We have posted a copy of an actual Will named "Standard Simple Family Will" form
that we use for our clients. This is a legal Will. But as we mentioned in our "Beware
of One Size Fits All" Will, there are many possible pitfalls that cannot be handled
by this Will. We will give examples after we familiarize you with what a Will is
and is not.
A Will or Last Will or Last Will and Testament is the title of a legal
document, usually drafted by an attorney by which a person, usually called the testator
(person making a Will). He or she names one or more persons to manage his or her
real and personal property remaining after her or his death (also legally called
their "estate." These persons are called executors or personal representatives. The
person making the Will provides for the distribution of his or her property after
their death to those he wants to receive the property.
At one time a "Will" was historically
limited to real property while "Testament" was the disposition of personal property.
To cover both contingencies and those things which could happen in the future, attorneys
tended to cover both by the title "Last Will and Testament." However, the courts
have (over the last one hundred years) been very lax in enforcing the correct use
of the correct name. So long as the Judge could clearly understood the wish of the
persons disposing of their property they would pass both real and personal property
under a document called only a Last Will or Will. OR in rare cases where it was called
a Last Testament but also dealt with real property, they granted the clearly set
forth wishes of the person making the Will or Testament (testator).
A will may also create inside of it a Testamentary Trust. A trust is where property
is held by a person called a "trustee", solely for the benefit of another person
(or persons) called a "beneficiary." Sometimes a Will may have in it such a Testamentary
Trust. It should be noted that a Testamentary Trust (as opposed to other Trusts)
is effective ONLY AFTER the death of the person making the Last Will and Testament
(testator). So it cannot be used to deal with property of a person who may become
sick, disabled or incompetent. AND a Testamentary Trust may be revoked by his or
her making of a new Last Will and Testament.
For that reason when one is making out
a new Will and wants to revoke a Testamentary Trust. he or she should include it
in the language where he "revokes all prior Wills, Codicils, or Testamentary Trusts
entered into before the date of this Last Will and Testament."
There is no legal requirement
that a Will be drawn up by an attorney or lawyer. Just be aware of the problems for
citizen-made (home-made) wills. When someone is seeking to enforce a citizen made
Will, the person who made the Will is dead and Will NOT be available to explain what
she or he intended. Any error or confusion will usually end up in a Judge declaring
that the Will is not enforceable and reverting back to what would have happened to
the property if there had been no Will. (When a person dies without a Will, he is
said to have 'died intestate'. There is little room for mistake. A common error (for
example) in making a Will is using the person you are trying to benefit as a witness.
This should never be done. In Michigan a Will needs two witnesses who are NOT beneficiaries
(a beneficiary is one who receives benefits, money or property in the Will) Without
two valid witnesses a Will may be declared unenforceable.
Holographic Will: Michigan
is one of those jurisdictions recognize a holographic Will. This is a Will made out
entirely in the hand printing or hand writing of the person making the Will (testator).
The distinctive feature of a holographic Will is less that it is handwritten by the
Michigan’s law regarding holographic wills is MCL 700.2502 states as follows:
Except as provided in subsection (2) and in sections 2503, 2506, and 2513, a Will
is valid only if it is all of the following:
(a) In writing.
(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.
(2) A Will that does not comply with subsection (1)
is valid as a holographic Will, whether or not witnessed, if it is dated, and if
the testator's signature and the document's material portions are in the testator's
(3) Intent that the document constitutes a testator's Will can be established
by extrinsic evidence, including, for a holographic Will, portions of the document
that are not in the testator's handwriting.
This writer has not seen case law on whether
a Holographic Will can be in another's hand writing when made at the direction of
the person making the Will, especially if the person making the Will (testator) can
not write due to lack of education or disability. But if there are, at least some
parts in the writing of the person making the Will (testator) then the courts may
well enforce it. BUT it is better to call the local Attorney's Association to find
an attorney who will draft a Will for free or very little money, when a person is
one who make less than $15,000 per year or with children less than $24,000.00 per
There are many problems not dealt with in this Standard Simple Family Will.
