A will is an important estate planning document for anyone who is looking to prepare for the future care of their family and assets. Wills are one of the most cost-effective ways to plan for the distribution of your estate. If you do not choose, the State makes those crucial decisions for you — and your most treasured assets may end up being distributed in a way that does not align with your wishes and goals.
Meanwhile, a will also offers other practical benefits. This simple tool can empower you to nominate someone you trust to handle your affairs in the probate court; nominate a guardian to handle the care, custody, and control of your minor children; and nominate a conservator to handle the financial affairs of your minor or incapacitated adult children or loved ones.
Wills facilitate the probate process and, if executed properly, can help to avoid or minimize the potential for contests and prevent family disagreements after you are gone.
Simply put, a will is a way to take care of those you love and all that you have worked hard for. As with other important estate planning mechanisms, it is important to remember that a will is not necessarily a “set it and forget it” document. We all acquire assets and undergo countless changes over the course of a lifetime. Along the way, it is important to regularly reassess your will and other estate planning tools, to assure that they reflect your circumstances and your goals.
Updating, Amending, or Replacing a Last Will
Broadly speaking, there are two primary ways to update or amend a will in Michigan:
- to add a codicil or similar writing that clarifies or modifies some or all of the existing will, or
- to revoke and replace the existing will by creating a new one
Let’s explore both of these processes in a bit more depth:
Supplementing or Updating a Will With a Codicil
an addition or supplement to a will, either to add to, take from, or alter the provisions of the will.
In other words, you may think of a codicil as an amendment to a will. It may revise or update some portion of the existing will, or provide additional supplemental information. Generally speaking, a formal codicil is considered to be valid if it follows the same standards used to execute the original will. That is:
- Put in writing
- Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by their direction
- Signed by at least two individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will (or the testator’s acknowledgment of that signature or acknowledgment of the will)
With that said, it is important to remember that Michigan law also acknowledges other writings intended as wills, even if they were not necessarily executed in compliance with the guidelines above. This means that a document may be considered valid if a proponent can establish, by clear and convincing evidence, that the decedent intended the writing to constitute a partial or complete revocation of their will; an addition to or alteration of their will; or a partial or complete revival of a formerly revoked will.
Under Michigan law, there may also be other ways to modify or update an existing will without formally replacing it — such as updating a separate writing referred to in the will, which identifies the distribution of certain types of tangible personal property. This writing,
may be referred to as one to be in existence at the time of the testator’s death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
To be admissible as evidence of intended disposition, the writing must be either in the testator’s handwriting or signed by the testator at the end, and must describe the items and the intended devisees with reasonable certainty.
You don’t have to deal with these confusing guidelines alone. An experienced estate planning attorney can help you understand and address all of the legal formalities associated with amending, revising, or updating a will, and help you to execute a writing or document that works for your circumstances. A knowledgeable legal professional can also help you to consider all of your options, which may include revoking an existing will and creating a new one to replace it.
Replacing a Prior Will by Creating a New One
In order to help mitigate the potential for contests or confusion, it may be advisable to write an entirely new will, and expressly revoke the existing one in the process.
Generally speaking, a will prepared with the assistance of an attorney will contain language to the effect of: “This is my will and I revoke any prior wills and codicils.” When executed properly, this means that the current document nullifies previous writings.
Previous wills may also be revoked through the execution of a subsequent will that revokes the previous will “by inconsistency.” Under Michigan law, the testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the newer will “makes a complete disposition of the testator’s estate.” If this presumption arises and “is not rebutted by clear and convincing evidence,” then the previous will is revoked, and only the most recent will is operative upon the testator’s death.
To prevent any confusion stemming from having multiple documents, the testator or another person acting on their direction may also intentionally perform “a revocatory act on the will” — including “burning, tearing, canceling, obliterating, or destroying the will or a part of the will.”
As you consider revoking and replacing your will, remember that an attorney can be an invaluable partner — helping you to execute these documents effectively and completely, while taking time to consider the specifics of your unique circumstances.
“When Do I Need to Review or Update My Will?”
Setting up a will isn’t always the most pleasant thing to think about — so it’s no surprise that many people are reluctant to go back and review their will over time. Indeed, many individuals will simply set their wills aside, perhaps for years or decades on end.
However, it’s important to remember that your life is always moving forward, and your circumstances are always changing. After a few years, you may wish to name a new guardian for your children or nominate a new personal representative. You may want to change who you list as a beneficiary, and how much of an inheritance you leave behind.
As a result, it’s helpful to make reviewing your will a regular practice. Sometimes, life events can actually make the provisions you set down in your will obsolete or outdated — say, if you are predeceased by one of your beneficiaries, or if you sell or dispose of an asset before you pass away. Similarly, changes in your personal, professional, or financial situation may cause you to rethink things, and make choices that differ from what’s set down in your documents.
Generally speaking, it is a sound practice to consult with your estate planning attorney to review potential additions or changes to your will every few years.
A number of life events may also be cause to review and revise your estate plan, including:
- The death of a loved one (particularly an individual named in your will to receive estate assets)
- Marriage or divorce
- Acquiring new assets
- Disposing of assets listed in your will
- Experiencing a significant change in the value of your property
- The birth or adoption of children and grandchildren
- Minors reaching the age of majority
- The incapacitation of a loved one
- Significant changes in your personal relationships
The Importance of Working With an Experienced Estate Planning and Wills Attorney
Considering the importance of reviewing or updating your will? Looking to create an estate plan that will suit your long-term goals? Don’t hesitate to get in touch with our Attorney Dean E. Patrick to continue the conversation.
Mr. Patrick can help you set a plan for yourself and your loved ones. His knowledge of Michigan probate law ensures you will get the legal help you need when it’s time to take care of your estate planning, including wills, trusts, and powers of attorney.
Mr. Patrick has the experience to walk you through the entire process of creating or reviewing a last will that will truly protect your family, and ensure that property is handled in the manner you decide.
The only things that go away with time are snowflakes, youth, and opportunities. You have an opportunity to plan for yourself and your loved ones. Don’t let it pass.
At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies as we help you prepare for the future.
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