MISSISSIPPI WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Miss. Code, Tit. 91, Ch. 5: Wills & Testaments (Miss. Code ยงยง91-5-1, et. seq.).
Trusts:ย Miss. Code, Tit. 91, Chs. 8-9: Miss. Trust Code (Miss. Code ยงยง91-8-101, et. seq.).
Mississippi Will Requirements.
Any person who is at least 18 years old and โof sound and disposing mindโ can create a valid will in Mississippi.ย Mississippi wills must be in writing and must be signed by the testator and at least two credible witnesses.ย As an alternative to the testatorโs own signature, a testator may direct someone else to sign the testatorโs name on the testatorโs behalf, while in the testatorโs presence.ย
A Mississippi willโs witnesses must sign the will in the testatorโs presence.ย Though witnesses with no interest in the testatorโs estate are preferable, a Mississippi will is not invalid solely because a witness has an interest in the will. ย However, devises to the interested witness are deemed void.ย If an interested witness would have received an interest in the estate had the testator died intestate, the interested witness receives a share equal to the lesser of the intestate share or the share devised to the interested witness under the will.ย Provisions in favor of interested witnesses are not invalid if the will can be otherwise provenโsuch as if the will has at least two other disinterested witnesses.
Similarly, a creditor of a Mississippi testator can serve as a competent witness, but any provision in the will that favors the creditor-witnessโsuch as a provision admitting or giving preference to the debtโis void.
Though Mississippi wills need not be notarized, a will can be made โself-provedโ in probate through a notarized affidavit executed by the willโs witnesses.ย The โself-provedโ affidavit can be included within the will itself or affixed to the will as an exhibit and should be executed at the time of the willโs execution.ย ย
A self-proved affidavit used in connection with a Mississippi will attests to the facts necessary to establish the willโs validity.ย When present, the affidavit serves in place of witness testimony when authenticating the will in probate.ย Witness addresses must be stated within the affidavit, and the affidavit must be acknowledged by a notary or other officer authorized to administer oaths.ย
Mississippi is among the states that do not recognize memoranda of personal property.ย Devises of tangible personal property in a testatorโs estate must be included within the will itself.
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Amendment, Revision, and Revocation of Mississippi Wills.
A Mississippi will can be amended by executing a new will with the desired amendments or by executing a codicil (an addendum to an earlier will that revises but does not revoke the earlier instrument).ย Wills can be revoked in whole or in part through execution of a later will, codicil, or revocation instrument.ย Any document amending or revoking a Mississippi will must satisfy all formalities required for creation of a will.ย ย
Revocation may also be accomplished through physical destruction, cancelation, or obliteration of a will by the testator or by another person acting at the testatorโs direction while in the testatorโs presence.ย ย
If a child is born to the testator after execution of a Mississippi will (or a testatorโs wife is pregnant when the testator dies)โand if the testator had no children when executing the willโthe will is void by operation of law unless the will mentions or provides for the child.ย However, such a will is not void if the after-born child dies before reaching age 21 and has not been married or left a child capable of inheriting.ย ย
If, after executing a will, an additional child is born to a testator who already had children when the will was createdโand if the after-born child is not provided for or expressly disinherited by the willโthe after-born child receives the same share of the estate the child would have received had the testator left no will.
If a Mississippi testator is divorced after executing a will, any provisions in favor of the former spouse (or a relative of the former spouse) are treated as if the former spouse had predeceased the testatorโunless a court order, pre- or post-nuptial agreement, property settlement agreement, or the will itself states otherwise.ย Mississippiโs statute invalidating testamentary provisions in favor of a former spouse also applies to living trusts, beneficiary designations, and fiduciary appointments.
Holographic and Oral Wills.
Holographic (or handwritten) wills are valid in Mississippi if the document was clearly intended as a will and if it is signed, dated, and all material provisions are written in the testatorโs handwriting.ย An uncontested Mississippi holographic will can be established in probate by notarized affidavits of at least two disinterested witnesses who are familiar with the testatorโs handwriting and signature and can attest to the testatorโs competency to make the will.ย ย
Mississippi recognizes oral (or โnuncupative) wills under limited circumstances.ย The statements constituting the oral will must be made during the testatorโs last illness while the testator is at home or at a location where the testator resided for at least ten days preceding death (unless the testator was moved from home while ill and never returned).ย A nuncupative will cannot devise more than $100.00 unless proved by at least two witnesses, who must testify that the testator asked them to witness the statements as the testatorโs will.ย ย
A Mississippi nuncupative will cannot be admitted to probate for 14 days after the testatorโs death and until the testatorโs spouse and next of kin (if Mississippi residents) have been given the opportunity to contest the will.ย Statements constituting a nuncupative will must be put in writing by witnesses within six days of utterance or taken to probate within six months.
Mississippi Trust Requirements.
Trusts in Mississippi are principally governed by the Mississippi Uniform Trust Code, enacted by the legislature at Miss. Code ยงยง91-8-101, et. seq.ย Mississippi uses the uniform approach adopted in many other states, subject to a few modifications.
A Mississippi trustโs purposes must be lawful and possible to achieve.ย In general, a trust and its terms must be to benefit the interests of the trustโs beneficiaries, as those interests are defined in the terms of the trust.ย A Mississippi trust is invalid to the extent its creation was induced through fraud, duress, or undue influence.
A valid trust is only created under Mississippi law if the settlor has adequate capacity to create the trust and expressed an intent to create a trust.ย A settlor is deemed to have adequate capacity if a trust is created by the settlorโs authorized agent under power of attorney executed when the settlor had adequate capacity.ย ย
For revocable trusts, the standard for capacity is the same as for wills, though the same formalities are not required for execution.ย Mississippi trusts are assumed to be revocable unless the terms of the trust expressly provide otherwise.
