It can be uncomfortable to face the idea that a day will come when we’re no longer living. Because of that, it’s easy to postpone the work of preparing an estate for distribution and settlement after the estate owner’s death indefinitely. But that can lead to a host of problems, causing hard feelings among loved ones and potentially meaning that what the owner wanted to be done with their estate doesn’t happen. Here’s what you need to know.
What Is a Will?
A will is a legal document that details how the deceased’s assets should be distributed after their death. Without a legal will, the probate court will take over handling the distribution of assets and assignment of guardians to minor children. How the court handles these tasks could vary significantly from what the deceased wished. For example, suppose the deceased wanted to leave some assets to a close friend or a nonprofit organization. But without a will stating that, the assets will only be distributed to relatives, including spouses, children, parents, siblings, grandparents, uncles, aunts, or other blood relatives if none of these are available. The court will not give assets to anyone who isn’t a relative. If no one qualifies, the state takes the assets.
If minor children are orphaned by the death, the will can also name who the legal guardian should be. Without a will, the court determines who should be guardian, often a family member–and possibly a family member the deceased would prefer not to have raising their children.
What Can and Can’t Be Included in a Will?
Most assets, including bank accounts and real estate, can be managed through a will. However, there are some exceptions to that. Certain assets are already legally designated and can’t be changed by a will.
- Joint tenant. If a home is listed as owned by two people, such as spouses, the home will go to the surviving owner even if the will stipulates otherwise.
- Beneficiary accounts. Several types of beneficiary accounts, such as retirement, life insurance, and stocks and bonds, can be legally drawn up to name a beneficiary. Those beneficiaries can’t be overridden in the will.
- Living trusts. If there is property and assets held in a living trust, a will cannot override who will be the beneficiary of those.
Because it’s not uncommon to have a variety of these types of assets, if someone is concerned about how they’ll be distributed, it’s advisable to work with an experienced, knowledgeable estate planning attorney to ensure all avenues are considered and work together.
How Does a Will Protect My Assets and Loved Ones?
Simply put, a will protects your assets by specifying how you want them distributed. This protects your loved ones by ensuring they receive what you want them to have and preventing other parties from taking part in the estate. If there are minor children who are orphaned, a will is the only mechanism to be sure they’re provided the proper guardians and not left to the courts to decide.
What Is Required for a Will in Mississippi to be Legally Valid?
Mississippi has several requirements that must be met before a will can be deemed legally valid and enforceable.
- The testator (person making the will) must be at least 18 years old.
- The testator must be of sound mind (meaning they’re not mentally incapacitated and are capable of saying how they want their assets distributed).
- The will must be signed either by the testator or by someone else at the express request of the testator, such as if they’re unable to sign. It’s best if the testator can sign, as having someone else sign can sometimes raise red flags and cause the will to be challenged.
- Two or more credible witnesses should witness the will unless the will is entirely handwritten and signed by the testator.
Note that while many states require a will to be notarized, Mississippi does not.
Are Oral or Digital Wills Valid in Mississippi?
Wills have traditionally been paper documents. However, times change, and there are some changes in how wills may be regarded. But in some instances, estate laws haven’t adapted to the technology.
In some cases, Mississippi will accept an oral will (making the state one of the few in the U.S. to do so).
However, there are specific requirements.
- The oral will is made at the time of the testator’s final illness.
- The oral will is made at their residence or wherever they were living in the final ten days of life (for example, a hospital or nursing home).
- An oral will can specify the distribution of no more than $100 unless the testator calls for two or more witnesses to prove they orally determined the distribution of more than $100.
Digital wills, whether digital documents or audio or video recordings, are not currently recognized in Mississippi.
What Should I Do if I Need to Create a Will?
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 set up a will that will be upheld after your death and ensure your wishes regarding your estate are handled according to your specifications. We can also guide you through selecting an executor who understands your wishes and commits to upholding them.