Estate planners across the country are keeping an eye on Capitol Hill, where Congress is debating the future of the estate tax. The current estate tax exempts the first $3.5 million of assets from estate tax liability. In 2010 the estate tax will disappear completely, but if no action is taken the tax returns with a vengeance in 2011 at the much lower exemption rate of $1 million.
The current bet is that the 2009 rate with be extended at least for a year. Many in Congress would like to see the 2009 rate of $3.5 million per individual or $7 million per couple made permanent. A vocal group of Republicans would like to see the estate tax permanently repealed, but given their current minority status, that is unlikely. Here’s the latest from Bloomberg.com.
Th estate tax situation is obviously still developing, so stay tuned.
Tags: Estate Tax, Jackson Mississippi Attorney, Jackson Mississippi Lawyer, Mississippi Estate Planning, Mississippi Probate, Probate Attorney
Posted in Estate Planning, Estate Tax | December 16th, 2009 No Comments »
If you are the executor of an estate which possesses property situated in Mississippi, you must probate that will in Mississippi.
Mississippi law is clear that property situated in Mississippi descends according to Mississippi law, regardless of where the decedent resided or was domiciled. This is true whether the property is real or personal, and whether the estate is testate or intestate.
See Mississippi Code Annotated, Section 91-1-1 (Rev. 2004); Estate of High v. Cobb et al. No. 2008-CA-00799-COA.
Tags: Court of Appeals of Mississippi, Jackson Mississippi Attorney, Mississippi Attorney, Mississippi Probate, Mississippi Probate Attorney
Posted in Foreign Wills, Probate | November 10th, 2009 No Comments »
The Mississippi Court of Appeals recently found that Section 91-7-33 Miss. Code Ann. does not bar the initial proving of a lost foreign will in Mississippi where the will disposes of property in Mississippi. See In the Matter of the Estate of Artis High, Deceased: Arbella High Watt v. Gracie Cobb, Joe High and David High No. 2008-CA-00799-COA.
The Court of Appeals reversed a Chancery Court decision which held that where the testator was domiciled in another state, and the will was a lost will, the will could not be probated in Mississippi until it was first probated in the state of domicile.
The Court of Appeals emphasized that part of Section 91-7-33 which provides that the original “may be proven,” and aptly pointed out that the statute does not include mandatory language such as the word “must.”
Tags: Foreign Will, Jackson Mississippi Attorney, Jackson Mississippi Lawyer, Mississippi Attorney, Mississippi Court of Appeals, Mississippi Probate, Probate Attorney, Probate Lawyer
Posted in Foreign Wills, Probate | November 10th, 2009 No Comments »
A Will cannot bequeath property that the Testator does not possess. For example, if a Father decides to leave a house to his daughter by specific bequest in his Will, but then sells the house to someone else prior to his death, the bequest of the house to his daughter as contained in the Will is of no effect. This is what is known as Ademption by Extinction. See Welch v. Welch, 113 So. 197 (1927); Estate of Matthews, 791 So.2d 213, 218 (2001); Reddit v. Redditt, 820 So.2d 782 (Miss.Ct.App. 2002).
Ademption is a good reason to regularly review your Will and other estate planning documents, in order to ensure your plan will still be effective at your death. I usually recommend clients review their estate planning documents at least once a year.
Tags: Court of Appeals of Mississippi, Mississippi Estate Planning, Mississippi Probate, Mississippi Supreme Court, Probate Lawyer
Posted in Estate Planning, Probate | October 23rd, 2009 No Comments »
A couple estates have been in the news recently.
Mississippi native Steve McNair’s wife recently filed an inventory in his estate. According to the inventory, the estate’s estimated value is $19.6 million. I’m curious how much legal fees have been incurred by McNair’s failure to leave a Will. An inventory is often waived in a Will. Since McNair died intestate (without a will) his administrator, in this case his wife, was required to provide an inventory to the court. In an estate the size of McNair’s, this was probably costly, or at the very least time consuming.
Also in the news is the battle among Martin Luther King, Jr.’s heirs. I’ll bet Martin Luther King, Jr., one of the great men in our country’s history, never dreamed his family would fight over his estate one day. This is yet another example of the importance planning your estate. Who says probate isn’t interesting?
Tags: Mississippi Probate, News, Probate, Probate Attorney, Probate Lawyer
Posted in News, Probate | September 15th, 2009 No Comments »
One important function of probate is the Notice to Creditors. A Notice to Creditors performs the function implied by its title: It notifies creditors of the decedent that an estate has been opened in a given Chancery or Probate court and that all creditors have 90 days from the first publication of the Notice to Creditors in which to file any claim against the estate. Pursuant to Section 91-7-151 of the Mississippi Code Ann., any claim not registered within 90 days from first publication is barred, and no suit can be maintained as to that claim. However, existing liens on a property owned by the decedent can still be enforced even if the lien-creditor failed to present the claim. See Section 91-7-167 Mississippi Code Ann.
