A very common misconception among laypersons is that execution of a Last Will and Testament means that family members will avoid the need to probate a deceased person’s assets.  In reality, a Will controls the distribution of only the individually-owned property which must be probated upon the owner’s death.  If this is the case, what benefit is there to preparing a Will?

There are a number of good reasons to have a Will in place, even though Wills must be probated.  By executing a Will you can:

  • Give your property to persons of your choice, different than what Michigan law automatically requires if you should die without leaving a Will.   For example, you need a Will if you wish to:
    – make sure particular persons will receive specific assets from your estate;
    – disinherit close family members who are your heirs-at-law;
    – provide for certain persons only on the condition that they survive you, and
    not include their descendants; or
    – leave your estate to persons in unequal proportions or percentages.
  • Name the individuals, and set their priority for appointment, who you want to serve as the Personal Representative to administer your estate.
  • Lengthen the required survivorship period for named beneficiaries beyond the 120 hours provided in Michigan law, to avoid a possible need for multiple probate proceedings due to a beneficiary’s subsequent death.
  • Specify the portion of the probate or trust estate from which death taxes must be paid (important for persons with larger estates exceeding $5.43 million).
  • Parents can appoint a guardian and nominate a conservator for minor children.
  • Parents who do not want named children or grandchildren to receive their inheritance outright upon attaining age of majority (18 in Michigan) can establish a “testamentary” trust for the benefit of those beneficiaries, select the age adult beneficiaries must attain before their trust ends, and nominate the individual who will manage the beneficiaries’ assets as trustee.
    A “pour over” will is a valuable back-up to ensure a uniform estate distribution plan is carried out for persons who establish a Revocable Living Trust as their primary estate plan document, but neglect or are unable to complete trust funding.