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Areas of Practice:
Wills and Estate Planning
Real Estate Law
Corporate & Business Law
Criminal and Traffic Law
General Civil Litigation
|"You and Your Will"
Courtesy of the State Bar of Michigan
Many people have a mistaken belief that a Will serves any number of purposes. Their beliefs
have sprung up from various sources and have been perpetuated over many years. Some of
these misconceptions are as follows:
- If I have a Will I avoid the probate court system.
- My Will controls the disposition of all my assets.
- My husband needs a Will since he owns a business but I don’t need a Will since all our other
assets are jointly owned.
- I have added all my children’s names to my bank accounts and house deed, therefore I have no
need for a Will.
- Since I can write my own Will I have no need for a lawyer.
- I have a Durable Power of Attorney and my agent can dispose of all my assets at my death.
Before we look at the misconceptions, let us examine what a Will does. The principal reason for
having a Will is to: Change the formula set by the state as to who gets what; naming a guardian
for minor children; choosing a Personal Representative (Executor); setting aside specific assets
for certain individuals or charities; and creating a trust to delay the distribution of assets to
persons who may not yet be ready to manage large sums of assets.
Now, let us look at the misconceptions. Having a Will does not eliminate the need to file the Will
with the probate court. The Will must be filed with the court to enable the Personal Representative
to receive written authority to gather up the assets. Without such written authority, the Personal
Representative has no power to act.
Does my Will control all of my assets?
No, not in the sense that the average person may believe that it does. It controls those assets
which are in your own name and not co-owned with another. Joint bank accounts, shares of stock
with co-owners, real estate owned jointly with others, jointly owned brokerage accounts, life
insurance and Individual Retirement Accounts with named beneficiaries are some of the assets
not controlled by your Will. A set of laws different that the law of Wills control each one of the
assets described above. One must look to those laws to see who owns the asset at the time of
Does a wife need a Will?
Who is to say which spouse will die first. Since the wife might survive the husband, she ends up
with all of the jointly owned assets and needs her own Will to make her personal desires known.
Do joint assets give certainty to your Plan of Disposition?
Well, maybe and maybe not. Joint assets which pass to surviving owners depends on one
important fact. Will all of the co-owners survive the original creator of the asset? If son, Johnny,
fails to survive his mother, his share of the bank account (either as the only joint owner or one of
several) will not pass to his children (assuming he has children) and therefore, a disinheritance
takes place. The other co-owners (if others are named), by law, take the entire account without
any legal obligation to share it with the children of the one who predeceased everyone. The entire
process depends upon the order of death, which is the one great uncertainty which no one can
Do I need a lawyer to write a Will?
Michigan law permits you to write your own Will, with or without witness. The details explaining
how to execute the document properly are expressed in the written law on Wills. You can also
obtain a copy of the Statutory Will from your local State Representative. This is a do-it-yourself
form with no explanation of the law of Wills.
The principal reason to use a lawyer in making a Will is to have a person who is knowledgeable
of the law examine the facts surrounding a person’s ownership of assets and the facts
surrounding who the person favors most in the disposition of his or her assets. It is only through
a questioning process that a proper Will can be prepared.
Every person has different ideas concerning who gets what when they die, and their lives are
frequently involved with children from a previous marriage. Also, many persons never give
thought to the problem of a child predeceasing them. Who will get the assets if such a situation
It is only a lawyer who can examine the whole picture and explain what happens in each
situation. At that point, a Will is prepared taking into account all of the facts surrounding that
person’s family history, assets and desires as to who should get what.
The Durable Power of Attorney is fast becoming a valuable tool in eliminating the need for court
control over a person’s assets when he or she becomes mentally incapacitated. It is a substitute
for a court appointed conservator.
However, the authority to act as an agent for an incapacitated person using a Durable Power of
Attorney ceases at the person’s death. At that point, it is only the Will which authorizes a person to
act upon assets owned by the deceased. Or, if there is no Will, the court appoints a person to act
and divide up the estate according to Michigan law.
Many people have turned away from the use of a Will and prefer the use of jointly owned assets to
avoid the probate court process. They have heard tales of great delay and heavy court expenses.
In Michigan, the law regarding the probating of a Will have been modernized. Rigid controls
exercised by the court in previous years have been modified.
Today, with the use of independent administration (no court supervision), court hearings are not
needed. The Will need only be deposited with the court with a request that the named Personal
Representative be authorized to act. The time to complete administration of a normal estate
under $600,000 is approximately eight months. The filing fee is presently $100, and there is a
graduated administration fee ranging from $25 to $925 on a $600,000 estate. There is no longer
an inheritance tax for estates with a value less than the federal estate tax unified credit. In most
cases, estates under $1,500,000 are exempt from inheritance taxes.
An important aspect when comparing a Will with a Revocable Living Trust is the nature of work to
be performed after death. Practically speaking, the tasks are almost the same with no need to file
the Trust with the Court. The tasks for both are: Identify beneficiaries; gather assets; examine
prior tax returns for errors; identify creditors/amount owed; sell assets, if necessary; pay creditor
or contest claims; prepare final income tax returns; and distribute the remaining assets.