MICHIGAN WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Mich. Comp. Law ยงยง700.2501, et. seq.
Trusts:ย Michigan Trust Code, Mich. Comp. Law ยงยง700.7101, et. seq.
Michigan Will Requirements.
To create a valid Michigan will, a testator must be an adult (at least 18 years old) and must be mentally competent.ย Testators are mentally competent under Michigan law if they understand the nature and extent of their assets, know who their heirs are and who stands to benefit from the will, and that the will provides for disposition of assets after death.
A Michigan will must be in writing, signed by the testator and two competent witnesses.ย Witnesses must actually observe the testator either signing the will or declaring that the document is intended as a will and that the signature is genuine.ย Though disinterested witnesses are generally preferable, neither a Michigan will itself nor any provisions thereof are invalidated if one of the witnesses has an interest in the will.ย ย
Under Michigan law, a will can incorporate another document by reference if the document is in existence when the will is executed and is sufficiently described to allow identification.ย Michigan law expressly authorizes testators to incorporate personal property memoranda providing for specific bequests of tangible personal property items.ย Personal property memoranda should be signed by the testator and may be prepared before or after execution of a will.
In Michigan, a testamentary document can sometimes be effective even if not technically in compliance with all ordinarily required formalities if it can be established through clear and convincing evidence that the decedent intended the document to serve as his or her will (or as an amendment, revocation, or revival of the decedentโs will).
Wills in Michigan do not need to be notarized. However, a Michigan will can be made โself-provedโ via execution of a statutorily compliant notarized affidavit.ย Within the affidavit, the testator acknowledges the willโs authenticity, and the witnesses provide attestation that the testator signed the will with the intent that it would serve as a will.ย When a self-proved affidavit is present, it serves as evidence of a willโs authenticity in probate, avoiding the need for witness testimony.ย The Michigan legislature publishes a form self-proved affidavit within the Michigan Compiled Laws, at ยง700.2504.
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Amendment, Revision, and Revocation of Michigan Wills.
A Michigan will can be amended or revised through execution of a codicil (an addendum to an existing will).ย To validly amend a will, a codicil must comply with all legal formalities that apply to creation of a will.
A will can also be revoked or amended through execution of a new will expressing the intent to revoke or supplement the prior will.ย If a new will does not expressly revoke a prior will, the new will is interpreted as supplementing the prior will, with the later-executed will controlling in the event of any conflicting provisions.ย However, if the later will disposes of substantially all of the testatorโs assets, the testator is assumed to have intended the new will to fully supersede the earlier will.
Alternatively, a Michigan will may be revoked through intentional physical destruction of the document (such as through burning, tearing, or shredding the document) by the testator or someone else at the testatorโs direction and in the testatorโs presence.ย ย
If a testator is divorced after executing a Michigan will, any devises or other provisions relating to the former spouse are rendered ineffective, unless the language of the will suggests that the provisions were intended to survive divorce.ย Will provisions revoked by operation of law due to a divorce can be revived if the testator re-marries the former spouse.ย ย
If a testator marries after executing a will, the spouse receives a share of the testatorโs estate as if the testator had left no will unless the will contemplates the marriage.
Holographic and Oral Wills.
Michigan law recognizes holographic wills, with or without witnesses, if the document in question is signed and dated by the testator, and all material provisions within the document are recognizably written in the testatorโs own handwriting.
Oral (or โnuncupativeโ) wills are not recognized under Michigan law.
Michigan Trust Requirements.
To create a valid trust under Michigan law, the grantor must have sufficient legal capacity to create the trust.ย For revocable trusts, the standard for capacity is the same as for creation of wills. For a trust to be valid, the trustee must have actual duties to perform, and the trust must usually have a definite beneficiaryโsubject to a few exceptions such as animal trusts and charitable trusts.ย ย
The purposes of a Michigan trust must be lawful, not conflict with public policy, and must be possible to achieve.ย As a general rule, the same individual cannot be a trustโs sole trustee and its sole beneficiary.ย ย
Though most trusts are memorialized by a written instrument, Michigan law permits oral trusts as long as the terms of the trust can be established by clear and convincing evidence.ย The grantor of a revocable trust subject to a written trust instrument can revoke or amend the trust by executing a written instrument that clearly expresses the intent to revoke or amend the trust.
