Frequently Asked Questions
Following are answers to questions that the lawyers at the Hancock Law Firm frequently encounter as we help people in the Madison County 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.
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. A will that is written entirely in the maker’s own handwriting and signed by the maker is known as a holographic will. A holographic will can be accepted in the state of Mississippi even if it was not witnessed. However, it may be difficult to prove or easy to challenge a holographic will in probate court. The court will require proof that the handwriting is that of the testator, and also that the person intended for that document to be a will and not just some notes or a draft for some future formal will that was never executed. Probate is the process of “proving” a will. When a will is submitted to probate, the judge may require the witnesses who signed the will to testify about the circumstances surrounding the signing of the will, in order to accept the will as valid. However, if the will was signed before a notary, then the court will accept the notarized will without having to call in any witnesses. Such a notarized will is “self-proving.” If you did not sign the will in the presence of a notary, you can still gather up your witnesses and go see a notary later, and sign an affidavit to make the will self-proving. This saves time and expense later by simplifying the probate process. A trust has many benefits to recommend it. The main reason to have a trust is that the property you place in trust does not have to be probated. Placing your assets in trust will reduce the time and expense of the probate process for your heirs and beneficiaries. Another attractive feature of the trust is that it is a private document, whereas your will becomes a matter of public record after you die. If you want the contents of your estate to be kept in a more confidential manner, the trust offers that level of privacy. Also, trusts are typically more difficult to challenge or contest than wills, so you have a degree of security that the trust you create will be given legal effect after you are gone. Finally, trusts often provide a level of asset protection and may protect your estate from being attacked by creditors. It depends on your needs and goals; however, when most people are considering a trust, it is usually a revocable trust that meets their needs. As their names imply, a revocable trust can be revoked at any time, meaning that after you create the trust and place property in the trust, you can later decide to cancel the trust and take that property back. Since you have this ability and control over the property, the assets in a revocable living trust are still considered part of your estate, and therefore they are subject to the estate and gift tax and other inheritance taxes. Once you create an irrevocable trust, the property in the trust belongs to the trust and not to you. Since you cannot revoke the trust, the assets in the trust are no longer part of your estate and are not counted for estate and gift tax purposes. An irrevocable trust can be an excellent vehicle for avoiding estate taxes, but unless the value of your estate exceeds $5 million (or $10 million if you are married), then you really don’t have to worry about the estate tax anyway. A revocable living trust should meet your needs for the purposes discussed in the preceding FAQ. An FLP is a closely held business entity owned by family members that is used for estate planning purposes. Consider the situation where parents or grandparents have a business or other property they want to leave to their adult children or grandchildren. The older family members can be general partners in the FLP with management and control over the property or business, while the younger family members can be limited partners with less of a say in how the business or property is handled, but with a substantial interest or share in the partnership. Eventually the younger members of the family obtain the property without there being any tax consequences to the older family members, who may otherwise have had to pay a capital gains tax when transferring property. 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. Divorce certainly does not have to involve a lengthy, costly, or emotionally-destructive legal battle. If you and your spouse can reach a written agreement on child custody, child support, alimony and the division of marital property, you can file a joint complaint for divorce on the ground of Irreconcilable Differences. The judge will review your agreement and approve it if it seems fair. If you can’t agree on everything, you can still reach agreement on some topics and litigate the rest. The family law attorneys at the Hancock Law Firm can help you by negotiating, drafting, or reviewing an agreement and helping resolve matters in court without acrimony. Sometimes, married couples wish to split up but can’t get divorced because of religious or financial reasons or because they are holding out the possibility of reconciliation. Although Mississippi does not recognize the concept of Legal Separation, you can still separate and come to terms with your spouse on certain legal issues. The court can institute an order of Separate Maintenance that one spouse must pay to the other if the couple doesn’t reconcile. This order can include both child support and spousal maintenance; the court can implement a temporary order for child custody as well. Even if you are not married, both parents can voluntarily sign an acknowledgement of paternity form at the hospital after the baby is born. This action will put the father on the birth certificate. If not done at the hospital, this form can still be signed at a later date through DHS. The father who signs