Writing and Executing a Will
In this blog, we will be going over what probate is in Michigan and what you need to know about writing a will. Probate typically refers to the process of executing the estate of someone who is deceased. It might involve a will, it might also involve determining what happens if someone dies intestate, or without a will. However, modern probate courts do sometimes handle matters that do not involve a decedent. Trusts established by a settler and the guardianship of dependent adults are also probate matters. Furthermore, not all estates require using a probate court. In fact, people often utilize particular legal instruments for the sole purpose of avoiding the inconvenience and expense of the probate process
Should I write a will?
Although it is conventionally considered to be prudent to write a will containing one’s dying wishes, this question cannot be answered so simply. A proper answer requires a basic understanding of how wills work, what happens if there is no will and the rules and limitations about when wills are enforceable or unenforceable.
It takes at least a modest amount of time, effort, and possibly attorney’s fees to have a proper will written. If the expected outcome of dying intestate (without a will) is acceptable, then there is no reason to write one. Furthermore, a written will must still be processed by a probate court, especially if conflicts arise. There are multiple instruments which perform the same function which function outside of the probate system. The best thing to do when it comes to writing a will is to talk to an attorney so you really get the most out of the will.
What is a will?
Will is shorthand for “last will and testament.” It is an official and legally recognized expression of a decedent’s dying desires with respect to certain rights they possessed. This is an exercise of their common law “freedom of testation.” In other words, you have the legal right to exercise property rights (among other rights and privileges) after your death so long as you do so in compliance with the relevant probate laws of your state.
Wills are typically used to determine what will happen with the decedent’s property and may also be used to determine what happens with any minor children (a final exercise of parental rights). The person who writes a will to express his or her dying wishes is known as the “testator” of that will.
State probate codes place certain requirements that have to be met in order for a will to be legitimate and enforceable. These requirements are designed to ensure the authenticity of a will. Under Michigan law you must be at least 18 years old to write a will. Writing a legally binding will is a serious act which must be done by someone with the capacity and competency to make decisions.
A valid will in Michigan typically requires the legal signature of the testator as well as the signatures of at least two witnesses who are also competent adults. These witnesses must have directly witnessed either the testator signing the will or otherwise acknowledging either the signature or the will itself. It should be noted that Michigan allows for “Holographic Wills,” which means that there are no witnesses. So long as the will is in writing, dated, and signed by the testator, courts will uphold the validity.
Can I have an oral will? Or a video will?
No, you may not. Michigan does not recognize oral wills. Wills must be in writing. If you wish to record yourself reading a valid, written will then you may do so. However, that recording cannot be submitted as the will itself.
How will the Court read and interpret my will?
The court will begin by asking the parties presenting the will to “prove” the will. This generally involves bringing the witnesses before the court to testify that they were proper witnesses to the will. Alternatively, the witnesses could file affidavits with the court to accomplish the same thing. However, both of these methods are rather cumbersome and inconvenient in today’s society.
Even if the will satisfies all of the aforementioned requirements, the process is far from over. Written language is not always clear, and the meaning of essential clauses might be ambiguous. Another issue that frequently pops up is multi-page wills and the manner they are presented. How does a court decide what pieces of paper are part of the will, and which ones are not? Typically, if they are fastened together and have labeled page and or line numbers, then a court will likely infer that they are part of the same document.
Sometimes, Testators like to incorporate documents that existed prior to the writing of the will. It might say something like “the things listed on this memo are my gift to Jane Crocker.” In that scenario, the court is also likely to incorporate that into the will.
To avoid getting too deep into the legal jargon, the court recognizes two distinct categories of ambiguity. These are “patent” and “latent” ambiguities. “Patent” can be understood as something which is obvious to anyone reading it. For example, there are four beneficiaries, and each has received “one fifth” of the estate. What happens to the remaining fifth? Did they forget to mention the fifth person? In that case, the court will likely do nothing to correct the error and place the remaining fifth into intestacy. “Latent” ambiguities arise indirectly from context in otherwise clear language.
If John Deere is mentioned, but it turns out the decedent is related to three John Deere’s, who is he talking about? It is only in this situation that the court would allow outside evidence in order to show that there is ambiguity as well as to resolve that ambiguity. If trying to interpret the ambiguous language fails to resolve the issue, the court will resort to customary rules and assumptions to craft a solution.
Conclusion
Probate comes into play when someone passes away and there is a will involved, you will need an attorney should an interested party contest a will, or where an objection may be made regarding a personal representative for the estate. There are a number of matters that may be initiated in probate courts across Michigan. The particular jurisdiction will dictate what matters come before its probate court. Most of these matters will require an experienced attorney should any interested party object.
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