For instance if you have a spouse or child who will spend every penny that they can
get as soon as they get it, you may want to leave the money in a simple Testamentary
Trust in the Will that allows them to receive only $X.00 Dollars per month for the
next 24 or 48 or 60 months. You Will want to state that this benefit 'cannot be attached
or claim made by a Creditor or Organization that tries to buy the monthly payout
and give a beneficiary a lump sum of cash, nor can the money be sent to another address
which is not the home address of the beneficiary, nor can the money be given, transferred
or otherwise assigned. In that case the money to revert back to the Estate and be
distributed to the other heirs at law.'
Or if there is a Judgment against someone,
you want to protect them, from an action to attach their benefits.
may be a person who worked hard for you, who is not a relative that you want to see
receive money or certain property or another benefit or piece of property. This Will
does not do that and you would have to provide for that separately.
Thirdly, You may
have been married before and either do or do not want to leave benefits to that former
spouse. This writer once handled a case for a person who was secretly married to
a woman of means. About five or so years later she died. She had not made a new Will
after her marriage. My client was a pretermitted spouse (A spouse whom the testator
does not marry until after the signing of her most recent Will.) Many jurisdictions
provide that a pretermitted spouse will receive either the share he or she would
have gotten had the spouse died without any Will or the elective share (a set amount
or formula provided by law for spouses who are disinherited in the Will, who may
elect to take AGAINST the Will).
MCL 700.2301 states, in relevant part: (1) [I]f a
testator’s surviving spouse marries the testator after the testator executes his
or her Will, the surviving spouse is entitled to receive, as an intestate share,
not less than the value of the share of the estate the surviving spouse would have
received if the testator had died intestate as to that portion of the testator’s
estate, if any, that is not any of the following:
(a) Property devised to a child
of the testator who was born before the testator married the surviving spouse and
who is not the surviving spouse’s child. (b) Property devised to a descendant of a
child described in subdivision (a). (c) Property that passes under section 2603 or
2604 to a child described in subdivision (a) or to a descendant of such a child.
other words, under §2202, a surviving spouse may elect either to abide by the Will
or to receive a share of the decedent’s estate, which is referred to as the spouse’s
Under §2301, a “pretermitted spouse” – that is, a surviving spouse
who married the decedent after the Will was signed – is entitled to receive an intestate
share of a specified portion of the estate.
The Michigan Court of Appeals in: IN RE: ESTATE OF Ida SPRENKLE-HILL, Docket No.
248783., February 22, 2005 held: ... we see no reason to interpret these provisions
in a manner that would undermine the Legislature’s intent to insulate all spouses
from disinheritance while also allowing a decedent’s likely testamentary intent to
be honored to the extent possible.
Accordingly, we conclude that a surviving spouse
who satisfies the conditions of §2301 may nonetheless take an elective share under
§2202 if that provision yields a larger amount. The amount to which the surviving
spouse was entitled under §2301 will then be considered part of the elective share.
Conversely, if the share available to a surviving spouse under §2301 is greater than
the elective share under §2202, the surviving spouse may receive the full amount
to which he or she is entitled under §2301 by electing to abide by the terms of the
will pursuant to MCL 700.2202(2)(a)
Thus, a person married to a spouse after that
spouse has made a Will, if the spouse makes no new Will, then the new spouse may
take as a “pretermitted spouse” or a surviving spouse depending upon which way that
new spouse may most benefit.
Fourthly, you may have an heir that is already receiving
a disability or other benefit and an inheritance might affect them and make it impossible
for them to keep receiving the benefit. If you know about this before you make the
Will you may want to include language that says if their disability or other benefits
will be adversely affected by an inheritance then the inheritance shall revert back
to the estate and be distributed to other heirs at law.
Fifthly, You may have a grandchild
that needs to be protected for a future education. You may want to bypass this your
child for various reasons, this Will does not provide for that.