People are often advised to write wills as part of their estate planning. Wills are important because they allow a person writing the will the opportunity to decide who gets property from his or her estate. Using a will in conjunction with other estate planning tools can help avoid probate and ensure that family and friends are well taken care of after your death. When a person fails to plan by using a will or another estate planning tool, the distribution of assets defaults to state law.

When a person dies without a will, he or she dies intestate and any property that would have passed by will is divided per the state’s intestate succession laws. Any property that is not in the deceased’s name at the time of death is not subject to intestate succession. Therefore, if the deceased was able to create a trust and transfer property to the trust before his or her death, the trust property would not be subject to intestate transfer. Property such as insurance proceeds and retirement accounts are transferred to designated beneficiaries.

Under Michigan law, when a person dies intestate, his or her property is first required to be distributed to a spouse if the deceased did not have any children. If the deceased did not have any children but was married, the entire estate is inherited by the spouse. If the deceased is survived by both the spouse and children, the estate is divided between the spouse and the children. However, in this case, the spouse first gets a set dollar amount from the estate; the amount is calculated based on the increases in cost of living.

Children who are born to the deceased and a person who is not his or her spouse are also able to inherit from the deceased. The marriage status of the parents does not affect the children’s ability to inherit.

If the deceased has a spouse and no descendants, the spouse gets a large share of the estate and the rest of the estate is transferred to the decedent’s parents. If the deceased did not have a spouse or children, his or her property is distributed to the parents and siblings. Half siblings are also eligible to inherit from their half siblings.

If these close relatives are not alive, the property is passed on to the next available group of relatives, for example, grandchildren and cousins. While the state may eventually get the deceased’s property, it is only if there is no relative, even a remote one, who can inherit it. A qualifying relative can inherit from the deceased even if the relative does not live in Michigan or even in the United States, and whether or not the relative is a United States citizen.

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A will is an important part of an estate plan and can be used with other documents to ensure that a person’s wishes for the distribution of his or her estate are carried out. If you want to make changes to a prior will, write a new will, or discuss other estate planning options, contact Resnick Law, P.C., to consult the experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

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Once a person has decided to establish a trust as part of his or her estate plan, another important decision needs to be made in order to complete the trust formation process – choosing a trustee. Choosing a trustee is important because the person or organization the trust settlor selects to serve as trustee bears the responsibility of working for the best interests of the trust beneficiaries and protecting the trust interests.  

If the trustee is an individual, one of the most important things to consider is whether you, as settlor, can trust the trustee to properly manage the trust. This is not a legal requirement, but it is an important consideration. In choosing family and friends to serve as trustees, the settlor usually attempts to pick a person he or she believes will truly act in the best interest of the trust beneficiaries.

In addition, it is important to consider if the person you select as a trustee has a poor financial history. The trustee will be required to make decisions that will affect the value of the trust assets. The law requires the trustee to act like a prudent investor would, unless there are restrictions on the kinds of investments the trustee can make. Selecting a trustee with poor financial judgment could mean the beneficiaries will receive less than the settlor intended.

If you name one family member to serve as trustee, you should consider whether that decision will cause a strain in the relationships between the trustee and the other family members. This may be the case if one sibling is chosen to serve as the trustee from a group of siblings.

Not everyone who is selected to serve as a trustee accepts the role. It is advisable to name several options for trustees, or use language when setting up the trust that allows you to changes trustees when necessary. Changing trustees after the trust is formed may not be possible in some cases.

Another option for the choice of trustee is the use of a company that offers trust administration services. Using a trust company can be advantageous because the company has experience in trust administration and is likely to make investment decisions without becoming emotional. Unfortunately, trust administration companies can also charge fees to administer the trust, and this can cause some people to opt not to use them. The fee is something that needs to be considered in light of all the other pros and cons of using an institutional trustee instead of an individual.

In some cases, it is possible to name a team or group of people to serve as trustee. This team of people would generally only make trust decisions based on their agreement on the issues unless otherwise stated in the trust documents.

