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Frequently Asked Questions about Statutory Wills


Q.WHAT HAPPENS IF I DIE WITHOUT A WILL?
A.

Your possessions will be distributed according to law.  Basically, someone who dies without a Will is said to be "intestate".  The State has adopted a law that determines your heirs--generally, your spouse, children, parents, brothers/sisters, etc.--if you do not change that by making a Will.  There are some exceptions to that, however.

Q.WHY SHOULD I MAKE A WILL?
A.You can choose who will receive your property.  You can also select someone you trust to act as the "personal representative"--this used to be called the "executor".  If you have children under 18 years of age, you can appoint the person you want to be their legal guardian if you die.
Q.CAN I AVOID PROBATE BY MAKING A WILL?
A.No.  Whether or not your heirs will need to use probate court procedures depends more on the types of property you have to pass on than whether or not you have a Will.  If you have assets that need to go through Probate, your Will can give you more control over what happens in that process.  However, the person you appoint as "personal representative" may still need to go to the Probate Court for authority to distribute some kinds of property.
Q.WHAT KINDS OF PROPERTY DO NOT REQUIRE PROBATE?
A.

Property such as money held in a joint bank account, Certificate of Deposit or stock account if it says that there are "rights of survivorship".  Real estate may also pass directly to the survivor if the names of both spouses are on the deed or it says that the property is owned jointly with "rights of survivorship."  Life insurance proceeds that are to be paid to a "beneficiary"--someone specifically named who is living at the time that the benefits are payable.  (If life insurance is payable to your estate or to someone who has already died, then this money would also have to go through probate procedures).

If your car is worth less than $60,000 and there is nothing else that would require probate, the car can be transferred to a spouse or next of kin through the Secretary of State's office without filing in probate.  You can get more information from the website for the Secretary of State's office

Q.

AM I PREVENTED FROM GIVING AWAY OR SELLING PROPERTY AFTER I PUT IT IN MY WILL?

A.

No.  Your Will has no effect until you die--and people you name in your Will have no rights to the property until your Will is probated.  That is why you can make a new one or change the old one at any time.  If you sell or give the property to someone else before you die, that part of your Will is simply ignored. 

For this reason, it is a good idea to look at your Will if you do sell property or make major gifts during your lifetime.  You will want to make sure that it all still balances out the way you would want.

Q.ARE THERE DIFFERENT KINDS OF WILLS?
A.

Yes.  If you do not use the Statutory Will form, there are several other ways to make a valid Will.  However, each of those require that you comply to fairly specific legal requirements in order for the Will to be valid.  It is a good idea to consult a lawyer if you do not use the Statutory Will form.

Q.ARE THERE PEOPLE WHO SHOULD NOT USE THE STATUTORY WILL?
A.

Yes.  The Statutory Will was written to serve the needs of a broad group of people but it definitely was not meant to be "one size fits all." 

People with large amounts of property may need specialized information and advice about estate planning to reduce the impact of state and federal taxes on their estate.

People with "blended" families may also need to use a different kind of Will or estate planning instrument to make sure that children from previous marriages are taken into consideration.

People without a spouse or children or those who have reasons that they would not want to treat their children equally.  The Statutory Will assumes that all heirs in the same category would be treated the same. 

People with children who have special needs.  While the Statutory Will can be used by parents with young children and modest property to nominate a guardian, it cannot be used to set up a trust or make other arrangements that may be necessary if there is a substantial amount of money to be handled or if there is a child who may need ongoing special care as an adult.

People with businesses.  The Statutory Will does not provide any way to implement a business succession plan.  An attorney or other specialist should be consulted specific information and planning.

 

Q.WHAT CAN I DO USING THE STATUTORY WILL?
A.

You can pick the person you want as your "personal representative" and decide whether or not you want that person to be "bonded" or not.  You can also select a "2nd choice" to serve if the first person is unable or unwilling to take on the responsibility when the time comes.

If your children are under 18 years of age, you can appoint the person you want to be their legal guardian or conservator if both you and the other parent are deceased. 

If you want, you can leave one or two cash gifts of any amount to individuals or charities.

