Mississippi Wills vs. Trusts
Mississippi estate planning doesn’t have to be confusing. The Magnolia State offers unique features like oral wills, recently adopted transfer-on-death deeds, and strong spousal protections including homestead rights. Whether you’re looking at a will or trust, understanding the key differences can save your family significant time, money, and stress while preserving your Southern legacy.
Table of Contents
US Map For The Different Will and Trust Requirements by State
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Mississippi Will Requirements
A Mississippi Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound and disposing mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator or by someone at the testator’s direction and in the testator’s presence
- Witnesses: Must be signed by at least two credible witnesses
Witness Requirements
For Mississippi wills:
- Witnesses must sign the will in the testator’s presence
- Though witnesses with no interest in the estate are preferable, a will is not invalid solely because a witness has an interest
Interested Witnesses
If a witness to a Mississippi will is also a beneficiary under the will:
- Devises to the interested witness are deemed void
- If the interested witness would have received an intestate share, they receive the lesser of their intestate share or the share devised under the will
- Provisions favoring interested witnesses are not invalid 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-witness—such as a provision admitting or giving preference to the debt—is void.
Self-Proved Wills
Though Mississippi wills need not be notarized, a will can be made “self-proved” through a notarized affidavit executed by the will’s witnesses. When a will is self-proved:
- It can be admitted to probate without requiring testimony from witnesses
- The affidavit should be executed at the time of the will’s execution
- It can be included within the will itself or affixed as an exhibit
- Witness addresses must be stated within the affidavit
- The affidavit must be acknowledged by a notary or other officer authorized to administer oaths
Memoranda of Personal Property
Mississippi is among the states that do not recognize memoranda of personal property. Devises of tangible personal property in a testator’s estate must be included within the will itself.
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Amendment, Revision, and Revocation of Mississippi Wills
Amending a Mississippi Will
A Mississippi will can be amended through:
- Execution of a new will with the desired amendments
- Execution of a codicil (an addendum to an earlier will that revises but does not revoke the earlier instrument)
Any document amending a Mississippi will must satisfy all formalities required for creation of a valid will.
Revoking a Mississippi Will
Mississippi wills can be revoked by:
- Execution of a later will, codicil, or revocation instrument that satisfies all formalities required for a will
- Physical destruction, cancelation, or obliteration of a will by the testator or by another person acting at the testator’s direction while in the testator’s presence
Automatic Revocation by Birth of Child
No Children When Will Executed
If a child is born to the testator after execution of a Mississippi will (or a testator’s wife is pregnant when the testator dies)—and if the testator had no children when executing the will—the entire will is void by operation of law unless:
- The will mentions or provides for the child, or
- The after-born child dies before reaching age 21 and has not been married or left a child capable of inheriting
Had Children When Will Executed
If, after executing a will, an additional child is born to a testator who already had children when the will was created—and if the after-born child is not provided for or expressly disinherited by the will—the after-born child receives the same share of the estate the child would have received had the testator left no will.
Automatic Revocation by Divorce
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 testator—unless a court order, pre- or post-nuptial agreement, property settlement agreement, or the will itself states otherwise.
This automatic revocation provision also applies to:
- Living trusts
- Beneficiary designations
- Fiduciary appointments
Holographic and Oral Wills
Holographic Wills
Holographic (or handwritten) wills are valid in Mississippi if:
- The document was clearly intended as a will
- It is signed and dated
- All material provisions are written in the testator’s handwriting
An uncontested Mississippi holographic will can be established in probate by notarized affidavits of at least two disinterested witnesses who:
- Are familiar with the testator’s handwriting and signature
- Can attest to the testator’s competency to make the will
Oral Wills
Mississippi recognizes oral (or “nuncupative”) wills under limited circumstances:
- The statements must be made during the testator’s last illness
- The testator must be at home or at a location where they resided for at least ten days preceding death (unless the testator was moved from home while ill and never returned)
- A nuncupative will cannot devise more than $100.00 unless proved by at least two witnesses
- The witnesses must testify that the testator asked them to witness the statements as the testator’s will
- Cannot be admitted to probate for 14 days after the testator’s death
- The testator’s spouse and next of kin (if Mississippi residents) must be given the opportunity to contest the will
- Statements must be put in writing by witnesses within six days of utterance or taken to probate within six months
Mississippi Trust Requirements
Mississippi trusts are principally governed by the Mississippi Uniform Trust Code. A trust is a legal relationship where a property owner (the “settlor”) transfers property to a “trustee” for the benefit of a “beneficiary.” The same person may stand in more than one role, but the same person cannot be both the sole trustee and sole beneficiary of a Mississippi trust.
