Wills Flashcards
What is needed to create a valid will?
A valid will must be:
- In writing
- Signed by the testator
- And signed by at least two other witnesses.
The witnesses must sign within a reasonable time after they witness:
A. The testator sign the will
B. The testator acknowledge that he signed it
C. Or acknowledgment of the will
Michigan is lenient with this requirement.
- Witnesses can be minors, interested, proxy signors
- Witnesses can sign self-proving affidavit instead of the will
- Witnesses do not have to sign in each other’s presence
- Witnesses can sign w/i reasonable time after testator’s death (i.e., testator made will on death bed)
What if the will does not meet all of the requirements of a valid will?
You still have a holographic will option and the dispensing power (catch-all).
Elements of a Holographic Will
A holographic will requires:
- Material portions of the will in testator’s handwriting (not typed)
- Signed by the testator
- Dated
A holographic will does not require any witnesses!
Dispensing Power: Catch-all
Proponent of will must show, by clear and convincing evidence, that:
- Testator intended the document to be their will; or
- Testator intended to modify the will.
Testator: Is the testator capable of making a will?
Testator must be 18+ and of sound mind. This means, at the time they execute the will, they must understand:
- They are providing for the disposition of property after their death
- The nature and extent of their property
- The natural objects of their bounty (heirs)
- In a reasonable manner, the effect that signing the will has
This is usually met unless there is clear evidence they did not know the nature and extent
- Showing testator was an addict or old is not enough
Testator: Undue Influence
Person contesting the will must show:
- Undue influence was exerted; and
- It caused Testator make a gift they otherwise would not have made.
Examples: coercion, deception, withholding medicine.
- Mere motive or ability to control is not enough
- Unnatural disposition might be enough (ie, you have kids but leave everything to a random nurse).
Codicils
These are changes to existing wills.
- Codicil must be executed with same requirements as a will (valid, holographic, or dispensing power)
Be sure the person intends to modify their will, and is not just informing someone of their plans to modify it.
What if someone writes multiple wills?
- Read the wills together
- Keep the first will and only change it to the extent that the second will is different
If the entire second will is inconsistent, the entire first will is revoked and the second will becomes the new will.
Revocation of a Will
Three different ways:
- Physical Act (tearing, destroying, burning)
This can be done by someone else if testator requests it, and it is in their conscious presence (ie, over phone). - Subsequent Instrument
If testator writes on the will that it is now invalid, or a subsequent will that revokes the prior will, it is technically a codicil. Check to make sure it constitutes a valid or holographic will, or is within the dispensing power.
- Ex: “This will is revoked,” but does not sign or date it. Check to see if dispensing power can save the codicil. - Revocation by Operation of Law
Ex: Divorce automatically revokes gift to husband/wife
What do family members receive if there is no will?
If you die without a will or only distribute part of your estate, the remainder is distributed according to intestate succession.
Distribution depends on what your family structure is.
Testator dies with spouse and common kids
- Spouse receives first $150k plus half of the remaining estate
- Remainder to the descendants
A surviving spouse will always get HEF:
- Homestead allowance of $15,000
- Exempt personal property of $10,000 and
- Reasonable family allowance of $18,000
Testator dies with a spouse and kids, but the kids are not common
- Spouse receives first $100k plus half of the remaining estate (+ HEF)
- Remainder goes to the descendants
A surviving spouse will always get HEF:
- Homestead allowance of $15,000
- Exempt personal property of $10,000 and
- Reasonable family allowance of $18,000
Testator dies with a spouse and parents, but no kids
- Spouse receives first $150k plus 75% of remaining estate (+ HEF)
- Parents receive the remainder
A surviving spouse will always get HEF:
- Homestead allowance of $15,000
- Exempt personal property of $10,000 and
- Reasonable family allowance of $18,000
Testator dies with a spouse, but no parents or kids
The spouse gets everything
Testator dies without a spouse, but with kids
The children divide the entire estate evenly
Who is considered a child?
Children include unborn, adopted, and kids born of wedlock.
- Does not include foster kids, step kids, or in-laws.
Adopted Children
They have full inheritance rights from their adoptive parents, but not their natural parents.
- Exception: child is adopted by the spouse of their natural parent (they can inherit from both).
Adoption by Estoppel
A child can inherit from a parent that promises to adopt them, but fails to.
Testator dies without a spouse, but with parents
Parents will share equally
Testator dies without parents, spouse, or kids
- The descendants of the testator’s parents (siblings)
- If no siblings, the grandparents will split it equally
- If no siblings or grandparents, the state will get it
When does surviving spouse get most money?
When the surviving parties are:
- A spouse (no kids, no parents)
- A spouse and testator’s parents (no kids)
- A spouse and common children
- A spouse and uncommon children
If estate passes via intestate, how is the property divided amongst the kids?
The property is divided per capita with representation.
- One share to each living descendant
- One share allocated to those who pre-deceased Testator
- All shares allocated to those who pre-deceased are added, and re-distributed, equally, amongst all their descendants, equally.
Ex: Widow has 3 kids: April, May, June. May and June die before Widow. However, May had two kids (Bill and Bob). June had one kid, Burton. There is no will. How is the estate divided?
- Each kid gets 1/3 of the shares of the estate
- April takes her 1/3 interest because she is alive
- The remaining 2/3 will be distributed amongst the next level
- Bill, Bob, Burton will each split the remaining 2/3 equally.
What happens if someone predeceases the testator?
Rule: If an individual pre-deceases testator, their gift lapses (fails) and falls to the residuary.
Residuary: the catch-all provision at the end of a will that apportions unallocated property to X.
120 Hour Rule: Anyone who fails to survive the decedent by 120 hours (5 days) is considered to have predeceased the dependent.
