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Common Questions about Wills

Contents

    This is a list of common questions about wills. 

    Questions about Wills

    What is a will?

    A will is a legal document that says who should have your property or care for your children after your death.

    Do I need a will?

    If you own any property or have children under 18 years of age, you may want to create a will. In your will, you can choose who will receive your property. You can also choose someone you trust to act as the “personal representative” for your estate. This person will manage the distribution of your property after you die. If you have children under 18, you can name the person you want to be their legal guardian. If you don’t have a will, those decisions will be made for you according to state law.

    Who can make a will?

    Anyone who is 18 or older with sufficient mental capacity may make their own will. “Sufficient mental capacity” means that the person making the will:

    • Understands that making a will means planning to distribute property after death

    • Knows what property they have

    • Knows who their close relatives are (spouse and children)

    • Generally understands the effect of signing a will

    What if someone is pressuring me to make a will?

    A will is not valid if it was made under duress (by force or threats) or the improper influence of another person. It’s OK for someone to assist you with preparing your will. It’s not OK for anyone to tell you what you must put in your will or how to distribute your property.

    When you execute your will, your witnesses must confirm that you have made the will of your free choice. If any interested parties suspect after your death that the will was made under conditions of duress, fraud, or improper influence, they can challenge the validity of the will. Your witnesses will be asked to testify in court.

    If you feel threatened, coerced, or pressured into preparing a will against your free choice, you may want to contact a lawyer for help. If you are over 60 years old, your local legal aid office may be able to help you. Use the Guide to Legal Help to find the office nearest you.

    If you are being abused, neglected, or you think someone is taking advantage of you, call Adult Protective Services at 855-444-3911. If you think the person who is abusing, neglecting, or taking advantage of you has committed a crime, call the police.

    Do I need a lawyer to make my will?

    Not necessarily. Wills can take many forms, and there are several requirements a will has to meet to be considered valid after your death. Estate planning (preparing to transfer your property after your death) can be complicated, and you may want to talk to a lawyer to ensure that your wishes are carried out.

    If you intend to leave most of your property to your nearest family and your situation is not complicated, you can prepare a simple and effective will on your own using the Michigan statutory will. You can use our Do-It-Yourself Will to prepare your will. If you have a more complicated situation or you decide a statutory will won’t meet your needs, you may want to have a lawyer help you draft a will. If you have a low income and are over 60 years old or are low income and facing a life-threatening emergency, your local legal aid office may be able to help you. Use the Guide to Legal Help to find the office nearest you.

    Do I need to make a new will if someone listed in my current will predeceases me (dies before me)?

    It’s always a good idea to have current information in your will. This helps avoid confusion and delays during the probate process. If someone listed in your current will predeceases you, you may want to make a new will to ensure your property is distributed according to your wishes.

    What is a personal representative?

    The personal representative is the person who will make sure your property is distributed according to your wishes. He or she also pays any final bills you have when you die, usually by using or selling property from your estate.

    The personal representative should be someone who is organized and careful enough to complete paperwork and keep the records that the court will need. It should be someone you know to be responsible about making sure that things are done on time. Ideally, the personal representative is also someone who can settle disputes and handle things as you would want. You can choose a trusted friend, a family member or, if the size of your estate justifies the expense, a bank.

    Ask the person or institution whether they are willing and/or able to serve. If you are thinking about using a bank, you should ask for an estimate of the bank's fees and for an honest opinion of whether or not the size of your estate justifies that added expense.

    The personal representative does not have to be a Michigan resident, but it is much less complicated if he or she is.

    You should also name a second choice for personal representative, in case your first choice isn’t able to do it.

    What if the person I named as my personal representative in my will predeceases me (dies before me)?

    The statutory will allows you to name two people as your personal representative. This is in case the first person is unable or unwilling to do it.

    Who can witness my will?

    The witnesses must be adults. It is helpful if they are people you know who could be located to testify about the will if necessary. A person who will inherit from your estate after you die can still serve as a witness.

    You do not have to tell the witnesses about the contents of the will. They only have to be told that the document you are signing is your will and that you are asking them to witness your signature.

    Does my will have to be notarized?

    No. A will does not need to be notarized. However, there must be at least two witnesses.

    Can I avoid probate by making a will?

    Whether or not your heirs will need to use probate court procedures depends on the types of property you have to pass on. If you have assets that need to go through probate, your will can give you more control over what happens in that process. The person you appoint as "personal representative" may still need to go to the probate court for authority to distribute some kinds of property.

    To learn more about heirs, read An Overview of Small Estates Processes. To learn more about probate processes, read An Overview of Formal Probate.

    Can I still give away or sell property after I put it in my will?

    Yes. Your will has no effect until you die, and people you name in your will have no rights to the property until your will is probated. That is why you can make a new will or change the old one at any time. If you sell or give the property to someone else before you die, that part of your will is simply ignored.

