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Common Misconceptions About Dying Without A Will: #3

Dying Without a Will

For various reasons, many Mississippians are hesitant to discuss documents like a will or an advance healthcare directive. Some don’t want to think about their own demise. Others feel like drafting a will is tantamount to admitting death is imminent, and who would want to advance his or her own decline, however superstitiously? In the absence of discussion, misconceptions sprout and are passed along. The following is Misconception #3:

3. Only Wealthy People Need To Have a Will.

Many people think they don’t need a will unless they are wealthy. I’m frequently told, “We just don’t have any money to fight over.”

This “wealthy-only” misconception is probably driven, at least partly, by the cinematic trope of a wealthy industrialist’s heirs crammed into a lawyer’s office to await the reading of the will. People have always been fascinated with the divvying up of large inheritances. I’m often asked if a will can only be opened at a lawyer’s office (the answer is no, wills can be opened anywhere).

But what if you have only a small amount of property? What benefit does a will provide?

First, a will names one of your children or descendants (or a trusted friend) as executor. In a period of grief, the last thing your heirs should worry about is which of them is most fit to manage your estate. Naming an executor in your will relieves them of that painful decision.

Second, a will allows you to nominate a guardian for your children. If, tragically, you and your spouse pass away simultaneously, your children may be left without certainty with regard to who should serve as guardian of your children. Even if you have a previous verbal agreement with relatives, failing to formally name a guardian in a will can leave your relatives with additional steps to take and uncertainty to weather.

Third, a will reduces the chances of unrest among your heirs. By stating clearly how you want your estate handled, your children or other survivors will know that they are carrying out your wishes. This certainty will allow them to rest easier during the grieving process. It also reduces, for years to come, second-guessing of the way the estate is handled.

There are a number of additional benefits to drafting a will. It is very important to contact a qualified attorney who can point out these benefits, as well as potential pitfalls, in your estate planning.

Common Misconceptions About Dying Without a Will: #2

Dying Without a Will

For various reasons, many Mississippians are hesitant to discuss documents like a will or an advance healthcare directive. Some don’t want to think about their own demise. Others feel like drafting a will is tantamount to admitting death is imminent, and who would want to advance his or her own decline, however superstitiously? In the absence of discussion, misconceptions sprout and are passed along. The following is Misconception #2:

2. All my father’s land is going to stay in the family, so there is no need for any type of probate proceeding.

I hear this statement frequently. It usually arises in the following scenario: The last surviving parent passes away and the children decide not to go through the probate process. “He had no debts” or “She has nothing but land” – so no probate action is taken.

In Mississippi, when a person dies, their property is instantly vested in their heirs at law, whether by a will or by the law of intestate succession (for more on intestate succession, see here). However, this ownership interest does not convey free and clear title to such heirs. The property may be encumbered by debt; often this debt is unknown to family members and sometimes even to the person who died.

Even if the land is not encumbered by debt, many of the privileges of land ownership are inaccessible without clear title to the property. For instance, one of the children may wish to obtain a mortgage to build a house on the property. Or perhaps the heirs want to borrow against a portion of the land.

It is almost certain that one or more of the heirs will require clear title at some point. Nevertheless, many families choose not to probate the claim. Many of these choices are influenced by two factors: (a) perceived cost and (b) lack of education about the probate process.

The eventual result of this failure to probate often shows up in my office: family land that has not been probated for ten, twenty, or thirty or more years. Often called “heir land,” what would have been a simple and relatively inexpensive probate suddenly becomes a massive web of heirs, known and unknown.

For example, say Grandfather Smith owned 1000 acres of property. He died (without a will) after Grandmother, and Grandfather’s children did not probate the property. Years later, Granddaughter Smith wants to borrow against her share of the property. Now Granddaughter must obtain clear title.

Granddaughter knows that Grandfather had six children and that she is one of twenty-two grandchildren. She finds out that Grandfather actually had two children before he was married, and those children have ten grandchildren. Two of Grandfather’s children have died. One of the Grandchildren died tragically early, leaving two children of her own.

What often follows is a search for persons who may range in age from newborn to 100 or more, often scattered across the country. In the process of the search, additional children of Grandfather may be discovered, requiring searches for additional persons.

It’s not unusual for this process to take months or even years.

Once the heirs have all been located and notified of the proceedings, then comes the tedious task of determining what percentage, or share, of the property belongs to each heir. Mississippi distinguishes between heirs of different bloodline distances from the person who died. Property is distributed accordingly and is called distribution per stirpes (as opposed to treating heirs equally, which is called per capita).

For instance, if Grandfather had eight total children and all children were still living, each child would have obtained a 1/8 share, or 125 acres each. However, because the property was not probated, some heirs have died and many have been born. One of the deceased children of Grandfather left behind four living children of her own. Each of these divide her 1/8 share, so each gets a 1/40 share, or 25 acres. This deceased child also had the tragically deceased Grandchild, who left behind two Great-Grandchildren. Each of these Great-Grandchildren divide their deceased parent’s share, and each get 1/80, or 12.5 acres.

