the interest is apportioned. The burden of any interest charges incurred on a deferral of taxes and the benefit of any tax deduction associated with the accrual or payment of the interest charge is allocated ratably among the persons receiving an interest in the property.
§ 91-25-11
(a) In this section:
(1) “Advanced fraction” means a fraction that has as its numerator the amount of the advanced tax and as its denominator the value of the interests in insulated property to which that tax is attributable.
(2) “Advanced tax” means the aggregate amount of estate tax attributable to interests in insulated property which is required to be advanced by uninsulated holders under subsection (c).
(3) “Insulated property” means property subject to a time-limited interest which is included in the apportionable estate but is unavailable for payment of an estate tax because of impossibility or impracticability.
(4) “Uninsulated holder” means a person who has an interest in uninsulated property.
(5) “Uninsulated property” means property included in the apportionable estate other than insulated property.
(b) If an estate tax is to be advanced under subsection (c) by persons holding interests in uninsulated property subject to a time-limited interest other than property to which Section 91-25-13 applies, the tax must be advanced, without further apportionment, from the principal of the uninsulated property.
(c) Subject to Section 91-25-17(b) and (d), an estate tax attributable to interests in insulated property must be advanced ratably by uninsulated holders. If the value of an interest in uninsulated property is less than the amount of estate taxes otherwise required to be advanced by the holder of that interest, the deficiency must be advanced ratably by the persons holding interests in properties that are excluded from the apportionable estate under Section 91-25-3(1)(B) as if those interests were in uninsulated property.
(d) A court having jurisdiction to determine the apportionment of an estate tax may require a beneficiary of an interest in insulated property to pay all or part of the estate tax otherwise apportioned to the interest if the court finds that it would be substantially more equitable for that beneficiary to bear the tax liability personally than for that part of the tax to be advanced by uninsulated holders.
(e) When a distribution of insulated property is made, each uninsulated holder may recover from the distributee a ratable portion of the advanced fraction of the property distributed. To the extent that undistributed insulated property ceases to be insulated, each uninsulated holder may recover from the property a ratable portion of the advanced fraction of the total undistributed property.
(f) Upon payment by an uninsulated holder of estate tax required to be advanced, a court may require the beneficiary of an interest in insulated property to provide a bond or other security, including a recordable lien on the property of the beneficiary, for repayment of the advanced tax.
§ 91-25-13
(a) In this section:
(1) “Special elective benefit” means a reduction in an estate tax obtained by an election for:
(A) A reduced valuation of specified property that is included in the gross estate;
(B) A deduction from the gross estate, other than a marital or charitable deduction, allowed for specified property; or
(C) An exclusion from the gross estate of specified property.
(2) “Specified property” means property for which an election has been made for a special elective benefit.
(b) If an election is made for one or more special elective benefits, an initial apportionment of a hypothetical estate tax must be computed as if no election for any of those benefits had been made. The aggregate reduction in estate tax resulting from all elections made must be allocated among holders of interests in the specified property in the proportion that the amount of deduction, reduced valuation, or exclusion attributable to each holder's interest bears to the aggregate amount of deductions, reduced valuations, and exclusions obtained by the decedent's estate from the elections. If the estate tax initially apportioned to the holder of an interest in specified property is reduced to zero, any excess amount of reduction reduces ratably the estate tax apportioned to other persons that receive interests in the apportionable estate.
(c) An additional estate tax imposed to recapture all or part of a special elective benefit must be charged to the persons that are liable for the additional tax under the law providing for the recapture.
§ 91-25-15
(a) A fiduciary may defer a distribution of property until the fiduciary is satisfied that adequate provision for payment of the estate tax has been made.
(b) A fiduciary may withhold from a distributee an amount equal to the amount of estate tax apportioned to an interest of the distributee and the estate tax required to be advanced by the distributee.
(c) As a condition to a distribution, a fiduciary may require the distributee to provide a bond or other security for the portion of the estate tax apportioned to the distributee and also for the estate tax required to be advanced by the distributee.
§ 91-25-17
(a) A fiduciary responsible for payment of an estate tax may collect from any person the estate tax apportioned to and the tax required to be advanced by the person.
(b) Except as otherwise provided in Section 27-10-61, 1 any estate tax due from a person that cannot be collected from the person may be collected by the fiduciary from other persons in the following order of priority:
(1) Any person having an interest in the apportionable estate which is not exonerated from the tax;
(2) Any other person having an interest in the apportionable estate; or
(3) Any person having an interest in the gross estate.
