Making a Will

Do I Need a Will?

A will is a legal document that says who should have your property or care for your children after your death. If you own any property or have children under 18, you may want to create a will. If you don’t have a will, those decisions will be made for you according to state law.

Wills can take many forms. There are several requirements a will has to meet to be considered valid after your death. Planning for the end of your life can be complicated. 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, you can make a simple and effective will without a lawyer using the Michigan statutory will. You can use our Do-It-Yourself Will tool to prepare your will.

If you decide a statutory will won’t meet your needs, you may want to have a lawyer help you prepare your will. If you are over 60 years old and have low income, your local legal aid office may be able to help you. Use the Guide to Legal Help to find a lawyer and legal services near you.

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

A will is not valid if it is made under duress (by force or threats) or the improper influence of another person. It is okay for someone to help you prepare your will, but it is not okay for anyone to tell you what you must put in your will or how to distribute your property. When you sign your will, the witnesses must confirm that you made the will of your free choice. If any interested parties suspect after your death that the will was made under 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, contact Adult Protective Services. If you think the person who is abusing, neglecting, or taking advantage of you has committed a crime, call the police.

Statutory Wills

The statutory will is a form created by Michigan law. When the form is properly filled out and 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 sign a statutory will without help from a lawyer. Even though you can make a statutory will without a lawyer, you may still want to talk to one if you have questions or if your situation is complicated.

If you prepare a will from scratch, you might make mistakes that could make the will invalid. The statutory will is easy to use and can provide peace of mind.

If you use a statutory will, you can:

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

• Name a guardian and/or conservator for your minor children

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

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

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

  • If you don’t have a living spouse, child, or grandchild when you die, your property will go to your more distant relatives, your “heirs.” For more information, see “Who Are My Heirs?” below.

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 how 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. For more information, read Jointly Owned Property.

• Create a joint will with a spouse or partner

You can’t change the beneficiary of a life insurance plan or the person who inherits your retirement plan with any will, including a statutory will. If you want to make those changes, contact the life insurance company, your former employer, or plan administrator to change the beneficiary.

Who Can Use a Statutory Will?

The statutory will does not meet everyone’s needs. 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 more 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 may want to talk with a lawyer if you are in a complicated situation, like one listed above.

How to Make a Statutory Will

You can use our Do-It-Yourself Will tool to prepare your will. Once you finish, your customized statutory will and instructions will print out. If you cross out or add any words to the printed will, you may make it invalid (this does not include lists of personal property distributions, which you can update in writing). Your will is valid as soon as it is properly filled out, signed, and witnessed by at least two other people. The will does not need to be notarized. The will does not have any effect on your property until you die.

Choosing a Personal Representative

The personal representative is the person who makes sure the property of the estate is distributed according to your wishes. They also pay any final bills you have when you die, usually by using or selling property from the 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 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 may be easier for someone who lives in Michigan to complete the tasks. It is not required to name a second choice for personal representative but it is a good idea to do this in case your first choice isn’t able to do it.

Deciding Whether Your Personal Representative Will Need a Bond

The statutory will asks you to choose whether your personal representative will serve with or without bond. Bond is insurance used to protect the heirs in case the personal representative 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.

Choosing Witnesses

You must sign your will in front of at least two witnesses, but you can have up to three witnesses. They must be 18 or older. 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 what is in 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.

After You Sign Your Will

Your will is finished when you and two witnesses have signed and dated it. Your will is valid forever unless you revoke (cancel) it or make another will. If you make another will, it cancels any former wills. 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.

You can keep your will in a safe place 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.

If you move out of Michigan, your will may still be valid. 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.

Revoking (Canceling) Your Will

If you have a will, you can revoke or cancel 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. If there are copies of the will, you should destroy them, too.

You can also revoke an earlier will by making 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 sign the new statutory will in front of two witnesses. Only the most recent will 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? To avoid this, it’s a good idea to destroy the original and any copies of a will you want to revoke.

Changing Your Will

You can change your will at any time before your death, as long as you still have sufficient mental capacity when you make the change.

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 revokes any earlier wills. You should destroy the original and any copies of a will you want to revoke.

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 need a list like this to ensure your property is distributed according to your wishes. Simply putting people’s names on items (or something similar) is not legally binding. You can make changes to this list or replace it at any time. Changing this list has no effect on the rest of the will. The Do-It-Yourself Will tool creates this list for you. If you just need to create or update this list, use the Personal Property Distribution List.

Family Changes

If you get married after making your will, it’s a good idea to 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 signed before the marriage, your spouse will inherit from your estate as if you had died without a 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.

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.

To learn more about the legal inheritance formula, read the "Who Will Inherit?" section in the article An Overview of Small Estate Processes.

Who Are My Heirs?

Michigan law has a formula that says who inherits property. The people who inherit your property are your heirs. The statutory will allows you to make two cash gifts to people or charities and to list items of personal property to go to specific people. The statutory will says that the rest of your property goes to your spouse, if you have one, or else to all your children equally. Your children include those born outside of marriage or adopted by you. If any children have died before you that child's share will be divided evenly between their children (your grandchildren). If no spouse, child, or descendant of a child survives you, the statutory will gives you 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 die without a will or your estate is administered through a simplified or non-probate process, this formula will apply to your whole estate. If you have a Michigan statutory will, this formula will apply to the residue of your estate. The residue is what is left of your property after your gifts of cash and personal items.

The formula can be complex depending on your situation. If your property is worth $27,000 or less, you can read the “Who Will Inherit?” section of An Overview of the Small Estates Processes to learn more. Regardless of your property’s value, you may want to speak with a lawyer if you have questions about the inheritance formula.

What Happens after My Death?

After your death, anyone who has a copy of your will must deliver it to the probate court in the county where you lived. If you deposited your will with the probate court for safekeeping, the court will open and file your will when someone brings in proof of your death (such as a death certificate).

If you have a child under 18 when you die, their surviving parent, if any, will likely assume full custody. If your child’s other parent died, had their parental rights terminated, or is unable to care for your child, the guardian you chose in your will can accept guardianship by filing with the probate court.

The property you own at the time of your death is called your estate. The process of distributing your property and paying your outstanding bills is known as estate administration.

There are different ways an estate can be administered. If the estate is small (worth $27,000 or less), your friends or family may be able to use a simplified process where the probate court is not involved at all, or only a little bit. The small estate processes ignore the wishes in your will. Instead, the legal formula of inheritance is used to divide property.

To learn more about these processes, read An Overview of Small Estate Processes.

If your estate does not qualify for a simplified process or if your heirs want to follow your will instead, your estate will be distributed using probate proceedings. Probate proceedings can be informal or formal. Read An Overview of Informal Probate and An Overview of Formal Probate to learn about these processes.