If you want to make sure that certain people get special gifts of personal property, e.g. there is a particular piece of furniture or jewelry that you want to give to someone, you can leave a list of those things so that the personal representative will give them to the right people.

You can leave the remaining property to your spouse.  If your spouse is deceased, you can decide how you want the property divided among your children and grandchildren.

Q.HOW DO I USE THE STATUTORY WILL?
A.

First, you need to obtain a copy of the form.  It is available at Legal Assistance Center at the Kent County Courthouse, 5th Fl..  The State Legislature also publishes a booklet that is available from the office of your local state Representative or state Senator.  You can also GET A FORM HERE.

Next, read the entire form especially the notice at the beginning and the definitions at the end.

After you are sure that you understand what you are doing, fill in the blanks as directed in the form

 

Q.CAN MY SPOUSE AND I JUST USE ONE FORM?
A.No.  You cannot do a joint will using this form.  You should each complete one. 
Q.WHY DO I NEED TO LIST THE NAMES OF MY CHILDREN?
A.

One reason is convenience to the Court in the future.  A second is that, if there is a question of your mental state (competency) when you signed the Will, this helps to establish that you knew "the natural objects of your Bounty"--which is one thing that the Judge would look for in making a decision. 

Q.DO I HAVE TO FILL OUT THE SECTION FOR CASH GIFTS TO PERSONS OR CHARITIES?
A.

No.  If you don't want to make any cash gifts, you can skip or cross out this section.

In fact, this is a part that you should think about carefully before you put anything in here.  These "cash gifts" will be paid "off the top" of your estate regardless of how much you have left when you die.  For example, you need to think about whether you want to leave $5000 to the church or a charity or a friend if that means that, because you have spent your savings on expenses, it means that your children would receive nothing. 

Q.

WHAT SHOULD I DO ABOUT THE "LIST OF PERSONAL ITEMS"?

A.

This is a part of the Statutory Will that really offers a lot of flexibility and ability to make sure that the little but important things go to people you believe will appreciate them.

This does not need to be a complete inventory of your possessions.  There is a part of this paragraph that says that the remaining possession should be distributed to your heirs.

You can write or type a list of things that you want to go to people and keep it with your will.  The list should be as clear as possible in describing both the item and the person who should receive it.  For example, if possible, say "my diamond solitaire & gold engagement ring" and not just "my rings".  And give the name of the person, not just "my next door neighbor" or "my nephew". 

You should sign it at the end and put the date.  You do not have to make the list at the same time that you sign the Will and can update or change it at any time.  It is a good idea to check the list fairly often--if you sell or give things away, you should take them off the list to avoid any confusion in the future.

Q.WHAT ABOUT THE SECTION LABELLED "ALL OTHER ASSETS"?
A.

In order to make a valid Will, you have to say who gets the "residue" of your estate.  That is everything that is left once the specific gifts have been paid.

The Statutory Will provides that the person is the surviving spouse if there is one.  If there is not a surviving spouse, the rest will go to your "heirs-at-law" in equal shares; this would be your children or, if they have predeceased you, their children.  If you do not have children or grandchildren who survive you, you have two choices:

If you have no surviving children or grandchildren, it would be your parents or your siblings or their children.  This is what would happen if you had no Will.  If you do not make a choice by signing in this Section, this is what will happen.

If you and/or your spouse have children from other marriages, you can choose the provision that gives 1/2 to your heirs and 1/2 to your spouse's heirs if your spouse has predeceased you.  If you want to make that choice, you need to sign this Section under (a). 

Q.IF MY CHILDREN ARE ALL OVER 18 YEARS OF AGE, SHOULD I PUT ANYTHING IN THE SECTION ABOUT GUARDIANSHIP/CONSERVATOR?
A.

No.  You can skip or cross through this Section.

You cannot use this provision to appoint a guardian or conservator for an adult.  If you have an adult child who has special needs and may need a guardian when you are gone, you should not use the Statutory Will form and should consult with an attorney on planning for that child.

Q.WHO SHOULD BE THE PERSONAL REPRESENTATIVE?
A.

This is sometimes the  most difficult decision for people to make.

