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National Make a Will Month – Empower Yourself with Peace of Mind

Which Will Would You Choose?

If you or your loved ones have not yet created a will, you are not alone. In fact, according to a recent survey, not having created a will puts you among the majority of Americans. Preparing a will reduces the stress and complexity of administering your estate after you pass, which is why I recommend everyone prepare a will.

Many Americans wait for either a major life event or a crisis to occur before putting final wishes into a formal estate plan. I do not advise waiting for such events to occur before planning your will. Estate planning should be done early, when you have time to think through the various aspects without the pressures of an immediate need. Once the plan is in place, I recommend a review with an attorney every few years, or upon the occurrence of significant life events. Reviewing your estate plan with an attorney ensures that it continues to serve its purpose, and that it withstands the scrutiny of the ever-changing legal landscape. Your small amount of time and financial investment in preparing a will now will provide tremendous returns for your loved ones in the future.

Why Fewer Americans Are Making a Will

Caring.com’s 2024 Wills and Estate Planning Study found that only 32 percent of Americans currently have a will — this represents a 6 percent decline compared to 2023 and the first drop since 2020.^[1]

The top reasons cited for not preparing a will were:

• Procrastination (43 percent),
• A belief that one isn’t needed due to a lack of financial assets (40 percent),
• A lack of knowing how to obtain one (16 percent), and
• Too expensive (16 percent).^[2]

I encourage anyone age 18 or older to prepare a will, despite many people waiting until much later in life. Once marriage, significant relationships, or a child factors in, it is increasingly important to have a will prepared.

If you die without a will, you are deemed to have passed “intestate,” meaning without a written will. Without a will, Michigan intestacy laws decide what happens to your money, property, and possessions after your death, and also determines who cares for your minor children. You lose the ability to decide matters such as who is responsible for winding down your affairs, who receives the things you own, and who cares for your children. Should you wish to leave things to someone in particular and fail to properly record your desire, Michigan laws will control how your estate is distributed even if “everyone knows” what you want. Taking the time to prepare a will changes your status to “testate”, meaning with a will, and except in rare circumstances, your will controls exactly as you directed. There are other factors, such as joint ownership and beneficiary designations, but anything not addressed by some other guidance will be controlled by either your will or Michigan intestacy laws.

Making a will is best handled by working with an experienced estate planning attorney. A simple will does not cost as much as you might think, especially when you consider the potential costs of not having one.

Types of Wills

Michigan laws dictate the legal requirements for a will, including the types of wills that are recognized. An experienced attorney is the best source to assist with a will that meets Michigan requirements. In Michigan, your will can be typewritten or handwritten. A formal will, with the appropriate witnesses, is the best planning method.

A will that does not meet the formal requirements of Michigan may be deemed invalid by the court, effectively leading to a scenario where you die intestate (i.e., without a will). If that happens, state law — not your intentions — direct what happens to your assets and your family should you die. Different types of wills include the following:

• A formal will is the most common type of will and is recognized in every state. In most states, it must be typewritten and signed by you (the testator) and two or three witnesses. Some states require This is the type of will that experienced attorneys typically recommend, as it is the most widely accepted. It is possible for a will prepared in one state to be recognized in another state, although we recommend having a new will prepared if you move to a different state.
• A holographic will is written and signed in your own writing and may not require witnesses for it to be legally valid. Michigan does recognize holographic wills, but not all states will accept these.

Potential Issues with Handwritten (Holographic) Wills

Handwritten wills, while valid in Michigan, can create problems. Often, the decision to use these types of wills occurs because somebody has put off creating a will until the last minute, and an emergency forces their hand. That is why they are sometimes called “deathbed wills.”

Handwritten wills, particularly if they were created last minute and not reviewed by an attorney, are more prone to mistakes and ambiguities that can cause confusion and make them harder to enforce or enter into a probate court. This is another reason you should not procrastinate when creating your will.

When considering what can happen when you are not proactive about creating a will, the estate of Aretha Franklin offers a cautionary tale right here in Michigan. When she passed away, the Queen of Soul left two handwritten wills. Although her home state of Michigan recognizes them, the scribbles, hard-to-read sections, and contradictory passages in her wills forced her heirs into a protracted legal dispute to determine her true intentions and which will controlled.

Research shows that up to 3 percent of all wills in the United States are contested in court.^[3] In my experience, most estate contests result from those who pass intestate, or with a poorly prepared will, leaving questions or confusing interpretations. A contested will can not only undermine your original intentions but also potentially turn your loved ones against one another and lead to utilizing inheritance toward legal fees. Taking the time now to work with an estate planning attorney will significantly increase the likelihood of a smooth, orderly probate process after you pass.

Professional Planning for Life’s Biggest Decisions

Whether you have not yet made a will, are in the beginning planning stages, have a handwritten or oral will that you want to convert to a formal will, or need to revise a will due to life changes, our estate planning attorneys are here to make sure everything is done correctly and concisely.

Every estate plan is different and should be prepared to meet the needs and goals of the individual. For an estate plan that meets your long-term goals and provides peace of mind in the present, please reach out to me and schedule a meeting.

^[1] Rachel Lustbader, 2024 Wills and Estate Planning Study, Caring.com, https://www.caring.com/caregivers/estate-planning/wills-survey/ (last visited Jul. 31, 2024).

^[2] Id.

^[3] Margaret Ryznar & Angelique Devaux, Au Revoir, Will Contests: Comparative Lessons For Preventing Will Contests, 14 Nev. L. J. 1 (Jan. 15, 2014), https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1525&context=nlj.

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