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Revocation of a Will by Writing or by Act

Posted December 3, 2018

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

 

Types of Wills:

Posted November 24, 2018

An individual 18 years of age or older who is of sound mind may make a will. A will is a written document, which after your death, gives instructions for how you want your individual property to be distributed. A will may also appoint a personal representative who will be in charge of the property until it is distributed. Additionally, the parent of an unmarried minor may appoint a guardian for a minor by will or by another writing signed by the parent and attested by at least 2 witnesses. If serving as a guardian, the parent of an unmarried incapacitated individual may appoint by will, or other writing signed by the parent and attested by at least two witnesses, a guardian for the incapacitated individual. If a person dies without having a will, the property will be distributed according to intestate succession law of Michigan. In Michigan there are several types of wills which may be used.

Formal Will

This document is the one most often admitted to probate. Its formal requirements are mandated by MCL 700.2502. It must be in writing and signed by the testator (person making the will) or in the testator's name by some other person in the testator's conscious presence and by his or her direction. It shall be signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will or the testator's acknowledgment of that signature or acknowledgment of the will.

Holographic Will

This document is valid as a holographic will whether or not witnessed, if it is dated, and if the testator's signature and the document's material provisions are in the handwriting of the testator.

Self-proved Will

Pursuant to MCL 700.2504(1) a will may be simultaneously executed, attested, and made self-proved by acknowledgment of the will by the testator's and 2 witnesses' sworn statements, each made before an officer authorized to administer oaths under the laws of the state in which the execution occurs and evidenced by the officer's certificate, under official seal, in substantially the form set forth in the statute.

Pursuant to MCL 700.2504(2) an attested will may be made self-proved at any time after its execution by the acknowledgment of the will by the testator and the sworn statements of the witnesses to the will, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the form set forth in the statute.

Pursuant to MCL 700.2504(5) instead of the testator and witnesses each making a sworn statement before an officer authorized to administer oaths as prescribed above, a will or codicil may be made self-proved by a written statement that is not a sworn statement. This statement shall state, or incorporate by reference to an attestation clause, the facts regarding the testator and the formalities observed at the signing of the will or codicil as prescribed above. The testator and witnesses shall sign the statement, which must include its execution date and must begin with substantially the following language: "I certify (or declare) under penalty for perjury under the law of the state of Michigan that ...".

The significance of a self-proved will is that such a will precludes the necessity for the testimony of a witness when the will is offered for probate. Otherwise, the will may be contested for all other reasons (except signature requirements) like any other will. Wills which are not self-proved may still be admitted to probate, but they may require additional proof if they are contested.

Statutory will

MCL 700.2519 prescribes a form of will and sets forth its terms. It is essentially a fill-in-the-blanks type of document. A will which is executed in the form prescribed and which is otherwise in compliance with the terms of the statute is a valid will. The requirements of the statute are contained in the printed document which may be obtained from your state legislator or at a stationery store.

Writings Intended as Wills

Pursuant to MCL 700.2503, although a document or writing added upon a document was not executed in compliance with section 2502 (formal will), 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.

 

Who is an Heir

Posted October 15, 2018

An heir is defined under the Estates and Protected Individuals Code (EPIC). "Heir" means, except as controlled by MCL 700.2720, a person, including the surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent's property. MCL 700.2720 which will be discussed later is a rule of construction used to determine those who take under a gift to "heirs" or a similar term. A person who dies without a will is a person who dies intestate. A person who dies intestate has their estate distributed according to the scheme set up by the state called intestate succession. It can be said that everyone dies with a will. You either make your own will or the state makes one for you (intestate succession). Intestate succession proceeds as follows under EPIC upon the death of the decedent.

The dollar amount of the intestate share of the surviving spouse shall be adjusted annually for inflation beginning January 1, 2001. Pursuant to MCL 700.2102, the present intestate share of the surviving spouse is as follows:

  • Spouse takes the entire share if there are no surviving descendants or parent. "Descendant" means, in relationship to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in EPIC.
  • Spouse takes the first $150,000 plus 3/4 of the balance, if there are no surviving descendants, but there is a surviving parent.
  • Spouse takes the first $150,000, plus 1/2 of the balance, if any of the decedent's descendants are also descendants of the spouse.
  • Spouse takes the first $100,000, plus 1/2 of the balance, if none of the decedent's surviving descendants are descendants of the spouse.

Pursuant to MCL 700.2103, any part of the intestate estate that does not pass to the decedent's surviving spouse under MCL 700.2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent: The decedent's descendants by representation. The term "representation" will be explained later in this note. If there is no surviving descendant, the decedent's parents equally if both survive or to the surviving parent. If there is no surviving descendant or parent, the descendants of the decedent's parents or of either of them by representation.  If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same matter as the 1/2.  If there is no taker under the above provisions, the intestate estate passes to the state of Michigan.

 

 

 


 

 

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