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Can a Copy of a Foreign Will be Probated in Mississippi?

The Mississippi Court of Appeals, in In re Est. of High v. Cobb, has ruled that a copy of a Missouri resident’s will that was executed in Missouri, may be probated in Mississippi as a lost will, despite the inability to present the original.  The decedent had property in both Missouri and Mississippi.

The decedent moved to Mississippi to live with relatives. At his death, the Mississippi relative attempted to open an estate using a copy of the Missouri will.  The Mississippi relative apparently did not have the original.  The will copy was opposed by the Missouri relatives, who did not probate the will in Missouri, presumably because they got less under the will.  Mississippi law gives an executor of a foreign will the option to either probate the will in the foreign jurisdiction, or in Mississippi.  In this case, the will could not be probated in Missouri because the statute of limitations in Missouri barred the probate after one year.  The Missouri relatives contend that the law only allows the original foreign will, or a court certified copy of the will from the foreign probate, to be probated in Mississippi, and since neither could be produced, the estate must be administered intestate.  The Court of Appeals disagreed and sent the case back for further consideration by the Chancellor.

This case illustrates two important considerations for estate planning.  First, it is important that your loved ones who you intend to administer your estate have access to your original documents.  This may be naming them on your safe deposit box, or giving them the combination to your home safe, or possibly giving them the actual original of your will while you are living.  After all, you are not going to need it at the time that it becomes a valid and irrevocable instrument, and prior to that time you can always change or revoke it without actually possessing it by simply executing a newer will.  The second point this case illustrates is the importance of having your estate plan updated if you change states of residence.  While Mississippi has a statute that permits probate of foreign wills, this case illustrates the potential problems that can arise by reliance on such a statute.  No doubt both of these family members spent many thousands of dollars fighting this issue in court, which is still not resolved!  The simple act of revising his will would have saved thousands of dollars and possibly saved the relationship of these feuding family members, which are no-doubt now significantly strained.  

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