Requirements for a Valid Mississippi Trust
For a trust to be valid under Mississippi law:
- The settlor must have adequate capacity to create the trust and expressed an intent to create a trust
- The trust’s purposes must be lawful and possible to achieve
- In general, a trust and its terms must be to benefit the interests of the trust’s beneficiaries
- A Mississippi trust is invalid to the extent its creation was induced through fraud, duress, or undue influence
A settlor is deemed to have adequate capacity if a trust is created by the settlor’s authorized agent under power of attorney executed when the settlor had adequate capacity.
Required Trust Elements
A Mississippi trust must have:
- A trustee with actual duties to perform
- A reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts for noncharitable purposes)
Trust Creation Methods
Mississippi trusts can come into existence through:
- Transfer of property by a settlor to a trustee (either during life or through a will)
- A settlor’s declaration that property is owned as trustee
- Exercising a power of appointment in favor of a trustee
- By court order establishing the trust
- By an agent acting under power of attorney with authority to create a trust
Trustee Responsibilities
Mississippi trustees who manage assets are governed by the “prudent investor rule,” though the rule may be modified under the terms of the trust.
Oral Trusts
Though most trusts are evidenced by a written instrument, Mississippi law recognizes oral trusts unless a separate statute requires a written instrument for the type of trust. If a trust is created orally:
- Its creation and terms must be established by clear and convincing evidence
Real Property Trusts
Trusts dealing with real property in Mississippi must:
- Be evidenced by a written instrument signed by the settlor (or created in the settlor’s will)
- Have written evidence of the trust filed in the land records of the county where the property is located
The recording requirement can be satisfied through a memorandum of trust identifying:
- The trust’s name
- Names, addresses, and telephone numbers of the trustee and settlor
- Description of the real property interests owned by the trust
- The trust’s anticipated date of termination (or event triggering termination)
- The trustee’s general powers
Revocability
Mississippi trusts are assumed to be revocable unless the terms of the trust expressly provide otherwise.
Creditor Protection
In general, creditors of a trust’s beneficiaries may attach a beneficiary’s interest in a trust. Mississippi protects beneficiary interests from attachment if a trust includes a “spendthrift provision” or provides for discretionary distributions. In either case, most creditors of beneficiaries cannot:
- Attach trust assets until actually distributed to the relevant beneficiary
- Compel a trustee to make distributions
Creditors of a Mississippi revocable trust’s settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims). In the case of irrevocable trusts, settlors’ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlor’s benefit.
Important exceptions:
- Qualifying special needs trusts cannot be attached
- Reimbursement of income taxes paid for the trust by the settlor does not count as a distribution to the settlor
Trust Amendment and Revocation
The settlor of a revocable trust can amend or revoke the trust using:
- The method provided in the trust’s terms
- 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
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.
Trust Termination
Mississippi trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purpose becomes unlawful or impossible
A trust may also be modified or terminated:
- By a court upon the petition of the trustee or beneficiaries
- Under certain circumstances, without need for court approval if the trustee and beneficiaries agree to the modification or termination
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Special Considerations
Estate Taxes
No Estate or Inheritance Taxes
Mississippi does not impose estate taxes or inheritance taxes. Large Mississippi estates may still be liable for the federal estate tax.
Simplified Probate
Mississippi allows the “successor” 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. The 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
- The person presenting the affidavit qualifies as the decedent’s successor
The successor is generally the decedent’s 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.
Muniment of Title
Similarly, Mississippi allows transfer of real property included within a small estate through “muniment of title.” To be eligible:
- The decedent must have left a will
- The value of the personal property in the decedent’s estate (excluding exemptions) must not exceed $75,000
Non-Probate Transfers
Along with living trusts, Mississippi law offers multiple options for non-probate transfer of assets:
Transfer-on-Death Deeds and Vehicle Titles
Transfer-on-Death Deeds
Effective as of 2020, Mississippi is now among the states that recognize transfer-on-death deeds (also called “TOD” deeds or “beneficiary deeds”). When properly executed and recorded, a TOD deed automatically transfers title to real estate to a named beneficiary upon the current owner’s death.
The beneficiary does not acquire present rights in the property, and TOD deeds remain revocable until death actually occurs. Mississippi’s TOD deed statute includes an optional form for TOD deeds, published at Miss. Code §91-27-33.
Vehicle Titles
Mississippi does not allow for TOD designations on vehicle titles.
Spousal Rights
Elective Share
Mississippi law seeks to preempt spousal disinheritance by granting a surviving spouse the right to renounce a decedent spouse’s will and instead accept a legal share of the estate.
- A renunciation must be filed within 90 days after the decedent spouse’s will is admitted to probate
- A spouse’s elective share is the same as if the decedent spouse had died intestate—except that the share is limited to one-half of the estate even if the decedent spouse leaves no children or issue
- 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
Intestate Succession for Spouses
- If a decedent spouse dies without a will and leaves no children, the surviving spouse receives the decedent’s entire estate
- 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 spouse’s children
Additional Spousal Protections
Mississippi also grants surviving spouses:
- A one-year support allowance
- The right to certain exempt property
- The right to continue living in a homestead owned by a decedent spouse until the surviving spouse remarries
Homestead Rights
Mississippi provides special protection for the marital homestead:
- A decedent spouse’s homestead exemption transfers to the surviving spouse, even if the surviving spouse does not own the property
- During life, a married property owner cannot mortgage or transfer title to a couple’s Mississippi homestead without the other spouse’s consent
Need help creating the right estate plan for your Mississippi family?
