REPRESENTATION IN WILLS, ESTATES, & PROBATE

 A document which allows an individual to give instructions about his/her own health care or to 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 a variety of 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.  Appointment of a guardian is at the discretion of the court and must be in the best interest of the respondent.   

The court shall grant to the guardian of an adult only the powers necessitated by the limitations and needs of the adult, and 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 that has 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 best interests of the minor 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 probate of an estate to transfer real property, or land or a home.  Heirship affidavits in lieu of probate is not listed specifically under Mississippi law, and should only be used when many years have passed since the death of the decedent 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 the claims of creditors against the homestead. Mississippi’s homestead exemption is limited to $75,000. 

A last will and testament allows an individual to express his/her desires at the time of death.  The most common type of will is an attested will.  An attested will has been witnessed by at least two witnesses that do not stand to inherit from the decedent.  The other type of accepted will is a holographic will.  This is a will that does not require the testamentary formalities of an attested will, but is a will that is entirely in the decedent's handwriting and is signed at the bottom.  Individuals should be aware that wills that are not drafted by an attorney may be more difficult to probate.  A will drafted by a decedent may be drafted poorly, contain language that is unclear, make bequests that are not permitted under the law, and omit important provisions of a formal will.  A knowledgeable attorney can assist in the drafting of a will that can assist individuals in avoiding pitfalls and difficulties that may arise in the future from a will that was drafted by the decedent.

Probate is the court process of distributing the assets of the deceased.  If the deceased passes without a last will and testament there is an intestate estate.  Probate is initiated by filing a complaint in the proper Mississippi Chancery Court.  The property of the deceased will be distributed under law under the Mississippi's laws of intestacy.

 An heirship suit can be filed rather than a full intestate probate proceeding.  This suit provides a judicial determination of the deceased individual's heirs by law.  Unlike full probate of the deceased's estate, creditors are not notified in regards to the need to present their claims, and because creditor claims are not resolved as part of the heirship suit the heirs will likely not be able to obtain title insurance on the property.  On this basis, an heirship suit is likely only a good option if the heirs are going to maintain ownership of the property for several years to allow the statue of limitations, or time period by law, to run on any creditor claims, thus limiting the ability of creditors to make a claim against the property.  Generally the title insurance companies will not write a policy on the property for ten (10) years. 

A power of attorney is a document that can be used by an individual (principal) to appoint an attorney-in-fact, or agent, to make decisions on his/her behalf regarding property, finances, management of affairs, banking, and other matters.  The powers provided to the agent can be general or specified.  The power of attorney can also be drafted so that the powers of the attorney-in-fact are not affected by the principal's later disability, incompetency, or incapacity.

Probate is the court process of distributing the assets of the deceased.  If the individual had a last will and testament then an estate is testate.  Probate is initiated by filing a complaint in the proper Mississippi Chancery Court.  There are specific requirements and time periods concerning notification of heirs and creditors.  The property of the deceased will be distributed under the provisions of the will and within the bounds of the law. 

The small estate affidavit can be used to transfer personal property of the deceased having a small estate, or under the value of $50,000.00.  The small estates affidavit is not available to estates that will be probated.  Once the heir, or successor, provides the affidavit to the third party, the third party can transfer the asset to the heir or successor.

Mississippi law provides protections for spouse and family of deceased person through the Mississippi elective share statute.  This allows a surviving spouse to renounce the deceased will if it did not provide for the spouse, or did not provide adequately for the spouse under the law.  The share of the estate of the deceased spouse 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 in accordance with 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 and individual that had undue influence over the testator in the process for the creation of the will.