Under the Michigan Trust Code, a trust is created when a settlor transfers title to one or more assets to a trustee for a beneficiaryโs benefit; upon the grantorโs declaration that he or she holds property as trustee for someone elseโs benefit; or upon execution of a written appointment of a trustee.ย
A Michigan trust terminates when it is revoked or expires under its own terms, when the trustโs purpose has been achieved, or when the purpose has become impossible, unlawful, or contrary to public policy.ย A Michigan court may also terminate or modify a trust if, due to unanticipated circumstances, termination or modification is necessary to further the trustโs purpose or likely intent of the grantor.
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Essential Legal Protection for AchieversSpecial Considerations.
Michigan Statutory Will:ย The Michigan legislature has established a fill-in-the-blank will template which, if fully completed and signed by the testator and two witnesses, is deemed to constitute a valid will under Michigan law.ย The Michigan Statutory Will is published at Mich. Comp. Law, ยง700.2519.
Estate Taxes:ย Michigan does not impose any state-level estate tax.ย Large Michigan estates may still be liable for the federal estate tax.
Simplified Probate:ย Upon an executorโs petition, Michigan probate courts may permit an expedited probate process for small estates.ย If the gross value of the estate after paying final expenses totals $15,000 or less, the probate court can order estate property turned over to a surviving spouse or, if none, to lawful heirs.ย Similarly, if an estate inventory reveals that there are no assets in excess of lawful exemptions (e.g., homestead allowance, family allowance, expenses related to the decedentโs final illness), the personal representative can distribute assets directly to lawful beneficiaries.
Non-Probate Transfers:ย ย Along with living trusts, Michigan law recognizes several additional methods of transferring assets outside probate.ย POD (payable-on-death) and TOD (transfer-on-death) designations can be used to automatically transfer financial accounts, CDs, securities, and some other financial assets.ย Michigan does not recognize TOD designations on vehicle titles or within real estate deeds.ย However, โLady Bird Deedsโ (a/k/a โenhanced life estateโ) can be used to transfer Michigan real estate under terms very similar to a TOD deed.ย Michigan also recognizes two forms of joint ownership that include a โright of survivorship.โย With both joint tenancy and tenancy by the entireties (available only for spouses), full title automatically vests in a surviving owner upon the other ownerโs death, with no need for probate.ย ย
Spousal Shares: Michigan law affords surviving spouses strong protections against disinheritance.ย Upon the death of a spouse who left a will, a surviving spouse has two options.ย First, the spouse can choose to receive the inheritance provided under the will.ย Or, he or she can elect to receive a share equal to one-half of the inheritance the spouse would have received had the decedent spouse died without a will, reduced by half of the value of any non-probate assets the surviving spouse receives from the decedent spouse.ย If a decedent spouse leaves no will, a surviving spouseโs intestate share is the entire estate if the decedent is not survived by a descendant or parent.ย Otherwise, the share is either $100,000 or $150,000, plus either ยพ or ยฝ of the remaining valueโwith precise values depending on the descendants of the decedent spouse and surviving spouse.
Spendthrift Trusts:ย When a Michigan trust includes a valid spendthrift clause, a creditor of a beneficiary cannot attach trust property until distributed directly to the beneficiary.ย However, interests in spendthrift trusts can be attached to satisfy claims for domestic support obligations, government debts, or claims arising from services that enhance, preserve, or protect the beneficiaryโs interest in the trust.ย If a spendthrift trust is revocable, creditors of the settlor can reach trust assets during the settlorโs lifetime.ย If irrevocable, creditors of the settlor can only reach the amount of assets that can be distributed for the settlorโs benefit.ย ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
