Probate Court

Types of Wills

An individual 18 years of age or older who is of sound mind may make a will. A will is a written document, which after your death, gives instructions for how you want your individual property to be distributed. A will may also appoint a personal representative who will be in charge of the property until it is distributed. Additionally, the parent of an unmarried minor may appoint a guardian for a minor by will or by another writing signed by the parent and attested by at least 2 witnesses. If serving as a guardian, the parent of an unmarried incapacitated individual may appoint by will, or other writing signed by the parent and attested by at least two witnesses, a guardian for the incapacitated individual. If a person dies without having a will, the property will be distributed according to intestate succession law of Michigan. In Michigan there are several types of wills which may be used.

Formal Will

This document is the one most often admitted to probate. Its formal requirements are mandated by MCL 700.2502. It must be in writing and signed by the testator (person making the will) or in the testator's name by some other person in the testator's conscious presence and by his or her direction. It shall 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 or the testator's acknowledgment of that signature or acknowledgment of the will.

Holographic Will

This document 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 provisions are in the handwriting of the testator.

Self-proved Will

Pursuant to MCL 700.2504(1) a will may be simultaneously executed, attested, and made self-proved by acknowledgment of the will by the testator's and 2 witnesses' sworn statements, each made before an officer authorized to administer oaths under the laws of the state in which the execution occurs and evidenced by the officer's certificate, under official seal, in substantially the form set forth in the statute.

Pursuant to MCL 700.2504(2) an attested will may be made self-proved at any time after its execution by the acknowledgment of the will by the testator and the sworn statements of the witnesses to the will, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the form set forth in the statute.

Pursuant to MCL 700.2504(5) instead of the testator and witnesses each making a sworn statement before an officer authorized to administer oaths as prescribed above, a will or codicil may be made self-proved by a written statement that is not a sworn statement. This statement shall state, or incorporate by reference to an attestation clause, the facts regarding the testator and the formalities observed at the signing of the will or codicil as prescribed above. The testator and witnesses shall sign the statement, which must include its execution date and must begin with substantially the following language: "I certify (or declare) under penalty for perjury under the law ot the state of Michigan that ...".

The significance of a self-proved will is that such a will precludes the necessity for the testimony of a witness when the will is offered for probate. Otherwise, the will may be contested for all other reasons (except signature requirements) like any other will. Wills which are not self-proved may still be admitted to probate, but they may require additional proof if they are contested.

Statutory will

MCL 700.2519 prescribes a form of will and sets forth its terms. It is essentially a fill-in-the-blanks type of document. A will which is executed in the form prescribed and which is otherwise in compliance with the terms of the statute is a valid will. The requirements of the statute are contained in the printed document which may be obtained from your state legislator or at a stationery store.

Writings Intended as Wills

Pursuant to MCL 700.2503, although a document or writing added upon a document was not executed in compliance with section 2502 (formal will), the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:

• The decedent's will.
• A partial or complete revocation of the decedent's will.
• An addition to or an alteration of the decedent's will.
• A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the decedent's will.

Separate writing identifying devise of certain types of tangible personal property

Pursuant to MCL 700.2513 whether or not the provisions relating to a holographic will apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator at the end and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the disposition made by the will.

Observation

While the holographic will and statutory will appear to recommend themselves because they are do-it-yourself documents, it is this writer's experience that the dangers outweigh the benefits. The money which may be saved in drafting the documents is often spent many times over in probate proceeding to interpret the writing. Many times a testator's true intent may not be carried out. I would highly recommend the assistance of an attorney in drafting this important document.