Mississippi Living Trust

Introduction

Key Things to Know

1. 1

   Mississippi requires a signed writing to hold real property in trust, and an oral trust of real property is void (Miss. Code Ann. Section 91-8-407(b)(1)). Yet Section 91-8-601 expressly says neither a revocable nor an irrevocable trust has to be executed with the formalities of a will, so no witnesses or notary are needed for the trust instrument itself to be valid.

2. 2

   Mississippi is a domestic asset protection trust state through the Qualified Disposition in Trust Act, Miss. Code Ann. Sections 91-9-701 to 91-9-723, contrary to what many readers assume. That protection reaches only an irrevocable trust meeting strict conditions, including at least $1,000,000 of liability insurance on the transferor. An ordinary revocable living trust gets none of it and stays exposed to the settlor's creditors during life under Section 91-8-504(a)(1).

3. 3

   A Mississippi bank or brokerage will generally ask for a certificate of trust attested by a notary public before honoring your trustee's authority. Miss. Code Ann. Section 91-8-1013 requires that notarization, a formality beyond the bare model trust code text and beyond several peer states' versions of the same section.

4. 4

   Funding Mississippi real estate into the trust means recording the deed with the clerk of the chancery court of the county where the land lies, not a county recorder, and the deed must be acknowledged before a notary to be admitted to record (Section 91-8-407(b); Section 89-3-1). Mississippi has no real estate transfer or documentary stamp tax, and a short memorandum of trust can be recorded instead of the full instrument, keeping the dispositive terms off the public record.

5. 5

   Whether Mississippi's homestead exemption survives once a residence is deeded into a revocable trust is unresolved. Miss. Code Ann. Section 85-3-21 exempts up to $75,000 of equity in up to 160 acres owned and occupied as a residence, but the statute is silent on trusts and contains no carve-out like Arizona's for a residence retitled into a trust. Ask a Mississippi attorney before relying on either answer.

6. 6

   Mississippi never adopted a modern elective share or augmented estate. A surviving spouse dissatisfied with a will may renounce it under Miss. Code Ann. Section 91-5-25 and take an intestate share instead, capped at one-half if there is no descendant, but that right reaches only the probate estate administered under the will, not assets a settlor placed in a revocable trust during life.

7. 7

   A Mississippi trust can run far longer than the ordinary 90-year rule against perpetuities allows. Under the Mississippi Uniform Statutory Rule Against Perpetuities, Miss. Code Ann. tit. 89, ch. 25, Sections 89-25-1 to 89-25-15, a trust that caps its own duration at 360 years, elects Mississippi law, and gives the trustee power to sell trust property is excluded from the rule entirely, well beyond the plain 90-year wait-and-see period the statute otherwise sets.

Mississippi Requirements for Living Trust

• Mississippi Signed Writing Required for Real Property Trusts

  Miss. Code Ann. Section 91-8-407(b)(1) voids an oral trust of real property and requires a signed writing or a will. No notary or witness is required for the trust instrument's validity, and Section 91-8-601 expressly frees the trust from will-execution formalities.

• Mississippi Notarized Certificate of Trust

  Miss. Code Ann. Section 91-8-1013 requires a certification of trust to be attested by a notary public, a formality beyond the model trust code. Mississippi banks and brokerages generally require this notarized certificate before honoring a trustee's authority.

• Mississippi Funding Recorded with the Chancery Clerk, No Transfer Tax

  A deed funding Mississippi real property into the trust is recorded with the clerk of the chancery court of the county where the land lies, not a county recorder, and must be acknowledged before a notary (Section 91-8-407(b); Section 89-3-1). Mississippi has no real estate transfer or documentary stamp tax.

• Mississippi Memorandum of Trust for Privacy

  Instead of recording the full trust instrument, Section 91-8-407(b)(2) lets the settlor or trustee record a brief memorandum of trust, keeping the dispositive terms off the public chancery court record while still giving constructive notice of the trust.

• Mississippi Homestead Exemption Unresolved for Trust-Held Residences

  Section 85-3-21 exempts up to $75,000 of equity in up to 160 acres owned and occupied as a residence, but is silent on trusts. Whether the exemption survives a residence being deeded into a revocable trust is not resolved by Mississippi statute or confirmed case law.

• Mississippi Qualified Disposition in Trust Act for Irrevocable Trusts Only

  Miss. Code Ann. Sections 91-9-701 to 91-9-723 make Mississippi a domestic asset protection trust state, but only for an irrevocable qualified disposition trust meeting strict conditions, including at least $1,000,000 of liability insurance on the transferor. A revocable living trust remains exposed to the settlor's creditors during life under Section 91-8-504(a)(1).

• Mississippi No Augmented Estate; Will-Renunciation Right Reaches Only the Probate Estate

  Miss. Code Ann. Section 91-5-25 gives a surviving spouse only an old-style right to renounce a will and take an intestate share, capped at one-half absent a descendant, reaching the probate estate alone. It does not extend to a settlor's revocable trust assets.