Complex Will with Trust - Mississippi

LAST WILL AND TESTAMENT

and

TESTAMENTARY TRUST

of

[TESTATOR FULL LEGAL NAME]

TABLE OF CONTENTS

I. Declaration and Identification
II. Definitions
III. Revocation of Prior Wills and Codicils
IV. Family Information
V. Payment of Debts, Expenses, and Taxes
VI. Specific Bequests
VII. Residuary Disposition & Creation of Testamentary Trust
VIII. Testamentary Trust Terms
   A. Name and Funding of Trust
   B. Purpose
   C. Trustees and Successor Trustees
   D. Beneficiaries
   E. Distributions
   F. Trustee Powers
   G. Fiduciary Standards and Statutory Liability Rules
   H. Trust Administration Rules
   I. Spendthrift Provision
   J. Termination and Final Distribution
IX. Appointment of Personal Representative
X. Nomination of Guardians for Minor Children
XI. No-Contest (In Terrorem) Clause
XII. Governing Law, Forum & Dispute Resolution
XIII. General Administrative Provisions
XIV. Severability & Savings Clause
XV. Execution and Attestation
XVI. Affidavits of Subscribing Witnesses

I. DECLARATION AND IDENTIFICATION

I, [TESTATOR FULL LEGAL NAME], presently residing at [ADDRESS, COUNTY, MISSISSIPPI], being at least eighteen years of age and of sound and disposing mind, declare this instrument to be my Last Will and Testament (the “Will”). Miss. Code Ann. § 91-5-1 supplies the governing capacity, signature, and attestation requirements.

II. DEFINITIONS

For purposes of this Will:

1. “Administrator” means a Personal Representative appointed by the court when the named Personal Representative is unable or unwilling to serve.
2. “Children” means the lineal descendants in the first degree of the Testator, whether born or adopted before or after the execution of this Will.
3. “Code” means the Internal Revenue Code of 1986, as amended.
4. “Personal Representative” means the Executor or Administrator of my estate, as context requires.
5. “By representation” means division into shares at the first generation with living members and representation of deceased members by their descendants, as Mississippi counsel confirms for the disposition at issue.
6. “Trust” means the testamentary trust created under Article VII and governed by Article VIII of this Will.
7. “Trustee” includes any successor or co-trustee then serving.

III. REVOCATION OF PRIOR WILLS AND CODICILS

I hereby revoke all prior Wills and Codicils made by me.

IV. FAMILY INFORMATION

1. Marital Status: [MARRIED/WIDOWED/SINGLE/DIVORCED]
2. Spouse: [SPOUSE NAME]
3. Children: [LIST FULL NAMES AND BIRTHDATES]
4. Other Dependents: [NAMES/RELATIONSHIPS, if any]

V. PAYMENT OF DEBTS, EXPENSES, AND TAXES

A. My Personal Representative shall pay from my estate, in the order and from the sources required by applicable law and any controlling beneficiary designation or ownership rule:

1. All enforceable debts and expenses of my last illness and burial;
2. Administrative expenses of my estate; and
3. Taxes properly chargeable to my estate.

Tax-apportionment direction to be completed by Mississippi counsel: [________________________________].

B. The Personal Representative may, in his or her sole discretion, compromise, contest, or settle any claim against the estate.

VI. SPECIFIC BEQUESTS

[Describe each bequest]

1. I hereby bequeath [DESCRIPTION OF ASSET] to [BENEFICIARY NAME], if he or she survives me.
2. [Continue numbered list as required.]

If I do not own an item described in a specific gift at my death, no substitute property or cash shall pass unless this Will expressly provides otherwise. If a beneficiary of a specific gift does not survive me as required by Article XIII.A, the gift passes under the residuary provisions unless a mandatory rule requires a different result.

VII. RESIDUARY DISPOSITION & CREATION OF TESTAMENTARY TRUST

All the rest, residue, and remainder of my probate estate, including lapsed or failed gifts, I devise to the Trustee, IN TRUST, to be held, administered, and distributed under Article VIII. Miss. Code Ann. §§ 91-8-401 and 91-8-402 recognize creation of a trust by will when the statutory requirements are satisfied.

