WHAT IS A WILL?: A will is a writing which makes a testamentary disposition, which is a gift to be made upon the death of the maker. A valid will allows a person to give their property away as they see fit. Consult an attorney to have your valid will prepared. By having an attorney prepare your will, you can have confidence that your property and possessions will be given to those you wish to receive your property.
- Are there any requirements to make a Will?
- What is considered a sound and disposing mind?
- What do I do if I want to update my Will?
- What is the most common challenge to a Will?
- What if I want to revoke my will and make a new Will?
- Are there any other benefits of preparing a Will?
- What happens to my property if I do not prepare a Will?
- A Will's Checklist
- Did You Know?
There are two (2) requirements to make a will:
1. The maker must be at least 18 years old; and
2. The maker must have sound and disposing mind when making the will.
What is considered a sound and disposing mind?
SOUND and DISPOSING MIND is a three (3) prong test:
(1) The maker understands and appreciates the making of a will.
(2) The maker understands the person or organization that will receive the property.
(3) The maker is capable of determining how he desires to give away the property.
An update to a will is called a codicil. For the codicil to be valid it must be executed in the same method as your will. Thus, if an attorney prepared your will, you should see your attorney to update your will.
In Mississippi over the past thirty ( 30) years the most common challenge to the validity of a will has been UNDUE INFLUENCE. In Mississippi, undue influence is presumed if the will contestants can show:
1. That the deceased and the beneficiary had a personal relationship; and
2. That the beneficiary had something to do with the making of the will.
The presumption of undue influence may be overcome by meeting a very difficult test. Thus, it is important to take precautions to prevent the challenge of undue influence.
UNDUE INFLUENCE is most often alleged where the deceased allowed a beneficiary to drive or ride with the deceased to the attorney's office to prepare the will. Another example is a beneficiary being in the room when the deceased made the will.
To revoke all past wills, your new will should contain a statement that it revokes all past wills. As well, by destroying the old will you are physically revoking it.
If your new will does not contain a statement that it revokes all past wills, then it only revokes that property devised in the new will. Thus, the old will shall devise that property not mentioned in the new will. However, this problem is most often avoided by the use of a "residuary clause". A residuary clause gives all property not specifically devised to the designated residuary beneficiary.
The administrator of your estate must post a surety bond in an amount equal to your total estate. As well, property appraisals must be made for the court, and the court must approve the final disposition of the property. However, if you prepare your will you may designate the executor for the estate. By doing so, you may waive the posting of the surety bond. Additionally, you may waive the property appraisals. By doing so, you are allowing for more of your property to be given to your loved ones.
The Mississippi rules of interstate succession shall decide who takes your property if you do not prepare a will. These rules make presumptions as to how you intended your property to be disposed.
The following information should be taken to the attorney, when the appointment is for the purpose of having a will drawn up:
- Name and address of the person you want to be your executor. This person will oversee the process of distributing your property and probating your will. The executor cannot be under the age of eighteen, of unsound mind or a convicted felon.
- Name and address of the person you want to be your alternative executor to serve if the person named as executor cannot serve for any reason. The qualifications are the same as above.
- List all of the real property that you wish to bequeath. Bring a copy of a document that contains the legal description of any land such as the deed. List the name, address and relation to you of the individual(s) to whom you wish to leave each piece of property.
- List all of your personal property that you wish to leave to any individual under the will and list the name, address and relation to you of the individual(s) to whom you wish to leave each item. Example: Oak queen size bed in master bedroom - to my daughter, Jane Doe, address, 111 Oak St., Corinth, MS. Bring a document with the serial number of any automobile that you own.
- List all other accounts and property that you own, including your account numbers. Beside each item list the full name, address and relationship to you of the individual(s) to whom you wish to leave each item. Example: The money in account number 847-6450 at the First Federal Bank in Corinth - to my son, John Doe, address, 123 Maple St., Corinth, MS. This list should include CDS, bank accounts, stocks, bonds, etc.
- Do you have a durable power of attorney for health care? If not, write down the name and address of the person you want to designate to make your health care decisions if you become incapacitated. Also write down any instructions you would like to give them about your health care. For example, if you are near death do you wish extraordinary means to be taken to save your life?
- You can leave your property to anyone you choose if you have a will.
- Without a will, the State will decide who gets your propertywhen you die.
- You can update your will at any time.
- You can assist your loved ones by preparing a will because it reduces the cost of probate.