The Will

            Most people do not realize that if they die without a last will and testament (dying intestate) the State of Mississippi has in effect written one for them. Mississippi statutory law provides for the estate of a married person dying intestate to pass to his or her spouse and children in equal shares. The estate of a married person with two children, who dies intestate, passes one-third to the widow and one-third to each child. For most of my clients that is not what they want.

What is a will? A will is a writing that directs how your assets will pass on your death. Although a properly drawn will is ready for use once it is signed and witnessed, it does not pass assets until death. A properly drawn will appoints an executor to be in charge of carrying out your wishes and a guardian to care for your minor or incompetent children.

            What is probate? Probate is the legal process through which a written document is proved to be the true last will and testament of a deceased person. In Mississippi it requires hiring an attorney, who must prepare and file the will with the Chancery Court. A notice is published in the newspaper notifying creditors that they have 90 days to probate their claims against the estate. Once all claims and taxes are paid and the affairs of the estate are completed the estate can be closed. For the average estate handled by my office, it takes about six months to complete the probate process.

            The probate estate consists of the deceased person’s assets that pass through the will. Assets that are owned jointly with rights of survivorship or payable directly to someone on death (POD) pass outside the probate estate and avoid probate. Examples of this are life insurance payable to an individual and a checking account owned in the names of Mr. or Mrs.

            Although the Mississippi probate period is relatively short and the expense the cost is not unreasonable, some people choose to avoid probate altogether by creating a living trust, which I will discuss in another article. However, you can also avoid probate by owning all of your assets jointly with someone else. Sometimes this is appropriate, but there are situations in which this type of ownership should not be used. You should not own bank and other financial accounts jointly with someone you do not trust, because that joint owner can use and even take all of the funds out of those accounts without your permission. Also, for the person that has a will leaving his or her assets a certain way, joint ownership of his estate may defeat the purposes of the will.

            The attorney’s at Dunn &Hemphill, P.A. have over 50 years of combined experience practicing law in North Mississippi. Much of our law practice is devoted to estate planning Please contact us today so that we can assist you with crafting an estate plan to meet your needs.

 

W. David Dunn © 2004



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