VIII. TESTAMENTARY TRUST TERMS

A. Name and Funding of Trust

The trust shall be known as the “[TESTATOR NAME] Family Trust” and shall be funded upon my death by the Residuary Estate, together with any property otherwise directed to or received by the Trust.

B. Purpose

The Trust is established to (i) provide for the health, education, maintenance, and support of the beneficiaries, (ii) preserve family assets, and (iii) facilitate orderly distribution in accordance with my intent.

C. Trustees and Successor Trustees

1. Initial Trustee: I appoint [TRUSTEE NAME] as Trustee.
2. First Successor Trustee: If the Initial Trustee fails to qualify or cease to act, [SUCCESSOR TRUSTEE NAME] shall serve.
3. Additional Successors: If no named successor serves, a vacancy shall be filled under Miss. Code Ann. § 91-8-704 and any valid appointment method added here: [APPOINTMENT METHOD].
4. Bond: I do not require a Trustee to give bond. This direction remains subject to the court's authority under Miss. Code Ann. § 91-8-702.
5. Resignation and Removal: Resignation and removal are governed by this Will and applicable law, including Miss. Code Ann. § 91-8-706. No contractual cure period limits the court's power to protect Trust property or beneficiary interests.

D. Beneficiaries

1. Primary Beneficiary: [NAME, e.g., SPOUSE] during his/her lifetime.
2. Secondary Beneficiaries: My children and their descendants, by representation.
3. Contingent Beneficiary: [CHARITY/OTHER] if no descendant of mine survives.

E. Distributions

1. Mandatory Income: All net income shall be distributed at least annually to the Primary Beneficiary.
2. Discretionary Principal: The Trustee may distribute principal for a beneficiary’s health, education, maintenance, or support (“HEMS Standard”).
3. Division on Primary Beneficiary’s Death: Upon the death of the Primary Beneficiary, the remaining Trust estate shall be divided among my descendants by representation.
4. Age Staggered Distributions: Each share shall vest and be distributed to the respective beneficiary as follows:
   a. One-third (⅓) at age [25];
   b. One-half (½) of the balance at age [30];
   c. Remainder at age [35].
   Until final distribution, a beneficiary’s share shall continue in trust subject to the HEMS Standard.

F. Trustee Powers

Subject to fiduciary duties, this Will, and any court order, the Trustee may exercise the general and specific powers in Miss. Code Ann. §§ 91-8-815 and 91-8-816, including authority:

1. To retain, purchase, sell, exchange, and invest trust assets pursuant to the prudent investor rule;
2. To lease real or personal property within or beyond the duration of the Trust as the statute permits;
3. To borrow money and mortgage or pledge Trust property;
4. To participate in reorganization, consolidation, or merger of any business entity;
5. To pay, contest, settle, mediate, or arbitrate claims and disputes within the Trustee's statutory power;
6. To appoint ancillary fiduciaries and pay reasonable compensation;
7. To make tax elections and allocations beneficial to the trust;
8. To divide or distribute assets in cash or in kind, pro rata or non-pro rata, without adjustment for inequality of tax basis; and
9. To make loans from Trust property on terms the Trustee determines are fair and reasonable under the circumstances.

G. Fiduciary Standards and Statutory Liability Rules

1. Administration Standard: The Trustee shall administer the Trust in good faith according to its terms, purposes, beneficiary interests, and the Mississippi Uniform Trust Code, including the duties in Miss. Code Ann. §§ 91-8-801, 91-8-802, and 91-8-804.
2. Proper Expenses: The Trustee may pay reasonable administration expenses and receive reasonable compensation as provided by this Will and Miss. Code Ann. §§ 91-8-708, 91-8-805, and 91-8-816. This is not a blanket indemnity for breach of trust.
3. Personal Liability: Contract, property-related, and tort liability is governed by Miss. Code Ann. § 91-8-1010. Nothing in this Will caps liability for breach of trust at the value of Trust property or narrows the remedies in Miss. Code Ann. § 91-8-1001.
4. Exculpation: Any exculpatory term is subject to the mandatory limits in Miss. Code Ann. § 91-8-1008, including the limits for bad faith, reckless indifference, and abuse of a fiduciary or confidential relationship.

