Following are answers to questions that the lawyers at the Hancock Law Firm frequently encounter as we help people in the metro Jackson area with wills, trusts and estate planning, divorce and family law, auto accidents and personal injury, DUI and criminal defense, business entity formation and other business services. If you have other questions, or if you need advice or representation in any of these areas or another criminal or civil legal matter, please contact the Hancock Law Firm to speak with one of our attorneys.

Q. What are the requirements for a valid will in Mississippi?

A. Like other states, Mississippi requires that a will follow certain formalities or technicalities in order to be valid. The person making the will (the testator) must be at least 18 years old and of sound mind, meaning the person understands he or she is making a will and understands the nature of the estate that is being disposed of. The will must be signed by the testator in front of two credible witnesses, who must also sign the will. If the testator cannot physically sign the will, another person can do so at the testator’s direction and in the presence of the testator and the witnesses. If the witnesses did not witness the signing of the will, they can still sign if the testator acknowledges to them that this is the proper will and the proper signature.

Under certain circumstances, Mississippi also recognizes the validity of a holographic will, which is a will written entirely in the testator’s handwriting and signed at the bottom.

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Q. Should I get a prenuptial agreement before I get married?

A. Premarital or prenuptial agreements can be beneficial to both spouses. A prenuptial agreement is an enforceable contract entered into by two people contemplating marriage which becomes effective upon marriage. With a prenuptial agreement, the parties can agree beforehand on certain issues such as the division of marital property or the payment of spousal support (alimony) in the event of legal separation or divorce, death, or some other event.

A prenuptial agreement lets the couple enter into marriage with security and peace of mind that they will be taken care of and not taken advantage of in the case of a divorce. While any couple can benefit from a prenuptial agreement, they are most often used where one party owns a business or has significantly more assets or wealth than the other party, or where one or both parties have been married before and gone through a painful divorce. Our office can help negotiate and draft a prenuptial agreement that is valid, enforceable and meets your needs.

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Q. I was waiting in a turn lane when I was violently rear-ended, but the other driver’s insurance company says the accident was my fault because I didn’t have my blinker on. Can they refuse to pay?

A. Mississippi law follows the rule of pure comparative negligence. This means that if you are partly to blame for causing the accident, then the amount of compensation you recover will be reduced proportionately to your fault. It does not prevent you from recovering compensation for your damages, however. Even if you were found to be 90% at fault, you could still recover 10% of your damages from the other negligent driver.

If the insurance company is blaming the accident on you, this may just be a tactic to try to avoid paying or to minimize their liability. Make sure you are represented by an experienced auto accident attorney. If you and the insurance company disagree over who was at fault, the matter may need to be tried to a jury, and they will be the ones to decide who is to blame for the car crash, not the other driver’s insurance company.

Q. Is it better to form a partnership or a corporation?

A. Partnerships and corporations are different business structures which each offer unique advantages and disadvantages that the other one doesn’t. The biggest differences are perhaps in regards to taxation and liability. A partnership tends to offer more favorable tax treatment to the owners, while exposing them to liability for debts of the corporation. Corporate officers, on the other hand, are generally shielded from liability but subject to double taxation. There are other concerns as well which may cause you to favor one type of business entity over the other.

Another option to consider is forming a limited liability company. An LLC is a sort of hybrid entity that offers the favorable tax treatment of a partnership with the liability protection of a corporation. Contact our office to discuss your business needs and goals with an experienced Mississippi business formation attorney.

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