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 three to four 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 is usually not great, 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.
David Dunn
of the law firm of Dunn & Hemphill, P.A. has over thirty-three years of
estate planning experience in North Mississippi.
Call him at 662-327-4211.
W. David Dunn © 2004
