Wills

 

What is a Will?

 

A will is a legal document by which a person, the “testator” names one or more persons to manage his or her estate, the “personal representative”, and provides for the distribution of his or her property, the “estate”, after death.

 

 

 

 

 

 

 

 

 

 

 

 

 

What happens if I die without a Will?

 

 A person who dies without a will is said to have died “intestate” and his or her assets pass to the closest relatives according to Michigan’s Intestate Succession laws.  Here is an overview of what happens depending on your family status at the time of your death:

 

• If you have children but no spouse = children inherit everything in equal shares
  
  
• If you have spouse but no children or parents = spouse inherits everything
  
  
• If you have spouse and descendants from you and that spouse = spouse inherits first $150,000 of intestate property plus ½ the balance.  The descendants inherit everything else based on shares.
  
  
• If you have spouse with at least one descendant from you and that spouse, but have at least one descendant from another person besides spouse = spouse inherits first $150,000 of intestate property plus ½ the balance.  The descendants inherit everything else based on shares.
  
  
• If you have spouse with no descendants from you and that spouse, but have at least one descendant from another relationship = spouse inherits first $100,000 of your intestate property plus ½ the balance.  The descendants inherit everything else based on shares.
  
  
• If you have spouse and parents, but no descendants = spouse inherits the first $150,000 of your intestate property, plus ¾ the balance.  Parents inherit everything else.
  
  
• If you have parents but no spouse or descendants = parents inherit everything
  
  
• If you have siblings but no spouse, descendants, or parents = siblings inherit everything.
  
  

If you have no spouse, descendants, parents or siblings to inherit, the intestate succession laws extend as far as first cousins on either side of the family tree.  If there are no heirs at that point, the intestate property passes to the State of Michigan.

Intestate succession includes legally adopted children, children born outside of the marriage that paternity is acknowledged to per Michigan law, and children conceived by you but born after your death (provided that they survive 120 hours after birth).  Intestate succession excludes any foster children or stepchildren not legally adopted, grandchildren (unless their parent which is your child predeceases you) or any non-blood person and significant other besides your spouse.

 

If I have a Will, do I still have to go through Probate?

 

Yes, your estate will have to pass through probate whether you have a will or not, unless your assets are exempt from probate for one reason or another.  If there is a valid will, then the will determines how your estate is distributed.  If there is no valid will, or only part of your estate is covered by a valid will, then Michigan’s intestate succession laws will determine who gets the property in your estate.

 

So who can make a Will?

 

 Any individual over 18 years old of sufficient mental capacity can make a will.

 

What do I need for a Valid Will?

 

A will, to be valid, is required to be in writing, signed by the testator or in the testator’s name by someone directed by the testator, and signed by at least two individuals that witnessed the testator sign the will.

There are some exceptions to this requirement.  A will may be valid as a holographic will if the material text, date and signature are all handwritten by the testator whether or not it was witnessed.  It is also possible to attempt to have a document or writing purporting to be a will to be treated as such if the offerer of the document can prove to the probate court by clear and convincing evidence that the testator intended for the document to be as such.  In any event, these wills may be required to be proven by tracking down the witnesses that signed the original document in addition to other outside evidence or testimony that the court may require to treat the proposed will as a valid document.

To help avoid the trouble of locating witnesses to prove a will, it is possible to make a self-proving will at the time of its creation.  The testator and the two witnesses would be required to make sworn statements before a notary public or other officer authorized to administer oaths in the jurisdiction the will is created and then the will would be notarized.  Codocils, or additions to the will, may also be self-proven in the same manner.  It is even possible to make a will self-proving any time after its execution if the testator and two witnesses make a sworn statement before a notary public or other officer authorized to administer oaths and such a statement is attached to the original will document.

Michigan also has a statutory will available in which residents of the estate may use the text dictated by statute and it is essentially a simple “fill-in-the blank” document.  Anyone can copy the language from the state legislature’s website and follow the directions for signatures and witnesses.  Benefits of using the statutory will are that they are free, they are difficult to challenge in probate court due to the state-written text and they are simple and easy to understand.  Significant drawbacks are that cannot be made to be tailored to your situation and attempting to change any of the language in the text to suit your needs could possibly render the entire document invalid.  You may be disappointed in the statutory will’s inability to suit all of your needs.

 

Can I make a joint will with my spouse?

 

Yes, it is possible to make a will that two people execute together.  It is essentially a contract between the two people and would also require the consent of both people to revoke it.  Generally, it is not advisable to enter into a joint will and is preferable that a couple create mirror wills which are identical in terms with one party leaving assets to the other but also leaves the option for one party to revoke their own mirror will.

 

One potential benefit of the joint will is that, after the first person dies, the second person is generally prevented from changing his or her mind about the distribution of the property (since the first person can no longer consent to the change).  For example, if a couple makes a joint will and the husband dies, the wife cannot rewrite her will to leave everything to her new stepfamily.  However, this also reflects the major drawback in that if the first person dies, the second person is unable to revise the will to reflect changing life circumstances without significant legal hassle.

 

 

What is a testamentary trust?

 

A testamentary trust is a trust that is created by a will and takes effect when the testator dies.  It is useful in a situation where the testator is leaving property to a minor but if, due to age and inexperience, the minor is unable to manage the property.  The trustee named in the will can manage the assets until the minor comes of age.  The benefits of a testamentary trust are not just for minors… it can provide for elderly people that can no longer manage their affairs as well as incapacitated or invalid individuals.  This can be a useful alternative to clients who do not want the hassle and expense of a revocable living trust and can often provide better protection of the assets held for the beneficiary rather than just giving them to the beneficiary’s guardian or conservator.

 

Benefits of a testamentary trust include:

- Court supervision in the probate process, including the expenses and delays and the need for accountings to be filed, will become eliminated once the trust is established.

