MAKING A WILL UNDER THE NEW PROBATE CODE

Many people believe that by having made a will, upon death there will be no probate proceedings to pass title to their estate. This is not true because a will is not effective unless it is probated. By making a will, probate may be easier and the passing of the estate to certain persons may be ensured. But there must be a probate of those assets that are titled only in the name of decedent at death.

By making a will, a person tells the court, the heirs, and all takers under the will who should be entitled to the assets of the estate after the maker’s death. After the will has been admitted to probate, the personal representative of the estate follows the terms of the will and, as further required by law, administers the estate by paying creditors, taxes, and the beneficiaries under the will.

Many people make trusts during their lifetime. If it is not a part of the will it is a separate document and is called a living trust or a revocable trust. With a living trust, assets held in the trust pass to those persons named as beneficiaries in the trust. This avoids probate of all property in the trust. Most people who have made a living trust also make a will whose provisions are then made to coordinate with those of the trust.

The person making a will is called a “testator. Upon death, this person is said to have died “testate.” A person who dies without having made a will is said to have died “intestate.” A person or organization named in a will to receive an asset after the maker’s death is called a “devisee.” In a trust, the person or organization receiving trust assets is a “beneficiary.” 

The property given to a person by will is called a “devise.” Earlier in Michigan law and as is often commonly heard on television programs, this gift of property by will has been called a “bequest.” Thus, a bequest and a devise are the same thing. Under EPIC the term is devise and therefore that is the term found in these articles.

Besides passing property to specific persons, a will can be used to name the person most preferred to administer the estate. This person is called a “personal representative.” For many years this person was called an executor or an estate administrator.

With a will, a person can also prevent certain heirs from receiving any asset of the estate. There are many other actions that can be taken by writing a will that are too numerous to cover in this article.

For a will to be valid in Michigan, the testator must be at least 18 years old and of sound mind. A will can be formally made and signed; or it may be handwritten by the testator, called a “holographic” will; or it may be a writing or document that the decedent intended to be a will.

A formal written will is the most frequently made will and must meet the requirements of EPIC. It must be in writing and signed by the testator or, in special circumstances, by a person directed by testator to sign on testator’s behalf. 

Two witnesses also must sign the formal will. The witnesses must sign within a reasonable time after either the testator’s signing or directing it be signed on his or her behalf or testator’s acknowledgment of that signature or acknowledgment of the will.

A holographic will must be dated, must have the material parts written in the handwriting of the testator and must be signed by the testator. This document does not require the signature of any witness but it can be witnessed.

A document, or a writing added upon a document, may be intended by a testator to be a will even though it is not made and signed like a formal or holographic will. Such a document can be presented to court and proven to be the intended will of a decedent.

A person who signs as a witness to a will and is given some or all of the estate in the same will is no longer prevented from receiving the assets merely by acting as a witness. Nor does it invalidate the will. The gift to this witness may be denied by proof that it was made by the testator because of the undue influence of the witness.

A will can validate gifts to persons identified in a list or written statement that the testator makes outside of the will itself. The will must refer to the writing identifying the tangible personal property. The writing must be signed by the testator but need not be witnessed.

As of April 1, a will can also be “self-proved.” To do this, the will must be simultaneously signed by the testator and the witnesses and made self-proved by acknowledgment of the will by the testator’s and the witnesses’ sworn statements made under specific statutory requirements.

A self-proved will is admitted to probate without the testimony of any of the witnesses. Except for the signature requirements, the will can still be contested for all other reasons. A will that is not self-proved can still be admitted to probate but the signature requirements could be contested.

The making of a will frequently requires expertise available only through a lawyer. Most holographic wills require court hearings for admission to probate and to interpret various clauses. The money that may be saved in having legal advice to prepare and sign a will is usually spent many times over in court proceedings for admission and interpreting a handwritten will.

For those with very simple estates, the legislature has created a statutory will that requires the completion of blank spaces and proper signing. These forms are available at the probate court but they are not suitable for most estate plans. They can be found and copied from the statute. See MCL 700.2519.

After a will has been made, it should be kept in a safe, secure location where it will not be accidentally destroyed or where an unauthorized person may have access to it. Many testators use a safety deposit box. Wills can also be place into a sealed envelope then delivered to the probate court of residence for safekeeping. However, there presently is a $25.00 file fee to so deposit the will at the court.

If an individual finds the original will of a deceased testator, that person must forward it to the proper probate court with reasonable promptness. It must either be hand delivered to the court or sent by registered mail to the court. Failure to do so could subject the individual to personal liability for damages arising because of the neglect.

The safety deposit box of the decedent can be opened after his or her death by the joint lessee of the box and the will then removed. If the joint lessee fails to do so, the court appointed personal representative of decedent could open it and remove the will. Alternatively, an interested person can petition the court for authority to open the box and obtain the will. If one is found, the person authorized to open the box must deliver it to the court. See MCL 700.2517.