Frequently Asked Questions about Wills and Probate
If you die without a will, your assets will be distributed according to the laws of descent and distribution in the State where you lived. State law, rather than your wishes, will control the probate process. Upon proper petition, the Court will appoint someone, not necessarily your choice, to administer your estate. Your administrator will be required to post a full surety bond and perform a complete inventory and accounting of your estate, according to Mississippi statutory law. If you had a will, you would name your executor and could waive these statutory expenses. Also under Mississippi law, if you die leaving a surviving spouse and children, then your entire estate would pass to your surviving spouse and children in equal shares. Guardianships would have to be established for all minor children under the age of 21. The Court will also decide who gets custody of any of your minor children. If you have no surviving spouse and children, then your estate would pass to your next of kin, i.e., your grandchildren, parents, siblings, aunts/uncles, cousins. If you are found to have no heirs at law, then your entire estate would pass to the State of Mississippi. It is highly recommended by this law firm that you have a will.
Yes, except under extraordinary circumstances.
A will is a legal document by which a person directs how his or her estate is to be distributed upon death. By having a will, you decide how your estate is to be distributed and who is to handle your estate. A will may also contain specific bequests to certain individuals and name a guardian of your minor children. It can specify your funeral desires and charity bequests. It can also eliminate relatives that you don’t want to inherit any part of your estate. A will can eliminate your family having to make certain decisions regarding your estate. Without a will, your family is faced with tremendous decision making which oftentimes results in controversy between family members.
A simple will usually starts at $225.00. Wills with trusts or estate tax planning will cost more.
Please download the will questionnaire from the Areas of Practice page for more information.
A healthcare durable power of attorney and a living will are legal documents that state the intention to refuse or accept certain medical treatment if you become both terminally ill and unable to communicate such a desire. It would keep you from being kept alive artificially by machine while in a vegetative state or in a last illness.
Under Mississippi’s old “living will” statute, you named an individual that made all healthcare decisions for you during a terminal illness if you were unable to do so. In 1998, The Mississippi Legislature adopted the “Uniform Health-Care Decisions Act.” The new Act allows an individual to give specific instructions about their care during a terminal illness.
Not necessarily, but it is highly recommended. Mississippi law governs the validity of wills and specifies many elements that must be included. Proper drafting of your will can help eliminate will contests, together with the savings of significant expenses and procedures when probating your estate.
Yes, if your estate is admitted to probate. However, estates under $50,000 in total value may use the successor affidavit procedure established by Mississippi legislature instead. A successor affidavit is a document that allows the decedent’s heirs to obtain the decedent’s assets without the necessity of probate proceedings. Although it is much less expensive than probate proceedings, strict statutory restrictions apply to successor affidavits.
Probate proceedings are the court proceedings necessary to properly administer your estate after you die. It includes the marshalling of all your estate assets, payment of your legitimate creditors and taxes, and the final distribution of your remaining assets to your heirs.
I am an heir in an estate and I don’t think the estate is being properly handled; can I do anything about it?
Yes, you may file a petition with the probate court to have the executor or administrator removed. In all probate proceedings, the probate court requires the executor or administrator to strictly comply with all probate statutes. These statutes were drafted to make probate proceedings open and honest. They also require the proceedings move in a timely fashion. The attorney for the estate is hired by the executor or administrator, who also has the power to replace the attorney.
You must file the appropriate pleadings with the probate court within the deadlines established by the Mississippi probate statutes. A will may be successfully challenged if the will does not meet the strict Mississippi statutory requirements for the making of a will or the testator, (the person making the will), was not competent at the time the will was signed or the testator was subject to the undue influence of another.
Will contests cases are difficult to win because Mississippi law presumes the will to be initially valid, therefore the burden of proof is on the will contestant. If you are considering a will contest, we strongly recommend that you discuss your case with an attorney thoroughly familiar with estates.
Also, if someone had exploited your living relative before that relative’s death, the misappropriated assets may be required by the Court to be returned to the decedent’s estate. For example, if your mother had significant Alzheimer’s disease when she signed a deed to another relative, this deed may be set aside by the Court.
Frequently Asked Questions about Conservatorships and Guardianships
I have an elderly relative who is unable to take care of his/her financial matters or personal needs. What do I do?