The Personal Representative should be someone with enough "paperwork" and "organizational" skills to complete paperwork and keep the records that the Court will need.  The person should be someone you know to be responsible about making sure that things are done on time.  Ideally, the Personal Representative is also someone who can settle disputes and handle things as you would if possible.  You can choose a trusted friend, a family member or, if the size of your estate justifies the expense, a bank.

You should consult the person or institution that you are thinking of and find out if they are willing and/or able to serve.  If you are thinking about using a bank, you should ask for an estimate of the bank's fees and for an honest opinion of whether or not the size of your estate justifies that added expense.

The Personal Representative does not have to be a Michigan resident but it is much less complicated if he or she is.

Q.WHAT DOES "WITH" OR "WITHOUT BOND" MEAN AND HOW DO I DECIDE?
A.

Unless you state that your Personal Representative can serve "without bond", the Court will require that he or she purchase a bond from an insurance company.  This is to protect the heirs in case the Personal Representative misuses the assets or takes them for his/her own use.  Both the amount and cost of the bond depend on the value of the assets in the estate.  This is generally one of the costs of probating the estate that is paid before the final distribution of property to the heirs.

Whether or not your Personal Representative should be allowed to serve without bond is a decision that should be made based on the degree of trust that you place in the person.  If you have a bank or non-family member as the Personal Representative, you probably will want to have a bond.  If you have a large family and not everyone gets along, you will probably want to have a bond.  The cost is generally modest and in proportion to the amount at risk and is probably worth peace of mind if there is any doubt at all.

On the other hand, if your only child and sole heir is also the Personal Representaive, clearly he or she should serve without bond. 

Q.

WHO SHOULD WITNESS THE WILL?

A.

Witnesses must be adults.  It is helpful if they are people that you know and that could be located if necessary to testify if necessary.

You do not have to tell the witnesses about the contents of the Will.  They only have to be told that the document you are signing is your Will and that you are asking them to witness your signature.

Any person who will receive money or property from your Will CANNOT be a witness.

Q.THERE IS NO SPACE FOR THE NOTARY?  DOESN'T A WILL HAVE TO BE NOTARIZED?
A.

No.  A Will does not need to be notarized.  There must be at least two witnesses.

Q.WHERE SHOULD I KEEP MY WILL WHEN IT IS FINISHED?
A.

There are several choices.  The Probate Court will file it for a $25.00 fee; however, it may be inconvenient if you need to retrieve it to make changes and they will charge a new fee when you refile it.  You may want to give it to the person you have chosen as the Personal Representative as he or she will need to have it to file.  A good choice is a locked box in your home where you have gathered other important papers such as deeds, car titles, insurance policies, etc.

Before putting it in a bank safety deposit box, you should check with the bank about their policies on locking boxes when the owner dies.  Sometimes this is not the best choice if the bank locks the box and requires a court order and inventory before letting anyone have access as this can cause delays for your family and Personal Representative.

Q.WHAT IF I WANT TO CHANGE MY WILL?
A.

You can change your Will at any time before your death--so long as you are legally competent.

There are different ways to do this.  You can make an entirely new Will that will take the place of any Will that has an earlier date.  (This is why the form starts out saying "I revoke any prior wills and codicils. .)  It is also a good idea to destroy the original and any copies of the old Will.

You can also talk to an attorney about writing a "codicil".  This is a document similar to the Will that changes only certain parts.  It is then attached to the first Will. 

The thing that you should NOT do is cross through or mark changes on your Will.  This makes your Will invalid.

You can redo or change the list of personal items attached to your Statutory Will at any time without redoing the entire Will.

 

Q.WILL MY MICHIGAN STATUTORY WILL BE VALID IF I MOVE TO ANOTHER STATE?
A.

Many states have laws that say that, if a Will was valid in the State where it was written and signed, it is considered to be valid in that State--even if their State requirements are different.

However, after you move, it is a good idea to have an attorney in your new location check things over and tell you whether you need to make changes or not.

 
 
 

The information on this website is not intended to be a substitute for legal advice or representationYou should talk with an attorney if you have any questions about how this information applies to your own problem or facts.