Estate planning and probate are complex topics because every estate is unique. But in Mississippi, the law requires specific things to go through probate, which isn’t always ideal for the testator (the person whose assets are distributed) or the inheritors (the people or organizations receiving the assets). Here’s what you need to know as you approach planning your estate.
What Is Probate?
In Mississippi, probate is the process of settling an estate through probate court. That means validating the legitimacy of a will, if there is one, resolving existing debts, and distributing property and assets. Probate identifies who the inheritors should be if there’s no will (known as someone dying intestate). In intestate cases, Mississippi usually distributes assets only to legal spouses or registered domestic partners and other blood relatives. Unmarried/unregistered couples, friends, and other groups, such as nonprofits, aren’t eligible to receive assets.
The purpose of probate is to keep the estate legally above board and prevent unauthorized persons from gaining access to the assets. It’s also a public process, so if anyone challenges the will, that will become public knowledge.
What Is Required to Go Through Probate in Mississippi?
An estate usually goes through probate in Mississippi, but there are times when it doesn’t, depending on the types of assets involved. However, the following situations usually require probate to be involved:
- There is no will, or the will is poorly written and difficult to understand.
- The will is contested, or there are disputes about how the assets should be distributed.
- The assets are extensive and of significant value (see below for more details).
- One or more beneficiaries is a minor (under the age of 18).
- The estate includes real estate.
What Assets Can Avoid Going Through Probate in Mississippi?
There are several types of assets that can bypass probate courts in Mississippi.
- Smaller estates. This includes estates with real estate assets valued under $50,000; physical assets valued below $500; and bank accounts holding under $12,500.
- Shared ownership. Things such as homes or other real estate that are jointly owned, such as by two spouses don’t have to go through probate but are simply passed on to the surviving owner.
- Assets with named beneficiaries. Things like life insurance policies, retirement plans, and bank accounts can be set up in such a way that they name a beneficiary if the owner of the account dies. In those cases, the assets bypass probate and go directly to the beneficiary.
What Is a Living Trust?
A living trust is a legal mechanism that can distribute assets to beneficiaries without going through probate. Essentially, a living trust takes ownership of assets and moves them into a trust, which then names a beneficiary who will receive the assets once the person who set up the trust passes away. For example, if you have a vehicle that currently lists you as the owner on the title, you could create a living trust and transfer the title to the name of your trust. The trust would then pass the vehicle onto the named beneficiary after your death without going through probate.
There are two types of living trusts:
- Revocable. This is the more flexible type of living trust. The person setting it up can continue modifying it throughout their life. However, this type of trust is not protected from creditors and doesn’t reduce the estate’s tax liability.
- Irrevocable. This is less flexible, as it cannot be modified once it’s finalized. However, it is protected from creditors, may reduce the tax liability, and can reduce the assets of the person creating the trust for Medicaid application purposes.
While this can be a valuable tool, something to keep in mind is that a trust cannot name a guardian for minor children who are orphaned. The only way to guarantee that your guardianship choices will be followed is to name them in a will, which will go through probate.
What Happens to an Estate Plan if a Couple Divorces or There Are Other Personal Changes in Mississippi?
Regardless of whether someone’s working with a will or trust, it’s important to remember that any time there’s a life change that affects how the estate should be distributed, the will or trust should be updated. In 2020, Mississippi law changed to automatically revoke a spouse’s access to the assets (as well as having them named as a fiduciary in other types of documents) once a couple divorces. If they have a joint trust, the divorce will divide the trust into halves.
However, you should still update wills and trusts after a divorce to reflect who should get the assets the ex-spouse was previously entitled to.
It’s also important to update your estate if you have a change of heart. For example, if you previously wanted to provide assets to specific people or organizations but later have a reason not to want to do that, work with your estate planning attorney to ensure that your plans are legally updated and binding so as not to cause the will to be contested after your death.
What Should I Do if I Need to Begin Planning My Estate?
Call the Rundlett Law Firm at 601-282-8426 for a free, in-depth, no-obligation case evaluation. Our team of experienced, knowledgeable estate planning lawyers will help you determine the best approach for ensuring your estate is distributed as you want it to be. Estate planning can be complicated, and we’re here to guide you through it as smoothly as possible.