Mississippi Last Will and Testament | Mississippi Probate Attorney

Did the decedent leave a valid Last Will and Testament (LWT)? The answer can affect the Mississippi probate process in at least two ways. First, if there is a LWT, it probably names the person or organization that is in charge of administering the estate. Like the law of most states, Mississippi law allows a person to choose a person to administer the estate. The only requirements are that the chosen executor be of sound mind, over age 18, and not a convicted felon. This choice is made in the LWT (look for specific language naming a person or organization as executor).

Probate Note: If the LWT names an executor, that person should be notified quickly. The named executor isn’t required to actually serve as executor, but he or she has the first option of doing so. The first executor named in the LWT has 40 days from the date of the decedent’s death to admit the LWT to probate and be recognized by the court as executor. After 40 days, the alternate executors named in the LWT (if any) can petition for appointment. If there are none, then the court can appoint someone else to serve as executor.[1]

The second reason a LWT is important is that it controls who receives the decedent’s assets. Mississippi gives a person broad authority to dispose of his or her assets at death as he or she sees fit. In most (but not all) cases, the individuals or organizations named in the Last Will and Testament share in the assets of the estate.

Probate Note: Sometimes a poorly-drafted will may only dispose of part of a person’s estate. In this situation, any portion of the decedent’s estate that is not disposed of by the Last Will and Testament is distributed under Mississippi’s laws of intestacy.

Determine Whether the Last Will and Testament was Validly Executed

So how do you determine whether a document that looks like a Last Will and Testament is valid under Mississippi law? Mississippi law recognizes two types of wills, each of which have their own set of requirements.

The Attested Will: Legal Requirements

The most common form of will is an attested will. It is a document that has been witnessed and “attested to” by at least two witnesses. The witnesses should not be individuals who stand to inherit from the decedent.

Attested wills are valid only if they meet a set of requirements known as testamentary formalities:

the testator must sign the will or someone else must sign it for the testator at his or her direction;
if the witnesses did not actually see the testator sign the will, the testator must acknowledge his signature to the witnesses and publish the will to the witnesses when they sign the will;
the witnesses must sign the will in the testator’s presence; and
the witnesses must be credible.

Although Mississippi law only requires the witnesses to sign the will, attorneys usually include an “attestation clause” that lists these testamentary formalities and states that they have been satisfied.

The Holographic (Handwritten) Will: Legal Requirements

A holographic will is one that is written entirely in the testator’s handwriting and signed at the bottom. Unlike attested wills, holographic wills do not require testamentary formalities. There are usually two questions to answer: (1) did the person signing this document intend for it to be a valid Last Will and Testament (and not just notes, etc.) and (2) is the entire document in the handwriting of the person making it and signed at the bottom. If the answer to both is “yes,” the holographic will is probably valid.

Probate Note: The requirement that the entire holographic will be in the handwriting of the testator is not as strict as it seems. A good Mississippi probate attorney should know the loopholes. For example, under the common law “surplusage rule,” words that are not in the handwriting of the testator can be ignored if doing so would not alter the meaning of the will. So, for example, printed captions or titles would not usually invalidate a holographic will.

Probate Note: Experience has shown that holographic wills can be more difficult to probate. They are often poorly-drafted by non-lawyers, contain unclear language, and omit some of the more important provisions of a formal Last Will and Testament. Be sure to have a Mississippi probate attorney review the document carefully to spot any potential difficulties.

[1] Technically, a person who is appointed to serve as executor that is not named in the will is called an administrator cum testamento annexo (c.t.a.), a Latin phrase meaning “with the will attached.” Otherwise, the roles are the same and the terms executor and administrator cta are often used interchangeably.