Tags: Mississippi Probate Attorney, Notice to Creditors
Posted in Executors, Probate | September 15th, 2009 No Comments »
So you’re an executor. Now what?
Perhaps the most important part of any Will is the naming of the executor, also sometimes referred to as the executrix (female) or the personal representative. Executor may sound like a scary word, but there’s really nothing scary about it.
Mississippi Code Annotated Section 91-7-47 requires the executor to take possession of the decedent’s estate, and manage it “for the best interest of all concerned,” consistent with the Will and the law.
In general, an executor’s duties are as follows (be sure to consult a Mississippi probate attorney when administering an estate in Mississippi):
1. Locate the original Will.
2. Hire an attorney to probate the Will.
3. The probate attorney opens the estate and the Court gives the executor Letters Testamentary.
4. Use the Letters Testamentary to locate the assets of the decedent. The Letters Testamentary is the document which shows holders of the decedent’s assets, such as banks, that you are the executor and have the authority from the Court to administer the decedent’s estate.
5. Obtain an inventory and appraisal of the estate if the Will did not waive these requirements. Many Wills do waive this requirement. Check with your probate attorney. Even when the requirement is waived it’s necessary to have a fairly good handle on the value of the estate.
6. Open an estate account. In order to do that the executor will need a Federal Tax ID number. These are easily obtained by your probate attorney or an accountant.
7. Notify creditors and pay any debts of the estate. Once known creditors are paid, the probate attorney notifies the Court through an affidavit. Then a Notice to Creditors is published in the local paper notifying unknown creditors that they ninety (90) days to file a claim or their claim with be time barred.
8. File tax returns and pay all outstanding taxes. Consult your probate attorney or tax advisor regarding paying any taxes owed by the decedent or his estate.
9. Distribute the assets of the estate to the beneficiaries and close the estate. Once the debts and taxes have been paid, the executor should distribute the assets of the estate to the beneficiaries as instructed by the Will. In some cases, a final accounting will be necessary. Upon distribution the probate attorney will seek to close the estate and release the executor from his or her duties.
Tags: Executor, Mississippi Probate, Mississippi Probate Attorney
Posted in Executors | August 25th, 2009 No Comments »
Deceased former Jackson mayor Frank Melton couldn’t stay out of court the last few years of his life and he left the door wide open to stay in Court even after his death since, according to this article in the Clarion Ledger, he did not have a Last Will & Testament. For a man of Melton’s wealth, dying intestate (without a Will), was really inexcusable, especially with his seemingly complex family situation. Melton lived in Jackson, and his wife lived in Texas.
Melton’s estate is being probated in Texas, even though he claimed to be a resident of Mississippi, lived in Mississippi, and died in Mississippi. Had the estate been probated in Mississippi, his children would have stood to inherit a third of his estate, but according to Chris Joyner’s article, Melton’s wife stands to inherit more by probating the Will in Texas. In some situations, a mess like this would lead to a contested estate. In this case it has not. Yet.
A Last Will & Testament could have clarified the jurisdiction issue by a declaration of residency. It could also have settled any questions regarding the distribution of Melton’s assets among his heirs.
How would Melton want his estate dispersed? In all likelihood, no one will ever know, because he died without a Will.
Tags: Children, Intestate, Last Will & Testament, Probate
Posted in Intestate Estates | August 20th, 2009 No Comments »
While it is a common practice in the drafting of wills for the testator to waive accounting and inventory in the probate of the estate, that does not mean the other beneficiaries lose the right to object to the mismanagement of the Estate. In Estate of Thomas: Thomas v. Thoms et al., No. 2008-CA-00462-COA, the will contained a similar waiver of accounting. However, when the executor filed his Petition to Close Estate and Discharge Executor, his siblings objected, alleging maladministration of the Estate. The Court ordered the Executor to file an inventory and accounting. Following a trial on the matter and a lengthy review of the accounting the Court surcharged the Executor $267,477.41, representing the amount of expenditures for which the chancellor could not determine the purpose of the expense. In its findings, the Court gave a detailed account for those expenses listed in the accounting for which the Executor had established a legitimate estate purpose. However, there were other expenses for which the Executor’s records did not contain a purpose for the expense:
The Court will not make further assumptions about the purpose of the remaining checks written on the Estate’s checking account given the complete incomprehensibility of the so-called accounting and the amount of time and the number of opportunities had to prepare an accounting.
The Chancery Court further stated:
The Court has painstakingly gone through the so-called accounting filed by the Executor and the copies of the more than 1,200 checks written by the Executor on the Estate’s checking account, most of which contain nothing whatsoever on the “memo line.” The Court is asked by [John] to approve his so-called accounting, but to do so would be to approve the unknown; what was the money spent for and where did it come from. The Court cannot approve such an accounting.
The Court of Appeals of Mississippi upheld the chancellor’s decision. Executors and probate attorneys should take note. Even in seemingly simple probates, it is important to keep detailed records regarding expenses. Use that memo line!
Tags: Accounting, Court of Appeals of Mississippi, Executor, Probate
Posted in Executors | August 18th, 2009 No Comments »
