Don’t have a will? Thinking about what’s required to create one? The answer, at least in Michigan, is not as much as you might think, but there are risks.
First, let’s talk about what a will really is. Boiling it down, a will is simply a set of instructions to be followed after your death, a roadmap that your family, heirs, and the court can follow to ensure your wishes are met.
Wills Requirements in Michigan
To be valid under Michigan statute, your will must:
- Be in writing (handwritten or typed);
- Identify itself as your will and clearly indicate that you are the testator (this sounds obvious, but plenty of lawsuits have contested whether an unidentified document was intended as someone’s will); and
- Be signed and witnessed by two individuals.
If the document fails to meet these requirements, it may nevertheless be deemed a valid “holographic will” if it is dated, signed by you as the testator (the person who made the will), and the material portions of the document are in your handwriting, whether or not it is witnessed.
It is possible to admit a document or writing in probate as a will even if it fails to meet the formalities for a holographic will. To do so, the person seeking to admit the document or writing must establish by clear and convincing evidence (not impossible, but a high burden) that the deceased individual intended it to be his or her will.
To give you a sense of how broadly this can be interpreted, sometimes a will on a napkin and a note on the testator’s individual’s phone have been admitted as wills. But know when fewer formalities are met, chances increase for the document or writing to not be admitted as your will.
If there is disagreement regarding the admission of the document or a challenge to its validity, it can result in costly litigation – an expense that can be eliminated by properly preparing a will.
Practical Considerations for a Will
Statutory requirements aside, there are other instructions you should consider adding to your will, including:
- A statement revoking any prior wills you may have;
- Nominations for guardians and conservators of any minor children you may have;
- A designation of whom you would like to serve as personal representative (also known as executor) of your estate.
Though not legally necessary, these directives make it easier for the probate court and your personal representative to distribute your assets and honor your wishes.
Other Instructions in Wills
Although Michigan law addresses many estate and testamentary issues, including additional directions in your will provides further guidance to your personal representative. For example, you might wish to include:
- Instructions for paying off creditors or satisfying any tax obligations you may owe;
- Cancellation of debt that others owe you;
- Bequests of specific properties or assets and the names of the beneficiaries to receive them;
- Any gifts you wish to make to people or charities;
- Names of alternative beneficiaries in case primary beneficiaries predecease you;
- Directions for dividing personal assets;
- Directions for allocating business assets;
- The name of someone to take property remaining after specific gifts and bequests;
- Provisions for any pets.
Including these details can prove helpful to the personal representative you’ve charged with handling the administration and distributing of your estate.
What If I Die Without a Will?
If you die without executing a will, trust, beneficiary designations, or other testamentary instructions, you leave it up to a probate court judge to follow state intestacy laws to determine who has priority to serve as your personal representative and how to distribute your assets. And although Michigan’s lawmakers did a good job drafting and enacting intestacy provisions, the statute can’t address every circumstance or contingency. It’s far better for you to take charge of your wishes and make a will.
Talk to An Experienced Estate Planning Attorney
If you need assistance drafting a will, or if you have questions as to whether a document may be admitted as a will, please contact Kreis Enderle. Our experienced estate planning and probate attorneys are here to assist you.