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Wills and Estates, and Probate

Nobody lives forever. When a loved one dies without a plan in place, the people they leave behind can be left confused and families can be torn apart in a time that is already difficult. Although it can be a difficult topic, it is essential to talk to family and friends about what you want to happen when you die and it is just as important to formalize your plan with a legal plan of action. Not everyone needs a will, but many problems can be solved simply by having one or by otherwise resolving matters before death. Our attorneys can help you develop a legal plan that protects your wishes and helps your family.

Wills and Estates
What Happens to My Property When I Die?

What happens to your property when you die depends largely on whether you die with a legally valid will or without a legally valid will. Even if you have prepared your own will, if it does not conform the laws of the state where your property is located, it can be the same as dying without a will. It is important to speak with an attorney to prepare a will or to make sure that the will you have is going to be legally valid.

Dying Without a Will: The Law of Intestate Secession

If you die without a will, your property will pass according to the law of “intestate secession”. This law varies from state to state depending on where your property is located.  If your property is in Mississippi, your property will pass as follows:

  1. If you leave a spouse and children, then your spouse and your children will split the estate evenly. For example, if you have 3 children and a spouse, your surviving spouse will receive ¼ of your estate and each of your children will receive ¼ of your estate. If your children have did before you, then their children will inherit their share. Adopted children will receive the same treatment as your biological children as long as they are legally adopted. If your spouse has a child that you have cared for that child’s entire life, but you have not formally adopted that child, that child may be left out of your estate if you do not have a will.
  2. If you have no spouse and no legal children when you pass, then your property passes to your parents.
  3. If your parents are not alive, then your estate will be inherited by your siblings. If you have no spouse, children, parents, or siblings and there are no living descendants of your siblings, then your estate will pass to your grandparents and uncles/aunts in equal parts.
  4. If none of the above apply, there is a procedure in common law for determining the “degree of kinship” of your closest living relative.

To avoid confusion or uncertainty, you should consult an estate planning attorney and prepare a will.

Planning for Your Family’s Future

Having a legally valid will can help you avoid the uncertainty of intestate secession.  Because the legal requirements of a will are complicated, it is imperative that you consult an attorney before setting out to write your own will.  Having a will can make certain matters (like transferring a mortgage or a car title) much easier.  If you have legally valid will, in some cases, your heirs may not have to go through the whole probate process to transfer certain property.  This can save them time, money, and stress.  Without a will, mortgage companies and the DMV may require that your heirs open a court case to legally establish who your heirs are. This can cause undue financial and emotional stress in an already difficult time.

You may be able to transfer property without a will by deeding property to a trust or to your family while reserving a life estate for yourself. A life estate allows you to live in the property until you pass upon which, the property will automatically legally transfer to the person that you deeded the property to. This can be useful for helping your loved ones save time, money, and confusion.

Probate

Probate is the process for enforcing the terms of a will.  It is sometimes unnecessary if the property involved is designed to pass to the heirs outside of the probate process.  This includes property that is jointly owned, property that is placed in a trust or life estate, and property with a designated beneficiary. With other property, it is likely necessary to probate the will. In Mississippi, this process is started with the filing of a petition in Chancery Court.

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