Contact an Experienced Attorney

If you are thinking about setting up a trust as part of your estate, you need to talk to an experienced estate planning attorney who can assist you in deciding what kind of trustee you should appoint. Contact Resnick Law, P.C., to consult our experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan. Our estate planning attorneys are also experienced in trust administration and can explain how we can serve as an institutional trustee for your trust.

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In estate planning, the term ademption refers to a situation in which a gift given in a will by a testator cannot be transferred to a beneficiary because the gift no longer exists or has already been transferred by the time of the testator’s death. A testator is the person who leaves his or her property to others in the will. How the bequest in the will is handled in cases of ademption depends on the type of property involved and the circumstances under which the gift was transferred.

Ademption can happen through the transfer of the gift to the intended beneficiary by the testator during his or her lifetime. For example, a man could decide to give his old car to his granddaughter while he is still alive. If in his will there is a term leaving the same car to her, the gift is said to be satisfied. This is referred to as ademption by satisfaction. In some situations, the testator may indicate that gifts made in this way are supposed to satisfy a gift made in the will.

On the other hand, a testator could write a will and leave some property to a beneficiary, and then later sell this property or gift it to someone else during the testator’s lifetime. If the testator fails to change his or her will to reflect the property’s sale, then the gift of the property cannot be satisfied and the beneficiary will not receive a substitute gift in place of the missing property. This is known as ademption by extinction.

Ademption works differently when it comes to gifts of money. For example, if the testator leaves a set amount of money to a beneficiary, say 100,000 dollars, and the testator dies with a bank account balance of less than 100,000 dollars, the testator’s estate would still be required to transfer this sum of money to the beneficiary. The estate may have to sell other property or get the money from other accounts to fulfill the gift.

Under Michigan law, if the ademption of a gift is due to a sale by the testator that has not been finalized at the time of the testator’s death, the money due to the testator on that sale shall be transferred to the beneficiary. So, the beneficiary in a way steps into the shoes of the testator in this regard. This also applies to situations in which the property to be left to the beneficiary is destroyed and there is an insurance payout. The insurance money goes to the beneficiary. However, if it is clear that the testator changed his or her mind about leaving the gift to the beneficiary, then the beneficiary does not get to keep the proceeds of a sale or an insurance policy.  

Contact Us for Legal Assistance

Everyone who executes a will should take steps to update it often to ensure that the terms of the will can be honored without creating confusion. If you are looking for legal assistance in drafting or updating your will or setting up a trust, you should contact Resnick Law, P.C., to speak to the experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

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A person who writes a will as part of a larger estate plan may need to change the will from time to time depending on changes in the person’s life. In some cases, the person may need to completely redo the will and cancel a prior will in its entirety. There are several ways to

A testator’s act of physical destruction of a will generally serves to revoke the will. Burning, tearing, canceling, obliterating, or destroying a will or a part of the will is taken as an indication that the testator intended to revoke the will. Even if these actions do not actually affect the words on the will, if they destroy part of the will, then the revocation will be recognized. Only original wills are recognized, and therefore, even if a photocopy of a destroyed will exists, it would not be accepted as a substitute will showing the testator’s intent.

For a revocation to be valid, the act destroying the will does not have to be carried out by the testator, but can be done by another person as long as it is at the direction of the testator. This may be a concern if the testator is physically incapacitated.

The testator can also revoke a will by executing a different will that is intended to supersede the original. However, if revoking a will by executing a new will, the testator has to be careful to ensure that the will replaces the prior will in its entirety. If a subsequent will only revokes some parts of a previous will, both wills may be accepted and their terms followed to the extent they do not contradict each other.

In some situations, it is best to write a new will that incorporates terms from a prior will that the testator wishes to keep, and then physically destroy the prior will. This would ensure that only one will is relied upon when the testator dies, and reduces the possibility of will challenges leading to one will being invalidated.

