Most of us know that we should have a last will and testament, commonly referred to as a will. But many people don’t know what a will can (and can’t) do, or what happens if they don’t have one. Here’s what every adult should know about wills in Michigan.
You don’t have to make a will, but if you don’t, the state you live in will make one for you.
In essence, you have two choices: do an estate plan, or let state law dictate how your property will pass after your death. It’s called “intestate succession,” and it means that if you haven’t created a valid will, state law effectively creates one for you by default.
If you think that sounds like a great idea, consider this: Michigan intestacy law distributes an estate as legislators imagine most people would want it to, had they gotten around to making a will. Closer relatives inherit first, and if there are none, more distant relatives take from the estate. That could mean an estranged parent or sibling, or a distant cousin, inherits from your estate instead of people about whom you care more. And if you have children, your surviving spouse does not get 100% of your estate.
Estate planning is not one-size-fits-all. Ensure that your wishes are known and honored by making a will.
You can name a guardian for your child in your will.
If you have a child who is a minor, that’s another good reason to avoid intestate succession and make a will that names a guardian for your child. If you don’t nominate a guardian, and your child is left without a parent to care for them, the probate court must appoint a guardian. This often results in conflict between relatives over who gets to care for a child, rather than a smooth transition to a trusted guardian for a child who has already lost their parent or parents. Other times, you can address this in an Appointment of Guardian document.
Be aware that if you name a guardian for your child in your will, they must still be appointed by the probate court to have legal authority. But the court is likely to appoint the proposed guardian nominated in a parent’s will, unless there is some reason for disqualification.
Having a will doesn’t keep you out of probate.
It’s a common misconception that having a will avoids probate, but that’s simply not true: the probate court generally oversees estate administration whether or not you have a last will and testament or your estate is intestate. If keeping your estate out of probate is important to you, you do have options, such as a living trust. You should discuss this as well as your other estate planning goals with an experienced estate planning attorney.
There are different types of wills.
Most of the time when people refer to a will, they are talking about a “simple will” to distribute estate assets, name a guardian for minor children, and name a personal representative to administer an estate. But there are other types of wills, such as a will that creates a testamentary trust, and a “pour-over” will that funds a trust with estate assets. Your attorney can advise you on the type of will that is best to achieve your estate planning goals.
You can store your will with your county probate court.
Where you store your will is important; the personal representative of your estate named in your will needs to know where your will is and be able to quickly access it. A home safe is a good option, so long as your personal representative has access to the safe. A safe deposit box at a bank may be problematic, if your personal representative is only given authority to access the safe deposit box by the will…that is located in the box.
Many people don’t know that for a small fee (usually around $25), they can put their last will and testament on file with the probate court for the county in which they live. That keeps it safe and sound, but just make sure that your family and personal representative know where it is when the time comes. A problem can arise if you change your will, so in that case, you would have to make sure to to replace it with the most recent version at the probate court. Many people prefer to use a fireproof box for storage instead for this reason.
A living will is not the same as a last will and testament…and it’s not valid in Michigan.
A living will is a written document that expresses a person’s wishes for medical care, including end-of-life care, if they are no longer able to express those wishes. Many states give force to living wills, but Michigan is not one of those states. In Michigan, you should designate a patient advocate. Your designated patient advocate will be able to make medical decisions for you in the event you can no longer make them for yourself.
Of course, you should discuss your wishes for end-of-life care with your patient advocate, and you can consider putting those wishes in writing so they are available to your patient advocate in a time of crisis. Just remember that doing so does not create a legally binding living will, because there is no such thing in Michigan.
Get Answers From an Experienced Michigan Estate Planning Attorney
There are many things you may not know about wills, living wills, and estate planning in Michigan, but it’s important to get answers so that you can protect your family.
The skilled estate planning attorneys at Barron, Rosenberg, Mayoras & Mayoras help people create estate plans tailored to their goals and their family’s needs. Schedule a consultation today by calling (248) 641-7070 in Michigan or (941) 222-2199 in Florida to learn how we can assist you. You can also use our simple online contact form.