    If you do sell property or make major gifts during your lifetime, consider updating your will. That way you can make sure that it all still balances out the way you would want.

    Questions about Statutory Wills

    What is a statutory will?

    The statutory will is a form created by Michigan law. When the form is properly filled out and executed (signed by you and two witnesses), it becomes a valid will. The form has a fill-in-the-blanks format. This limits how you can distribute your property. However, using the statutory will has some advantages. You can prepare and execute it without help from a lawyer. If you draft a will from scratch, you might make mistakes that could make the will invalid.

    You can use our Do-It-Yourself Will to prepare a Michigan statutory will.

    Does the statutory will work for everyone?

    No. Only Michigan residents can use the statutory will. Also, if you have a lot of valuable property or if your estate or family situation is complicated, you may want to have a lawyer help you make a will. Those complications may include:

    • Children from previous relationships

    • Children with special needs

    • Wanting your property to go to nonrelatives instead of your relatives

    • Not wanting your children to inherit equally

    • Owning a business

    If you fit any of these categories, you can still use the statutory will, but it may not meet all your needs.

    You can use our Do-It-Yourself Will to prepare a Michigan statutory will.

    Can my spouse and I make a joint statutory will together?

    No. You can’t make a joint statutory will. You should each complete your own.  

    What can I do using the statutory will?

    You can:

    • Name a personal representative to manage the distribution of your property during the probate process

    • Name a guardian and conservator for your minor children, if any

    • Make gifts of cash to one or two people or charities

    • Distribute your personal and household items to any number of people you choose

    • Distribute the rest of your property to your spouse, if you have one, or else to all your children equally

    In a statutory will, you can’t:

    • Make gifts of cash to more than two people or charities

    • Leave the rest of your property (after cash gifts and personal items) to a nonrelative

    • Change the way the rest of your property (after cash gifts and personal items) gets distributed to your family

    • Transfer title to any assets you own jointly with another person

    • Change any retirement plan benefits

    • Change a beneficiary you named in a life insurance plan

    You can use our Do-It-Yourself Will to prepare a Michigan statutory will.

    Which of my children will inherit under a statutory will?

    All of your children will inherit equally under the statutory will. Your children include those born outside of marriage or adopted by you.  

    Why do I need to list the names of my children?

    One reason is convenience to the court in the future. Also, if there is a question of your mental state (capacity) when you signed the will, this helps to show the judge that you could identify your close relatives.

    How can I distribute my personal and household property using a statutory will?

    The statutory will allows you to leave a separate list of personal and household property, and the people you want to receive these items. This list is optional. If you use the Do-It-Yourself Will, you will be asked to name these items and recipients, and the list will print with your will and other documents.

    You should be as clear as possible in describing both the item and the person who should receive it. For example, say "my diamond solitaire and gold engagement ring" instead of "my rings." And give the name of the person, not just "my next-door neighbor" or "my nephew."

    This does not need to be a complete inventory of your possessions. Another section of the will says that the residue of your estate should be distributed to your heirs. The “residue of your estate” means everything else you own that wasn’t included either in the list of personal items or in the optional cash gifts.

    You can update or change this list at any time. If you sell or give things away, you should take them off the list to avoid confusion in the future. Remember, people named on this list have no rights to your property until your will is probated after your death.

    What is jointly owned property?

    Jointly owned property is property owned by more than one person. It is generally not included in an estate.  An example of jointly owned personal property is a car whose title lists two owners or a joint bank account. If you owned property jointly with the decedent, when he or she died you automatically became the sole owner of that property, so it is not part of the estate. You may want to take a copy of the decedent’s death certificate to the bank or Secretary of State to remove the decedent’s name from the account or car title.

    However, sometimes joint ownership is more complex. If you own real property with the decedent, or if you own any type of property with the decedent and someone else, ownership can be hard to understand after a death. Read the article Jointly Owned Property to learn more about this, or use the Guide to Legal Help to look for lawyers and legal services in your area.

     

    What kinds of property do not require probate?

    Some kinds of property are not part of the estate, and are not distributed through the probate court. The estate does not usually include:

    • Jointly owned property,

    • Insurance policies,

    • Retirement accounts, or

    • Trusts that are not established by a will.

    If your car is worth less than $60,000 and there is nothing else in your estate that would require probate, the car can be transferred to a spouse or next of kin through the Secretary of State's office without filing in probate.

    What will happen to my assets if I don’t list them in my statutory will?

    The statutory will form requires you to say who gets the "residue" of your estate. That is everything that is left once the specific gifts have been paid.

    The statutory will allows you to distribute your property to certain family members according to a set structure. Your surviving spouse (if any) will inherit the residue of your estate. If you are not married when you die, the rest will go to your "heirs at law" in equal shares. Your nearest "heirs at law" are your children or, if they have died before you, their children. To learn more about heirs, read An Overview of Small Estates Processes.

