a.      Beneficiary Designations.  The disposition of each asset needs to be determined.  Life Insurance Policies, IRAs, retirement accounts and annuities, beneficiary designation must match to the overall plan.

b.     Joint Tenancy.  There is a Statutory Presumption of Tenancy in Common.  MCA § 89-1-7 provides that a conveyance of real property to two or more persons is deemed to be a tenancy in common rather than a joint tenancy or tenancy by the entirety. The interest of a cotenant is therefore subject to attachment by a creditor. In order to create a joint tenancy, there must be specific language in the conveyance which indicates that a joint tenancy with right of survivorship is intended.

c.     Attachment of Joint Tenant's Interest. A joint tenancy with right of survivorship is not severable by devise, but a conveyance of a joint tenant's interest will destroy the joint tenancy.  Execution of a judgment lien will sever the joint tenancy unless the joint tenant dies prior to execution of the judgment. The surviving joint tenant will take the property free and clear of liabilities of the predeceased joint tenant.

d.     Tenancy By The Entirety.

                                                              i.      May Not Be Unilaterally Severed.  Mississippi allows the creation of an estate as tenancy by the entirety for husband and wife. Such interest may not be unilaterally terminated by either spouse, except by divorce or death. In Mississippi, a divorce results in the creation of a joint tenancy.

                                                            ii.      Claims of Creditors.  A creditor only has a claim with respect to a spouse's right of survivorship, which may only be enforced at death or upon divorce. However, if both spouses are jointly liable, for example where the spouses file a joint tax return, then a creditor may be allowed to seize property held as tenancy by the entirety.

                                                          iii.      Death of a Spouse.  Upon the death of a spouse, the entire interest in the property will pass to the surviving spouse outside of probate by operation of law.  One-half of the property will be included in the decedent's gross estate for estate tax and income tax purposes, but the estate will be entitled to a marital deduction for the property. The surviving spouse will receive the property with a bifurcated income tax basis, i.e., one-half of the property will have a carryover basis and the remaining one-half will receive a step-up in basis as a result of inclusion in the decedent's gross estate.

e.      Revocable Trust.  The Revocable Trust can serve most of the functions of a Will; it has two advantages over a Will: avoids Probate; and provides a mechanism to manage property for an incapacitated person.  If used, the Revocable Trust is the central document to the estate plan; it holds title to assets for life and passes property to descendants without the need for probate. The Trustee is the manager.