Michigan Wills

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Making a Michigan Will

Need information, advice and tips to make a Michigan Will? Find out the legal requirements and access the legislation. Michigan Wills are governed by the Estates and Protected Individuals Code. To make a legal Will in Michigan, you must be at least 18 years of age. s2501 You must also have sufficient mental capacity (to see what this means, scroll down to ‘Objecting to a Michigan Will’ below).

Formal Execution Requirements

A Michigan Last Will and Testamentneeds to be:

  • Written;

 

  • Signed by the testator;

 

 

  • Signed by at least two witnesses (within a reasonable time after observing the maker’s signature).

 

If the testator cannot sign, the document may be signed by some other individual in the testator’s name at his/her direction and in his/her conscious presence. The witnesses need to sign within a reasonable time after witnessing the testator’s acknowledgment of that signature or acknowledgment of the Will. s2502(c)

Who can be a witness?

Any individual generally competent to be a witness may act as a witness to a Michigan Will. Unlike most states, Michigan allows gifts in the Will to be made to a witness. Despite this, lawyers suggest having independent disinterested witnesses to remove any question of duress or undue influence. s2505

Do I have to sign my Michigan Will in the state?

No. A Michigan Will is still valid if signed outside the state as long as it is executed in accordance with the law of the place where the Will is signed. s2506

How can I cancel my Will?

A Michigan Will may be revoked (cancelled) by: Making a subsequent Will that revokes the previous instrument. This should be done expressly; or Burning, tearing, cancelling, obliterating, or destroying the Will. s2507 Attorneys recommend using both the above options.

Where can I keep my Will?

Michigan probate courts allow you to deposit a Michigan Last Will & Testament. The document is kept in an enclosed sealed wrapper with your name, place of residence and social security number or state of Michigan driver’s license number. A small fee applies for this service. The probate court issues a certificate of deposit, which you should file with your other documents for your executor. After your death, if that court has jurisdiction over your estate, then your Will is publicly opened and retained by the court. If another county has jurisdiction, then your Michigan Will must be forwarded by registered post to that county’s probate court or to the personal representative or another person interested in the provisions of the Will to be presented for probate in the other court. s2515

Does divorce cancel my Will?

No. It does however revoke all provisions in favor of your former spouse and all provisions in favor of relatives of your former spouse. So for example, if your Michigan Will appointed your spouse as executor and gave your spouse’s child (who is not your child) a gift or money or property, these provisions will no longer apply in your Will. To ensure your current wishes are upheld, make sure you make a new Will immediately after becoming divorced.

Updating your Will after marriage

If you fail to write a new Will after marriage, this can cause complications. If your spouse is not mentioned in the Michigan Last Will, your spouse is entitled to an intestate share of your estate. The portion is based on the amount your spouse would be entitled to under the laws of intestacy (ie: if you had died without a legal Will). s2301 However, the extent of the portion also depends on the dispositions made in your Will, meaning your wife may only end up having the statutory entitlements under the elective share, homestead allowance, family allowance and exempt property. For the protection of both your spouse and the rest of your family, you should create a new Will as soon as you get married. This way, there will be no surprises or heartaches if you pass away leaving an out-dated (but still valid) Michigan Will.

Holographic Wills

If a Michigan Last Will and Testament is not witnessed, it may be valid as a holographic instrument if it is dated and the testator’s signature and material portions are in his/her handwriting. s2502(2) Portions that are not in the testator’s handwriting may be used as extrinsic evidence to show the testator’s intent for the document to constitute a Last Will and Testament. s2502(3) Even though the Michigan estate code allows looser execution formalities, lawyers suggest never relying on these to make a legal Will, not even if it’s a simple Will. Attorneys strongly recommend complying with the strict formal execution requirements to ensure the document is probated without problems.

