Adams & Edens, P.A. | Mississippi Probation Litigation Law Blog » Jackson Mississippi Attorney

Prenuptial Agreements – An Important Estate Planning Tool

admin — Thu, 08 Jul 2010 14:39:03 +0000

One of the estate planner’s most important planning tools is a prenuptial agreement. Prenuptial agreements are especially important for those who are entering into second marriages with children from a first marriage, or where one of the parties has a substantial estate prior to the marriage. Prenuptial agreements are often used in second marriages for the purpose of ensuring that the estate is preserved for children and others. Statistics show that second marriages have a high rate of divorce, so the use of an effective prenuptial agreement lessens the risks involved in entering into another committed relationship. Prenuptial agreements are also a valuable tool for ensuring family businesses stay in the family.

Important Tips for an effective prenuptial agreement:

1. For reasons that should be obvious, don’t wait until the day before the wedding to discuss the prenuptial agreement.
2. Discuss the prenuptial agreement with each other openly.
3. Discuss all of your assets with each other, as full disclosure is necessary for a valid prenuptial agreement.

Many people do not get prenuptial agreements because they believe it only increases the likelihood the marriage will fail, however, this is a cynical view of marriage. After all, marriage shouldn’t be about assets. For most of us, marriage is about love and commitment. If the only tie that binds is the thought of splitting assets, that’s not a commitment. Oftentimes, a prenuptial agreement is the only truly responsible way to enter into marriage.

Executors: Fiduciary Duty and Conflict of Interest

admin — Fri, 07 May 2010 21:46:57 +0000

Executors owe a fiduciary duty to the estate they are administering. The Mississippi Supreme Court defines the obligations and duties of an executor to (1) reduce to possession the personal assets of the testator; (2) to pay the testator’s debts; (3) to pay legacies; and (4) to distribute the surplus to the parties entitled thereto. See Yeates v. Box, 198 Miss. 602, 22 So.2d 411 (1945).

Mississippi law clearly provides that when an executor violates his or her fiduciary duty to the estate, that executor should be removed. Likewise, where an executor has a conflict of interest with the estate, that executor should resign be removed.

“An executor may not take inconsistent positions which would be detrimental to the heirs on the one hand and beneficial to himself on the other. When an executor finds his own interest in conflict with those of the estate, the sanctity of the fiduciary relationship is invaded and he should immediately resign as executor.” See In the Matter of Chambers, 458 So.2d 691 (Miss. 1984), citing Ratliff v. Ratliff, 395 So.2d 956 (Miss. 1981).

Revocation of Prior Wills

admin — Wed, 24 Mar 2010 15:12:39 +0000

It’s not uncommon to execute more than one will in your lifetime. In fact, estate planners recommend you have your will and estate plan reviewed on a periodic basis in order to ensure your estate will be distributed effectively and in a way that makes sense. After all, circumstances change. When a new will is executed, prior wills are revoked. Even though this is true, it is good practice to destroy prior wills to avoid possible confusion later.

In the Matter of Woodfield, 968 So.2d 421 (Miss. 2007), the Mississippi Supreme Court considered whether the withdrawal of a probated will containing such a revocation clause revived an earlier will. In this case, the executor initially sought to probate a will created by the testator in 2001. When a contest arose, the executor withdrew the 2001 will and sought to probate a will that had been signed by the testator in 1973. Importantly, the 2001 will had a clause revoking all prior wills. The executor argued that the withdrawal of the 2001 will revived the 1973 will. The Mississippi Supreme Court said that if the 2001 will was properly attested and executed, the 1973 will was revoked upon execution of 2001 will. Additionally, the Court cited case law from as far back as 1855, which stated, “a will duly executed according to the statutes, though prevented from taking effect in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made to take, is a revocation of a former will.” Crosby v. Alton Ochsnew Medical Foundation, 276 So.2d 661, 669 (Miss. 1973) quoting Vining v. Hall, 40 Miss. 83, 107 (1866). See also Hairston v. Hairston, 30 Miss. 276 (1855).

Estate Tax Update

admin — Tue, 09 Mar 2010 14:59:33 +0000

For those of you out there wondering just what is going on with the estate tax right now, here’s a good article by Kathy Kristof with a synopsis of what’s happening with the tax and what you might expect in the future. With these fluctuations in the estate tax, now is the time to plan your estate. If you already have a will, visit an attorney and review it to make sure your estate is protected for 2011!

Estate Tax: Will They or Won’t They?

admin — Wed, 16 Dec 2009 15:32:18 +0000

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.

Property Located in Mississippi Must be Probated in Mississippi

admin — Tue, 10 Nov 2009 23:48:22 +0000

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.

Probating a Lost Foreign Will

admin — Tue, 10 Nov 2009 23:04:44 +0000

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.”