(c) A domiciliary fiduciary may recover from an ancillary personal representative the estate tax apportioned to the property controlled by the ancillary personal representative.
(d) The total tax collected from a person under this act may not exceed the value of the person's interest.
1
Reference so in original
§ 91-25-19
(a) A person required under Section 91-25-17 to pay an estate tax greater than the amount due from the person under Section 91-25-5 or 91-25-7 has a right to reimbursement from another person to the extent that the other person has not paid the tax required by Section 91-25-5 or 91-25-7 and a right to reimbursement ratably from other persons to the extent that each has not contributed a portion of the amount collected under Section 91-25-17(b). The right to reimbursement includes the right to receive interest on the amount of the estate tax payment from the date of the payment to the date of reimbursement at the interest rate that would be charged during such period on an estate tax deficiency by the taxing authority that imposed the estate tax. The right of reimbursement also includes the reasonable costs of collection, including attorney's fees.
(b) A fiduciary may enforce the right of reimbursement under subsection (a) on behalf of the person that is entitled to the reimbursement and shall take reasonable steps to do so if requested by the person.
§ 91-25-21
(a) The chancery court has jurisdiction and all power necessary to make the prorations and the orders directing the payment of amounts of tax contemplated by this chapter.
(b) Such jurisdiction may be invoked by petition filed in the chancery court by an executor, administrator, temporary administrator, trustee or other person acting in a fiduciary capacity, transferee, beneficiary of the gross estate, or any other person having such an interest as may in the judgment of the chancery court entitle such person to file such a petition.
(c) The chancery court, upon making a determination as provided in this chapter, shall make a decree or order directing the executor, administrator or other fiduciary to charge the prorated amounts against the persons against whom the tax has been so prorated, insofar as such person is in possession of property or interests of such persons against whom such charge has been made, and summarily directing all other persons against whom the tax has been so prorated or who are in possession of property or interests of such persons to make payment of such prorated amounts to such executor, administrator or other fiduciary or to another person who has paid such tax.
§ 91-25-23
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 91-25-25
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
§ 91-25-27
(a) This chapter does not apply to the estate of a decedent who dies on or within one (1) year after July 1, 2020, nor with respect to a decedent who dies more than one (1) year after July 1, 2020, if the decedent continuously lacked testamentary capacity from the expiration of the one-year period until the date of death.
(b) With respect to a decedent who dies on or after July 1, 2020, to whom this chapter does not apply, estate taxes must be apportioned under the law in effect on the day before July 1, 2020.
(c) Notwithstanding the provisions of subsections (a) and (b), this chapter applies with respect to a decedent to whom the provisions would not otherwise apply if the decedent expressly and unambiguously directs that the provisions shall apply to such decedent.
Chapter 27 Mississippi Real Property Transfer-On-Death Act
§ 91-27-1
Sections 91-27-1 through 91-27-37 may be cited as the Mississippi Real Property Transfer-On-Death Act.
§ 91-27-3
(a) “Beneficiary” means a person who receives real property under a transfer-on-death deed.
(b) “Designated beneficiary” means a person designated to receive real property in a transfer-on-death deed.
(c) “Joint owner with right of survivorship” or “joint owner” means an individual who owns real property concurrently with one or more other individuals with a right of survivorship. The term includes a joint tenant and a tenant by the entirety. The term does not include a tenant in common.
(d) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(e) “Real property” means an interest in real property located in this state.
(f) “Transfer-on-death deed” means a deed authorized under this chapter and does not refer to any other deed that transfers an interest in real property on the death of an individual.
(g) “Transferor” means an individual who makes a transfer-on-death deed.
(h) In this chapter, the terms “cancel” and “revoke” are synonymous.
§ 91-27-5
This chapter applies to a transfer-on-death deed executed and acknowledged on or after July 1, 2020, by a transferor who dies on or after July 1, 2020.
§ 91-27-7
This chapter does not affect any method of transferring real property otherwise permitted under the laws of this state.
§ 91-27-9
An individual may transfer the individual's interest in real property to one or more beneficiaries effective at the transferor's death by a transfer-on-death deed.
§ 91-27-11
A transfer-on-death deed must be executed as set forth in Title 89, Chapter 3, Mississippi Code of 1972, relating to necessary acknowledgements, and need not be executed with the formalities of a will.
§ 91-27-13
A transfer-on-death deed is a nontestamentary instrument.
§ 91-27-15
(a) The capacity required to make or revoke a transfer-on-death deed is the same as the capacity required to make a contract.
