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If you pass away without a will (intestate), your state’s laws of descent and distribution will automatically determine who inherits your property. These laws differ by state, but generally, your assets would go to your spouse and children, or if you have none, to other relatives. The state’s plan is often based on what the legislature believes most people would want and includes protections for certain beneficiaries, especially minor children. However, this plan might not align with your personal wishes, and some protections may be unnecessary in a harmonious family. By creating a will, you can customize the state’s default plan to fit your preferences and make decisions that broad state laws cannot address.

A will outlines how certain property you own at the time of your death will be distributed, and generally, you can dispose of such property as you wish. However, your right to distribute property may be limited by forced heirship laws in most states, which prevent you from disinheriting a spouse and, in some cases, children. For instance, many states have spousal rights of election laws that allow a spouse to claim a portion of your estate regardless of what your will or other documents specify.

Your will does not control the distribution of property governed by beneficiary designations or titling, which passes outside your probate estate. This includes assets like property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits. These assets automatically transfer to another person upon your death, and your will does not apply to them unless they are designated to your estate.

Your probate estate consists only of assets subject to your will or state intestacy laws if you have no will, and over which the probate court (the Chancery Court in Mississippi) has authority. Therefore, reviewing beneficiary designations, in addition to preparing a will, is a crucial part of the estate planning process. It’s important to note that whether property is part of your probate estate does not affect whether it is part of your taxable estate for estate tax purposes.

Wills can vary greatly in complexity and can serve a wide array of family and tax-related purposes. A will that simply distributes assets directly is known as a simple will. When a will establishes one or more trusts upon your death, it is called a testamentary trust will. Alternatively, a will that directs assets to an existing trust created during your lifetime is referred to as a pour-over will. Such trusts are commonly known as revocable living trusts. These trusts, whether pre-existing or created by the will, are generally used to manage property, protect against divorce and creditors, safeguard heirs from mismanagement, make charitable provisions, or minimize taxes.

In addition to determining how your property will be distributed after your death, a will can achieve several other important goals.

• You can name a guardian for your minor child or children, which helps reduce court involvement in their care. By setting up a trust and appointing a trustee to manage assets for your children, you can avoid the need for a bond (a financial guarantee for the trustee’s performance) and prevent court oversight of the minor children’s inherited assets.
• You can appoint an executor (personal representative) for your estate and, in some states, waive the need for a bond for them. Choosing an independent executor or opting out of certain state statutes might also eliminate the need for court supervision during the estate settlement process.
• You can provide for individuals who might not benefit under state intestacy laws, such as stepchildren, godchildren, friends, or charities.
• If you are a custodian of assets for a child or grandchild under the Uniform Gifts to Minors Act (UGMA) or Uniform Transfers to Minors Act (UTMA), you can designate a successor custodian, potentially avoiding the cost and complexity of a court appointment.

A will doesn't control how some assets are passed on, known as non-probate property. These assets go to someone else automatically when you die, either by law or because of a contract. For example, property and other assets owned jointly with right of survivorship automatically go to the surviving owner. Similarly, an IRA or insurance policy that names a specific beneficiary will go directly to that person, no matter what your will says.

Wills need to be signed in front of witnesses and follow specific rules, or they might not be valid. In many states, if a will is signed in front of witnesses and notarized, it’s considered "self-proving," meaning it can be accepted by the court without needing extra proof or witness testimony. Even if a will is eventually considered valid despite some mistakes, dealing with these issues can be expensive and complicated. It’s best to get it right the first time.

If you need to make changes to your will later, you should use a codicil, which must be signed with the same formalities as the original will. Be careful with codicils because they can cause problems if they create confusion with the original will’s terms.

In some states, a will can include a separate memorandum for distributing personal items like furniture, jewelry, and cars. This memorandum can be updated without changing the will itself. However, be cautious with this approach, as inconsistencies or sloppy updates can lead to confusion or disputes.

Probate is the legal process used to settle an estate after someone dies, whether or not there is a will. If there is a will, probate confirms the will’s validity and appoints an executor to manage the estate and distribute the assets to the beneficiaries. If there is no will, the court will appoint an administrator, who is usually someone interested in the estate, like a family member or even a creditor of the estate.