    If you are married now, you can choose to leave all your property to your heirs or to share it with your spouse’s heirs. If no spouse, child, or descendent of a child survives you, you have two choices:

    • Your parents or your siblings (or their children), will inherit 100% of the residue of your estate (this is also what would happen to your property if you died without a will)

    • Your heirs (parents or siblings or their children) will inherit 50% of the residue, and your spouse’s heirs will inherit 50% of the residue. (You may want to consider this option if your spouse had children from a previous relationship who would otherwise not inherit from you.)

    If you are not married now and no spouse, child, or grandchild survives you, your heirs will inherit 100% of the residue of your estate.

    How do I finalize my statutory will?

    Your will is valid as soon as it is properly signed and witnessed. You can use our Do-It-Yourself Will to prepare your will. When you’re done, your personalized will can be printed, ready to be signed and witnessed.

    You must sign the will yourself or direct someone else to do it in your presence if you are not able to sign it. The will must then be signed by at least two (but preferably three) other people age 18 or older. These are your witnesses. The witnesses have to sign within a short time after they watch you sign the will or after you verify to them that your signature is on the will.

    The will does not have any effect on your property until you die.

    What is “bond,” and do I need it?

    The statutory will requires you to choose whether your personal representative and conservator will serve with or without bond. Bond is insurance used to protect the heirs in case the personal representative or conservator misuses or steals assets from the estate. Both the amount and cost of the bond depend on the value of the assets. The bond fee is usually paid by the estate before the final distribution of property to the heirs.

    The court will require the personal representative to buy a bond from an insurance company unless you select “without bond.”

    When deciding whether or not your personal representative should be allowed to serve without bond, you should consider how much you trust that person. If you have any doubts about the risk of misuse, it may be worth requiring a bond for your peace of mind. The choice is up to you.

    Will my Michigan statutory will be valid if I move to another state?

    Probably. Most states have laws recognizing the validity of wills that were properly executed in other states. However, it’s a good idea to have a lawyer in your new state review your will to make sure it will be valid there.


     

    Questions about After You Execute Your Will

    Where can I keep my will when it’s finished?

    You can keep your will in a locked box in your home with your other important papers, such as deeds, car titles, or insurance policies.

    For a $25 fee, you may deposit your will with your county’s probate court for safekeeping. The probate court clerk can release the will only to you during your lifetime. If you need to make changes, the probate court will charge the fee again when you re-deposit your new will. When the court receives proof of your death, it will publicly open and file your will.

    You can also store your will in a bank safe-deposit box. Before you do so, check with the bank about their policies on unlocking boxes when the owner dies. Some banks will require a court order and inventory before letting anyone have access to the box. This could cause delays for your family and personal representative.

    Wherever you decide to store it, you should tell your family where the will is kept. You may want to give a copy to the person you named in the will as your personal representative.

    What if I have a child after I sign my will?

    Generally, if you have or adopt a child after making your will and you do not rewrite the will, the child will still receive a share of your estate. You can avoid confusion by making and signing a new will that names your new child.

    What if I get married after I sign my will?

    If you already had a will before you got married, you should make and sign a new will that names your new spouse. Even if you don’t, Michigan law protects the inheritance rights of surviving spouses. Generally, if you are still married when you die, and your will was executed before the marriage, your spouse will inherit from your estate as if you had died without a will.

    To learn more about who inherits if you die without a will, read the section “Who Will Inherit?” in the article An Overview of Small Estate Processes.  

    What if I get divorced after I sign my will?

    If you get divorced after you write your last will, your ex-spouse is not considered a surviving spouse who can inherit from you. However, it’s still a good idea to make and sign a new will to reflect your changed family structure following a divorce.

    What if I want to change my will?

    You can change your will at any time before your death, as long as you are legally competent.

    Adding or crossing out any words on the statutory will form may make it invalid. If you want to make changes to the form part of the will, you should revoke the current will and start fresh. Using the statutory will again will revoke any earlier wills. But you should destroy the original and any copies of a will you want to revoke to avoid confusion.

    The statutory will allows you to add a separate list of your personal and household items and who should get them after your death. You can make changes to this list or replace it at any time. Changing this list will have no effect on the rest of the will.  

    How can I revoke (cancel) my will?

    If you have a will, you can revoke or invalidate it at any time. The easiest way to do this is by physically destroying it, such as burning or tearing, or by drawing a big “X” on the whole will or part of it.

    You can also revoke an earlier will by executing a new will. The statutory will form does this expressly in its first line. This means that any will with an earlier date becomes invalid when you execute the new statutory will. Only the last will you executed is valid at your death.

    It can be complicated if someone dies and leaves behind more than one will, especially if the wills say different things. When that happens, a judge is sometimes asked to decide what the person meant to do in writing a later will. Did that person mean to replace the earlier will, or just add to it? For this reason, you should destroy the original and any copies of a will you want to revoke.