Mississippi Wills

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Make a Mississippi Will and Testament

Find out how to make a Last Will and Testament in Mississippi. What are the legal requirements? Protect your assets and your family.

Mississippi Will Requirements

Any person may make a Will in Mississippi as long as they are eighteen years or older and of sound and disposing mind. The statute governing Mississippi Willsis contained in Title 91 Trusts and Estates. The Will must be:

  • In writing;

 

  • Signed by the testator (person making the Will);

 

 

  • Attested by two or more credible witnesses in the presence of the testator. 91-5-1

 

If unable to sign, some other person may sign in the testator’s presence and by his/her express direction. A Mississippi Will may be valid without witnessing if it’s wholly written and subscribed by the testator. However, you should always comply with the formal execution requirements. Otherwise, problems will arise when trying to probate the Will.

Who can witness my Mississippi Will?

Any person over the age of eighteen may act as a witness. This person must not be receiving a devise or bequest under the Will. If the Will is signed by someone who is to receive a share under it, then that gift becomes void. However, if that interested witness is a person who would have otherwise benefited under the rules of intestacy (a heir), then they are still entitled to a limited share of your estate 91-5-9. Due to this restriction, it is always best to use independent disinterested witnesses for your Mississippi Will and Testament.

How can I cancel my Mississippi Will?

In order to validly revoke (cancel) your Will, you must:

  • Destroy, cancel or obliterate the Will; or

 

  • Make a subsequent Will, Codicil or declaration in writing revoking all former Wills. This document needs to be formally executed like a Will. 91-5-3

 

Complex legal issues can arise if your Mississippi Will is not revoked properly. You should therefore undertake both measures by destroying the Will physically and making a new Will which revokes all former Wills. Also use this dual method to change your Will.

Nuncupative Mississippi Will

A nuncupative Will is one which is made orally. Mississippi does recognize such wills if:

  • Made in the time of the testator’s last sickness;

 

  • At the testator’s habitation (or where he/she resided for 10 days prior to death) except when the testator was taken sick from home and died before his/her return;

 

 

  • The gift is only for a value of up to $100;

 

 

  • It can be proved by two witnesses that the testator called on some person present to take notice or bear testimony that such is his/her Mississippi Last Will and Testament (or words to that effect). 91-5-15

 

Oral Wills are hard to prove and of limited use (only $100). Never rely on an oral Will to dispose of your property.

Should I change my Will after having a child?

Yes. There are two scenarios that can drastically alter your Will if you fail to update it. No children when making a Will If you did not have any children at the time of making the Mississippi Willand subsequently have a child or die leaving a pregnant wife, then (unless the Will already provides for or mentions the child):

  • Your Will has no effect during the life of that after-born child;

 

  • Your Will becomes void unless that child dies before he/she attains the age of 21 years without marrying or without leaving any issue; and

 

 

  • Your estate will descend to the child as though you had died intestate. 91-5-3

 

Children at time of making Will If you already had children at the time you executed your Mississippi Last Will & Testament and then have a child, then (unless that child is provided for by the Will or by settlement or is disinherited) that child is entitled to a portion of your estate. The share is calculated as though you had died intestate (without making a Will). 91-5-5 As you can see, not updating your Will can have drastic and unintended consequences. Keep your Will current and always update when you have a life changing event such as marriage, divorce or birth of a child.

How can I provide for my pet?

Mississippi does not allow you to make a trust for or leave a disposition to your family pet in your Will. You may however nominate a beneficiary to inherit your pets. There is no guarantee or obligation on that person to actually care for your domestic animal. You should therefore discuss this with them first.

Does divorce affect my Will?

No. Your Mississippi Will remains intact even after your divorce. Your former spouse can still receive all the benefits provided in your Last Will & Testament. This is why it’s highly important to change your Will if you become divorced.

Probate a Mississippi Will

Once a testator dies, the executor will need to submit the last will and testament to the court for probate. If you are a beneficiary or personal representative, this information is for you.

Who may propound (request) probate?

