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A Last Will and Testament is a term or expression used to refer to the most recent document created by the person making the testament (called a "Testator"), directing the distribution of the estate, both real estate and personal property, of that particular person after death. It also appoints a person to be the Personal Representative (formerly known as an Executor or Executrix) of the Testator to make funeral arrangements, pay legal debts and represent the estate in Probate Court.
It is a declaration of how a person has decided his or her estate should be disposed of after death. Such a declaration is revocable during life and carries no force or effect until death. A written testament may also contain other declarations of the Testator as to what is to be done after he or she dies (ie: funeral arrangements, etc.) so long as the document disposes of some property.
A person who dies leaving such a valid testamentary instrument is said to have died "Testate" meaning he or she left a written bequest and the distribution of property should be according to the terms of that document. A person who dies without a valid testamentary bequest is said to have died "Intestate" meaning he or she did not leave a written disposition of property and the distribution of the testator's property is determined by a probate court judge according to Michigan statutory law.
There are several types of testamentary instruments that can be used by individuals in various situations. First is the Formal document drafted by an attorney with the aid of the Testator to properly distribute his or her property. Often this attorney drafted decree is made in conjunction with a Revocable Living Trust, Durable Power of Attorney, Patient Advocate and other documents.
These documents are usually more complex and may contain provisions for guardians of minor children, name a conservator to manage the children's inheritance, indicate a Memorandum of Special Bequests, name agents for the Testator and specify the powers of the Personal Representative.
The Second type is a Holographic Will. This is an instructional bequest that is entirely written, dated and signed in the handwriting of the Testator him or herself. In some states, under statute, a Holographic Will need not be witnessed. This type of document is usually not seen except in cases where the Testator was in a situation of impending death and wanted to create a written instrument to leave a legacy to his family or friends. This method is not recommended in ordinary circumstances as it can be challenged more easily in court especially if the Testator had created a prior last bequest and he attempts to revoke that prior instrument and change beneficiaries with a quickly written Holographic Will.
A Third type of testamentary instrument is the Michigan Statutory Will. It is a short, fill in the blank form document. The Testator can have a valid will by completing the form correctly. Under this type of bequest, the Testator leaves everything to his or her spouse. If the spouse predeceases the Testator, all property and assets are given to the heirs or their children by right of representation, meaning the grandchildren take what their deceased parent would have taken if the parent had survived the Testator.
In addition, no more than two specific cash gifts are permitted by use of this form document. The testator can name a guardian for his children and specify a personal representative. However, a major drawback to using this form will is that it does not have provisions for postponing distribution of assets to children once the child reaches age 18, the statutory age of majority in Michigan. This means the child could be given a very large amount of money at an age when he or she is not mature enough to properly handle the money. Because of the limitations of the Michigan Statutory Will, most Testators find it inadequate for their estate planning purposes.
A common objective of a testator is whether only surviving children (the Heirs) should divide the estate on the death of the surviving parent. An alternative disposition would allow the descendent of a deceased child (Testator's grandchildren) to take from the Testator what their deceased parent would have taken. The question also arises on what to do if an adult child that has been married a long time predeceases the parent. Should the spouse of the deceased child benefit from the Testator's disposition?
Another common concern is who should be named as beneficiaries of the estate if the entire family should die in a common disaster such as a airline crash or catastrophic automobile accident? The probability of such a disaster is most possible when the family is young and the parents travel frequently with their minor children. Who should take the Testator's property should they all die and leave no heirs?
Another very important consideration for young families is the selection and appointment of guardians for minor children if both parents die in a common accident. Who would take the children, care for them, and love them as the parents would? Who is qualified, competent and trustworthy enough to manage the children's inheritance? A will is the best document in which parents can designate guardians for their minor children. If a guardian is not designated by the parents, then the Probate Court decides who gets custody of the children and who raises them. This could be a choice the parents, if alive, would never have chosen themselves.
Another important facet of attorney drafted wills is the ability to incorporate what is called a "Pour Over" provision. This is a paragraph in the testament that allows and empowers the Personal Representative to take property that was not put into a Revocable Living Trust prior to the death of the Testator and title it in the name of the trust after the death of the Testator and probate of the asset. This pour over provision ensures that valuable assets are put in trust and are invested wisely for the benefit of any minor children.
Lastly, a will, by itself, is not a complete estate plan. The major drawback of only having a single testamentary instrument and no other supporting documents, is that, upon death of the Testator, and filing of the instrument in Probate Court, the document becomes "published." This means that anyone can go to the probate court, pay a small fee and get a copy of the Testator's will. The Testator's entire estate, the heirs and beneficiaries, are open to scrutiny of anyone who is interested enough to look.
For this reason, most clients incorporate a trust into their estate plan. A trust, containing all of the Testator's assets, his or her named heirs and beneficiaries, is not filed with the probate court. Therefore, the Testator's estate with all its assets is not subject to scrutiny by the public. The Testator's, and his family's privacy is maintained.
Many people mistakenly believe they don't own enough assets to justify creating a trust along with a will. However, anyone who has children, owns real estate, or has financial investments such as a 401k, IRA or life insurance, should have a trust in addition to a testamentary instrument.
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