Even when this exhausting process is complete, Granddaughter Smith is not done. Some of the land is swamp while the rest is filled with valuable timber. Since the land is not equally valuable, a judge (possibly with the help of a panel of “special commissioners”) may have to decide how it is divided or may even order it sold.

With all the work required to untangle what has become a mess, Granddaughter Smith has incurred significant legal fees and stress. If you are dealing with a land or probate matter, it is important to consult with a qualified attorney. You might just save yourself, or your children, a lot of heartache.

(It should be noted that these examples make certain assumptions for the purposes of illustration, and are not to be used as a definitive guide in your own circumstances.)

Common Misconceptions About Dying Without a Will: #1

Dying Without a Will

For various reasons, many Mississippians are hesitant to discuss documents like a will or an advance healthcare directive. Some don’t want to think about their own demise. Others feel like drafting a will is tantamount to admitting death is imminent, and who would want to advance his or her own decline, however superstitiously? In the absence of discussion, misconceptions sprout and are passed along. The following is Misconception #1:

1. When I die, all my property goes to my spouse.

When you die without a will, you are said to have died intestate (as opposed to dying with a will, which is known as dying testate). (Side Note: Autocorrect often wants to change “intestate” to “interstate,” which results in some legal documents appearing to claim that someone died with his or her body lying across the state line.)

When you die intestate, your property is distributed according to the laws of intestate succession, a system that determines your closest living relatives. While this seems simple at first, when represented in visual form it becomes a dizzying diagram of ever-expanding “circles” or degrees of relation. The innermost circle represents your spouse, if you’re married, and your children, if any. If you have never had children and you are married to your first spouse, then generally all your property will go to your spouse. So this misconception is, in fact, true in this limited circumstance.

However, if you have children, your property is divided between your spouse and your children. For instance, if you have one child, that child inherits half of your property and your spouse inherits the rest. This situation may not pose much difficulty if the child is young and your spouse can serve to hold the property in trust until the child is older.

Things start to get more complicated if you have a blended family. For example, if you are married to your second spouse and have children both from your first and second marriage, your property will be split in equal parts between your current spouse and each of your children. If any of your children from the first marriage are still minors, the property will likely have to be held in trust. The trustee for the child is often their natural parent; in this case, your first spouse. Under these circumstances, your first spouse could end up effectively co-owning (as trustee) property with your second spouse!

Division of property can become infinitely more complicated depending on the circumstances. While it’s true that some property passes outside the estate (think of a deed to property with “right of survivorship” or a bank account with a “payable on death” beneficiary), and that other circumstances can effect the outcome (such as your surviving spouse’s homestead and allowance rights), it’s easy to see how dying without a will can lead to some unusual and unexpected results.

At the very least, it’s important to educate yourself and actively choose whether or not to have a will. Hoping for immortality while failing to plan ahead could leave your loved ones in a difficult spot. Take the time to sit down with a qualified attorney and learn the implications of dying without a will as it applies to your specific situation – then make the decision to will or not to will.

Guardians Ad Litem - An Introduction

Guardian Ad Litem

The third in a series on child custody.

Sometimes in a custody action a judge will appoint a guardian ad litem. What is a guardian ad litem, and how do they play a role in a Mississippi child custody case?

A guardian ad litem is an attorney who must take annual training and register with the Bar to fulfill this important role. The guardian ad litem essentially acts as the judge’s eyes and ears in investigating questions about the best interests of the child or children in the custody suit.

Judges are required to appoint a guardian ad litem in certain situations, such as contested adoption actions or when abuse or neglect is alleged. In other cases, judges have the discretion to appoint a guardian ad litem to assist in custody issues.

Once appointed, the guardian ad litem is granted the power and responsibility to investigate on behalf of the court. An investigation usually includes interviews and in-home visits with the parties and children. The guardian ad litem may also request documents, conduct background checks, interview witnesses and employ other methods depending on the circumstances of the case.

At the conclusion of the guardian ad litem’s investigation, he or she will usually present a written report of all the investigation’s findings. Many judges require the guardian ad litem to present an Albright factor discussion (for more on the Albright factors, see this blog post) along with their recommendations as to which parent should have custody. (Note: Some judges strictly enforce a rule that only the attorneys may receive a copy of the report – the parties may only review the report in their respective attorney’s presence.)

While the guardian ad litem’s recommendation is not binding upon the judge, it is often followed. In fact, if the recommendation of the guardian ad litem is not to be followed, judges generally must state, on the record, their reasoning for rejecting the recommendation.

The appointment of a guardian ad litem significantly impacts a custody action. If you are or will be involved in a custody action, it is very important to seek out the advice of a qualified family law attorney.

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