A Mississippi trust must have a trustee with actual duties to perform.ย Trustees who manage assets are governed by the โprudent investor rule,โ though the rule may be modified under the terms of the trust.ย Mississippi trustโs sole trustee cannot also be its sole beneficiary.ย ย
Mississippi trusts must also have a reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts for noncharitable purposes).ย A beneficiary selected by a trustee from an indefinite class is sufficient if the power is exercised within a reasonable time.
Mississippi trusts can come into being through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a settlorโs declaration that property is owned as trustee, by exercising a power of appointment in favor of a trustee, through a court order establishing the trust, or by an agent acting under power of attorney with authority to create a trust.
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Mississippi law recognizes oral trusts unless a separate statute requires a written instrument for the type of trust in question. If a trust is created orally, its creation and terms must be established by clear and convincing evidence.
Trusts dealing with real property in Mississippi must be evidenced by a written instrument signed by the settlor (or created in the settlorโs will).ย If a trust owns real property, written evidence of the trust must be filed in the land records of the county where the property is located.ย The requirement can be satisfied through a memorandum of trust identifying the trustโs name; the names, addresses, and telephone numbers of the trustee and settlor; a description of the real property interests owned by the trust; the trustโs anticipated date of termination (or event triggering termination); and the trusteeโs general powers.
Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, Mississippi protects beneficiary interests from attachment if a trust includes a โspendthrift provisionโ or provides for discretionary distributions.ย In either case, most creditors of beneficiaries cannot attach trust assets until actually distributed to the relevant beneficiary and cannot compel a trustee to make distributions.ย
Creditors of a Mississippi revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims).ย In the case of irrevocable trusts, settlorsโ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.ย However, qualifying special needs trusts cannot be attached, and reimbursement of income taxes paid for the trust by the settlor does not count as a distribution to the settlor.
The settlor of a revocable trust can amend or revoke the trust using the method provided in the trustโs terms or (if no particular method is provided) through a subsequent will or codicil that references the trust or devises property that would otherwise be within the trust.ย However, a revocable trust evidenced by a written instrument can only be revoked or amended by execution of a later written instrument provided to the trustee.
Mississippi trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purpose becomes unlawful or impossible.ย A trust may also be modified or terminated by a court upon the petition of the trustee or beneficiaries.ย Under certain circumstances, a trust can be modified or terminated without need for court approval if the trustee and beneficiaries agree to the modification or termination.
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Estate Taxes:ย Mississippi does not impose estate taxes or inheritance taxes.ย Large Mississippi estates may still be liable for the federal estate tax.
Simplified Probate:ย Mississippi allows the โsuccessorโ of a decedent with a small estate (defined as estates with assets totaling less than $75,000) to obtain estate property outside probate by completing a small-estate affidavit.ย The small-estate affidavit must state that the decedent has been deceased at least 30 days, no application for appointment of a personal representative has been filed and no representative appointed, and that the person presenting the affidavit qualifies as the decedentโs successor.ย The successor is generally the decedentโs surviving spouse, adult child, or parent and must acknowledge the obligation to turn over estate property to any other person with a superior right to the property.
Similarly, Mississippi allows transfer of real property included within a small estate through โmuniment of title.โย To be eligible, the decedent must have left a will, and the value of the personal property in the decedentโs estate (excluding exemptions) must not exceed $75,000.
Non-Probate Transfers:ย Along with living trusts, Mississippi law offers multiple other options for transfer of assets outside of probate.ย POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can be used in Mississippi for a variety of assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Mississippi also recognizes tenancy by the entireties, another joint ownership form with a right of survivorship.ย Tenancy by the entireties can only be used for co-ownership by spouses.ย ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Effective as of 2020, Mississippi is now among the states that recognize transfer-on-death deeds (also called โTODโ deeds or โbeneficiary deedsโ).ย When properly executed and recorded, a TOD deed automatically transfers title to real estate to a named beneficiary upon the current ownerโs death.ย The beneficiary does not acquire present rights in the property, and TOD deeds remain revocable until death actually occurs.ย Mississippiโs new TOD deed statute includes an optional form for TOD deeds, published at Miss. Code ยง91-27-33.
Mississippi does not allow for TOD designations on vehicle titles.
Spousal Shares: Mississippi law seeks to preempt spousal disinheritance by granting a surviving spouse the right to renounce a decedent spouseโs will and instead accept a legal share of the estate.ย A renunciation must be filed within 90 days after the decedent spouseโs will is admitted to probate.ย A spouseโs elective share is the same as if the decedent spouse had died intestateโexcept that the share is limited to one-half of the estate even if the decedent spouse leaves no children or issue.ย The elective share is not available if a surviving spouse owns separate property exceeding in value the amount that would be received through the elective share.
If a decedent spouse is intestate and the decedent leaves no children, the surviving spouse receives the decedentโs entire estate.ย If a decedent spouse leaves children or other issue, the surviving spouse receives a share of the estate equal to the share afforded to the decedent spouseโs children.
Mississippi also grants surviving spouses a one-year support allowance, the right to certain exempt property, and the right to continue living in a homestead owned by a decedent spouse until the surviving spouse remarries.ย A decedent spouseโs homestead exemption transfers to the surviving spouse, even if the surviving spouse does not own the property.ย During life, a married property owner cannot mortgage or transfer title to a coupleโs Mississippi homestead without the other spouseโs consent.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
