Creating a last will and testament could be one of the most important things you ever do. Find out everything you need to know about making a Mississippi will.
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What If I Die Without a Will in Mississippi?
If you have a will, you leave instructions on who inherits your assets, personal property, and real property when you die. If a decedent passes away without a will, they die “intestate.” Without a will, state intestacy law takes over and determines who inherits. If there is a surviving spouse or children, they inherit. If not, your next of kin, such as parents, siblings, or grandparents, inherit. If the court can’t find your next of kin, your assets go to the state.
What Does a Will Do?
A will allows you to choose who handles your estate, who receives your property, and who cares for your young children. You may also:
- Name a personal representative or executor to locate your will and assets, submit the will to the Mississippi probate court, and follow your wishes outlined in your will
- Identify and give away specific personal property and real estate to your loved ones (your beneficiaries)
- Name beneficiaries to inherit the rest of your assets
- Make charitable bequests to charities of your choice
- Name guardians for minor children, if necessary
- Name caregivers for pets and sets asides funds to care for them, if necessary
Making your wishes known and identifying your property and beneficiaries speeds up the probate process, saving your family members time and money in court.
What Doesn’t a Will Do?
Many types of assets transfer through a Mississippi will. However, some assets, called non-probate assets, cannot transfer by a will. Instead, they pass according to the terms of their own legal documents. These include:
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts
- Proceeds from life insurance policies (to beneficiaries other than to the estate itself)
You may want to check the beneficiary designation on these accounts and assets. If the account or asset does not have a beneficiary or the beneficiary dies before you, the proceeds go into your probate estate. That is why it is a good idea to name backup beneficiaries on non-probate assets.
Who Can Make a Will in Mississippi?
Mississippi law requires that the person making a will, called a testator, meet several requirements:
- Age: The testator is 18 years of age or older.
- Sound Mind: The testator is of “sound and disposing mind,” which means they understand they are making a will, who gets the assets through the will, and are capable of deciding how they want to give away their property.
A testator must have a sound and disposing mind at the time they make and sign their will. Mississippi residents with concerns about if they can make a will should consult an estate planning attorney for legal advice and assistance.
Does Mississippi Have a Statutory Will?
No. The state of Mississippi does not have a statutory will or form you must use to create your will. You can create a will on your own with online resources such as FindLaw Legal Forms and Services or hire an estate planning attorney.
What Types of Wills Does Mississippi Accept?
A will is generally typewritten or printed and signed by the testator. There are other types of wills accepted under Mississippi state law, including:
- Handwritten Will: A holographic will is a will entirely in the testator’s handwriting and signed by the testator without witnesses present. This type of will is only valid if two witnesses can testify to the probate court that the testator was competent, that they are familiar with the testator’s handwriting and signature, and that the document contains both.
- Oral Will: A nuncupative or spoken will is valid under Miss. Code if made in a time of “last sickness.” The testator must make the will at a place where they reside for at least ten days before their death unless they become sick at home and taken out of the home and die before they return. The will may not bequeath more than $100 in value unless two witnesses hear the testator say that this is their will.
- Electronic Will: An electronic will is a will signed, witnessed, or notarized by electronic means. Electronic wills are not valid in Mississippi.
Any type of will other than a standard printed will may be more likely to be subject to court challenge based on fraud, mistake, or undue influence. It is best to avoid these types of wills.
Can I Make My Own Will in Mississippi?
Yes. You can make your own will in Mississippi and do not need an attorney to draft it for you. If you know who you want to manage your estate, what assets you have, and who you want to give them to, you are ready to make a will. However, because a will is a complex legal document, using forms developed to comply with Mississippi laws is advisable. The advantage of using an online will drafting service, such as FindLaw Legal Forms and Services, is that it allows you to customize and update your will whenever you want.
How Do I Make My Will Valid in Mississippi?
Mississippi law sets out several requirements for wills, including:
- Signature: The testator must sign the will or direct someone else to sign it for them in their presence.
- Witnesses: Two credible witnesses must be present at the will’s signing. Mississippi allows interested witnesses, which are those witnesses who receive a bequest in the will.
- Notary: There is no requirement that a notary be present for the signing of the will.
- Self-Proving Affidavit: Witnesses to a will may sign an affidavit swearing to their presence at the execution of the will. This affidavit attaches to the will and can be used in probate court in the place of testimony to validate the will.
Can I Disinherit My Spouse in Mississippi?
You can leave your spouse out of your will or leave them a small amount. However, your spouse has the right to renounce the will and instead take what they would have received if you died intestate.
Can I Disinherit My Children in Mississippi?
You can disinherit your child in Mississippi. The best way to do this is to specifically state in the will that you are doing so. This statement ensures the child cannot convince a court that you simply forgot to include them.
What Estate Planning Documents Should I Have in Mississippi?
In addition to your will, there are other estate planning documents you should have in Mississippi, which include:
- Power of Attorney. A power of attorney is a document that authorizes a person you trust to handle your financial matters when you cannot. With this in place, your agent can pay your bills and manage your finances if you are incapacitated.
- Health Care Directive. A health care directive, or a living will, has two components. The first is naming a healthcare representative. Your representative can access your medical records and make health care decisions for you if you are unable to do so. The second is an advance directive which allows you to specify your wishes about life-prolonging treatment such as feeding tubes and intubation if you have an end-stage condition or terminal illness.
Fortunately, making a valid will and creating other Mississippi estate planning documents is easy with online estate planning templates.