Do you have any "probate assets"

The only time a Will is ever used is during probate proceedings. If you do not have any assets titled in your name alone, or if all such assets have beneficiaries designated, then a Will is not going to do anything for you. Similarly, if your objective is to AVOID probate, then a Will is not the right tool for you, since the only time a Will is used is DURING probate. If you DO have assets titled in your name alone and you do not feel the need to avoid probate, then read further.


Is a Will better than intestacy?

If you do not have a Will (AND if you have probate assets), then the State intestacy laws determine the disposition of your estate. These laws are designed by the State Legislature to reflect the intent of MOST people. Unfortunately, since every person and every situation is different, intestacy laws are inherently flawed. Nevertheless, if your family situation is very basic, there is a good chance that the intestate distribution may be fairly close to your wishes. For example, if a decedent is married, his or her surviving spouse would inherit the bulk of the estate. If there are children from the marriage, they would also receive a portion of the estate, although a smaller portion than the spouse. How much the spouse receives as opposed to the children depends on whether the children are also children of the surviving spouse. If they are then they would receive somewhat less and the spouse would receive somewhat more on the theory that the survivor will take care of the kids.


What a Will *could* be good for

If the intestacy laws do not reflect the intent of the planner, then the only ways to get around them are to execute a Will, or to plan your estate so that probate is not necessary, either by establishing a trust (and transferring all assets to the trust), or by having the assets held jointly or with beneficiary designations. There are situations when a Will can be helpful. If probate avoidance is not desired, then a Will not only allows you to dictate the disposition of the estate, but it also allows you to name the person(s) that you want to be in charge of handling the estate. This can be a very big deal if someone with priority to serve would otherwise be a very bad choice. For example, if there are two children and one of them is a horrible money manager, then you could select the other child to act. A Will also allows you to designate Guardians and/or Conservators for any minor or disabled beneficiaries. For many people, this is the BEST reason to have at least a Will.


What about personal items?

For many people, even if the estate is not large, they have strong feelings about who they want their personal property to pass to. A will can be an excellent vehicle for facilitating your intent, in this regard. I normally do not recommend that clients list these items in the Will itself. I do this because it has been my experience that the more personal property you specifically list in your Will, the more frequently you need to change the Will. I usually recommend that the client attach a list of personal items to the Will. The list should be dated and signed by the testator. If done in this way, the list is considered an amendment to the Will, and the list can be changed numerous times, without the need to change the Will at all.


Can I draw up my own Will or do I need an attorney?

If your situation is fairly basic, the State of Michigan has a couple of basic Will options available for you that do not require the use of an attorney. The State publishes a "Statutory Will" that is guaranteed to be valid, as long as you complete it according to the instructions. It is a fill in the blank form that is available online. You can obtain a copy from the Michigan "Planning for your Peace of Mind" booklet. There is also a Power of Attorney for Health Care in this booklet which is also useful and should be completed by most people. The other option is to write your own Will. As long as the document is dated, in your own writing, and is signed, then it will be recognized as your Will. You cannot print this document on the computer. It needs to be in your handwriting. It does not need to be witnessed or notarized, but there is no harm in having this done.


The bottom line

For most people, a Will is of relatively little benefit. The vast majority of my clients prefer to avoid probate. A Power of Attorney form is much more important because it provides for your care while you are alive, instead of just getting rid of your property, once you have died. If you have very basic planning needs, however, or if you have set up your assets to avoid probate, but you want to make sure that your intent is in writing in case someone tries to challenge things, then a Will could be of some use. A Will also allows you to designate guardians and/or conservators for minor children, and lets you name the people you want to be in control of things. For most clients, the question is not whether they should have a Will, but how better to plan their estate, so that a Will is totally unnecessary.