Posts Tagged ‘Mississippi Probate’

Estate Tax: Will They or Won’t They?

Wednesday, December 16th, 2009

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 A vocal group of Republicans would like to see the estate tax permanently repealed, but given their current minority status, that is unlikely.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: , , , , ,
Posted in Estate Planning, Estate Tax | No Comments »

Property Located in Mississippi Must be Probated in Mississippi

Tuesday, November 10th, 2009

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: , , , ,
Posted in Foreign Wills, Probate | No Comments »

Probating a Lost Foreign Will

Tuesday, November 10th, 2009

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: , , , , , , ,
Posted in Foreign Wills, Probate | No Comments »

Ademption by Extinction

Friday, October 23rd, 2009

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: , , , ,
Posted in Estate Planning, Probate | No Comments »

Estates in the News

Tuesday, September 15th, 2009

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: , , , ,
Posted in News, Probate | No Comments »

What do Executors do?

Tuesday, August 25th, 2009

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: , ,
Posted in Executors | No Comments »