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No will, no control

If a person dies suddenly without a last will and testament, the Mississippi intestacy laws govern what happens to the assets that pass through the decedent’s estate probate process. That is why you often hear people say “the state” decides who gets the assets if you don’t have a will. Without a valid last will and testament, trust or other estate plan in place, you may have no control over who receives assets after your death. Further, intestacy laws may not apportion assets the way that you would have wanted.

For instance, most people believe a spouse automatically inherits everything in the estate upon a husband or wife’s death; however, without a properly worded deed and estate documents, that won’t necessarily happen. Under intestacy laws, with a couple of exceptions such as homestead rights and a year’s living allowance, a spouse gets a “child’s share,” meaning the estate is divided into shares depending on the number of children — with the spouse taking the same size “share” or portion as a child. So, the more children, the smaller the spouse’s share.

If a child has died before the parent, leaving children of his or her own, those grandchildren (children of that deceased family member) stand in the place of their deceased parent when it comes to inheritance. So, grandchildren may end up splitting what would have been their parents’ one share. Also, a full-blood sister or brother may inherit to the exclusion of a half-blood sister or brother, and no provision is made for stepchildren in intestacy law.

As you can see, determining exactly who should inherit what can be complicated without a last will and testament, and the family does not get to follow the wishes of the deceased family member without one. Therefore, preparing at least a simple will helps a loved one control what happens to his or her assets after death.


Van Zutphen is an attorney licensed to practice law in Alabama and Mississippi. She focuses on the “elder law” areas of trusts, estates and conservatorships. Additionally, she litigates lawsuits and represents small business owners as part of her legal practice. Visit her website to learn more: www.al-mscoastallaw.com or reach her at her office: (228) 357-5227.

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