Our estate planning specialists can help you navigate Mississippi’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Mississippi Special Feature | Mississippi recognizes holographic wills and limited oral wills | Mississippi recognizes oral trusts if terms are established by clear evidence |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Mississippi residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences. Mississippi offers unique estate planning tools like holographic wills, limited oral wills, and recently added transfer-on-death deeds for real estate that can provide flexibility in your planning.
Mississippi’s strong spousal protections, including homestead rights that require both spouses’ consent for transfers, provide important safeguards for families. Whenever any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Mississippi law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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Frequently Asked Questions
Do I need a lawyer to create a will in Mississippi?
While Mississippi law doesn’t require an attorney to create a valid will, consulting with an estate planning lawyer is highly recommended, especially for complex situations. Mississippi has specific requirements for valid wills, including the need for two credible witnesses. An attorney can help ensure your will is legally sound and properly executed. Additionally, Mississippi recognizes holographic (handwritten) wills, but they must be entirely in your handwriting, signed, and dated. The state also recognizes limited oral wills in certain circumstances, but these options often lack important safeguards that a professionally drafted will would include.
What happens if I die without a will in Mississippi?
If you die without a will in Mississippi (intestate), state laws determine how your assets are distributed. Your spouse would receive your entire estate if you have no children. If you have children, your spouse shares equally with your children. For example, if you have three children, your spouse would receive 1/4 of your estate and each child would receive 1/4. If you have no spouse, assets go to descendants, then parents, then siblings, and so on according to Mississippi’s intestacy laws. Additionally, the probate court would appoint an administrator for your estate and guardians for minor children without considering your preferences.
Are there estate or inheritance taxes in Mississippi?
No, Mississippi does not impose either estate taxes or inheritance taxes at the state level. This is beneficial for Mississippi residents as it means assets can pass to heirs without any state-level death taxes. However, large Mississippi estates may still be subject to federal estate taxes if they exceed the federal exemption threshold. Unlike some states that maintain state-level death taxes, Mississippi’s lack of these taxes makes it a more favorable state for estate planning purposes.
Can I write a handwritten will in Mississippi?
Yes, Mississippi recognizes holographic (handwritten) wills. For a handwritten will to be valid in Mississippi, it must be signed and dated by you, and all material provisions must be written in your own handwriting. Unlike traditional wills, holographic wills in Mississippi don’t require witnesses. For probate purposes, an uncontested holographic will can be established through notarized affidavits from at least two disinterested witnesses who are familiar with your handwriting and can attest to your competency. While holographic wills are legally valid, they often lack important provisions and safeguards that an attorney would include in a formal will and may be more vulnerable to challenges.
Does Mississippi recognize oral wills?
Yes, Mississippi is one of the few states that recognizes oral (nuncupative) wills, though under very limited circumstances. An oral will is only valid if made during the testator’s last illness while at home or where they resided for at least ten days before death (unless moved from home while ill and never returned). Oral wills cannot devise more than $100 unless proved by at least two witnesses who must testify that the testator asked them to witness the statements as their will. These statements must be put in writing within six days or taken to probate within six months. Oral wills cannot be admitted to probate until 14 days after death, and family members must be given the opportunity to contest them. Due to these strict limitations, oral wills are rarely practical for estate planning.
Does Mississippi recognize transfer-on-death deeds?
Yes, as of 2020, Mississippi now recognizes transfer-on-death (TOD) deeds, also called beneficiary deeds. This allows property owners to designate beneficiaries who will automatically receive real estate upon the owner’s death, without going through probate. Mississippi’s TOD deed statute includes an optional form for creating these deeds. The beneficiary has no rights to the property until the owner’s death, and the owner can revoke or change the designation at any time before death. However, unlike some states, Mississippi does not allow TOD designations on vehicle titles. This relatively new tool provides Mississippi residents with a flexible estate planning option to transfer real property outside of probate while retaining complete control during their lifetime.
How does Mississippi’s small estates procedure work?
Mississippi offers a simplified process for small estates (defined as estates with assets totaling less than $75,000) that can save time, money, and paperwork. The ‘successor’ of a decedent can obtain estate property outside probate by completing a small-estate affidavit. This 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 that the person presenting the affidavit qualifies as the decedent’s successor (generally the surviving spouse, adult child, or parent). For real property, Mississippi allows transfer through ‘muniment of title’ if the decedent left a will and the value of personal property in the estate (excluding exemptions) doesn’t exceed $75,000. These simplified procedures typically allow heirs to receive assets much faster than with traditional probate.
