Do you want to let Michigan laws and courts decide the distribution of your property and management of your estate after you pass away? If not, you should consider having a Will, which is a legal document formally named a “Last Will and Testament.” Importantly, a Will is not the only document you need to protect yourself and your family during your life and after death — but a Will is an essential document for everyone to have, for a number of important reasons.
What Happens If You Don’t Have a Will?
If you don’t have a Will or estate plan, the Michigan laws and courts make all the necessary decisions relating to your estate after your death. That covers a lot of important matters and issues.
Property Distribution
State laws of intestate succession determine who gets the property in your estate if you do not have a valid Will or estate plan. Generally, your heirs are your spouse and your closest blood relatives. They inherit in an order of priority and in specified shares established in the statute.
Without a Will, you cannot ensure that identified loved ones receive specific items of property after your death. Your personal representative (who is appointed by the court according to a different law, as explained below) decides which heirs gets specific property as part of their statutory share. If you have special mementos or assets that should stay in the family and be given to specific individuals, you can make that clear in your Will.
If you have a loved one who is not a blood relative (other than your spouse), that person receives nothing under intestate succession rules. Charities and organizations that you support (like your church) also get nothing. The only people who receive anything from your estate are the heirs identified in the statute.
Administration of Your Estate
In your Will, you designate an executor to serve as the personal representative for your estate. Your personal representative is the person who collects all your property and eventually distributes it to your beneficiaries or heirs. If you don’t have a Will, state law establishes a clear order of priority for individuals to apply to the court for appointment. That means the person who handles your property and affairs and makes decisions after you pass away could easily be someone you do not want to have that responsibility.
Your Final Arrangements
While some people express their final wishes in their Will, our BRMM attorneys prefer to use a document called a Funeral Representative Designation to name the person who makes the final arrangements and ensure that your funeral and burial or cremation occur according to your preferences. In the absence of that direction, family members may disagree or be uncertain what to do. State law establishes a priority order of who can make those decisions when you haven’t left instructions.
Care of Minor Children
If you have minor children, you may designate a guardian for them in your Will. At BRMM, our estate planning lawyers prefer to use a separate document for the guardian designation. If you don’t make a guardian designation, your loved ones must ask a judge to appoint someone to take care of your children. Family members may disagree — creating havoc and uncertainty for your children — and the judge might appoint someone you would not want to have that responsibility.
In most situations, including a trust in your estate plan is the best way to provide for your children’s financial welfare. An experienced estate planning attorney helps you determine all the necessary steps to fully protect yourself and your family if you pass away or become incapacitated.
Your Business
If you own a business and do not have a Will or other document in place to determine what happens after you pass away, your family may lose control of the business. The people you want to be in charge may have no role at all in running the business. Our BRMM estate planning lawyers typically create a document separate from the Will to thoroughly address operation of a business in the event the owner becomes incapacitated or passes away.
Why Do You Need More Than a Just a Will?
For all the tasks that a Will accomplishes, there are important reasons why you need other documents in your estate plan. As our dedicated BRMM estate planning attorneys wrote in a previous article, A Will Is Not an Estate Plan. Other documents in your estate plan protect you and your family during your lifetime and after your death. Creating these documents also may ultimately save considerable time and expense, as well as avoid family disputes over making decisions.
Financial and healthcare durable powers of attorney are an essential part of every estate plan. These documents protect you if you become incapacitated temporarily or permanently. They save your loved ones from going to court to have a guardian and conservator appointed for you, a process referred to as living probate.
While virtually every estate plan has a Will, the role of the Will in an estate plan differs. For some individuals, a trust is a better way to distribute property, as well as protect assets and keep them in the family. When an estate plan includes a trust, the estate plan typically includes a “pourover will,” which ensures that any property left in the estate goes into the trust. If an estate plan does not include a trust, the Will is the document that distributes the property in the estate.
Property distributed in a Will is subject to probate, a court-supervised and public process for administering an estate. Many individuals prefer to avoid probate to save time and money and keep financial information private. That can be accomplished by distributing assets through a trust rather than a Will. If you want to avoid probate and maintain privacy, using a Will to distribute property is probably not the best way to address property distribution after your death. Your estate planning attorney helps you decide what’s best for you and your family.
One category of assets deserves special mention as part of any discussion about wills and trusts. You may have accounts like IRAs and other retirement accounts for which you can designate a beneficiary. How you use that designation can have significant tax consequences for the beneficiaries themselves, particularly in light of recent changes in tax laws. If you have those types of accounts, it’s best to consult a knowledgeable estate planning attorney rather than rely on the beneficiary designations without knowing the tax consequences.
Why You Should Never Make a Will Using a Form or Do-It-Yourself Service
A final word of caution is extremely important. If you decide to make a Will, durable power of attorney, trust, or other legal document in an estate plan, you should never use a form or do-it-yourself online service. You may think you can save money with the DIY approach, but you can create significant problems for yourself and your family in the long run. Those problems can cost a lot of money to resolve — if they even can be resolved. The only safe and sure way to create a complete estate plan that accomplishes your goals and protects your family is to consult with a knowledgeable Michigan estate planning lawyer.
Schedule a Consultation With Our Respected Troy, Michigan Estate Planning Attorneys
At the law firm of Barron, Rosenberg, Mayoras & Mayoras, P.C., we provide a full range of services relating to wills and estate planning. We’ve been serving clients in Oakland County and beyond for more than 40 years. Our clients count on our commitment, experience, and credentials when they turn to us for their legal needs.
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This article was provided by Don L. Rosenberg, Co-Founder of the Law Firm of Barron, Rosenberg, Mayoras & Mayoras, one of Michigan’s TOP Elder Law & Estate Planning Law Firms. Attorney Rosenberg and his firm are Members of the National ElderCare Matters Alliance and have a Featured Listing on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources to help families plan for and deal with the issues of Aging.
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