There are other bequests in a will that are revoked automatically as a matter of law. Bequests to a spouse when the couple is married can be revoked by a subsequent divorce. This also applies to a prior grant of power of attorney to a spouse before the divorce. If a person wants to leave some property to a former spouse, he or she can still do so, but he or she will need to update the will after the divorce is finalized in order to ensure that the bequest is honored. The terms of a will that are revoked after a divorce is finalized can also be revived if the testator remarries his or her former spouse.

Contact Us for Legal Assistance

If you want to make changes to a prior will, write a new will, or discuss other estate planning options, contact Resnick Law, P.C. to consult experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

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However, sometimes not all the assets a person wants to leave to the beneficiaries of a trust are transferred while that person is alive. The remaining assets may be left out of the trust and therefore fail to be distributed to the intended beneficiaries, unless there is a will in place that has a provision to transfer the assets automatically upon the trust creator’s death. This is the purpose of a pour over will.

A pour over will is a legal document that satisfies all the legal requirements of a will in Michigan, but that also includes a provision within it that transfers property to a trust that has previously been established. A person does not need both a pour over will and a traditional will. The pour over will is just a traditional will that also includes the pour over provisions.

A person who wishes to have assets transferred through a trust typically forms the trust during his or her lifetime, but the trust does not have to be funded immediately. The trust can be funded at the person’s death through the provisions of a pour over will.

It is important for the trust to be in existence at the time the pour over will goes into effect or the provision will fail. If the property cannot be transferred to the trust as required under the will, and there is no other provision in the will for the distribution of the property, the property can be divided to other heirs. This may not be in accordance with the wishes of the deceased.

Unfortunately, funding a trust using a pour over will can complicate what would otherwise be a simple distribution of trust property to beneficiaries. This is because the pour over will still has to go through probate, and this could take a long time for the process to be completed. The trust has to remain in existence while the will is probated. So, if a person wants to pass on his or her property to beneficiaries using a trust, he or she should transfer the title to as much of that property as possible before death. A pour over will is best viewed as a safety net to take care of any property that inadvertently gets left out of the trust.

Contact an Experienced Estate Planning Attorney

Figuring out the best way to distribute your assets to your future beneficiaries does not have to be a complicated issue. To put together an estate plan that addresses your individual needs and wishes, contact Resnick Law, P.C., to consult experienced estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

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In Michigan, for a will to be valid, it must meet certain criteria. The will must be:

• In writing,
• Signed by the person writing or directing the writing of the will (known as a testator), or in the testator’s name by some other individual.
• If another person signs on behalf of the testator, the person has to sign the will in the testator’s presence and at the testator’s direction.
• Signed by at least two witnesses who are present at the signing of the will by the testator, or who sign the will as witnesses after the testator acknowledges his or her previous signature is already on the will.

Generally, wills that do not meet these requirements are not likely to be considered valid. The exception to this is what is referred to as a holographic will. Holographic wills are wills that are written and signed by the testator. Although holographic wills are not accepted in many states, in Michigan, holographic wills are acceptable if the material terms of the will are written in the testator’s handwriting.

If a person makes an attempt to write a will and meet the criteria set out above, and for some reason fails to satisfy all the criteria, the will may still be considered valid if it can be characterized as a holographic will. If part of the will is taken from a pre-printed template, but all the material provisions in the will are handwritten, then the will may be initially valid as a holographic will. The other requirement for a holographic will is that it be dated. Holographic wills do not need to be witnessed.

Sometimes, documents that are written by the testator by hand, such as letters or notes, may be introduced as wills if they express a wish to bequeath something to someone after the testator’s death. If the document otherwise meets the requirements of a holographic will, and it can be shown that it was the testator’s intent to have this document act as a will, then it may be upheld.

Get Assistance When Drafting Your Will

Your will is an important part of your estate plan and its drafting should be given considerable thought. A will should be prepared with a person’s general estate plan in mind in order to ensure that the testator’s wishes are well executed upon his or her death. In order to prepare a will that is specific to you and your needs, contact Resnick Law, P.C., to consult the skilled estate planning attorneys in Bloomfield Hills and Detroit, Michigan.

(image courtesy of Alvaro Serrano)