Mississippi Last Will and Testament

Introduction

Key Things to Know

1. 1

   A last will and testament is a legal document that states who receives your property when you die and names the executor (personal representative) who will administer your estate. It can also name a guardian for minor children.

2. 2

   Mississippi generally requires two witnesses. Unless the will is wholly written and subscribed by the testator's own hand, it must be attested by two or more credible witnesses in the testator's presence (Miss. Code Ann. Section 91-5-1).

3. 3

   An interested witness can void their own gift. Under Mississippi's purging statute, if a subscribing witness is also given a devise or bequest and the will cannot otherwise be proven, that gift is void, though the witness stays competent to testify and keeps a share up to what they would have received without a will (Miss. Code Ann. Section 91-5-9). Choosing witnesses who receive nothing under the will avoids this problem.

4. 4

   A self-proving affidavit is available and needs a notary. Mississippi allows proof of due execution by affidavits of the subscribing witnesses, which may be attached to or made part of the will and signed at the time of execution (Miss. Code Ann. Section 91-7-7). Because it is an affidavit, it must be sworn before a notary or other officer authorized to administer oaths.

5. 5

   A wholly handwritten (holographic) will can be valid without witnesses. If the entire will is written and signed in the testator's own hand, Mississippi does not require attesting witnesses; witnesses are required only when the will is not wholly written and subscribed by the testator (Miss. Code Ann. Section 91-5-1).

6. 6

   You must be at least 18 and of sound and disposing mind. Mississippi Code Ann. Section 91-5-1 lets a person 18 years of age or older who is of sound and disposing mind make a will by last will and testament or codicil in writing.

7. 7

   A will can be revoked by destruction or by a later writing. The testator (or someone acting in the testator's presence) can revoke a will by destroying, canceling, or obliterating it, or by a subsequent will, codicil, or written declaration that is made and executed (Miss. Code Ann. Section 91-5-3). Mississippi's wills chapter does not provide for automatic revocation on divorce, so review your will after a divorce and ask an attorney how it affects any gift to a former spouse.

Mississippi Requirements for Last Will and Testament

• Sign in Front of Two Witnesses

  Unless a will is wholly written and subscribed by the testator's own hand, current Mississippi Code Section 91-5-1 requires it to be attested by two or more credible witnesses in the testator's presence.

• An Interested Witness Can Void Their Own Gift

  Under Mississippi's purging statute, if a subscribing witness is also given a devise or bequest and the will cannot otherwise be proven, that gift is void, though the witness remains competent to testify and keeps a share up to what they would have received without a will (Miss. Code Ann. Section 91-5-9). Choosing witnesses who receive nothing under the will avoids this risk entirely.

• No Notary Is Required for the Will Itself

  A Mississippi will is made valid by the testator's signature and, unless wholly handwritten by the testator, the signatures of two or more attesting witnesses under Miss. Code Ann. Section 91-5-1. A notary is not required to make the will itself valid.

• Self-Proving Affidavit Requires a Notary

  Mississippi allows proof of due execution by affidavits of the subscribing witnesses, which may be attached to or made part of the will and signed at the time of execution (Miss. Code Ann. Section 91-7-7). Because it is an affidavit, the witnesses must swear to it before a notary or other officer authorized to administer oaths. This affidavit is optional.

• A Wholly Handwritten Will May Not Need Witnesses

  Miss. Code Ann. Section 91-5-1 requires attesting witnesses only when the will is not wholly written and subscribed by the testator's own hand, which implies a fully handwritten and signed will can be valid without witnesses.

• Testator Must Be 18 and of Sound and Disposing Mind

  Any person 18 years of age or older who is of sound and disposing mind may make a will by last will and testament or codicil in writing in Mississippi (Miss. Code Ann. Section 91-5-1).

• Revoke by Destruction or by a Later Writing

  A Mississippi will can be revoked by the testator (or someone acting in the testator's presence) destroying, canceling, or obliterating it, or by a subsequent will, codicil, or written declaration that is made and executed (Miss. Code Ann. Section 91-5-3). Mississippi's wills chapter does not provide for automatic revocation on divorce, so review your will after a divorce and ask an attorney how it affects any gift to a former spouse.

• After-Born Children Not Mentioned in the Will Can Still Inherit

  If a will is made when the testator has no living child and later fails to provide for or mention a child born after the will is signed, the will is void as to that after-born child, who takes an intestate share, unless the child dies unmarried, without issue, and under 21 (Miss. Code Ann. Section 91-5-3).