Wills vs. Trusts: Part 3 of 8

Previously posted in 2015.

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 death. A will allows you to determine who receives what share of your assets after your death. There are four different types of wills: holographic wills, formal wills, statutory wills, and self-proved wills. In our last post, we discussed three of these types of wills: the holographic will, statutory will, and the formal will. In this post, we will discuss the self-proved will.

A self-proved will is a will that has special wording that meets the requirements of MCL 700.2504. A will may be self-proved if it is simultaneously signed by the testator and two witnesses before an officer authorized to administer oaths, which is usually a notary public.  There is specific wording in the statute that is used when the Testator (the person creating the will) and the witnesses that are signing the will, which makes the will self-proved.

The purpose of a self-proved will is that it prevents the need for the testimony of the witnesses to admit the will to probate. Wills that are not self-proved can still be admitted into probate, but may need additional evidence if they are contested. A self-proved will can be contested for any reason except for the signature requirements.

Many clients call the Legal Hotline for Michigan Seniors with questions because they have a will that contains a trust. This type of trust is called a testamentary trust, which is different from a intervivos or revocable living trust. A testamentary trust is trust that is contained in a will. A testamentary trust is not funded until after the death of the testator. The main disadvantage of a testamentary trust is that it does not avoid probate, and the trust along with the assets used to fund the trust are not confidential once they are probated. Clients often use a testamentary trust where they have minor children, and want to provide for their minor children upon their death or where the client actually wants his or her estate to go through probate.

The key to remember about a testamentary trust is that it always goes through probate. An intervivos or revocable living trust, if set up properly, avoids probate. A will must be probated and once filed with the courts becomes a public document. A revocable living trust avoids probate and the terms of the trust remain confidential.

In our next post, we will explain in more detail the revocable living trust and how it avoids probate. If you have questions regarding wills or trusts, please contact the Legal Hotline for Michigan Seniors at 800.347.5297 and our hotline attorneys will be happy to answer your questions.