Wills Blog
Battle Creek Estate Planning - Wills Law Blog

What Purpose Does A Will Serve?

Posted December 7, 2018

An Overview of the Use of Wills:

A will is one of the cornerstones of every good estate plan.  A person who makes out a will is called a testator.  Along with its traditional role of conveying property at death, a will serves several other purposes.  For example, through a will a person can name a guardian for minor children, direct that the minimum level of probate court involvement be utilized in probating the estate, provide for who is to be considered a beneficiary of the estate in the event a potential beneficiary dies close in time to the testator, name the person who will represent the estate for probate purposes (the personal representative), and direct from what assets death taxes are to be paid.  

Wills range from fairly simple two or three page documents to far more lengthy, complicated documents.  A will can include a trust known as a “testamentary trust”.  However, given the significant advantages in utilizing non-testamentary trusts, testamentary trusts are seldom used today.

Due to the significant probated avoidance that is obtained by using a revocable living trust, wills are seldom used as the primary vehicle used to pass assets at death. Utilizing a trust is usually determined to be the most advantageous means of passing assets at death. However, a special type of will known as a “pour-over” will is utilized.  Any assets which are not placed in the trust before death are poured-over into the trust by the will.  Hence the name “pour-over” will.  A pour-over will is used in combination with a revocable living trust to accomplish the tasks stated above, many of which can only be done by a will.

 

Writings Intended as Wills

Posted November 20, 2018

Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:

  • The decedent's will.
  • A partial or complete revocation of the decedent's will.
  • An addition to or an alteration of the decedent's will.
  • A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the decedent's will.

MCL 700.2503


Revocation of a Will by Writing or by Act

Posted October 21, 2015

A will or a part of a will is revoked by either of the following acts:

  • Execution of a subsequent will that revokes the previous will or
  • a part of the will expressly or by inconsistency.

Performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or a part of the will or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or a part of the will. A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touches any of the words on the will.

If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked, and only the subsequent will is operative on the testator's death.

The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will, and each will is fully operative on the testator's death to the extent they are not inconsistent.

MCL 700.2507

 

 

 

 

 

 

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