Everyone knows what a last will and testament is, but do you really understand how it works? Common knowledge acquired through movies, television and even music can be wrong. Clients occasionally will ask: when does the reading of the will take place or how much do I have to leave my estranged child to keep them from contesting the will? Read on the see how much you actually know.
Can I hand write changes on my will?
To amend your will, you should not just hand write your changes on the will. That is inviting someone to contest your will. Amending your will requires you to follow the same legal requirements of a establishing valid will in Michigan. Here are the general steps to take:
- Determine what changes you want to make. Before you start making changes, you should be clear about what you want to add or modify in your will.
- Follow the same legal formalities as when you first made your will. This may include having your signature witnessed by witnesses and dating the document.
- A codicil is a legal document that amends your existing will. It should clearly state what changes you want to make to your will and be signed and witnessed. If the changes are extensive, it may be better to create a new will altogether.
- Store the codicil with your original will in a safe place where your personal representative can find it when the time comes.
- Once you have made changes to your will, inform your executor and loved ones so that they are aware of the changes and can act accordingly when the time comes.
It is important to note that wills are complex legal documents, and it may be helpful to consult with an attorney to ensure that your changes are valid and properly executed.
Does a will transfer everything I own?
A will is a legal document that outlines how a person's assets and property should be distributed after their death. However, not all of a person's assets and property may be covered by a will.
For example, some assets may pass outside of a will, such as:
- Assets held in joint tenancy with the right of survivorship: If you own an asset jointly with someone else, such as real estate or a bank account, the surviving joint owner will automatically inherit the asset when you pass away.
- Assets with designated beneficiaries: Some assets, such as retirement accounts, life insurance policies, and payable-on-death (POD) bank accounts, allow you to name a beneficiary to inherit the asset when you die.
- Trust assets: If you create a trust and transfer assets to it during your lifetime, those assets will be distributed according to the terms of the trust, rather than your will.
So, while a will can transfer many of your assets and property, it's important to consider all of your assets and how they will be distributed after your death. It may be necessary to use other estate planning tools, such as trusts or beneficiary designations, to ensure that all of your assets are distributed according to your wishes.
Who can Contest My Will?
There are a few parties who may be able to contest a will, depending on the specific circumstances:
Beneficiaries: Anyone who stands to inherit from your will may contest it if they believe that the will is invalid or that they were unfairly left out.
Family members: In some cases, family members who were not included in the will may be able to contest it, especially if they were dependents or were promised an inheritance.
Creditors: If you owed money to someone at the time of your death and they believe that the will does not provide for the repayment of that debt, they may be able to contest it.
- Personal Representatives (Executors): The person you have chosen to be your personal representative may contest the will if they believe that it is not valid or if they feel that they were unfairly excluded from the will.
It's important to note that contesting a will can be a complicated and expensive process, and not all challenges are successful. It's generally a good idea to work with an experienced estate planning attorney to make sure that your will is as legally sound as possible and to help minimize the risk of a challenge.
What happens if my will is contested?
If your will is contested, the legal process can be lengthy and expensive, and it can delay the distribution of your assets to your intended beneficiaries. Here are some of the potential outcomes of a will contest:
The will is upheld: If the court determines that your will is valid and was executed in accordance with the law, it will be upheld, and your assets will be distributed according to its terms.
The will is declared invalid: If the court determines that your will is invalid, it will not be enforced, and your assets will be distributed according to Michigan's intestacy laws or a previous valid will, if one exists.
The will is partially invalidated: In some cases, the court may determine that only certain portions of your will are invalid, such as a provision that is in violation of Michigan law. In this case, the remainder of the will may still be upheld.
- A settlement is reached: In some cases, the parties involved in the will contest may reach a settlement agreement, which can include modifications to the will or a distribution of assets outside of the will.
It's important to note that the process of contesting a will can be emotionally and financially taxing on your loved ones, so it's generally a good idea to work with an experienced estate planning attorney to help minimize the risk of a challenge and ensure that your wishes are carried out as you intended.
Under what circumstances will the court find my will to be invalid?
The specific circumstances that can lead to a court finding your will to be invalid can vary depending on the unique facts of your situation. However, here are some common reasons why a court might invalidate a will:
Lack of capacity: To make a valid will, you must have the mental capacity to understand the nature of your property, the beneficiaries you are including in your will, and the effect of your wishes. If it can be proven that you lacked the mental capacity to make a will at the time it was created, the will may be declared invalid.
Undue influence: If someone exerted undue influence over you at the time you created your will, such as through threats, coercion, or manipulation, the will may be invalidated.
Fraud: If it can be proven that someone intentionally deceived you or made false statements to induce you to create or change your will, the will may be invalidated.
Improper execution: Michigan has specific requirements for how a will must be executed, including the number of witnesses and the process for signing and dating the document. If your will was not executed properly, it may be declared invalid.
- Revocation: If you later created a new will or destroyed the old one, the original will may be considered revoked and therefore invalid.
What can I do to prevent my will from being contested?
There are several things you can do to help prevent your will from being contested:
Get professional help. One of the best things you can do is to work with an experienced estate planning attorney. They can help you create a will that meets the legal requirements, ensure that the will is properly executed, and help minimize the risk of a challenge.
Create a clear and detailed will. Be as clear and specific as possible in your will, and include details about your wishes and why you made the decisions you did. This can help prevent misunderstandings and disputes about your intentions.
Review and update your will regularly. It's important to review and update your will regularly, especially if there have been significant changes in your life, such as marriage, divorce, or the birth of a child. This can help ensure that your will accurately reflects your wishes and reduces the risk of challenges based on outdated information.
Discuss your wishes with your loved ones. Consider discussing your wishes with your loved ones, especially if you are leaving an unequal or unexpected distribution of assets. This can help prevent misunderstandings and disputes about your intentions.
- Include a no-contest clause. A no-contest clause, also known as an in terrorem clause, is a provision in a will that disinherits any beneficiary who challenges the validity of the will. While these clauses may not be enforceable under certain conditions, they can act as a deterrent to challenges and may help reduce the risk of a dispute.
While these steps can help reduce the risk of a will contest, there is no foolproof way to prevent someone from challenging your will. However, working with an experienced estate planning attorney can help ensure that your wishes are clearly and legally documented, which can make it more difficult for a challenge to succeed.
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