Making a Trust for Your Pet

Michigan allows you to leave property or money for the benefit of your pet via a trust in your Michigan Last Will and Testament. By creating a pet trust, you can ensure that your domestic or pet animal is provided for. s2722 You should name a trustee (the person to manage the funds) and also an alternate trustee just in case something happens to your first choice. Appoint someone that you trust will do the right thing by your pet. Also, remember to ask them first if they are willing to act in that capacity because if they refuse, then the court names a trustee. The trustee cannot use the trust property for his/her own benefit. It must be used for the benefit of a covered animal. You may also designate an individual (separate to the trustee) to enforce the terms of the trust. For example, if your trustee uses money or property for his own benefit, then the enforcer may have this dealt with in court. The amount you leave for your pet must be reasonable. If the Michigan Will provides an excessive amount (more than what is needed to care for your pet), the court may have this reduced. The trust terminates once your pet dies. Your Michigan Will can direct who is to receive any balance remaining in the trust. If you don’t designate a beneficiary, then the remainder passes in accordance with your Will’s residue clause.

Michigan Wills & Probate

Once the testator dies, does the Will need to be submitted for probate? What is the process?

Informal Probate

Informal proceedings are used in straightforward cases where there is no dispute and an original properly executed Will exists. Any interested person may make a written request to the probate register for an order of informal probate of a Michigan Will. Informal probate does not require prior notice to be given to all interested persons and does not require adjudication by a judge. s1105(b) If the application is not filed within 28 days of the deceased’s death, then the application may be filed by a person who has a right or cause of action which cannot be enforced without administration (for example a creditor). s3301 The register must issue a written statement of informal probate if satisfied with the application and the original, properly executed Michigan Last Will and Testament has been given to the register. s3302 Once informal probate is granted, notice must be given to the heirs, devisees, other interested persons and persons who demand such notice under section 3205 within 28 days. s3306 If the register is not satisfied that the requirements have been complied with then the application may be denied. A reason for denial is provided. The issue may then be taken up in formal testacy proceedings. s3305

Formal Testacy Proceedings

These proceedings require prior notice to be given and are adjudicated by a judge or jury after a hearing. They are a form of litigation, used to determine whether the deceased left a valid Will. Formal testacy proceedings may be used for any of the following:

  • To probate the Michigan Will;

 

  • To set aside or stop a pending informal probate application; or

 

 

  • To have the Will declared invalid. s3401

 

The court fixes a time and place for the hearing and the person who filed the petition must give notice to each of the following persons:

  • The deceased’s heirs;

 

  • Beneficiaries and personal representatives named in the Michigan Last Will;

 

 

  • Any appointed personal representative;

 

 

  • Any person who has filed a demand for notice under section 3205; and

 

 

  • Trustee of a trust which the decedent created. s3403(1)

 

Notice must also be given by publication to unknown persons and to persons who are known but whose address is undetermined. s3403(2) If the petition for formal probate is not opposed, then the court may either grant or decline probate depending on the strength of the pleadings (rather than a hearing). To grant formal probate, the court must be satisfied that the testator is actually dead and that the Michigan Last Will and Testament is valid and unrevoked. s3409 Alternatively, the court may conduct a hearing in open court and require proof of the matters necessary to support the order sought. For contested cases, see “Objecting to a Michigan Will” below.

Delivering the Will

The person who has possession of a Michigan Will must deliver the original to the court with reasonable promptness. The person must either deliver the Will personally or send it properly addressed by registered mail. Failure to carry out this duty renders the person liable for damages. s2516

Safe Deposit Box

If you believe the deceased’s safe deposit box contains a Michigan Will and you do not have access, then you may ask the probate court for permission. The court may issue an order directing the institution to permit the person named in the order to examine the contents of the box. This must be done in the presence of the institution’s authorized employee or officer. If a Michigan Last Will and Testament is found in the box, you will be required to deliver the Will to the probate register in return for a receipt. All individuals who are present when the box is opened must sign a written statement certifying whether a Will was found and confirming that no other items were removed from the deposit box. s2517

Small Estates

If the value of the gross estate (after paying funeral and burial costs) does not exceed $15,000 then the court may order that the property be turned over to the surviving spouse or to the heirs if there is no surviving spouse. s3982 The court also provides a standardized form to use as a sworn statement for collection of personal property if the estate is $15,000 or less. s3983

