A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Michigan wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Michigan living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Michigan last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
For small estates in Michigan, it may be possible to transfer property of the decedent to a survivor with an affidavit or follow a simplified probate procedure.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Michigan in the absence of a will, a surviving spouse inherits the entire estate unless the decedent also has descendants shared with the surviving spouse, in which case the spouse inherits the first $150,000 of intestate property plus half of the balance. If there are only surviving children and no spouse, the children inherit the entire estate. A decedent’s parents are also entitled to a part of the estate if there is a surviving spouse but no children or descendants.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to ability to distribute property
Not all property can be distributed according to a will. Major exceptions in Michigan include the following:
- Homestead allowance: The surviving spouse (or minor or dependent children if no surviving spouse) is entitled to a homestead allowance of $15,000.
- Family allowance: To be determined by the personal representative of the estate, the family allowance can be no more than $18,000 or periodic installments not exceeding 1/12 of that amount per month for one year.
- Exempt property: The surviving spouse (or children if no surviving spouse) is entitled to “household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00 more than the amount of any security interests to which the property is subject.”
- Elective share: A surviving spouse in Michigan has a right to an elective share of “1/2 of the sum or share that would have passed to the spouse had the testator died intestate, reduced by 1/2 of the value of all property derived by the spouse from the decedent by any means other than testate or intestate succession upon the decedent’s death.”
- Dower rights: A widow has a lifetime interest in 1/3 of the husband’s property that was owned during the marriage; this may be elected instead of the statutory share.
Form a last will in Michigan
The basic requirements for a Michigan last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A Michigan will must be signed by at least two individuals after witnessing either the testator’s signing of the will or his acknowledgement of the signature or of the will.
- Writing: A Michigan will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in Michigan
Michigan recognizes a holographic (handwritten) will if dated and signed by the testator at the end of the document. All material portions of the will must also be in the testator’s handwriting.
Changing a Michigan last will and testament
A Michigan will may be changed at any time by codicil, which must be executed in the same way as a will.
Revoking a Michigan last will and testament
The revocation of a Michigan will can be accomplished by executing a subsequent will or by destroying the will with the intent to revoke it.
In Michigan, if the testator gets divorced or his marriage is annulled after executing a will, provisions in favor of the ex-spouse are revoked.
When you are ready to make a last will of your own, LegalZoom can help. We can help you start a last will online in three easy steps.