Any one interested in the Will (which includes the executor, beneficiaries and heirs at law). 91-7-3

Witness Testimony

In order to probate the Mississippi Will, the court requires an affidavit from any subscribing witness to the Will. This may be accepted in substitute for the witnesses’ personal attendance, but only where the Will is not contested. 91-7-9

Granting Probate

The probate court will admit the Will to probate if it appears to have been duly executed (signed and witnessed in accordance with legal requirements). 91-7-13

Who is the executor?

The person named in the testator’s Mississippi Last Will. However, if no person is named or if all the executors renounce their position, then the court will appoint an administrator?

Who is entitled to be an administrator?

If no one is specified as executor under the Will, the court will grant letters of administration to the relative who applies for same (giving preference to the spouse and then to such others as may be next entitled to distribution) or if the kindred are incompetent, the court may appoint a stranger. If no person applies within 30 days, then the court may appoint a creditor or any other suitable person. 91-7-63

Rights & Responsibilities of executor or administrator

If there is a Mississippi Last Will and Testamentannexed, the executor or administrator appointed:

  • Has the right to possess all of the personal estate (unless otherwise directed in the Will);

 

  • May possess the real estate as necessary to execute the Will;

 

 

  • Must acquire possession of any part of the personal estate that may be withheld from him/her;

 

 

  • Must manage the estate for the best interest of those concerned, consistently with the Mississippi Will and the law;

 

 

  • Shall have proper appraisements made;

 

 

  • Return true and complete inventories;

 

 

  • Collect all debts due to the estate;

 

 

  • Pay all debts owing;

 

 

  • Settle his/her account as often as the law requires;

 

 

  • Pay the legacies and bequests from the estate. 91-7-47

 

Probate by Agreement of Beneficiaries

The state legislation allows a testator’s Mississippi Willto be admitted to probate using a petition signed and sworn by all the beneficiaries named in the Will (and by the testator’s spouse if unnamed) if:

  • The deceased owned real property in the State of Mississippi at the time of death;

 

  • The Will disposes of such real property;

 

 

  • The deceased’s personal estate is $10,000 or less (excluding exempt property);

 

 

  • All debts and taxes have been paid.

 

If probate is granted under this section, then:

  • Neither administration of the estate nor appointment of an executor or administrator are necessary;

 

  • The Will is admitted to probate as a muniment of title only;

 

 

  • Interested parties or anyone desiring the contest the Will retain the right to do so. 91-5-35

 

Mississippi Estate Tax

The estate tax return is no longer required to be filed with the Mississippi Department of Revenue. This is because for the estate of decedents dying after 2004, the state death tax credit is replaced with a deduction for state death taxes. For deaths which occurred prior to 1 January, 2005, the estate tax return forms needed are either 94-101 or 94-103 depending on the date of death.

Contest a Mississippi Will

If you are unsatisfied with a deceased’s Mississippi Will, you may be able to contest it in court. Information regarding will contests in Mississippi.

Contesting before Probate

Any person who wishes to object to a Mississippi Will and Testament which has been presented for probate may do so prior to probate being granted. That person must enter his/her objections to the probate to the clerk’s office. A trial will be set down. 91-7-21

Contesting after Probate

Any person interested in the decedent’s Will may contest the validity of the Will probated without notice. The contest may be filed by petition or by bill within two years. After this period, the probate of the Will is final and binding. 91-7-23 The two year limitation period to challenge a Mississippi Will may be extended for infants and persons of unsound mind. The period commences once their respective legal disabilities are removed. 91-7-23 Also, if there has been fraud involved, the limitation period commences once the fraud has been (or should have been with reasonable diligence) discovered. 91-7-23

Reasons for contesting a Mississippi Will

There must be a valid reason in order to challenge the Will. Simply being dissatisfied with the share (or lack of inheritance) is not sufficient grounds for contesting. Valid grounds (reasons) would include fraud, lack of testamentary capacity, duress, coercion and improper execution. The point of the proceedings is to determine whether the decedent left a valid Will. 91-7-21

Excluding a Spouse or Children from Mississippi Wills

How to disinherit a spouse or child from a Mississippi Will and Testament? If you are intending to exclude family members from your Will, you need to read this information.

