What is a Will?

LAST WILL AND TESTAMENT

A Will is the most basic of estate planning documents. A Will is a legal document that protects your assets, allows you to name the executor of your estate, allows you to name a guardian for your children and helps minimize the chances of a contest over your estate.

If you die without a Will, your estate will be distributed according to a State mandated rigid legal formula and not as you may have wished. State law governs your Will.

In Michigan, contrary to what many people think, your spouse may NOT inherit all of your property if you do NOT have a Will. Part of it may go to your children and your parents.

WHAT IS IN A WILL?

Simply put, a Will is a letter from you [the Testator] to a Probate Judge in your county. In a Will, you identify yourself, describe your property and designate to whom you are leaving your real and personal property. You may also nominate guardians who you would like to care for your minor children.

If you are concerned about the distribution of your money and property after your death [and you do not have a Trust], you need to have a Will. Many folks intend to get a Will as soon as they get around to it.

“I swear that, as soon as we get into port, I'll see about getting that

Will made.” - Anonymous passenger aboard the Titanic.

WHAT IS PROBATE?

Probate can be simply described as a means of transferring title to property. Obviously, once a person dies, that person is no longer able to transfer title to property titled in his name. Probate is a procedure for transferring title to the decedent's property to the persons entitled to it.

The Judge will make sure your debts are paid and your property is distributed in accordance with your Will or the laws of the State [if you have no Will].

DO I NEED A LAWYER TO DRAFT MY WILL?

No, but…

It is easy to make a serious mistake if you draft your own Will [or fail to execute it properly], and the penalty is that, after you die, the Judge will not be guided by your wishes [i.e. your Will], but will distribute your estate by the rules of the State statute of descent and distribution.

WHAT HAPPENS IF I DIE WITHOUT A WILL?

Deciding not to have a Will is effectively the same as letting the state decide who gets your assets after your death.

WHO DETERMINES WHO WILL CARE FOR MY CHILDREN?

In the absence of a Will, the Probate Court will determine who will care for your minor children and their property if the other parent is unavailable or unfit. Make sure you nominate a guardian in your Will!

MAY I HANDWRITE MY OWN WILL?

Handwritten, unwitnessed Wills, called "holographic" Wills, are legal in Michigan if properly done. But a Will signed in front of proper witnesses is better.

CAN I NAME A GUARDIAN IN MY WILL?

Yes.

If both parents of a child die while the child is still a minor, another adult - called a "personal guardian" - must step in. The personal guardian will be responsible for raising your children until they become legal adults.

CAN I AVOID PROBATE WITH A WILL?

No.

Many people believe that by having a Will they will avoid Probate. While a Will may make Probate easier, there still must be Probate of those items titled in the decedent's name alone. The Will tells the Court which people should be entitled to the decedent's estate and Probate passes title to those people.

DO I NEED A NEW WILL WHEN I GET DIVORCED?

Yes, maybe.

In most states, getting divorced automatically revokes gifts made to a former spouse in your Will. But to be safe, if you get divorced, make a new Will.

CAN I BEQUEATH OR DEVISE EVERYTHING I OWN VIA MY WILL?

[Bequeath – personal property, Devise – real estate]

No.

You cannot leave property you hold in joint tenancy with someone else (or in "tenancy by the entirety". In these cases, at your death, your share will automatically belong to the surviving co-owner. A Will provision leaving your share would have no effect unless all co-owners died simultaneously.

You also may not leave assets for which you have made some type of Pay-on-Death provision [e.g. Bank accounts].

ARE THESE DO-IT-YOURSELF WILLS OKAY?

Just as handwritten, or holographic, Wills have often been Probated by [some] Courts, today's do-it-yourself software-produced Wills may be found legal after your death by a Probate Judge.

The real questions are, however, "Do they do the entire job?", and, "Do they do it right?” If there are any errors which would bar acceptance for Probate, nobody would be able to correct them after your death.

It is usually wise to have a professional Estate Planning attorney write your Will for you to avoid many of the pitfalls associated with Wills.

For around $200, you may be able to have an attorney write your [simple] Will for you.

NOT LEGAL ADVICE

This brochure does not attempt to give legal advice. Wills are creatures of State law. Study and research the laws of YOUR state before trying to create your own Will, or, better, see an Estate Planning Attorney.