(b) A transfer-on-death deed may not be created through use of a power of attorney unless the transfer of real property through a transfer-on-death deed is specifically authorized in the power of attorney.
§ 91-27-17
To be effective, a transfer-on-death deed must:
(1) Except as otherwise provided in subsection (2), contain the essential elements and formalities of a recordable deed;
(2) State that the transfer of an interest in real property to the designated beneficiary is to occur at the transferor's death;
(3) Be recorded before the transferor's death in the deed records in the official records of the chancery clerk of the county where the real property is located.
§ 91-27-19
A transfer-on-death deed is effective without:
(1) Notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
(2) Consideration.
§ 91-27-21
(a) Subject to subsections (d) and (e), an instrument is effective to revoke a recorded transfer-on-death deed, or any part of it, if the instrument:
(1) Is one (1) of the following:
(A) A subsequent transfer-on-death deed that revokes the preceding transfer-on-death deed or part of the deed expressly or by inconsistency; or
(B) Except as provided by subsection (b), an instrument of revocation that expressly revokes the transfer-on-death deed or part of the deed;
(2) Is acknowledged by the transferor after the acknowledgment of the deed being revoked; and
(3) Is recorded before the transferor's death in the official records of the chancery clerk of the county where the deed being revoked is recorded.
(b) A will does not revoke or supersede a transfer-on-death deed.
(c) If a marriage between the transferor and a designated beneficiary is dissolved after a transfer-on-death deed is recorded, a final judgment of the court dissolving the marriage operates to revoke the transfer-on-death deed as to that designated beneficiary.
(d) If a transfer-on-death deed is made by more than one (1) transferor, revocation by a transferor does not affect the deed as to the interest of another transferor who does not make that revocation.
(e) A transfer-on-death deed made by joint owners with right of survivorship is revoked only if it is revoked by all of the living joint owners.
(f) This section does not limit the effect of an inter vivos transfer of the real property.
§ 91-27-23
During a transferor's life, a transfer-on-death deed does not:
(1) Affect an interest or right of the transferor or any other owner, including:
(A) The right to transfer or encumber the real property that is the subject of the deed;
(B) Homestead rights in the real property, if applicable; and
(C) Ad valorem tax exemptions, including exemptions for residence homestead, persons sixty-five (65) years of age or older, persons with disabilities, and veterans;
(2) Affect an interest or right of a transferee of the real property that is the subject of the deed, even if the transferee has actual or constructive notice of the deed;
(3) Affect an interest or right of a secured or unsecured creditor or future creditor of the transferor, even if the creditor has actual or constructive notice of the deed;
(4) Affect the transferor's or designated beneficiary's eligibility for any form of public assistance, subject to applicable federal law;
(5) Constitute a transfer triggering a “due-on-sale” or similar clause;
(6) Invoke statutory real estate notice or disclosure requirements;
(7) Create a legal or equitable interest in favor of the designated beneficiary; or
(8) Subject the real property to claims or process of a creditor of the designated beneficiary.
§ 91-27-25
An otherwise valid transfer-on-death deed is void as to any interest in real property that is conveyed by the transferor during the transferor's lifetime after the transfer-on-death deed is executed and recorded if:
(1) A valid instrument conveying the interest is recorded in the official records of the chancery clerk of the same county in which the transfer-on-death deed is recorded; and
(2) The recording of the instrument occurs before the transferor's death.
§ 91-27-27
On the death of the transferor, the following rules apply to an interest in real property that is the subject of a transfer-on-death deed and owned by the transferor at death except as otherwise provided: in the transfer-on-death deed; in this Title 91, Chapter 27, Mississippi Code of 1972; in Title 91, Chapter 29, Mississippi Code of 1972, relating to revocation by divorce; in Section 91-1-25 relating to the prohibition on inheriting from a person whom one has killed; in Title 91, Chapter 3, Mississippi Code of 1972, the Mississippi Uniform Simultaneous Death Act; and in Section 91-5-25 relating to the spousal right to renounce a will:
(1) If a transferor is a joint owner with right of survivorship who is survived by one or more other joint owners, the real property that is the subject of the transfer-on-death deed belongs to the surviving joint owner or owners. If a transferor is a joint owner with right of survivorship who is the last-surviving joint owner, the transfer-on-death deed is effective.
(2) The last-surviving joint owner may revoke the transfer-on-death deed subject to Section 91-27-19.
(3) A transfer-on-death deed transfers real property without covenant or warranty of title even if the deed contains a contrary provision.
(4) The interest in the property is transferred to a designated beneficiary in accordance with the deed, but the interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. The interest of a designated beneficiary that fails to survive the transferor lapses.
