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What Is a Will?

August is National Make a Will Month! At Lumbertown Law, we stress the importance of estate planning all year long. This month, we'll have a few posts highlighting Wills and how they can fit into an estate plan.

Before we talk about how Wills can be used, let's take a minute to point out what a Will is. Michigan law defines a Will as including, but not being limited to, "a testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to the decedent's property that is passing by intestate succession."

In that definition, there are some key takeaways:

  1. A Will is a writing, not a set of verbal instructions (i.e. an "instrument").

  2. A Will is not intended to take effect until after the death of the person making it, and is intended to be revocable during the lifetime of the person making (i.e. a "testamentary instrument").

  3. A Will appoints a personal representative. Under Michigan law, a personal representative is the term used for what is commonly referred to as an "executor." This person is generally in charge of administering a person's estate after that person dies, and is responsible for following Michigan probate laws. With limited exceptions, a personal representative has no authority to act until appointed by a probate court, however. Personal representatives in Michigan are considered fiduciaries, and must settle and distribute a person's estate in accordance with the Will (or Michigan law when there is no Will) expeditiously an in the best interests of the estate.

  4. A Will can also be used to revoke or revise another will.

  5. A Will can be used to nominate a guardian (and a conservator) for minor children. For parents of minor children, this is often one of the most important uses of a Will.

  6. A Will can be used to modify the provisions of intestate succession. Intestate succession is the process used to determine who inherits property when a person passes away without a Will. When a person wants to exclude someone from the ability to inherit assets from their estate upon death, a Will can be a very powerful tool to do so.

There are different types of Wills, and different uses for each type, and we will discuss those in later posts. For now, though, keep in mind that a Will can be a very important tool to allow you to control, among other things, (1) who is in charge of administering your estate after you die, (2) who has custody of minor children in the event of your death, and (3) how assets are to be distributed after you die.

Failing to prepare a Will (or other estate planning documents) leaves you at the mercy of state law to determine who is in charge of your estate and who receives assets from your estate upon your death.

If you would like to learn more about how to incorporate a Will into your estate plan, contact Lumbertown Law today to schedule an estate planning consultation.


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