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.