Disinheriting a Spouse

Leaving an Unsatisfactory Share

If you try to leave your husband or wife a nominal or unsatisfactory share in your Mississippi Will, then:

  • Your spouse has the right to renounce your Will;

 

  • Once renounced, your spouse is entitled to the same share of your estate as though you had died intestate (without making a Will) up to one half of your real and personal property. 91-5-25

 

Leaving no Provision for Spouse

If you exclude your wife or husband from your Will altogether, then he/she is still entitled to a share of your estate as though you left an unsatisfactory share (see above). However, your spouse is not required to renounce your Will (it is automatically deemed as being renounced). 91-5-27

What if surviving spouse has separate property?
  • If your husband or wife owns separate property at the time of your death, then:

 

  • If that property is equal to or greater than the amount she would be entitled to by renouncing your Will – the right to renounce your Will is removed;

 

 

  • If the property is less than the amount she would be entitled to by renouncing your Will – he/she may still renounce your Will but is only entitled to the deficiency in value.

 

 

  • If the separate property is less than one 1/5 of such amount she would be entitled to, then he/she may renounce your Will and take the lawful portion. 91-5-29

 

Disinheriting a Child

Children may be disinherited by a Mississippi Last Will and Testament. However, this should only be done with the guidance of a qualified attorney. It’s not as simple as omitting to mention the child in the Will. See for example what happens if you made a Will prior to your child’s birth which did not mention that child. The disinheritance should be clearly stated in the Will. A lawyer may advise you any other requirements to exclude a child or spouse from your Mississippi Will. Due to the complex nature of the legislation, never try to do this without proper legal advice.

Dying without a Mississippi Will

When a resident dies without a valid Mississippi Willhis/her real and personal property is distributed in accordance with the state’s intestate succession law. Surprisingly, in Mississippi, the spouse cannot receive more than the children. Here is how the legislation divides up your property:

  • If you have no surviving children – your spouse receives the entire estate;

 

  • If you have surviving children or grandchildren – your estate is divided between your spouse and your children. If one of your children has predeceased, then that child’s share is divided equally between his/her children.

 

 

  • If there is no surviving spouse, children or grandchildren – your mother, father, brothers and sisters (or your brother’s / sister’s descendants if predeceased) share your estate equally.

 

 

  • If none of the above persons survive you – your intestate estate goes to your grandparents, uncles and aunts in equal parts.

 

 

  • Otherwise, to your next of kin.

 

Show me how Mississippi intestacy works

Here are some examples to illustrate how a person’s estate is divided if he/she dies without a Mississippi Last Will and Testament: Husband died, no Will, intestacy rights of spouse and children: Craig passed away without a Will. He had two children with his wife Nancy. His estate is worth $300,000. Who gets what? Nancy: $100,000, Nancy & Craig’s Children: $100,000 each. Wife died without a Will, distribution to husband, children & child from former marriage: Joan died leaving an estate of $300,000. She had no will. She had two children to her husband Fred. Joan also has a child from a former marriage. Who gets what? Fred: $75,000, Fred & Joan’s 2 children: share $150,000, Joan’s child from former marriage: $75,000. Wife passed away, no Last Will & Testament, intestate share of husband, children & stepchild: Anna died leaving $300,000. She had no will. She has two children to her husband Todd. Todd also has a child from a former marriage. Who gets what? Todd: $100,000, Todd & Anna’s 2 children: share $200,000, Todd’s child from former marriage: Nil. Widow passed away without a Will – how much do children & grandchildren receive? Ben died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Mississippi Will Forms

Note: Before making a Mississippi Will you should read vital information on preparing, signing and witnessing a Last Will and Testament, and advice on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

Mississippi Will Form: Married with adult children
Mississippi Will Form: Married with adult and/or minor children, includes a trust for minor children
Mississippi Will Form: Married with no children

Mississippi Will Form: Single with adult children
Mississippi Will Form: Single with adult and/or minor children, includes a trust for minor children
Mississippi Will Form: Single with no children

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