Should I Draft My Own Will?

I’m often asked whether someone needs an attorney to draft their will, or whether one of those do-it-yourself-online internet legal document prep websites are sufficient.  After all, they ALL advertise that they have “state specific” legal documents, right? And if it's “state specific”, shouldn’t that be good enough?

A document that is “state specific” (i.e., it is drafted with knowledge of, and in compliance with, Mississippi law) does not mean it is “fact specific”.  When you are drafting your will, you want a document that does what YOU want it to do!  The do-it-yourself documents can’t always do what you want it to do because the programs don’t always know what questions to ask you.  More important is that you won’t know what questions it should be asking you!  

So if a computer-generated legal form (whose programming was supposedly drafted by an attorney) does not know what questions to ask you, how will you know what issues you should address in your will? 

That’s why you should seek the advice of an attorney when drafting your will.  If you don’t believe me, consider the wise advice given in a poem written by Lord Neaves in the 16^th century:

Ye lawyers who live upon litigants’ fees,

And who need a good many to live at your ease,
Grave or gay, wise or witty, whate’er your degree,
Plain stuff or Queen’s Counsel, take counsel of me:
When a festive occasion your spirit unbends,
You should never forget the profession’s best friends;
So we’ll send round the wine, and a light bumper fill
To the jolly testator who makes his own will.

....

You had better pay toll when you take to the road,

Than attempt by a by-way to reach your abode;

You had better employ a conveyancer’s hand

Than encounter the risk that your will shouldn’t stand.

From the broad beaten track when the traveler strays,
He may land in a bog or be lost in a maze;
And the law, when defied, will avenge itself still
on the man and the woman who make their own will.

Contact us when you are ready to draft your estate planning documents.  For more information, please visit our website at www.showspowell.com. 
  

What Happens When You Die Without a Will?

In Mississippi, if you die without a Will you are said to be "intestate".  "Intestate" simply means someone died without a Will. 

What happens to your assets when you die without a Will?  In Mississippi and in many other states, the laws of intestate succession apply.  This means that your heirs are those determined according to the law of intestate succession (as opposed to your "heirs" being those listed in your Will). 

Group One heirs are a surviving spouse and surviving children.  Group Two heirs are surviving parents and siblings.  Group Three heirs are surviving grandparents, aunts and uncles.  Group Four heirs are those surviving blood relatives of the highest degree as computed by the rule of civil law (for instance, first cousins will inherit to the exclusion of second cousins).

So how does this whole "Group" thing work?  Here are some examples:

(1) If you die without a Will leaving behind a spouse and 2 children, your assets will be divided up one-third to your surviving spouse, one-third to one child, and one-third to the other child.  Because you have at least one Group One heir, no one else will inherit your estate.  The problem with this is that if you die without a Will leaving a spouse and two underage (i.e., under 21 years old) children, your spouse will share your estate with two minor children, and the children's interests in the estate will be held for them in a guardianship.    

(2) If you die without a Will and your spouse has already preceded you in death, and you have no children, your heirs would be the surviving Group Two heirs.  Therefore, if your parents are already dead but you have a surviving sister, your surviving sister would inherit to the exclusion of the Group Three and Group Four heirs. 

(3) If you die without a Will and you have no surviving spouse or children (Group One), no surviving parent or siblings (Group Two), and only one surviving uncle (Group Three), then your surviving uncle will inherit to the exclusion of the Group Four heirs.

If you are ok with your assets passing according to this framework, then you probably don't need a Will.  However, it is always best to have a Will that states clearly in writing who you want your assets to pass to at the time of your death.  For parents with small children it is irresponsible to not have a Will!

For more information on intestate succession or any other estate-related matter, please visit our website at www.showspowell.com.   

Online Legal Documents - Watch Out!!!

The internet is the grand marketplace of everything.  Where else can you shop for houses, cars, electronics, clothing and legal documents?  That’s right – legal documents!

Several prominent companies have been offering do-it-yourself legal documents over the internet for some time.  Even a reputable nationwide radio personality endorses one of these companies.  Therefore, these do-it-yourself legal documents must be the way to go – right?

Most people who spend $15, $20, or $30 on these online do-it-yourself documents don’t know what they are doing or the legal consequences of these documents.  Also, these “one size fits all” documents are often not state-specific (regardless of their claims) and are not tailored or intended to fit every situation.

I recently drafted a Trust for a client who had prepared a Revocable Trust Agreement from one of these online do-it-yourself legal document companies.  My client had enough insight to question whether this form Trust agreement did what she wanted it to do.  It didn’t come close!  My client wasted her money and time with this do-it-yourself online form.

I’ve also seen other, more simple online do-it-yourself documents that have been utilized such as deeds, simple wills and leases.  These too often fall far short of the mark, and these do-it-yourself deeds that are filed in the land records can create clouds on title or create a problem with the chain of title.  When this happens, the $15 bargain you think you got on the do-it-yourself legal document can end up costing you or your heirs thousands of dollars in legal costs to unravel and fix the problem it created (if the problem can be fixed).

That’s why it’s always best to hire an attorney to handle your legal needs.  The money you spend on an attorney to prepare the legal documents will pale in comparison to the costs to fix a problem later.

Please visit our website at http://www.showspowell.com/ .

Does my Will have an expiration date?

No.  The only way for a Will to “expire” is for you to revoke it.  Revoking a Will can be accomplished by tearing it up, or by writing a new Will wherein you specifically state that all previous Wills are revoked.

However, although not revoked, a Will may no longer be effective to accomplish what you need and want it to accomplish.  Many people make their Will early in life, like just after the birth of their child, with many years passing without the Will being changed to provide for their new, different station in life.  Left unchanged prior to your death, your Will will be probated exactly as it is written, which may not be what you want.  It is therefore important to revisit every five to ten years the provisions in your Will to make certain your Will provides for everything that is needed for your family.

For more information, go to our website at www.showspowell.com.

Can you change a Will without re-writing a new one in Mississippi?

You can change your Will without completely re-writing a new Will in Mississippi.  This can be done be preparing and executing a document called a "codicil". 

What is a codicil?  A codicil is a separate document which amends a prior Will.  A codicil may revoke a Will, or it may also revive a revoked Will.  To be valid, the codicil must be subscribed by the maker and be attested by two (2) or more credible witnesses who witness the execution of the codicil in the presence of the maker at the request of the maker.  A codicil may also be completely written in the handwriting of the maker, dated and signed at the end of the codicil.

Are hand-written Wills valid under Mississippi law?

Hand-written Wills are valid under Mississippi law if they meet certain requirements.

A hand-written Will is called a "holographic" Will. 

The requirements for a holographic Will are:

(1) the Will must be written completely in the maker’s handwriting; and

(2) the maker of the holographic Will must be 18 years old or older; and

(3) the maker of the holographic Will must be of sound and disposing mind; and

(4) the maker’s signature must be at the end of the Will.  Any attempted gifts written below the maker's signature is not considered a part of the Will, and will be disregarded by the Mississippi courts. 

Requirements for a Valid Will in Mississippi

What are the requirements for a Will to be valid in Mississippi?

1.     The person making the will (i.e., the “testator” for a male, the “testatrix” for a female) must be 18 years old or older.

2.     The testator or testatrix must be of “sound and disposing mind”.

3.     The Will must be:

a.      Completely written by the maker in his or her own handwriting and signed and dated at the end of the Will; or

b.     If not completely written by the maker, then the Will must be attested by two (2) or more credible witnesses who witness the Will in the presence of the maker at the request of the maker.