Mississippi State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Minimum age requirement to:

  • Distribute property by will: 18 (Section 91-5-1)
  • Which minor gets property: 21

Holographic will recognized (Section 91-5-1)

State taxes:

  • Estate tax: Up to 16%, and unrelated to the federal credit for state death taxes (Section 27-9-5)
  • State gift tax:Inheritance tax: No inheritance tax (Section 27-9-5)
    • No state gift tax (Section 27-9-5)
    • Anatomical Gift Act (Section 41-39-31 to 41-39-51)
  • Inheritance tax: No inheritance tax (Section 27-9-5)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 91-1-3, 91-1-7, and 91-1-11)

  • No surviving spouse, but there are surviving children:
    • All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
  • Surviving spouse and
    • Children of surviving spouse:
      • Equal shares to surviving spouse and surviving children or to their children according to their per stirpes share
      • Children not of the surviving spouse (for example your children from a previous marriage):
        • Equal shares to surviving spouse and surviving children or to their children according to their per stirpes share
        • No children and both of your parents of deceased:
          • All of your estate will pass to your spouse
        • No children, but at least one of your parents survives you:
          • All of your estate will pass to your spouse
  • At least one parent survives you, but no surviving spouse or children:
    • All of your estate will pass to your surviving parents and siblings equally or to the children of your siblings according to their per stirpes share. If none, then equally to the surviving parents
  • No spouse, children, or parents:
    • Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then to grandparents, aunts, and uncles equally or their children according to their per stirpes share. If none, then to your next of kin

Who must be named as a beneficiary in your will:

  • Surviving spouse (Section 91-5-27), andChildren, born or adopted (Section 91-5-27)
    • Surviving spouse must be given either:
      • If there are no children, then one-half (1/2) of your estate must pass to your spouse; see statute (Section 91-5-25 and 91-5-27)
      • If there are children, then one-third (1/3) of your estate must pass to your spouse; see statute (Section 91-5-25 and 91-5-27)
  • Children, born or adopted (Section 91-5-27)

Effects of changes in your marital status on your will:

  • You are divorced from the surviving spouse:
    • Does not revoke the will (Section 91-5-27)
  • You get married without changing your will that does not provide for your new spouse:
    • Does not revoke the will (Section 91-5-27)

Witnesses:

  • Minimum number of witnesses required: Two (Section 91-5-1)
  • Are witnesses allowed to be beneficiaries?: No; however, any witness named as beneficiary is still entitled to shares, but not in excess, under state intestate law (Section 91-5-9)
  • Requirements to be a witness, witnesses must:
    • be at least 18 years of age or a notary public,
    • not be the person you designated as your agent, healthcare provider, or any employee of your healthcare provider,
    • at least one witness must not be related to you by blood or marriage, and
    • at least one witness must not be entitled to anything in your will

Property ownership (Title 89, Chapter 1, Section 89-1-7):

  • Common law state
  • Ownership by two or more persons is presumed to be held as tenancy in common, unless expressly and clearly stated that a joint tenancy is created
  • Bank account deposits held jointly are payable to any survivor named in the bank account
  • Tenancy by the entirety is recognized in this state

Other types of wills:

  • Self-proving wills recognized: Yes, recognized (Section 91-7-7)
  • Living will: Instructions for Health Care (Section 41-41-209) requires you to have an incurable and irreversible condition that will result in death within a relatively short time, become unconscious and, to a reasonable  degree of medical certainty, will not regain consciousness, or the likely risks and burdens of treatment would outweigh the expected benefits
  • Mississippi Advanced Health Care Directive which contains the Power of Attorney for Health Care and Instructions for Health Care (Section 41-209)
  • Durable Power of Attorney (Section 87-3-1)