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Wills & Estates
Why every parent needs a will.
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What is a Will? A Will is a document which provides who is to receive
your property at death, who will administer your estate, the appointment of
trustees and guardians, if applicable, and other provisions.
Who may make a Will? Generally, any person 18 years or older of sound
mind may make a Will. (Some states allow persons under 18 to make a Will)
What happens if I die without a Will? If you die without a will you
are an intestate. In such a case, state laws govern who receives your
property. These laws are called "intestate succession laws". If you die
without a Will, the Court decides who will administer your estate.
Generally, it is more expensive to administer an estate of a person who died
without a Will, than a person who dies with a Will.
General
When making a Will you need to consider who will be named as your personal
representative or executor to administer your estate, who you will name as
guardian and trustee of minor children if your spouse does not survive you
and who will receive your property. You should also consider tax issues. The
person appointed as executor or administrator is often your spouse, but you
should also name an alternate, in case your spouse predeceases you. The
person you name should be a person you can trust and who will get along with
the beneficiaries named in the Will.
In the event your spouse predeceases you, the guardian you name will have
actual custody of your minor children unless a court appoints someone else.
The trustee you appoint to administer a trust you established will be in
charge of the assets of the trust for the benefit of the minor
beneficiaries.
Generally, a Will must be signed in the presence of at least two witnesses
(three for Vermont) who also sign the Will. A notary public will also need
to sign if the Will contains a self-proving affidavit. Generally, a
self-proving affidavit allows the Will to be admitted to probate without
other evidence of execution.
Joint Property: Many people do not understand that joint property may
pass outside your Will and also sometimes assume that it will pass through
their Will. They do not understand the significance of joint ownership. The
issue is common in the following areas, provided as examples:
(a) Real Estate: Often, a husband and wife will own real estate as
joint tenants with rights of survivorship. If one party dies, the surviving
party receives the property regardless of what the Will provides. This is
common and generally acceptable. However, if this is not your desire you
should change the ownership of the property to tenants in common or other
form of ownership. If you own real estate as tenants in common, then you may
designate who will receive your share of the property at your death. This
issue can be a problem when uninformed persons take title to real estate as
joint tenants with rights of survivorship but really intended to leave their
share to, for example, children of a prior marriage.
(b) Bank Accounts/Certificates of Deposit, Stock, Retirement Plans, IRA’s
and other type Property: The same ownership as real estate can be made
of these investments. In fact, many Banks routinely place Bank accounts and
Certificates of Deposit in the joint tenant with right of survivorship form
of ownership if more than one person is on the account or CD, without
advising you of the consequence of same. In situations where the persons are
husband and wife and there is no issue or concern over divorce or children
from previous marriages, this may be the best course of action. However,
with divorce on the rise, premarital agreements and multiple marriages being
common, the parties may be doing something that was not their intent.
Another common problematic situation is where a parent has more than one
child but only one child resides in the hometown of the parent. The parent
may place the name of the child who resides there on all accounts, CD’s and
other investments for convenience reasons and establish a joint tenant with
right of survivorship situation without realizing that only that child will
be entitled to those assets at the parent’s death. Simply put, you should be
aware when you acquire an asset or investment exactly how it is titled.
What is a Living Will? A Living Will, commonly known in Mississippi as an Advanced Healthcare
Directive, is a statutory provision in the Mississippi Code that allows you
to give instructions about your own health care, name someone else to make
health-care decisions for you and designate a physician to have primary
responsibility for your health care. An adult or emancipated minor may
provide instructions regarding their health care either orally or in writing
and may execute a power of attorney for health care, which may authorize an
agent to make any health-care decision the principal could have made while
having capacity. The power must be in writing, dated, signed and either
witnessed by at least two individuals (each of whom witnessed either the
signing of the instrument by the principal or the principal's
acknowledgement of the signature or of the instrument) or acknowledged
before a notary public at any place within Mississippi. Mississippi Code
Sections 41-41-201 through 41-41-229 "Uniform Health-Care Decisions Act."
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