REPRESENTATION IN WILLS, ESTATES, & PROBATE

 A document that allows an individual to give instructions about his/her own health care or name someone else (agent) who will be responsible for making these decisions.  It allows the individual to express decisions regarding what decisions should be made on

his/her behalf should there be incapacity.  The form can also limit the authority of the agent to make certain choices.

A “conservator" is defined as “a person appointed by a court to make decisions with respect to the property or financial affairs of a ward.”  If an individual no longer has the ability to care for his/her estate or financial affairs a court can order that a conservator be appointed over the estate or property.  The conservator manages the estate or property of the individual.  The conservator is supervised and held accountable to a court.  Conservatorships require the ongoing assistance of an attorney by law in Mississippi.

Estate planning is the process of ensuring that an individual's wishes concerning health care and property are honored during and after life.  Estate planning refers to various legal tools that can be used to achieve the individual's goals.  Depending upon the goals and assets of the individual, there are different options available, including a last will and testament, trust, power of attorney, living wills, and organization structuring of assets 

The law defines a guardian as “a person appointed by the court to make decisions with respect to the personal affairs of the ward.”  A guardianship allows a person to be appointed to take over the person and affairs of someone who cannot handle his/her affairs.  The court may appoint a guardian for an adult, after notice and hearing, if the adult is found to lack the ability to meet essential requirements for physical health, safety, or self-care due to intellectual disability or mental illness.  The appointment of a guardian is at the discretion of the court and must be in the respondent's best interest.   

The court shall grant to the guardian of an adult-only the powers necessitated by the limitations and needs of the adult. It must enter orders that will encourage maximum self-determination and independence. The court must consider any less restrictive alternative that would meet the needs of the adult.  An adult with an intellectual disability or mental illness but needs assistance with his or her affairs related to health, safety, or self-care can have a limited guardianship ordered by the court.  The limited guardianship specifies the limited role that the guardian serves under the limited guardianship.  

A guardian may be appointed for minors (those under twenty-one (21) years of age).  The guardianship allows the guardian to have the same powers as the parent unless the court orders otherwise.  The guardian has the same duties and responsibilities as a parent regarding the minor’s support, care, education, health, safety, and welfare.  The guardian must act in the minor's best interests in the exercise of reasonable care, diligence, and prudence. 

A sworn affidavit from one or more family members and two unrelated parties that identifies the heirs of the deceased as an alternative to the probate of an estate to transfer real property, or land or a home.  Heirship affidavits in place of probate are not listed specifically under Mississippi law. They should only be used when many years have passed since the decedent's death and as a last resort.

The homestead exemption is a provision under Mississippi law that provides strong protections for the surviving spouse and minor or disabled children.  It also protects the homestead from debts owed by the deceased to creditors by limiting creditors' claims against the homestead. Mississippi’s homestead exemption is limited to $75,000. 

Mississippi law provides protections for a deceased person's spouse and family through the Mississippi elective share statute.  This allows a surviving spouse to renounce the deceased will if it did not provide or adequately provide for the spouse per the law.  The share of the deceased spouse's estate in which the living spouse is entitled to receive is determined mathematically by law.

A will contest is when someone wants to contest the validity of a will of a deceased.  There are valid legal grounds to contest a will, including;  the will was not signed per applicable Mississippi law; the testator (decedent) lacked the testamentary capacity to sign the will, such as did not understand who should logically inherit his/her assets or the legal effect of signing the will; there was fraud in having the testator sign the will; and, most common, there was an individual that had undue influence over the testator in the process for the creation of the will.