- Testator can provide for the trust assets to be managed by a competent trustee if such a person is not the same as the guardian or conservator of the beneficiary.

- Separate trust accounts can be created for each beneficiary, and the administration of the property by the trustee could continue even after the age of majority.

Disadvantages of a testamentary trust include:

- Probate must be initiated to have the trust established (the will must still be proven)

- The testamentary trust will be a matter of public record, including all of its terms and conditions, since it is part of a will.  Likewise, a revocable living trust would normally be handled as a private matter beyond public inquiry.

- The trust can only be established upon the testator’s death, not his or her incapacitation.  A will has no effect as long as the testator is alive.

 

Can I Disinherit My Spouse?

 

Clients often elect to draft a will because they would be unsatisfied in how their assets would be distributed under Michigan’s Intestate Succession Laws.  In some circumstances, a client may wish to disinherit a spouse, especially in a situation where the married couple is living separate but for various reasons do not divorce.

 In Michigan, a surviving spouse is entitled to elect against his or her spouse’s will and take a statutory share, even if the testator’s wishes are to specifically disinherit the surviving spouse.  Under the authority of MCL 700.2202, this share is equal to “1/2 of the sum of share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death”.  If the testator had no living descendants or parents at death, this could amount to the entire estate!  It doesn’t matter if the testator married the surviving spouse before or after the will was drafted.  The surviving spouse is entitled to elect against a testamentary trust created by the will as well.  In addition, the surviving spouse may also be entitled to a homestead allowance and a family allowance during the probate settlement of the state as well as exempt property from the estate such as household furniture, appliance, automobiles and personal effects up to $10,000.  This doesn’t even include potential dower rights that the surviving spouse (if a wife) may have in the husband’s property.

 Pursuant to MCL 700.2801, a surviving spouse does not include a spouse that, for more than one year before the decedent’s death, was willfully absent from the decedent spouse, deserted the decedent spouse, or willfully neglected or refused to provide support for the decedent spouse if required to do so by law.  A surviving spouse is also excluded if they obtained or consented to a divorce or annulment even if said judgment isn’t recognized in Michigan, married a third person even if the divorce or annulment is invalid in Michigan, is party to a court order terminating all marital property rights or lived in a bigamous relationship with another individual.  Nevertheless, a purported surviving spouse can still mount a challenge against the estate and completely undermine your wishes and desires.

 If it is your desire to disinherit an individual that you are legally married to, it may be better accomplished by way of a living trust.

 

Can I Disinherit My Child?

 

Yes, a testator can disinherit one or more of his children in his or her will.  However, it is important to distinguish between intentionally omitted and accidentally omitted children.

 

Pursuant to MCL 700.2302, if a testator fails to provide for an after-born or after-adopted child (born or adopted after the date the will was executed), then said-omitted child is entitled to receive a share of the estate.  If the testator had no children at the time the will was executed, the omitted child receives the share of the estate he or she would have received if the decedent died intestate (without a will).  If a testator had one or more living children at the time the will was executed, the omitted child would receive a equal share of that portion of the estate allocated to the decedent’s children (that portion is redistributed as if the omitted child was included in the will).  The probate court must, to the maximum extent it can, preserve the character and intent of the testator’s wishes in accommodating the excluded child.

 That being said, the after-born or after-adopted omission provision does not apply if it is clear from the will that the omission of the child was intentional.  An intentionally disinherited child does not have the same right as an intentionally disinherited spouse to elect a share from the estate.

 

Can I use my Will to leave gifts to Non-Relatives?

 

The testator is free to leave behests in his or her will to domestic partners, stepchildren, foster children, friends, businesses, charities or any other legal entity not prohibited by law.  The testator is only limited by the surviving spouse’s elective share, the rights of accidentally omitted children, the debts of the estate owed to creditors and any other limitation provided by law.

 

How many copies of my Will should exist?

 

It is typically best to have only one signed original of a will.  The danger with multiple duplicate original and fully executed wills is that it can create confusion if the testator changes the will in the future.  If there are to be copies of the original will made, they should be unexecuted and clearly marked as copies.

 

What should I do with my Will once it is executed?

 

It is up to the testator what they want done with the will once it is executed.  If the testator chooses to keep the will in a safe location in his or her home, it is critical that some other person knows where to find it upon the testator’s death.  A testator may choose to place the will in a safe-deposit box, but it is advisable that said box is jointly owned by someone who can be relied upon to see to the proper administration of the will.  If the box is owned with a spouse, it is further suggested that there be yet another joint owner outside of the marriage in the event that the spouses meet their demise at the same time.  Otherwise, there may be additional cost and expense in getting an order from the probate court to open the box that becomes sealed upon the death of the owners.

 

The testator may choose to leave the will with an attorney, a personal representative, a trustee or another entity such as a bank or credit union.  It should be noted that entrusting someone with your will imposes additional duties upon them as a custodian of the will.  Pursuant to MCL 700.2516, a custodian of the will is required to forward the will to the probate court personally or by registered mail within a reasonable time after the testator’s death or face lability for damages.

 Yet another option for the testator is to have the will stored at the probate court in the county that the testator resides for safe-keeping.  Pursuant to MCL 700.2515(1), the probate court will accept a will for safekeeping for a $25.00 fee if it is enclosed in a sealed envelope and is labeled with the testator’s name, address, Social Security or driver’s license number and the name of the person delivering it to the court.

 

 

How Often Should I Update my Will?

We typically advise our clients to meet with us once every 5 to 10 years to ensure that their Will still complies with all legal requirements and will accomplish their intended goals.  In addition to this periodic update, you should update your Will whenever you experience a significant change in your life, such as marriage, the birth or adoption of a child, divorce, or the death of a member of your household.