Immediate Distribution

Summary administration entitles the personal representative to make an immediate disbursement of the estate to entitled persons without giving notice to creditors. This is only allowed where the value of the entire estate (less liens and encumbrances) does not exceed the total of: the administration costs and expenses, reasonable funeral and burial expenses, homestead and family allowance, exempt property and the medical and hospital expenses of the deceased’s last illness. s3987 The personal representative needs to make an inventory and appraisal to ensure the value does not exceed the requisite amount. Once approved by the court, the property may be immediately distributed and the testator may file a closing statement. s3987

Order of Priority for a Personal Representative

In Michigan, the following persons have priority to be appointed as personal representative of a deceased person’s estate:

  • The person named in a probated Michigan Will;

 

  • The spouse (if he/she is a beneficiary named in the Will)

 

 

  • Other beneficiaries;

 

 

  • The surviving spouse (if not named in the Will);

 

 

  • Other heirs;

 

 

  • A person nominated by a creditor (after 42 days have elapsed since the death and only if the court finds the nominee suitable);

 

 

  • The state or public administrator if applicable. s3203

 

Michigan Estate Tax

Michigan does not impose estate or inheritance tax on estates where the decedent died between December 31, 2004 and January 1, 2011. You do not need to file any estate tax forms with the Michigan Department of Treasury if the death occurs during this period. However, you may still be required to file a federal estate tax return with the IRS.

Objecting to a Michigan Will

Procedure for Contesting

In order to object to a Michigan Will, you will need to file a petition and commence an action. This is called formal testacy proceedings. s3401 If these proceedings have already been commenced by some other party, then you need to file pleadings which state your objections to the probate of the Michigan Last Will and Testament. s3404 Notice must be given and a hearing is date is fixed. You need to produce evidence to prove that the Will is not valid.

What evidence do I need?

In order to show that a Michigan Will is invalid, you need to prove one or more of the following: undue influence, fraud, duress, mistake or revocation. These are valid grounds for contesting a Will. s3407 You cannot challenge a Will simply because you believe you should have received a larger share.

Mental Capacity

A Will may also be challenged on the basis that the testator lacked sufficient testamentary capacity to make a Michigan Will. In order to show this, you must prove at least one of the following:

  • The individual did not have the ability to know the nature and extent of his/her property;

 

  • The testator did not know the natural objects of his/her bounty;

 

 

  • The decedent did not have the ability to understand in a reasonable manner the general nature and effect of his/her act in signing the Michigan Last Will and Testament. s2501

 

Who may contest?

Any interested person or a person that has a right or cause of action that cannot be enforced without administration. s3401 Interested persons include (but are not limited to):

  • The incumbent fiduciary;

 

  • Heirs;

 

 

  • Devisees (beneficiaries under the Michigan Will);

 

 

  • The decedent’s child;

 

 

  • Spouse;

 

 

  • Creditor;

 

 

  • Any other person that has a property right in or claim against the estate;

 

 

  • Ward (an individual for whom a guardian is appointed);

 

 

  • A Protected individual;

 

 

  • Person that has priority to be appointed as personal representative;

 

 

  • Fiduciary of an interested person. s1105(c)

 

Penalty for Contesting

Some Michigan Wills contain a clause penalizing any person who challenges the Will. The statute considers such a clause to be unenforceable (ie: beneficiaries cannot be penalized) if probable cause exists for instituting proceedings. s2518

Disinheriting your spouse or child

Need to ensure your spouse or child is excluded from your Michigan Will? The issue requires careful planning and consideration. Many people assume that if the Will does not mention the person or provides only a minimal share, then that individual automatically doesn’t inherit. This is not so. Like most states, the Michigan probate code provides minimum entitlements for family members who have been excluded from the Will or left a trivial amount.