An attorney is necessary to guide you through the process. They will determine if probate is required, whether the executor or administrator needs to be bonded (a requirement that can sometimes be waived), and what reports must be filed. Probate typically takes at least four months and can be longer. The process is public, and you will need to hire an attorney and pay their fees if probate is necessary.

Whether managing an estate through probate or using a living trust or joint ownership, essential tasks like asset management and accounting must be completed. When deciding whether to avoid probate, consider potential issues such as disputes among heirs, privacy concerns, and simplicity.

A living trust is a tool designed to help you "avoid probate" after your death. However, many types of property automatically bypass probate even without a trust. This includes life insurance or retirement account proceeds, which go directly to named beneficiaries, and real estate or bank and brokerage accounts held jointly with right of survivorship.

For property to pass through a living trust and thus avoid probate, the trust must be properly funded. This means transferring ownership of your assets to the trust. Additionally, a simple will, often called a "pour-over will," is needed to transfer any remaining assets into the trust if they were not transferred during your lifetime.

When property is transferred through a revocable living trust, it must be moved into the trust, managed by a trustee (who may charge fees), and then distributed to the beneficiaries. Depending on your location, there may be additional costs like real estate transfer taxes or fees. It's important to weigh these costs against the benefits of avoiding probate. The decision to use a living trust versus probate should be evaluated based on individual circumstances.

Living trusts can be very valuable in estate planning. When properly created and managed, they can effectively handle your assets in the event of illness, disability, or aging. Given the increasing number of elderly individuals, incorporating living trusts into estate plans to protect against financial abuse and similar issues can be a crucial consideration.

Trusts are flexible legal arrangements that allow for customized management of assets, helping you and your heirs achieve important personal goals that might be difficult otherwise. A trust involves a trustee—who can be an individual, a group of people, or a corporate trust company—holding and managing property according to the terms set out in a written trust document. The trustee is the legal owner of the property, while the beneficiaries are the individuals who actually benefit from it. A person can be both a trustee and a beneficiary of the same trust.

When you create a trust, you are known as the grantor or settlor. There are two main types of trusts:

1. Testamentary Trust: Created through your will, with the trust terms outlined in the will.
2. Living Trust (or Inter Vivos Trust): Established during your lifetime, with terms set out in a separate trust agreement. This type of trust usually governs the distribution of property upon your death, rather than relying on your will or state laws.

Living trusts can be either:

• -Revocable: You can change or cancel the trust during your lifetime.
• -Irrevocable: Once established, it cannot be changed or canceled by you.

Trusts are not just for the wealthy. Many young parents with modest assets use trusts to provide for their children if both parents die before their children are mature enough to manage property. A trust allows assets to be held together and used for the support and education of minor children based on their needs. The trust can then be divided among the children when the youngest reaches a predetermined age. This approach is often more flexible and responsive to individual needs compared to dividing property equally among children regardless of their age or maturity. 

Much has been discussed about "living trusts" (also known as "revocable trusts," "inter vivos trusts," or "living trusts") as a way to handle various estate planning issues that a will alone might not address. Some attorneys strongly recommend these trusts, while others think their benefits may be overstated. Deciding whether to use a living trust requires careful consideration of several factors.

A "living trust" is a trust that you establish during your lifetime. It can help you manage your assets and provide protection if you become ill, disabled, or face challenges due to aging. Most living trusts are revocable, meaning you can change or cancel them at any time. However, because you retain the power to alter the trust, it does not help you avoid estate taxes; the assets remain part of your estate. On the other hand, living trusts do help you avoid probate, which can be beneficial depending on the complexity and cost of the probate process in your estate.

A living trust is effective while you’re alive and involves a trustee who manages the trust property according to your instructions. You can be the trustee, or you can name someone else, or a co-trustee, to assist you. During your lifetime, the trustee, which can be you, manages the property for your benefit. After your death, the trustee is responsible for either distributing the property to your beneficiaries or continuing to manage it for them. Unlike a will, a living trust can also provide for managing your assets while you are alive and designate the trustee to handle the property if you become incapacitated, thus avoiding the need for a court-appointed guardian. A revocable living trust, if properly setup, is too difficult to manage and provides many positive benefits. 

