What is a Will?

A will is a document that tells a court how to distribute your assets. That’s it. That’s the whole ballgame. There are particulars and requirements, but pretty much it’s simply this.

The requirements for a Will are that the document is signed in front of two people who witness the signature. Michigan Law states that a Will must be:

       (b) Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction.

      (c) Signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision (b) or the testator's acknowledgment of that signature or acknowledgment of the will. MCL 700.2502

Wills aren’t strictly the thing that prompts a visit to probate court: rather, assets that are titled to you must go through probate court. The Will is the document that guides the Court in how to manage these assets and ultimately distribute them. Your beneficiaries will have to go to probate court, to get the authority from the court, to have the power to distribute the assets that are in your name only - to your beneficiaries. Under the rules of Michigan Intestate Succession, they can nominate a Personal Representative of the Estate. Under a Will, you get to nominate someone that you trust to be a Personal Representative.

Most people have beneficiaries on their retirement accounts, insurance, and even “pay on death” designations for their bank accounts. These assets will not go through probate court. Many have joint bank accounts with their spouse, so that the spouse automatically owns the account upon the death of the decedent (the deceased person). Some people have “ladybird deeds” which give their home to family members automatically when they die. These special asset designations do not go through probate court, because they distribute the assets automatically or with minimal effort.

A Personal Representative has a duty to comply with the law, and with the wishes of the decedent in a Will (if there is a Will). Any beneficiary can haul the Personal Representative into Court if they think the PR is not doing their job correctly. Relying on this is a double-edged sword for someone planning their estate, because the Courts often figure out and do the right thing, but the beneficiaries are more likely to fight on multiple little things once they have gone to Court for one thing.

Avoiding Probate Court has become the number one reason not to rely only on Intestate Succession, or solely on a Will, for this reason. Attorney fees and probate court fights are expensive, time-consuming, and often heartbreaking. Families become enemies very quickly.

Instead, a comprehensive estate plan can greatly improve the odds of avoiding probate court. If you have more questions, please call to discuss.