(5) Concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship, but if the transferor has identified two (2) or more designated beneficiaries to receive concurrent interests in the property, the share of one which lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
§ 91-27-29
Subject to Title 89, Chapter 5, Mississippi Code of 1972, relating to the recordation of instruments, a designated beneficiary takes the real property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the real property is subject at the transferor's death. For purposes of this section and Title 89, Chapter 5, Mississippi Code of 1972, the recording of the transfer-on-death deed is considered to have occurred at the transferor's death.
§ 91-27-31
A designated beneficiary may disclaim all or part of the designated beneficiary's interest as provided by the Mississippi Uniform Disclaimer of Property Interests Act (2002/2010), Title 89, Chapter 22, Mississippi Code of 1972.
§ 91-27-33
The following form may be used to create a transfer-on-death deed. This chapter governs the effect of this or any other instrument used to create a transfer-on-death deed:
REVOCABLE TRANSFER-ON-DEATH DEED
NOTICE TO OWNER
You should carefully read all information on the other side of this form. YOU MAY WANT TO CONSULT A LAWYER BEFORE USING THIS FORM.
This form must be recorded before your death, or it will not be effective.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
| _________________________________________________ | _________________________________________________ | | --- | --- | | Printed name | Mailing address | | | | | _________________________________________________ | _________________________________________________ | | Printed name | Mailing address |
Legal description of the property:
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary survives me.
| _________________________________________________ | _________________________________________________ | | --- | --- | | Printed name | Mailing address, if available |
ALTERNATE BENEFICIARY--Optional
If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me.
| _________________________________________________ | _________________________________________________ | | --- | --- | | Printed name | Mailing address, if available |
TRANSFER-ON-DEATH
At my death, I transfer my interest in the described property to the beneficiaries as designated above.
Before my death, I have the right to revoke this deed as set forth in Section 97-27-21, Mississippi Code of 1972.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
| _________________________________________________ | | ________________________ | | --- | --- | --- | | Signature | | Date | | | | | | _________________________________________________ | | ________________________ | | Signature | | Date |
ACKNOWLEDGMENT
(insert acknowledgment for deed here)
§ 91-27-35
The following form may be used to create an instrument of revocation of a transfer-on-death deed. This chapter governs the effect of this or any other instrument used to revoke a transfer-on-death deed.
REVOCATION OF TRANSFER-ON-DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.
IDENTIFYING INFORMATION
Owner or Owners of Property Making This Revocation:
| _________________________________________________ | _________________________________________________ | | --- | --- | | Printed name | Mailing address | | | | | _________________________________________________ | _________________________________________________ | | Printed name | Mailing address |
Legal description of the property:
REVOCATION
I revoke all my previous transfers of this property by transfer-on-death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS REVOCATION
| _________________________________________________ | | ________________________ | | --- | --- | --- | | Signature | | Date | | | | | | _________________________________________________ | | ________________________ | | Signature | | Date |
ACKNOWLEDGMENT
(insert acknowledgment here)
§ 91-27-37
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).
Chapter 29 Effect of Dissolution of Marriage
§ 91-29-1
(a) In this section:
(1) “Irrevocable trust” means a trust:
(A) For which the trust instrument was executed before the dissolution of a testator's marriage; and
(B) That the testator was not solely empowered by law or by the trust instrument to revoke.
(2) “Relative” means an individual related to another individual by:
(A) Consanguinity, as determined under Section 91-29-17; or
(B) Affinity, as determined under Section 91-29-19.
(b) If, after the testator makes a will, the testator's marriage is dissolved by divorce, annulment, or a declaration that the marriage is void, unless the will expressly provides otherwise:
(1) All provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator had failed to survive the testator; and
(2) All provisions in the will disposing of property to an irrevocable trust in which a former spouse or a relative of a former spouse who is not a relative of the testator is a beneficiary or is nominated to serve as trustee or in another fiduciary capacity or that confers a general or special power of appointment on a former spouse or a relative of a former spouse who is not a relative of the testator shall be read to instead dispose of the property to a trust the provisions of which are identical to the irrevocable trust, except any provision in the irrevocable trust:
(A) Conferring a beneficial interest or a general or special power of appointment to the former spouse or a relative of the former spouse who is not a relative of the testator shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had disclaimed the interest granted in the provision; and
(B) Nominating the former spouse or a relative of the former spouse who is not a relative of the testator to serve as trustee or in another fiduciary capacity, or trust protector, trust advisor, investment advisor or similar capacity, shall be treated as if the former spouse and each relative of the former spouse who is not a relative of the testator had died immediately before the dissolution of the marriage.
