Many people have a mistaken belief that a Will serves any number of purposes. Some of the misconceptions are as follows: If I have a Will I avoid the probate court system. My Will controls the disposition of all my assets. My husband needs a Will since he owns a business but I don't need a Will because all our other assets are jointly owned. I have added all my children's names to my bank accounts and house deed, therefore, I have no need for a Will.
Since I can write my own Will I have no need for a lawyer.
The principal reasons for having a Will are to change the formula set by the state as to who gets what; naming a guardian for minor children; choosing a Personal Representative (Executor); setting aside specific assets for certain individuals or charities; and/or creating a Trust to delay the distribution of assets to persons who may not be ready to manage large sums of assets. Having a Will does not eliminate the need to file the Will with the probate court. The Will must be filed with the Court to enable the Personal Representative to receive written authority to gather up the assets.
A Will controls those assets which are in your own name and not co-owned with another. Joint bank accounts, shares of stock with co-owners, real estate owned jointly with others, jointly owned brokerage accounts, life insurance and Individual Retirement Accounts with named beneficiaries are some of the assets not controlled by your Will. A set of laws different than the law of Wills control each one of the assets described above. One must look to those laws to see who owns the asset at the time of death. A common question is whether or not a wife needs a Will. Who is to say which spouse will pass away first. Since the wife may survive the husband, she would end up with all of the jointly owned assets and need her own Will to make her personal desires known.
Do joint assets give certainty to your plan of disposition? Joint assets which pass to the surviving owners depend on one important fact, will all of the co-owners survive the original creator of the asset? If a joint owner fails to survive the creator of the account their share of the asset will not pass to their heirs and therefore, a disinheritance takes place. The other co-owners (if others are named), by law, take the entire account without any legal obligation to share it with the heirs of the one who predeceased everyone. The entire process depends upon the order of death, and that is the one great uncertainty which no one can control.
Michigan law permits an individual to write his or her own Will, with or without witnesses. The details as to executing the document properly are expressed in the Michigan Statutes on Wills. You can also obtain a copy of the Statutory Will from your local State Representative. This is a do-it-yourself form with no explanation of the law of Wills.
The principal reason one uses a lawyer in making a Will is to have a person knowledgeable of the law examine the facts surrounding a person's ownership of assets and the facts surrounding who the person favors most in the disposition of his or her assets. It is only through a questioning process that a proper Will can be prepared. Only a lawyer can examine the entire picture and legally explain what happens in each person's unique situation. A Will is prepared taking into account all of the facts surrounding that person's family history, assets and desires as to who should get what. Many people have turned away from the use of a Will and prefer the use of jointly owned assets to avoid probate court. You may have heard tales of great delay and heavy court expenses associated with probating a decedent's estate. In Michigan the laws regarding probate have been modernized. Rigid controls exercised by the court in previous years have been modified.
Today, with the use of informal non-supervised administration (no court supervision), court hearings are not needed. The Will need only be deposited with the court so that the named Personal Representative may be authorized to act. The time to complete administration of a normal estate is approximately four to eight months. There is no longer an inheritance tax for an estate valued less than the Federal Estate Tax unified credit.
A Trust is a substitute for a Will and a Conservator and as such can eliminate the need to use Probate Court in administering your assets if you become disabled, incompetent, or die. A Trust may also help reduce the risk of inexperienced and unskilled management of property by allowing you to select today an asset manager for the future.
A Trust is a written expression of your desires as to the management of assets during your lifetime if you become incapacitated and to whom the assets pass upon your death. Put another way, it is an arrangement under which one person gives some part or all of their assets to another as Trustee. Those who are to receive benefits from the Trust are known as beneficiaries. The arrangement establishes:
(1) Who the beneficiaries will be, what each will receive, and when they will receive it;
(2) How much investment authority will be given to the Trustee to meet the needs of the beneficiaries; and
(3) What the duration of the Trust will be within the limits allowed by law.
You should meet with an attorney to discuss your estate plan and the advantages of a Living Trust. The attorney who will prepare the Living Trust documents that will give force to your estate plan is essential to the planning process. Your life insurance agent, financial planner, trust officer and accountant can also be helpful. Together, this team of experts can help you create the best plan for your family. It is just as important to select the proper Trustee as it is to select the proper estate planning attorney. While a well planned Living Trust document can be just a few pages long, well chosen words and instructions can insure that your intentions and planning objectives are met. Pytell & Varchetti, P.C. has been practicing estate planning for over forty years and has received the highest rating for attorneys from Martindale-Hubbell.
Please Contact Us to Schedule an Initial Consultation