Avoiding Probate in Mississippi

Before the assets included in a will can be distributed by an estate executor in Mississippi, the will must generally be probated.

This legal process is initiated at the local courthouse and may take considerable time to finalize, as well as creating some additional costs for the estate.

For estate planners, executors, and heirs, there may be benefits to planning ahead to ensure that some or all assets can be distributed without probate.

Here is what you need to know.

Probate in Mississippi

After an individual with a will passes away in Mississippi, the probate process usually begins soon afterward. The will is filed with the county court and a petition for probate is made.

The court will then initiate proceedings for the supervision of the estate administration, according to the terms of that will. Most importantly, during probate, the court appoints an executor of the estate, who is legally responsible for managing the estate’s affairs.

The duties of the executor include:

  • Gathering and protecting the decedent’s assets.
  • Paying outstanding debts and taxes.
  • Distributing the remainder of the estate to the beneficiaries.

The executor is usually named in the will of the deceased but the court must first approve this appointment.

What are the main benefits of avoiding probate?

If a deceased’s assets can be distributed to the intended beneficiaries and heirs without probate, there may be several benefits.

The costs involved in probate—with court and legal fees (if you hire a probate layer) can amount to between three and seven percent of an estate’s total value. With the use of trusts, lifetime gifts, and joint ownership strategies, assets can be passed directly to beneficiaries without incurring such extra costs. Avoiding probate may also reduce the tax burden on high-value estates (more about this below).

Probate in Mississippi typically takes around 6-12 months to completely transfer all the assets to successors. If estate disputes arise, the period may be considerably longer. Executors and beneficiaries are often keen to prevent such delays by avoiding probate.

As a court process, probate matters are part of the public record. By avoiding probate by setting up a trust or choosing other estate planning strategies, these matters can remain confidential—which may be important for some parties.

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How do you avoid probate in Mississippi?

The following are some common estate planning strategies employed to avoid probate in Mississippi.

Joint ownership means that assets are legally owned by two or more individuals together. In this case, when one of the owners dies, the title automatically passes to the surviving owner(s) through survivorship rights. No court involvement is necessary for this process to be completed.

Mississippi recognizes both joint tenancy with the right of survivorship, which grants equal property ownership to two or more parties, and tenancy by the entirety, which is for married couples.

POD designation requires the naming of beneficiaries on financial accounts so that assets within these accounts are directly transferred to the beneficiaries upon the account holder’s death, avoiding probate.

This can be an effective estate planning tool for accounts like savings and retirement accounts.

TOD designation is similar to POD but instead of savings and retirement accounts, transfer on death allows Mississippi residents to transfer securities, such as stocks, bonds, etc. to named individuals after they die.

Like with POD, the individual making the designation must complete the correct forms with the appropriate financial institution(s) or broker(s) for these strategies to be effective.

Another effective way for some individuals to avoid probate in Mississippi is to create a living trust (sometimes called an inter vivos trust).

With a living trust, the “grantor” can place assets to be managed by a “trustee” for the benefit of designated beneficiaries. Upon the death of the grantor, assets within the trust can be transferred immediately to beneficiaries without any court process.

Revocable living trusts are the most common types of trusts in estate plans. These trusts can be modified or revoked at any time and the grantor usually names himself/herself as the trustee, with a “successor trustee” named to take over and distribute the property after death.

If you have a living trust, do you need a will?

Most people who set up trusts also write a will. This is recommended, especially in the following circumstances:

  • If you have minor children and require a will to designate a guardian for them if you pass away.
  • If you need to account for any property not transferred to the living trust, which is very common (especially with property accumulated after the trust has been set up). Sometimes, people forget to transfer property to the trust or have specific reasons not to include it.

If you die intestate (without a will), any property that is not transferred to the trust will be distributed under Mississippi’s intestacy laws to your closest relatives.

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Can a living trust reduce estate taxes?

Most people do not need to worry about federal estate taxes because Mississippi does not impose estate taxes and the federal estate tax currently only applies to estates worth more than $13.61 million (though this figure changes annually).

For high-net-worth individuals, specialist advice from an estate planning lawyer experienced in such estates is advisable. Other trusts besides living trusts may be available to you that can help a high-value estate minimize the tax burden.

How do you create a living trust in Mississippi?

Setting up a living trust in Mississippi is relatively straightforward—but often requires the help of an estate planning attorney:

  1. Choose whether to make an individual or “shared” trust.
  2. Decide which assets to include in the trust.
  3. Choose a successor trustee for after you pass away.
  4. Decide who will inherit the trust’s assets, i.e., the beneficiaries.
  5. Create the trust document with the aid of an estate planning attorney.
  6. Sign the document and have it notarized.
  7. Change the title of any trust property that has a title document (e.g., real estate and vehicles) to reflect that the property is now owned by you as the trustee of the trust.

If you are estate planning in the Biloxi or Gulf Coast area of Mississippi and need advice on avoiding probate or any other aspect of wills or trusts, contact an experienced estate planning lawyer at Rushing & Guice, PLLC for legal advice and assistance.

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