H. Trust Administration Rules

1. Annual Report: As an express term of this Trust, the Trustee shall provide an annual report of receipts, disbursements, assets, liabilities, and compensation to the persons entitled to receive it under this Will and applicable law. The Trustee shall also comply with Miss. Code Ann. § 91-8-813.
2. Records and Separation: The Trustee shall keep adequate records and keep Trust property separate from the Trustee's own property.
3. Judicial Supervision: Under Miss. Code Ann. § 91-8-201, the Trust is not subject to continuing judicial supervision unless ordered by the court.

I. Spendthrift Provision

Each beneficiary's interest is held subject to a spendthrift trust. Voluntary and involuntary transfer is restrained before receipt to the extent provided by Miss. Code Ann. § 91-8-502 and the other mandatory creditor-rights rules.

J. Termination and Final Distribution

The Trust shall terminate and be distributed outright to the then-entitled beneficiaries upon the earliest of:

1. The final scheduled distribution under § VIII.E.4;
2. The date all beneficiaries have attained age [40]; or
3. Twenty-one years after the death of the last survivor of my spouse and my descendants living at my death, if not sooner terminated.

Upon termination the Trustee shall distribute remaining assets outright, free of trust, to my then-living descendants by representation, or, if none, to the Contingent Beneficiary.

IX. APPOINTMENT OF PERSONAL REPRESENTATIVE

I nominate [EXECUTOR NAME] as Executor of my estate. If that person fails to qualify or ceases to act, I nominate [ALTERNATE EXECUTOR NAME]. I request that the Executor serve without bond, but this request remains subject to the Chancery Court and mandatory law. The Executor shall exercise only powers granted by this Will, statute, or court order.

X. NOMINATION OF GUARDIANS FOR MINOR CHILDREN

If at my death any child of mine is a minor and a guardian or conservator is needed, I nominate [PRIMARY GUARDIAN NAME] to serve and [ALTERNATE GUARDIAN NAME] as alternate. The Chancery Court retains authority over appointment, qualification, bond, and the child's best interests.

XI. NO-CONTEST (IN TERROREM) CLAUSE

Except when a contest is brought in good faith and founded on probable cause under Parker v. Benoist, 160 So. 3d 198 (Miss. 2015), a beneficiary who contests the validity of this Will shall forfeit that beneficiary's gift and be treated as having predeceased me. This clause does not shift attorney fees to a contestant, penalize a good-faith request to construe the instrument, or restrict a proceeding concerning fiduciary misconduct. Mississippi counsel shall tailor the clause and substitute disposition before execution.

XII. GOVERNING LAW, FORUM & DISPUTE RESOLUTION

1. Governing Law: Mississippi law governs this Will and the Trust, except where another jurisdiction's mandatory law controls particular property or administration.
2. Chancery Proceedings: Mississippi Constitution article 6, section 159 gives the Chancery Court jurisdiction over equitable, testamentary, administration, and minors' matters. Trust jurisdiction and venue are governed by Miss. Code Ann. §§ 91-8-201 to 91-8-204, including the statutory concurrent-jurisdiction provisions.
3. Alternative Dispute Resolution: No person is required by this Will to arbitrate. The Trustee may use mediation, arbitration, or another alternative procedure within the authority granted by Miss. Code Ann. § 91-8-816(b)(23), subject to fiduciary duties, court jurisdiction, and enforceability under applicable law.
4. Jury Rights: This Will does not waive any jury-trial right available under applicable law.
5. Trust Remedies: A court may grant the remedies authorized by Miss. Code Ann. § 91-8-1001, including orders compelling performance or an accounting, injunctions, redress of a breach, appointment of a special fiduciary, suspension or removal, and other appropriate relief.
6. Fees and Costs: Fee and cost awards in Trust proceedings are governed by Miss. Code Ann. § 91-8-1004. This Will creates no automatic prevailing-party award.