You can also create an "irrevocable" living trust, which cannot be changed or canceled once established. You can however retain certain powers within trust, such as the power of appointment, to change the Trustee, and other powers to influence how the trust is managed and disbursed.  These trusts are usually set up for specific tax benefits or asset protection, the details of which is beyond the scope of this summary.  The trustee is usually an independent third party, bank or professional trustee.  There are many different types of trusts for different purposes and objectives. 

You may be eligible for retirement benefits through your employer’s benefit plan or have an Individual Retirement Account (IRA) or Roth IRA. Generally, a deferred compensation or retirement plan provides benefits to beneficiaries you designate if you pass away before retirement. After you retire, you can choose a benefit option that continues payments to one or more of your designated beneficiaries after your death.

It can be beneficial to have these benefits paid to trusts, but naming a trust as a beneficiary can introduce complex issues related to income tax, estate planning, and more. Also, in many cases, the law requires naming your surviving spouse as the beneficiary of certain retirement plans and spousal annuities, which can only be waived with their signed consent. It’s important to get expert advice on this matter.

If you’re eligible to start receiving retirement benefits, the different payment options can have various tax implications. Be sure to consult with a knowledgeable advisor to understand your options and the tax effects of each.

If you have a life insurance policy, you have two main options for how the proceeds will be handled after your death:

1. Designate Beneficiaries: You can name one or more people to receive the insurance proceeds directly.
2. Payable to Estate or Trust: You can make the proceeds payable to your probate estate or to a trust you’ve set up during your lifetime or through your will.

If the proceeds go to your estate, they will be distributed according to your will or, if you don’t have a will, according to state intestacy laws. If the proceeds are paid to a trust, they will be managed and distributed according to the trust’s terms and may be protected from creditors' claims. 

If insurance proceeds are paid directly to a minor child, a court may need to appoint a legal guardian or conservator. You can avoid this by naming a trust or a custodial account under the state’s transfers-to-minors law as the beneficiary. Trusts are often used for insurance proceeds to protect against creditors, manage divorce issues, plan for income taxes, and provide professional management of the funds.

Insurance is a key part of financial, retirement, and estate planning, and should be aligned with your overall estate plan. The tax implications of insurance proceeds can be complex, so it's crucial to review your insurance matters with both your attorney and insurance advisor. Make sure to review your insurance coverage every two or three years to ensure the policy is performing as expected, the insurer is financially stable, and that the policy ownership and beneficiary designations match your current wishes.

Creating your own will or trust using DIY websites, software, or bookstore kits might seem like a cost-effective and time-saving option. However, these methods often fail to address all your specific needs. Only a qualified estate planning lawyer can expertly navigate the intricate laws surrounding property rights, taxes, wills, probate, and trusts. If you request just one form from us, we will explain that estate planning involves much more than a single document that may not suit your unique circumstances. We draft documents only after thoroughly understanding your story, needs, and desires. Our focus is on comprehensive estate planning, with the documents being a byproduct of this detailed process.

To prepare for your meeting with us, we will ask you to organize information about your assets, debts, and how they are titled. Consider how you wish to provide for different family members. We will provide questionnaires to assist with this process and request that you bring copies of important documents such as previous wills, trusts, powers of attorney, insurance policies, employment benefits, and any prenuptial or divorce agreements.

After meeting with you and understanding your circumstances, you will select the plan that best fits your needs. Our fees are fixed flat rates, provided in writing and chosen by you in advance, ensuring there are no billing surprises. We never charge by the hour because we want to keep the lines of communication open.

Remember, you’ve worked hard to build your assets and achieve your goals. Trusting an experienced attorney is essential to creating an estate plan that accurately reflects your wishes and meets your personal objectives. Attempting to handle estate planning on your own could lead to costly legal disputes, far exceeding the expense of working with a professional.