the form can rescind his acknowledgement within a year or the acknowledgement can be rescinded at any time by court order, such as when the father’s paternity is challenged by another. If paternity has not been voluntarily acknowledged, or if parentage is contested, a paternity case in court can be brought at any time by the mother, father, child, or DHS. Genetic testing is usually ordered, although other evidence to prove or challenge paternity may be admitted as well. If you have sole custody and the other parent has visitation, your move may not change the custody arrangement, but you may have to work out a new visitation schedule with your ex-spouse, or go to court if an agreement cannot be reached. If you share joint physical custody, you would need to go to court for a modification of the custody order and prove that the move is in the child’s best interests. Relocating with your child out of state or a significant distance away is a big step; if you do not follow the proper procedures, you could find yourself in legal trouble and jeopardize your custody relationship with your child. Be sure and visit with an experienced family law attorney before you make the move, and notify the court within five days of any relocation. If you can agree on a new amount with your ex-spouse, you can draw up a written agreement and submit it to the court for approval. Don’t change what you pay without a modification of the court order, though. If you and your former spouse cannot agree, you can still go to court and request a modification of the child support order. You will have to be able to prove that circumstances have changed which would justify a modification. A change in income is a typical reason that would support a modification. The judge may reapply the child support guidelines to determine a new amount, so long as the modification is still in the child’s best interests. There are many ways to collect child support from a parent who is not paying, including wage garnishment, liens or other collections and enforcement legal matters that your attorney can help you with. You can also reach out to the Mississippi Department of Human Services for help. As a government agency, DHS has many tools at its disposal such as intercepting tax refunds or withholding support amounts from unemployment benefits. 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. Partnerships and corporations are different business structures that 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. A noncompete agreement that limits the ability of a former employee to go into direct competition with a former employer may be enforceable if it is reasonable and well-written. First, the agreement must protect a legitimate business interest of the employer, such as goodwill. Also, there must be some consideration in exchange for the employee’s assent to the agreement, although initial or continued employment is usually sufficient. Courts may also look to whether the agreement creates a hardship for the former employee, and courts may also examine what effect on the public the limitation may have. The main factors to look at in deciding whether a noncompete agreement is reasonable are the duration of the agreement and its geographic scope. Many companies put arbitration clauses in their agreements, so that any breach of contract or other dispute would be decided in arbitration as opposed to litigation. When challenged, Mississippi courts may or may not enforce these clauses. But even if arbitration is not mandatory in your dispute, you may want to consider it as an alternative to litigation. An arbitrator is likely to have specialized knowledge of your particular industry and may have worked in the industry for many years or arbitrated several cases like yours. Arbitration decisions are therefore generally more predictable than jury verdicts, and the arbitration process is generally faster and less costly than litigation. The arbitration hearing can also be held privately, as opposed to airing out your grievances in open court. Whether all of these factors make arbitration favorable in your particular dispute or not is something you will want to discuss with your attorney when planning your strategy for resolving the dispute. The federal Fair Debt Collection Practices Act, which puts many limits and restrictions on what you can and cannot do to collect a debt, only applies to bill collectors and collection agencies. If you are the original creditor, you are not restricted by the FDCPA, but you could still be sued for abusive or illegal practices under other Mississippi or federal laws. If you are having trouble collecting a debt, there are many safe, legal means that an experienced business law attorney can help you with. Most employees are entitled to overtime pay at 1.5 times their regular rate of pay for every hour over 40 hours that they work in a workweek. The Fair Labor Standards Act does offer an exemption from the overtime requirement for administrative, executive, and professional employees, but they must satisfy the criteria for the particular exemption. It is true that to meet the definition of an exempt employee, the worker must be paid a salary of at least $455 per week. However, the salary basis test is only one part of the overtime exemption. Depending upon the exemption you are seeking, the employee must meet other criteria to be exempt, such as managing other employees, exercising independent judgment and discretion, or having specialized education or training. The job description for an exempt employee should specify if the employee is exempt and list those exempt functions, but these functions must match up with what the employee actually does. Misclassified workers can file wage claims and lawsuits and recover years worth of unpaid overtime, plus interest and penalties.