Mississippi Wills & Estates

Online Legal Documents - Watch Out!!!

2011-10-13T13:12:00.000-07:00

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?

2011-10-03T14:42:00.000-07:00

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?

2011-04-01T06:27:00.000-07:00

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?

2011-03-24T07:20:00.000-07:00

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

2011-03-07T14:20:00.000-08:00

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.

What is a Will?

2011-03-01T10:04:00.001-08:00

A Will is a written document made by an individual who sets out how he wants his belongings to pass from him at the time of his death. A Will does not take effect until the maker’s death. Therefore, a Will is generally revocable (i.e., can be destroyed or changed) at the whim and wishes of the maker of the Will.

Issues to Consider in Planning Your Estate (Part 3)

2011-02-15T07:53:00.000-08:00

(This is Part 3 of a three-part blog.)

H. DEATH. Premature deaths can wreck a plan if there has been no thought given to the various possibilities. Premature deaths change needs. Death creates estate taxes and hence liquidity needs. Do you want to sell the assets? Is life insurance an option? Is second to die life insurance an option? Can an irrevocable trust be used for life insurance ownership?

I. LONG LIFE / LONG ILLNESS. A long life and/or a long illness will have the same detrimental effect as death except the money drain can be long and continuous. Today, with the long life expectancy, provision should be made for long term care and its effects. Secondly, when does the older generation give way to second or third generations as the operator/manager of the family business or assets? What plans have been made for succession and by whom?

J. SECOND MARRIAGES. The opposite of divorce, what expectation does the second spouse have? How is he or she provided for? What is their participation to be in the family assets? How do the children feel about their stepmother or stepfather? Prenuptial agreements can resolve many of these issues before the spouses marry and satisfy all parties. Issues, such as these, should be thought through before the fact and provided for in a binding agreement between the spouses.

For all your estate planning needs, contact us for assistance. Also, please visit our website at http://www.showspowell.com/.

Issues to Consider in Planning Your Estate (Part 2)

2011-01-03T07:12:00.000-08:00

(This is Part 2 of a three-part blog.)

D. TAXES. Estate taxes are owed nine (9) months after the date of death. Gift taxes are owed by April 15^th of the year following the gift. Land is not liquid and takes time to sell. The issue is how to pay estate taxes when they are due. Lest we forget, ad valorem taxes are owed every year. Ad valorem taxes have escalated drastically in the last few years and are becoming burdensome. Certain estate tax elections can reduce estate taxes as can certain minority and control discounts for both estate and gift taxes

E. MANAGEMENT. The primary question is who? This question is not as important with the first generation, but for the second and third generation, it is extremely important. This is often a difficult question. The issue is often overlooked but is actually reasonably, easily solved with a succession plan.

F. INTRA FAMILY DISPUTES. Some children never seem to see the same picture or enjoy each other and do not want to be in business together. Often these family issues are the really difficult ones to resolve successfully. The key is acknowledging their existence and addressing these issues. They do not go away on Mother and Dad’s death - they get worse.

G. LACK OF FLEXIBLE PLANNING. No one can see into the future. In all planning, there needs to be consideration given to all the "what ifs". Does an irrevocable trust that can not be amended or changed provide for what is wanted and/or needed? Is a limited liability company or a family limited partnership the vehicle of choice for ownership of family assets? The answer depends on the need and the circumstances.

Issues to Consider in Planning Your Estate (Part 1)

2010-12-22T07:48:00.000-08:00

There are numerous issues to consider when planning your Estate. This is a multi-part blog examining some of the most common issues to consider.

A DIVORCE.
Divorce of parents, of children or of grandchildren, can create a division of property and assets where "non-family" members end up owning a portion of the family property. Mississippi is an "equitable distribution" state, not a community property state such as Louisiana, where each spouse owns one half (½) of the assets. In Mississippi, the courts look to the family assets created during the marriage then make an equitable distribution between the divorcing spouses. An "involuntary transfer" of assets can be ordered by the court. A son or daughter’s ex-spouse can become your unwanted business partner.

B. LAWSUITS.
We live in a litigious society. Bad things can and do happen to each of us from time to time. Automobile wrecks, malpractice and accidents all create opportunities for third parties to obtain a judgment against an individual. Using liability insurance and different ownership entities can lessen this threat. A judgment creditor is not your first choice for a business partner.

C. BANKRUPTCY.
The economic future is uncertain. Often ventures begun by children or grandchildren fail. Debts are accumulated that can not be repaid. Bankruptcy is a course of action. The trustee in bankruptcy can become your partner. His or her goal is to create cash for the bankrupt estate. That is not best for the family or its assets.