Rochester Hills Will Lawyers
Michigan Attorneys with 40+ Years of Combined Experience
Wills are important documents that set forth how a person’s property and other personal belongings should be distributed after their death. As a result, it is advisable to consult an attorney when drafting a will to be sure you address all the necessary points.
What Does a Will Do?
A will is a legal document that says who should have an individual’s property or care for their children after their death. Anyone who owns property or has children under 18 years old may want to create a will, as otherwise those decisions will be made by the state.
A will is also called a "last will and testament" and can help protect a person’s family and property. A will can:
- leave the person’s property to specified people or organizations;
- name a personal guardian to care for their minor children;
- name a trusted person to manage property they leave to minor children; and
- name a personal representative, the person who makes sure that the terms of the will are carried out.
It is important that a person uses their will to name a personal representative who will ensure that the provisions in the document are carried out after the person’s death. If they do not name a personal representative, the probate court will appoint someone to take on the job.
To finalize a will in Michigan, individuals must sign or acknowledge the document in front of two witnesses, and the witnesses must also sign the will after seeing the individual sign or acknowledge it. Be aware that individuals do not need to notarize their will to make it legal, though Michigan does allow residents to make their will "self-proving" by notarizing the document and signing an affidavit that proves who the involved parties are and that each of them knew they were signing the will. A significant benefit of a self-proving will is that it speeds up probate because the court can accept the will without contacting the witnesses who signed it.
Changing or Revoking a Will
In Michigan, individuals may revoke or change their will at any time. They can revoke their will either by:
- making a new will that says it revokes the old will or has contradictory terms to the old will, or
- burning, tearing, canceling, obliterating, or destroying all or part of the will.
State law presumes a person intended to replace their old will with the new one if they disposed of all of their estate in the new will. If a person didn't dispose of all of their estate, Michigan law instead presumes they only wanted the new will to add to the old one. In this situation, the executor should follow the instructions in both wills; however, if a term in the wills contradicts each other, the executor should follow the instructions in the new will.
To make changes to a will, it is best to simply revoke it and make a new one. However, if only very simple changes are required, a person can instead just add an amendment to the existing will (called a codicil). Note that following the addition of an amendment or creation of a new will, individuals must finalize the document as they had before (signing with witnesses).
If two spouses divorce, Michigan law revokes any language in their respective wills that leave property to the other spouse or names the other spouse to be their executor unless the person specifically states in their will (or divorce decree) that divorce should not affect the provisions in the will. If you have any legal concerns about the effects of divorce on your will, contact one of our attorneys at Little & Boylan PLLC who have experience with estate planning and divorce in Michigan.
If an individual with no will dies, their property will be distributed according to state "intestacy" laws. Michigan's intestacy law gives the deceased person’s property to their closest relatives, beginning with their spouse and children. If they have neither a spouse nor children, their grandchildren or their parents will get the property. If the court exhausts the list of relatives to find that the deceased has no living relatives by blood or marriage, the state will take their property.
After an individual’s death, anyone who has a copy of their will must deliver it to the probate court in their county of residence. If the person deposited their will with the probate court for safekeeping, the court will open and file the will when someone brings in proof of the person’s death (such as a death certificate).
If the deceased person has a child under 18 when they pass, the surviving parent, if any, will likely assume full custody. If the child’s other parent also died, had their parental rights terminated, or is unable to care for the child, then the guardian chosen in the will can accept guardianship by filing with the probate court.
A person’s estate, the property they own at the time of their death, will be distributed or paid off depending on the value. If the estate is small (worth $23,000 or less), the individual’s friends or family may use a simplified process without heavy involvement with the probate court. Note that the small estate processes ignore the wishes in the will and instead use a legal formula of inheritance to divide property. If the estate does not qualify for a simplified process or if the heirs want to follow the will instead, the estate will be distributed using probate proceedings.
Seek an Experienced Will Attorney
If you have legal questions about creating a will or handling an existing one following a loved one’s passing, consult an experienced lawyer for legal support. A will must be legally valid in order to be executed. Our team at Little & Boylan, PLLC can answer any questions you have about wills and guide you in the drafting process.