XIII. GENERAL ADMINISTRATIVE PROVISIONS

A. Survivorship Requirement: Unless this Will expressly provides otherwise, a beneficiary must survive me by [30] days to take under this Will. A beneficiary who does not satisfy that requirement shall be treated as having predeceased me.
B. Order of Death: If the order of death cannot be established under applicable law, the affected beneficiary shall be treated as having predeceased me for purposes of this Will.
C. Gender & Number: Words in any gender include all genders; words in the singular include the plural and vice versa.
D. Headings: Section headings are for convenience only and shall not affect interpretation.
E. Digital Assets: To the extent permitted by applicable law, account terms, and any controlling online-tool direction, my Executor and Trustee may access, manage, copy, transfer, archive, delete, or dispose of my digital assets and may request disclosure of electronic communications. Mississippi counsel shall coordinate this direction with current digital-assets law before execution.
F. Tax Elections: Fiduciaries may make tax elections reasonably believed to serve the estate or Trust, subject to fiduciary duties and the completed tax-apportionment direction in Article V.

XIV. SEVERABILITY & SAVINGS CLAUSE

If any provision of this Will or Trust is held invalid or unenforceable, the remaining provisions shall remain in full force, and the invalid provision shall be construed, to the maximum extent possible, to fulfill the intent herein expressed.

XV. EXECUTION AND ATTESTATION

IN WITNESS WHEREOF, I, [TESTATOR FULL LEGAL NAME], have signed this Will on this ___ day of __________, 20___, at ________________, Mississippi.

_________________________________
[TESTATOR FULL LEGAL NAME], Testator

We, the undersigned credible witnesses, attest that the Testator signed this Will, or acknowledged the Testator's signature, in our presence; declared the instrument to be the Testator's Will; and appeared to us to be at least eighteen years of age, of sound and disposing mind, and acting voluntarily. We sign in the Testator's presence as required by Miss. Code Ann. § 91-5-1.

1. _________________________________
   [WITNESS #1 PRINTED NAME]

Address: [________________________________]

2. _________________________________
   [WITNESS #2 PRINTED NAME]

Address: [________________________________]

XVI. AFFIDAVITS OF SUBSCRIBING WITNESSES

Miss. Code Ann. § 91-7-7 permits due execution to be proved by affidavits of subscribing witnesses. The affidavits may be annexed to or made part of the Will, may be signed when the Will is executed, and must state each subscribing witness's address. This section must be completed with the addresses included.

STATE OF MISSISSIPPI )
: ss.
COUNTY OF __________ )

We, [WITNESS #1 NAME] and [WITNESS #2 NAME], being duly sworn, state that the Testator signed or acknowledged the foregoing instrument in our presence, declared it to be the Testator's Last Will and Testament, and requested that we witness it; that each of us signed as a credible witness in the Testator's presence; and that the Testator appeared to us to be at least eighteen years of age, of sound and disposing mind, and acting voluntarily.

_________________________________
[WITNESS #1 NAME], Witness

Address: [________________________________]

_________________________________
[WITNESS #2 NAME], Witness

Address: [________________________________]

Subscribed and sworn to before me by [WITNESS #1 NAME] and [WITNESS #2 NAME] this ___ day of __________, 20___.

_________________________________
Notary Public for the State of Mississippi
My Commission Expires: _____________

SOURCES AND REFERENCES

• Mississippi Constitution, article 6, section 159 — Chancery Court jurisdiction
• 2025 Mississippi Supreme Court opinion quoting §§ 91-5-1 and 91-7-7 — In re Estate of Autry
• Mississippi Supreme Court opinion quoting §§ 91-5-1 and 91-7-7 — In re Will of Beard
• Mississippi Supreme Court — Parker v. Benoist, good-faith and probable-cause exception
• 2014 S.B. 2727 as sent to Governor — enacted Mississippi Uniform Trust Code
• 2016 S.B. 2211 as sent to Governor — technical Mississippi Uniform Trust Code amendments
• 2020 S.B. 2851 as sent to Governor — enacted Article 5, including § 91-8-502