Many people have a mistaken belief that a Will serves any number of
purposes. Some of the misconceptions are as follows:
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If I have a Will I avoid the probate court system.
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My Will controls the disposition of all my assets.
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My husband needs a Will ,but I don't because all our other assets are jointly owned.
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I have added my children's to my bank accounts and deed,
so, I don't need a Will.
-Since I can write my own Will I have no need for a lawyer.
The principal reasons for having a Will are to change the formula set by the
state as to who gets what; naming a guardian for minor children; choosing a
Personal Representative (Executor); setting aside specific assets for
certain individuals or charities; and/or creating a Trust to delay the
distribution of assets to persons who may not be ready to manage large sums
of assets. Having a Will does not eliminate the need to file the Will with
the probate court. The Will must be filed with the Court to enable the
Personal Representative to receive written authority to gather up the
assets.
A Will controls those assets which are in your own name and not co-owned
with another. Joint bank accounts, shares of stock with co-owners, real
estate owned jointly with others, jointly owned brokerage accounts, life
insurance and Individual Retirement Accounts with named beneficiaries are
some of the assets not controlled by your Will. A set of laws different than
the law of Wills control each one of the assets described above. One must
look to those laws to see who owns the asset at the time of death. A common
question is whether or not a wife needs a Will. Who is to say which spouse
will pass away first. Since the wife may survive the husband, she would end
up with all of the jointly owned assets and need her own Will to make her
personal desires known.
Do joint assets give certainty to your plan of disposition? Joint assets
which pass to the surviving owners depend on one important fact, will all of
the co-owners survive the original creator of the asset? If a joint owner
fails to survive the creator of the account their share of the asset will
not pass to their heirs and therefore, a disinheritance takes place. The
other co-owners (if others are named), by law, take the entire account
without any legal obligation to share it with the heirs of the one who
predeceased everyone. The entire process depends upon the order of death,
and that is the one great uncertainty which no one can control.
Michigan law permits an individual to write his or her own Will, with or
without witnesses. The details as to executing the document properly are
expressed in the Michigan Statutes on Wills. You can also obtain a copy of
the Statutory Will from your local State Representative. This is a
do-it-yourself form with no explanation of the law of Wills.
The principal reason one uses a lawyer in making a Will is to have a person
knowledgeable of the law examine the facts surrounding a person's ownership
of assets and the facts surrounding who the person favors most in the
disposition of his or her assets. It is only through a questioning process
that a proper Will can be prepared. Only a lawyer can examine the entire
picture and legally explain what happens in each person's unique situation.
A Will is prepared taking into account all of the facts surrounding that
person's family history, assets and desires as to who should get what. Many
people have turned away from the use of a Will and prefer the use of jointly
owned assets to avoid probate court. You may have heard tales of great delay
and heavy court expenses associated with probating a decedent's estate. In
Michigan the laws regarding probate have been modernized. Rigid controls
exercised by the court in previous years have been modified.
Today, with the use of independent administration (no court supervision),
court hearings are not needed. The Will need only be deposited with the
court so that the named Personal Representative may be authorized to act.
The time to complete administration of a normal estate is approximately
eight to twelve months. There is no longer an inheritance tax for an estate
valued less than the Federal Estate Tax unified credit.