If your relative does not have a durable power of attorney, you will probably need to establish a conservatorship. A conservatorship is a legal procedure where the court appoints someone, (a conservator), to handle the business and personal affairs of someone that is incompetent (ward). The primary purpose of the conservatorship is to protect the ward. The court typically requires two physicians to verify the person is incompetent. The court also requires the conservator be bonded in the full amount of the ward’s estate and only allows the ward’s funds to be spent upon proper court order. Annual accountings must be filed with the court naming all assets of the ward and showing all disbursements from the ward’s account. Because of the strict legal procedures in a conservatorship, the Mississippi courts require an attorney be retained. The attorney’s fees also have to be approved by the court.
Guardianship procedures are generally used for the protection of minors and recipients of Veteran Administration benefits. Guardianships are usually required to be established if a minor obtains a substantial amount of money from a personal injury or by inheritance. Incompetent veterans that receive V.A. benefits are also placed under guardianships. Again, the primary purpose of the guardianship is to protect the ward with the same statutory protections as conservatorships.
The initial consultation is always free. Fees may be flat rate, hourly, or contingent. Our legal fees will depend on the type of service we provide. For example, if you retain us for preparation of a will or trust, the fee would normally be a flat-rate based on the complexity of the document. Other cases may warrant an hourly charge for our legal work. For example, you might retain our firm to establish a conservatorship for a relative who would require numerous court pleadings and appearances. Our firm would then petition the Court for payment of our legal services, based on an hourly rate, from the ward’s funds. All such attorney fee petitions must be approved by our Courts. Automobile accident cases and other personal injury cases are generally accepted on a contingent fee basis, which means that we only receive a fee if we win your case.
Frequently Asked Questions about Medicaid Income Trusts
A Medicaid trust is a trust agreement that allows someone that receives more than Medicaid allows as income to qualify for Medicaid benefits, such as long-term nursing home care. Section 1917 (d) of the Social Security Act (42 U.S.C. 1396 p) defines certain provisions that qualify as an exception for the purpose of an individual qualifying for Medicaid benefits. One such exception is an “Income Trust.” This type of trust, established for the benefit of an individual in a nursing facility, must meet the following requirements.
- The purpose of the trust is to allow an individual with excess income who has exhausted all available resources to become eligible for Medicaid. The trust must be composed only of income belonging to the individual. No resources may be used to establish or augment the trust. Inclusion of resources voids the trust exception.
- The trust must be composed only of income due the individual from all sources such as Social Security, pension benefits, interest and any and all other types/sources of income. The individual’s right to receive income should not be transferred to the trust; instead, the individual must first receive the income and then place it into the Income Trust.
- Income Trusts, once qualified, cannot be modified without the approval of the Division of Medicaid. Trusts must specify that the trust will terminate at the individual’s death, when Medicaid eligibility is terminated, when the trust is no longer necessary or in the event the trust is otherwise terminated. Trusts may need to be terminated prior to an individual’s death due to changes in the client’s income or changes in Medicaid policy regarding how certain income must be counted or in the event the individual is discharged from the nursing facility.
- The Trust must distribute to the Settlor, or for his/her benefit, an amount equal to not more than $1.00 less than the then current Medicaid income limit as approved by Medicaid. The trust should not specify the amount of the individual’s income as this amount may change each year and the amount to be released from the trust will change to an amount equal to $1.00 less than the current Medicaid income limit.
- At the dissolution or termination of the trust, the death of the Settlor, loss of the Settlor’s Medicaid eligibility or in the event that the Settlor’s income no longer exceeds the current Medicaid income limits, the trust agreement must provide that all amounts remaining in the trust up to an amount equal to the total medical assistance paid by Medicaid on behalf of the individual that has not previously been repaid will be paid to the Division of Medicaid.
- In addition the trust agreement must provide that at the time of each review of the Settlor’s Medicaid eligibility (at least annually) while this trust is in existence, when notified by Medicaid, the Trustee must pay to the Division of Medicaid the amount that should be accumulated in the trust up to the amount expended by the Division of Medicaid on behalf of the Settlor that has not previously been repaid. Failure to make the requested payments may result in the loss of Medicaid.
- The trust agreement must provide for an accounting to be sent to the Division of Medicaid when requested to show all receipts and disbursements of the trust during the prior calendar year when requested by Medicaid.
- Administrative fees are limited to $10.00 per month intended to cover any bank charges required to maintain the trust account.
- Any disbursements not approved by Medicaid or provided for by the trust agreement will result in a loss of the trust exemption.
- The trust instrument must specify an effective date that will be determined by the Division of Medicaid based on the beginning date for Medicaid eligibility.
- Medicaid requires that the trust document be filed in the records of the Chancery Clerk.