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To will or not to will?

To will or not to will?

Daniel Marchese, esqWhen I speak in estate planning seminars, generally 70% of those in attendance have a will. Can that 70% of folks explain what their will does for them? Sometimes yes, sometimes, no. In this post I will explain what a will is by definition.

A Will…By Definition

A Will” includes, but is not limited to, a codicil and a testamentary instrument that appoints a personal representative, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to the decedent’s property that is passing by intestate succession. MCL 700.1108(b).

As the aforementioned statute states, an original will defines items such as who will represent the estate after passing, what guardian is nominated to be appointed for someone with minor children, how creditors should be paid after one passes, and so on. The most important appointment in a will, at least for many, is the nomination of a personal representative or otherwise referred to as executor. Via MCL 700.3203(1)(a), a person nominated in a will has the highest priority to become personal representative of a decedent’s estate. It would take a very strong challenge by an adversary to defeat this statutory priority. Therefore, the nomination of a personal representative in a will is a critical first step in planning for an estate.

A codicil is not defined by Michigan statute, but Black’s Law Dictionary 8th edition provides an explanation. A codicil is “[a] supplement or addition to a will, not necessarily disposing of the estate but modifying, explaining, or otherwise qualifying the will in some way.” Black’s, Pg 275. Generally speaking, when admitted to probate, the codicil becomes a part of the will. Id. It follows that an original will is needed before a codicil can be created. Therefore, a codicil is a fancy way of saying someone amended their original will. One might do this by changing the personal representative or by gifting a certain item of personal property to a particular individual, said property being purchased after the original will was executed.

Next topic is “The Difference Between Having a Will and Not Having a Will“.

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