(c) Subsection (b)(2) does not apply if one (1) of the following provides otherwise:
(1) A court order; or
(2) An express provision of a contract relating to the division of the marital estate entered into between the testator and the testator's former spouse before, during, or after the marriage.
§ 91-29-3
A person is not a surviving spouse of a decedent if the person's marriage to the decedent has been dissolved by divorce, annulment, or a declaration that the marriage is void, unless:
(1) As the result of a subsequent marriage, the person is married to the decedent at the time of death; and
(2) The subsequent marriage is not declared void.
§ 91-29-5
In this chapter:
(1) “Disposition or appointment of property” includes a transfer of property to or a provision of another benefit to a beneficiary under a trust instrument.
(2) “Divorced individual” means an individual whose marriage has been dissolved by divorce, annulment, or a declaration that the marriage is void.
(3) “Relative” means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 91-29-17 and 91-25-19.
(4) “Revocable,” with respect to a disposition, appointment, provision, or nomination, means a disposition to, appointment of, provision in favor of, or nomination of an individual's spouse that is contained in a trust instrument executed by the individual before the dissolution of the individual's marriage to the spouse and that the individual was solely empowered by law or by the trust instrument to revoke regardless of whether the individual had the capacity to exercise the power at that time.
§ 91-29-7
(a) The dissolution of the marriage revokes a provision in a trust instrument that was executed by a divorced individual as settlor before the divorced individual's marriage was dissolved and that:
(1) Is a revocable disposition or appointment of property made to the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual;
(2) Revocably confers a general or special power of appointment on the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual; or
(3) Revocably nominates the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual to serve:
(A) As a personal representative, trustee, conservator, agent, or guardian; or
(B) In another fiduciary or representative capacity.
(b) Subsection (a) does not apply if one (1) of the following provides otherwise:
(1) A court order;
(2) The express terms of a trust instrument executed by the divorced individual before the individual's marriage was dissolved; or
(3) An express provision of a contract relating to the division of the marital estate entered into between the divorced individual and the individual's former spouse before, during, or after the marriage.
(c) Sections 91-29-21 and 91-29-23 govern the designation of a former spouse as a beneficiary of certain life insurance policies or as a beneficiary under certain retirement benefit plans or other financial plans.
§ 91-29-9
(a) An interest granted in a provision of a trust instrument that is revoked under Section 91-29-7(a)(1) or (2) passes as if the former spouse of the divorced individual who executed the trust instrument and each relative of the former spouse who is not a relative of the divorced individual disclaimed the interest granted in the provision.
(b) An interest granted in a provision of a trust instrument that is revoked under Section 91-29-7(a)(3) passes as if the former spouse and each relative of the former spouse who is not a relative of the divorced individual died immediately before the dissolution of the marriage.
§ 91-29-11
A bona fide purchaser of property from a divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual or a person who receives from the former spouse or any relative of the former spouse who is not a relative of the divorced individual a payment, benefit, or property in partial or full satisfaction of an enforceable obligation:
(1) Is not required by this chapter to return the payment, benefit, or property; and
(2) Is not liable under this chapter for the amount of the payment or the value of the property or benefit.
§ 91-29-13
A divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual who, not for value, receives a payment, benefit, or property to which the former spouse or the relative of the former spouse who is not a relative of the divorced individual is not entitled as a result of Sections 91-29-7 (a) and (b):
(1) Shall return the payment, benefit, or property to the person who is entitled to the payment, benefit, or property under this chapter; or
(2) Is personally liable to the person described by paragraph (1) for the amount of the payment or the value of the benefit or property received, as applicable.
§ 91-29-15
(a) This section applies only to a trust created under a trust instrument that:
(1) Was executed by two (2) married individuals as settlors whose marriage to each other is subsequently dissolved; and
(2) Includes a provision described by Section 91-29-7(a).
(b) On the death of one (1) of the divorced individuals who is a settlor of a trust to which this section applies, the trustee shall divide the trust into two (2) trusts, each of which shall be composed of the property attributable to the contributions of only one (1) of the divorced individuals.
(c) An action authorized in a trust instrument described by subsection (a) that requires the actions of both divorced individuals may be taken with respect to a trust established in accordance with subsection (b) from the surviving divorced individual's contributions solely by that divorced individual.
(d) The provisions of this chapter apply independently to each trust established in accordance with subsection (b) as if the divorced individual from whose contributions the trust was established had been the only settlor to execute the trust instrument described by subsection (a).
