Wills Blog
Kalamazoo Estate Planning - Wills Law Blog

Revocation of a Will by Writing or by Act

Posted January 9, 2017

Pursuant to MCL 700.2507, a will or a part of a will is revoked by either of the following acts:

  • Execution of a subsequent will that revokes the previous will or
  • a part of the will expressly or by inconsistency.

Performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or a part of the will or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or a part of the will. A burning, tearing, or canceling is a revocatory act on the will, whether or not the burn, tear, or cancellation touches any of the words on the will.

If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked, and only the subsequent will is operative on the testator's death.

The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will, and each will is fully operative on the testator's death to the extent they are not inconsistent.

MCL 700.2507

 

Wills

Posted December 15, 2016

A will is one of the cornerstones of every good estate plan.  A person who makes out a will is called a testator.  Along with its traditional role of conveying property at death, a will serves several other purposes.  For example, through a will a person can name a guardian for minor children, direct that the minimum level of probate court involvement be utilized in probating the estate, provide for who is to be considered a beneficiary of the estate in the event a potential beneficiary dies close in time to the testator, name the person who will represent the estate for probate purposes (the personal representative), and direct from what assets death taxes are to be paid.  

Wills range from fairly simple two or three page documents to far more lengthy, complicated documents.  A will can include a trust known as a “testamentary trust”.  However, given the significant advantages in utilizing non-testamentary trusts, testamentary trusts are seldom used today.

Due to the significant probated avoidance that is obtained by using a revocable living trust, wills are seldom used as the primary vehicle used to pass assets at death. Utilizing a trust is usually determined to be the most advantageous means of passing assets at death. However, a special type of will known as a “pour-over” will is utilized.  Any assets which are not placed in the trust before death are poured-over into the trust by the will.  Hence the name “pour-over” will.  A pour-over will is used in combination with a revocable living trust to accomplish the tasks stated above, many of which can only be done by a will.

 

Who is an Heir

Posted November 23, 2016

An heir is defined under the Estates and Protected Individuals Code (EPIC). "Heir" means, except as controlled by MCL 700.2720, a person, including the surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent's property. MCL 700.2720 which will be discussed later is a rule of construction used to determine those who take under a gift to "heirs" or a similar term. A person who dies without a will is a person who dies intestate. A person who dies intestate has their estate distributed according to the scheme set up by the state called intestate succession. It can be said that everyone dies with a will. You either make your own will or the state makes one for you (intestate succession). Intestate succession proceeds as follows under EPIC upon the death of the decedent.

The dollar amount of the intestate share of the surviving spouse shall be adjusted annually for inflation beginning January 1, 2001. Pursuant to MCL 700.2102, the present intestate share of the surviving spouse is as follows:

  • Spouse takes the entire share if there are no surviving descendants or parent. "Descendant" means, in relationship to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in EPIC.
  • Spouse takes the first $150,000 plus 3/4 of the balance, if there are no surviving descendants, but there is a surviving parent.
  • Spouse takes the first $150,000, plus 1/2 of the balance, if any of the decedent's descendants are also descendants of the spouse.
  • Spouse takes the first $100,000, plus 1/2 of the balance, if none of the decedent's surviving descendants are descendants of the spouse.

Pursuant to MCL 700.2103, any part of the intestate estate that does not pass to the decedent's surviving spouse under MCL 700.2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent: The decedent's descendants by representation. The term "representation" will be explained later in this note. If there is no surviving descendant, the decedent's parents equally if both survive or to the surviving parent. If there is no surviving descendant or parent, the descendants of the decedent's parents or of either of them by representation.  If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same matter as the 1/2.  If there is no taker under the above provisions, the intestate estate passes to the state of Michigan.

 

Writings Intended as Wills

Posted October 5, 2016

Although a document or writing added upon a document was not executed in compliance with section 2502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:

  • The decedent's will.
  • A partial or complete revocation of the decedent's will.
  • An addition to or an alteration of the decedent's will.
  • A partial or complete revival of the decedent's formerly revoked will or of a formerly revoked portion of the decedent's will.

MCL 700.2503

 

 

 

 

 

 

 

 

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