Wills vs. Trusts: Part 2 of 8

Previously posted in 2014.

By Christine Steinmetz, J.D., Hotline Attorney

In our previous post, we defined a will as a document that contains your instructions about how you want your assets (also known as your estate) distributed upon your passing. A will allows you to determine who receives what share of your assets after your death.

Many people are not aware that Michigan has a Statutory Will, which has been created by the State Legislature, this is a basic document that meets the requirements of the statute. MCL 700.2519 contains the pre-printed Michigan Statutory Will, which is a fill-in-the-blank form. The Statutory Will may meet your needs; however, you may wish to create an estate plan that deviates from the Statutory Will. The Statutory Will leaves all your assets to your spouse, or if the spouse is deceased, then to your children in equal shares. The Statutory Will only allows you to make two specific gifts with this form. You can obtain a copy of the Statutory Will from your State Senator or State Representative. You can also call the Legal Hotline for Michigan Seniors at 866.400.9164 and speak to one of our attorneys, who can send a copy of the statutory will to you. As with any legal document, the Statutory Will may not be valid if a person fails to complete the form correctly. In addition, many clients find that they want additional terms or provisions to carry out their wishes for their estate. Therefore, it is always recommended that a client contact an attorney to set up their estate plan as most people are not familiar with all the statutory requirements. There may also be tax considerations when setting up your estate plan that you may not be aware of.

Michigan also recognizes a holographic will. Although it is always best to have a will drafted by an attorney, a person can prepare a will that is in his or her own handwriting. If the holographic will is in the client’s own handwriting, it need not be witnessed, but it needs to be signed and dated, and the document’s material provisions must be in the testator’s handwriting. If you type or use a computer to create your will, it must be witnessed by two witnesses. Many people do not have the knowledge or training to create a will, thus, they may wish to seek an attorney to assist in their estate planning.

The most common will admitted to probate courts is the formal will, which meets the requirements under MCL 700.2502. Pursuant to the statute, the will must be 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. It should also be 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 or the testator’s acknowledgment of that signature or acknowledgment of the will.