(e) This section does not apply if one (1) of the following provides otherwise:
(1) A court order;
(2) The express terms of a trust instrument executed by the two (2) divorced individuals before their marriage was dissolved; or
(3) An express provision of a contract relating to the division of the marital estate entered into between the two (2) divorced individuals before, during, or after their marriage.
§ 91-29-17
(a) In this section:
(1) “Beneficiary,” “multiple-party account, “party,” “P.O.D. account,” “P.O.D. payee,” “T.O.D. account,” and “T.O.D. payee” have the meanings assigned in Title 91, Chapter 21, Mississippi Code of 1972.
(2) “Public retirement system” has the meaning assigned by Section 25-11-101.
(b) If a decedent established a P.O.D. account, T.O.D. account, or other multiple-party account and the decedent's marriage was later dissolved by divorce, annulment, or a declaration that the marriage is void, any payable on request after death designation provision with respect to that account in favor of the decedent's former spouse or a relative of the former spouse who is not a relative of the decedent is not effective as to that spouse or relative unless:
(1) The court decree dissolving the marriage designates the former spouse or the former spouse's relative as the P.O.D. payee, T.O.D. payee, or beneficiary; or
(2) After the marriage was dissolved, the decedent redesignated the former spouse or the former spouse's relative as the P.O.D payee, T.O.D. payee, or beneficiary; or
(3) The former spouse or the former spouse's relative is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.
(c) If a designation is not effective under subsection (b), a multiple-party account is payable to the named alternative P.O.D. payee, T.O.D. payee, or beneficiary or, if an alternative P.O.D. payee, T.O.D. payee, or beneficiary is not named, to the estate of the decedent.
(d) A financial institution or other person obligated to pay an account described by subsection (b) that pays the account to the former spouse or the former spouse's relative as P.O.D. payee, T.O.D. payee, or beneficiary under a designation that is not effective under subsection (b) is liable for payment of the account to the person provided by subsection (c) only if:
(1) Before payment of the account to the designated P.O.D. payee, T.O.D. payee, or beneficiary, the payor receives written notice at the home office or principal office of the payor from an interested person that the designation of the P.O.D. payee, T.O.D. payee, or beneficiary is not effective under subsection (b); and
(2) The payor has not interpleaded the account funds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
(e) This section does not affect the right of a former spouse to assert an ownership interest in an undivided multiple-party account described by subsection (b).
(f) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial plan of a public retirement system.
§ 91-29-19
(a) Two (2) individuals are related to each other by consanguinity if:
(1) One (1) is a descendant of the other; or
(2) They share a common ancestor.
(b) An adopted child is considered to be a child of the adoptive parent for this purpose.
§ 91-29-23
(a) If a decree of divorce or annulment is rendered after an insured has designated the insured's spouse as a beneficiary under a life insurance policy in force at the time of rendition, a provision in the policy in favor of the insured's former spouse is not effective unless:
(1) The decree designates the insured's former spouse as the beneficiary;
(2) The insured redesignates the former spouse as the beneficiary after rendition of the decree; or
(3) The former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.
(b) If a designation is not effective under subsection (a), the proceeds of the policy are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the estate of the insured.
(c) An insurer who pays the proceeds of a life insurance policy issued by the insurer to the beneficiary under a designation that is not effective under subsection (a) is liable for payment of the proceeds to the person or estate provided by subsection (b) only if:
(1) Before payment of the proceeds to the designated beneficiary, the insurer receives written notice at the home office of the insurer from an interested person that the designation is not effective under subsection (a); and
(2) The insurer has not interpleaded the proceeds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
§ 91-29-25
(a) If a decree of divorce or annulment is rendered after a spouse, acting in the capacity of a participant, annuitant, or account holder, has designated the other spouse as a beneficiary under an individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant in force at the time of rendition, the designating provision in the plan in favor of the other former spouse is not effective unless:
(1) The decree designates the other former spouse as the beneficiary;
(2) The designating former spouse redesignates the other former spouse as the beneficiary after rendition of the decree; or
(3) The other former spouse is designated to receive the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either former spouse.
(b) If a designation is not effective under subsection (a), the benefits or proceeds are payable to the named alternative beneficiary or, if there is not a named alternative beneficiary, to the designating former spouse.