Burden: Party trying to prove beneficiary survived by 120 hours must do so by clear and convincing evidence.
Exceptions to the 120-Hour Rule
A. If the will says otherwise
B. If it would result in the property going to state
Class Gifts
If there is a class gift (i.e., to unnamed group), the class closes when the testator dies.
Rule of Convenience: Only those who survive the Testator can take their share
Antilapse Statute
If the devisee does not survive the testator, and they are a relative of the testator, their gift passes to their descendants, provided that they are alive within 120 hours of the testator’s death.
- Does not matter what the devisee’s will says - it will go to their descendant
So:
- The beneficiary must be related to the testator
- The beneficiary must die before the testator
- The beneficiary must have a descendant who survives the testator by 120 hours
Ademption
A gift adeems (fails) when property is given in a will, but is not part of the estate when the testator dies.
Under Michigan law, to avoid the gift from failing, the devisee is entitled to one of the following:
- Unpaid insurance proceeds (at time of death)
- Replacement property
- The value of the property, if insurance/replacement are not available.
What if there isn’t enough money in the estate to pay out all of the claims or gifts?
The court will abate some gifts (take them back), in the following order, to pay out whatever is missing:
- Intestate property (not in the will)
- Residuary (from the catch-all)
- Legacies (cash in the will)
- Specific gifts (property gifted in the will to people).
Abatements are pro rata. So, if 5 people get legacies, the court will take an equal percentage of each of their gift.
Accretions
This is when the estate increases in value, usually due to an increase in stocks due to stock splits/dividends.
Rule: Beneficiary will get the entire amount.
Ex: If your will gave your 200 shares of Tesla to Bob, and you died after the stock split, which gave you 800 shares of Tesla, Bob will get all 800 shares.
What if a spouse is purposely omitted or does not like their share under the will?
The spouse has two options. She can:
- Take under the will
- Elect against the will under the Elective Share Statute.
- Only if spouse lives in MI; must exercise election rights during lifetime
Formula
- 50% of the intestate share
- Subtracted by 50% of the value of property they received from the decedent outside of the will.
- Plus HEF
Property
- Includes jointly held property; insurance proceeds; gifts/transfers made within 2 years of the dependent’s death.
- Any real property must be in Michigan.
Ex: tenancy by the entirety becomes 100% when a spouse dies. So, you would subtract 50% of the value of that property from the 50% intestate share.
What if a will was made before marriage, and it did not include the spouse?
The spouse is a pretermitted or omitted spouse. They have two options:
- Omitted spouse share.
A. Intestate share, minus
B. Whatever is given to an uncommon child of decedent
She cannot take her omitted spouse share if:
I. It appears the will was made in contemplation of marriage to the spouse
II. The will states it is effective despite a subsequent marriage or
III. Testator provides for spouse by transfers outside the will, which were made
- She can take her elective share (previous card):
A. 50% of the intestate share
B. Subtracted by 50% of the value of property they received from the decedent outside of the will.
C. Plus HEF
What if someone is divorced or otherwise not a surviving spouse? What do they get?
A non-surviving spouse cannot recover anything. The following are NOT surviving spouses, and any gifts given fall into the residuary:
- Ex-Spouse
- Also, revokes any gifts to the ex’s relatives
- If the couple remarries, the gift is not revoked
- Separation is NOT the same as divorce - Invalid judgment of divorce, but you married another person.
- You are in a bigamous relationship (i.e., married to another).
- You do any of the following for 1+ years before the testator’s death:
A. Willfully absent
B. Desert spouse or
C. Willfully refuse to support the decedent when you are required to do so
What if no children were born when the will was executed, but one is born after and excluded?
If one child is born after the will (and no others), he receives his intestate share unless the will devised all (or substantially all) the property to the child’s surviving parent (if they survived by 120 hours).
What if some children were alive when the will was executed, but another child was born after the will?
The after-born child will receive whatever share the other children receive. If the will expressly provides the kids get nothing, then even the after-born child gets nothing.
- If other kids get property, he shares in that property
- He gets whatever the other kids get
If an after-born child is intentionally excluded, he gets nothing.
- Even if the other children get something
If an after-born child is set up to take transfers outside the will (like a trust fund), they will not take under the will.
What if there is an ambiguity in the will?
The court will apply the plain meaning rule.
Unambiguous: Will and its meaning is clear
- No extrinsic evidence is admissible to prove intent
Latent Ambiguity: Will is clear, but problematic. (“to cousin”; T has 2 cousins).
- Extrinsic evidence is admissible to prove intent
Patent Ambiguity: Looking at the will, there appears to be a mistake on its face.
- Extrinsic evidence is admissible to prove intent
Exoneration
If a house is taken subject to a mortgage, the mortgage remains on the house.
- Beneficiary is not entitled to its exoneration (discharge).
A general directive to “pay all my debts” will not force estate to pay the mortgage debt.
Nontestementary Gifts
- If a testator gives all the ‘X’ in their shed, and during their life they buy more ‘X’ and place it in their shed, the beneficiary will get all of the X.
- A gift of all the “contents” of a specific location include tangible property, not things like a deed, stocks, certificates, etc.
Example: “All the contents of my dresser to X.” The dresser includes stock certificates, bank passbooks, a deed, $5,000, and a laptop.
- The beneficiary gets the $5,000 and the laptop, but not the deed, stock certificate, or bank passbooks.
What cannot be changed by a will?
- Property that passes by contract
- A life insurance policy and death benefits can only be changed during one’s lifetime - you cannot change the policies with your will. - Property passed by right of survivorship
- If you own property as a joint tenant with someone, you cannot convey your interest through your will.
- Ex: joint bank accounts, joint estates, etc.