Spouse

A disinherited spouse is usually entitled to these minimum rights:

    • One of the following:
      • His/her gift under a Michigan Will; or

       

    • ½ of the share that would have passed to your spouse under intestacy; or
    • His/her dower right; plus

 

  • A homestead allowance of $15,000; s2402

 

 

  • A reasonable family allowance as determined by the court for the support of your spouse, minor children and children who were in fact being supported by you. If the estate is inadequate to discharge allowed claims, then the allowance is only allowed for up to 1 year after your death;

 

 

  • Exempt property up to a value of $10,000 including household furniture, automobiles, furnishings, appliances and personal effects. s2404

 

Excluding a Child

Children have fewer rights than a spouse. Only your minor and dependent children receive entitlements and only if there is no surviving spouse. These entitlements include:

  • a homestead allowance of $15,000 each; s2402

 

  • a reasonable family allowance; s2403

 

 

  • a joint share in exempt property up to $10,000. s2404

 

A Michigan Last Will and Testament made prior to the birth or adoption of your child is not enough to exclude them. Unless the Will specifically states that the omission is intentional, then the omitted child is entitled to a share of your estate. The share is based on how much the child would have received if you had died intestate (without a Will) and also depends on how many children you had at the time the Michigan Will was made. Under this provision, the child could end up with a larger share than the statutory minimum entitlements. s2302

Dying without a Michigan Will (Intestacy)

What happens to your assets if you pass away without a Michigan Last Will and Testament? The statute explained for married, unmarried and widowed persons.

Married Persons

If there is no legal Will in place, your spouse receives the following portions:

  • the whole estate if you have no descendants (children, grandchildren and so on) surviving you;

 

  • the first $150,000 plus ¾ of the balance if you have no descendants surviving but you leave a surviving parent;

 

 

  • the first $150,000 plus ½ of any balance if your spouse is the parent or grandparent of at least one of your surviving descendants (whether or not the spouse has children/grandchildren who are not yours);

 

 

  • the first $100,000 plus ½ of any balance if the spouse is not the parent/grandparent of any of your surviving descendants.

 

Any balance not received by your spouse is distributed equally between your descendants by representation. This means all your children receive an equal share. If any child has predeceased, then his/her children receive that share equally and so on. If there are no descendants, then the balance goes to your parents.

Not married or widowed

If there is no spouse, then the property of a resident who dies without a Michigan Willpasses in the following order of priority:

    1. equally to your children. The children of a deceased child or deceased grandchild take his/her parent’s share;

 

  • equally to your parents or the survivor;

 

 

  • to your brothers and sisters or their descendants by representation;

 

 

  • ½ to your maternal grandparents and their descendants and ½ to your paternal relatives. If there are no relatives on one side, the other side takes the whole estate;

 

 

  • if there are no persons entitled, the state of Michigan.

 

Intestacy Examples See how the legislation applies in common household situations. If a family member dies without a Michigan Will, the outcome provided by legislation may surprize you. What happens when husband dies without a Michigan Will and leaves behind his wife & mother: Seth passed away without a Will. He had did not have any children but left a wife and mother. His estate is $300,000, Who gets what? Seth’s wife: $262,500, Seth’s mother: $37,500. Intestacy rules when wife dies. Portion of husband & children: Sarah died leaving an estate of $300,000. She did not make a Will. She has two children to her husband Luke. Who gets what? Luke: $225,000, Luke & Sarah’s Children: $37,500 each. Husband passed away without a Will. How much does wife, children & stepchild inherit? Ed died leaving an estate of $300,000. He left behind his wife Kristina, their two children & a child from a former partner but no will. Who gets what? Kristina: $225,000, Kristina & Ed’s children: $25,000 each, Ed’s child from former partner: $25,000. Inheritance of husband and children from a former partner when wife died. She did not make a valid Michigan Will: Stacy died leaving $300,000 and no will. She left behind her husband Clint and 2 children from a former partner. Who gets what? Clint: $200,000, Stacy’s children: $50,000 each. Intestate succession study. Grandfather passed away widowed. Portion of children & grandchildren: Owen died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Michigan Will Forms

Writing a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to make a Will yourself, make sure to use the tools available on the internet including Will forms, Will templates and even Will software.

Note: Making a Will can be difficult. Before creating a Michigan Will, we recommend you read tips and advice on making a Will and a guide on:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

Michigan Will Form: Married with adult children
Michigan Will Form: Married with adult and/or minor children, includes a trust for minor children
Michigan Will Form: Married with no children

Michigan Will Form: Single with adult children
Michigan Will Form: Single with adult and/or minor children, includes a trust for minor children
Michigan Will Form: Single with no children

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