(c) A business entity, employer, pension trust, insurer, financial institution, or other person obligated to pay retirement benefits or proceeds of a financial plan covered by this section who pays the benefits or proceeds to the beneficiary under a designation of the other former spouse that is not effective under subsection (a) is liable for payment of the benefits or proceeds to the person provided by subsection (b) only if:
(1) Before payment of the benefits or proceeds to the designated beneficiary, the payor receives written notice at the home office or principal office of the payor from an interested person that the designation of the beneficiary or fiduciary is not effective under subsection (a); and
(2) The payor has not interpleaded the benefits or proceeds into the registry of a court of competent jurisdiction in accordance with the Mississippi Rules of Civil Procedure.
(d) This section does not affect the right of a former spouse to assert an ownership interest in an undivided pension, retirement, annuity, or other financial plan described by this section as provided by this chapter.
(e) This section does not apply to the disposition of a beneficial interest in a retirement benefit or other financial plan of a public retirement system as defined by Section 25-11-101 et seq.
§ 91-29-29
(a) Two (2) individuals are related to each other by affinity if:
(1) They are married to each other; or
(2) The spouse of one (1) of the individuals is related by consanguinity to the other individual.
(b) The ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage.
Chapter 31 Uniform Partition of Heir Property
§ 91-31-1
This chapter may be cited as the Uniform Partition of Heir Property Act.
§ 91-31-3
In this chapter:
(1) “Ascendant” means an individual who precedes another individual in lineage, in the direct line of ascent from the other individual.
(2) “Collateral” means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.
(3) “Descendant” means an individual who follows another individual in lineage, in the direct line of descent from the other individual.
(4) “Determination of value” means a court order determining the fair market value of heir property under Section 91-31-11 or 91-31-19 or adopting the valuation of the property agreed to by all cotenants.
(5) “Heir property” means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:
(A) There is no agreement in a record binding all the cotenants which governs the partition of the property;
(B) One or more of the cotenants acquired title from a relative, whether living or deceased; and
(C) Any of the following applies:
(i) Twenty percent (20%) or more of the interests are held by cotenants who are relatives;
(ii) Twenty percent (20%) or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
(iii) Twenty percent (20%) or more of the cotenants are relatives.
(6) “Partition by sale” means a court-ordered sale of the entire heir property, whether by auction, sealed bids, or open-market sale conducted under Section 91-31-19.
(7) “Partition in kind” means the division of heir property into physically distinct and separately titled parcels.
(8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(9) “Relative” means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this chapter.
§ 91-31-5
(a) This chapter applies to partition actions filed on or after July 1, 2020.
(b) In an action to partition real property under Title 11, Chapter 21, Mississippi Code of 1972, the court shall determine whether the property is heir property. If the court determines that the property is heir property, the property must be partitioned under this chapter unless all of the cotenants otherwise agree in a record.
(c) This chapter supplements Title 11, Chapter 21, Mississippi Code of 1972, and, if an action is governed by this chapter, replaces provisions that are inconsistent with this chapter.
§ 91-31-7
(a) This chapter does not limit or affect the method by which service of a complaint in a partition action may be made.
(b) If the plaintiff in a partition action seeks an order of notice by publication and the court determines that the property may be heir property, the plaintiff, not later than ten (10) days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign must state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.
§ 91-31-9
If the court appoints masters under Section 11-21-15, each master, in addition to the requirements and disqualifications applicable to masters in Title 11, Chapter 21, Mississippi Code of 1972, must be disinterested and impartial and not a party to or a participant in the action.
§ 91-31-11
(a) Except as otherwise provided in subsections (b) and (c), if the court determines that the property that is the subject of a partition action is heir property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d).
(b) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
(c) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
(d) If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
(e) If an appraisal is conducted pursuant to subsection (d), not later than ten (10) days after the appraisal is filed, the court shall send notice to each party with a known address, stating:
(1) The appraised fair market value of the property;
(2) That the appraisal is available at the clerk's office; and
(3) That a party may file with the court an objection to the appraisal not later than thirty (30) days after the notice is sent, stating the grounds for the objection.
(f) If an appraisal is filed with the court pursuant to subsection (d), the court shall conduct a hearing to determine the fair market value of the property not sooner than thirty (30) days after a copy of the notice of the appraisal is sent to each party under subsection (e), whether or not an objection to the appraisal is filed under subsection (e)(3). In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
(g) After a hearing under subsection (f), but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value.
§ 91-31-13
(a) If any cotenant requested partition by sale, after the determination of value under Section 91-31-11, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
(b) Not later than forty-five (45) days after the notice is sent under subsection (a), any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
(c) The purchase price for each of the interests of a cotenant that requested partition by sale is the value of the entire parcel determined under Section 91-31-11 multiplied by the cotenant's fractional ownership of the entire parcel.
(d) After expiration of the period in subsection (b), the following rules apply:
(1) If only one (1) cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact.
(2) If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant.
(3) If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under Section 91-31-15(a) and (b).
(e) If the court sends notice to the parties under subsection (d)(1) or (2), the court shall set a date, not sooner than sixty (60) days after the date the notice was sent, by which electing cotenants must pay their apportioned price into the court. After this date, the following rules apply:
(1) If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them.
(2) If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under Section 91-31-15(a) and (b) as if the interests of the cotenants that requested partition by sale were not purchased.
(3) If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court, on motion, shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
(f) Not later than twenty (20) days after the court gives notice pursuant to subsection (e)(3), any cotenant that paid may elect to purchase all of the remaining interest by paying the entire price into the court. After the twenty-day period, the following rules apply:
(1) If only one (1) cotenant pays the entire price for the remaining interest, the court shall issue an order reallocating the remaining interest to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them.
(2) If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under Section 91-31-15(a) and (b) as if the interests of the cotenants that requested partition by sale were not purchased.
(3) If more than one (1) cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
(g) Not later than forty-five (45) days after the court sends notice to the parties pursuant to subsection (a), any cotenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.
(h) If the court receives a timely request under subsection (g), the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:
(1) A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (a) through (f) have been paid into court and those interests have been reallocated among the cotenants as provided in those subsections; and
(2) The purchase price for the interest of a nonappearing cotenant is based on the court's determination of value under Section 91-31-11.
§ 91-31-15
(a) If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Section 91-31-13, or if after conclusion of the buyout under Section 91-31-13, a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Section 91-31-17, finds that partition in kind will result in manifest prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two (2) or more parties to have their individual interests aggregated.
(b) If the court does not order partition in kind under subsection (a), the court shall order partition by sale pursuant to Section 91-31-19 or, if no cotenant requested partition by sale, the court shall dismiss the action.
(c) If the court orders partition in kind pursuant to subsection (a), the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
(d) If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to Section 91-31-13, a part of the property representing the combined interests of these cotenants as determined by the court and this part of the property shall remain undivided.
§ 91-31-17
(a) In determining under Section 91-31-15(a) whether partition in kind would result in manifest prejudice to the cotenants as a group, the court shall consider the following:
(1) Whether the heir property practicably can be divided among the cotenants;
(2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur;
(3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
(4) A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;
(5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
(7) Any other relevant factor.
(b) The court may not consider any one (1) factor in subsection (a) to be dispositive without weighing the totality of all relevant factors and circumstances.
§ 91-31-19
(a) If the court orders a sale of heir property, the sale must be an open-market sale unless the court finds that a sale by sealed bids or an auction would be more economically advantageous and in the best interest of the cotenants as a group.
(b) If the court orders an open-market sale and the parties, not later than ten (10) days after the entry of the order, agree on a real estate broker licensed in this state to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in this state to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court.
(c) If the broker appointed under subsection (b) obtains within a reasonable time an offer to purchase the property for at least the determination of value:
(1) The broker shall comply with the reporting requirements in Section 91-31-21; and
(2) The sale may be completed in accordance with state law other than this chapter.
(d) If the broker appointed under subsection (b) does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after hearing, may:
(1) Approve the highest outstanding offer, if any;
(2) Redetermine the value of the property and order that the property continue to be offered for an additional time; or
(3) Order that the property be sold by sealed bids or at an auction.
(e) If the court orders a sale by sealed bids or an auction, the court shall set terms and conditions of the sale. If the court orders an auction, the auction must be conducted under Section 11-21-27.
(f) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.
§ 91-31-21
(a) Unless required to do so within a shorter time by Title 11, Chapter 21, Mississippi Code of 1972, a broker appointed under Section 91-31-19(b) to offer heir property for open-market sale shall file a report with the court not later than seven (7) days after receiving an offer to purchase the property for at least the value determined under Section 91-31-11 or 91-31-19.
(b) The report required by subsection (a) must contain the following information:
(1) A description of the property to be sold to each buyer;
(2) The name of each buyer;
(3) The proposed purchase price;
(4) The terms and conditions of the proposed sale, including the terms of any owner financing;
(5) The amounts to be paid to lienholders;
(6) A statement of contractual or other arrangements or conditions of the broker's commission; and
(7) Other material facts relevant to the sale.
§ 91-31-23
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 91-31-25
This chapter modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 USC Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 USC Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 USC Section 7003(b).
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