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Does your Will clearly state your intentions?

Beneficiaries are entitled to contest the probate of the will.  It is important that your will clearly state your intentions.  It is also important to have conversations with your beneficiaries about your intentions.  The case below illustrates how a will can be confusing.

The deceased died in 2002, leaving a will. She was survived by four children, including Dan and Terry. The will explicitly made no provision for her sons, other than Dan. The will specified that Dan was to receive her home, but further provided that if Dan should fail to survive her, then she gives the property to her granddaughter.  Additionally, the will nominated Dan to serve as personal representative, or, in the event that he was unable or unwilling to serve, it nominated her granddaughter.

After her passing, Dan did not probate her will, and apparently never placed his mother’s home in his name.

Dan died in 2014, and Terry, his sister, was appointed personal representative of his estate. Terry claimed an interest in her mother’s home as a consequence of Dan’s death, on the ground that, even though Dan had not probated his mother’s estate or transferred the property to his name, because Dan was alive when his mother died, he then acquired sole ownership of his mother’s home, and that upon Dan’s passing, interests in the property should pass according to the latter’s estate plan.

Granddaughter responded that to allow Terry an interest in her mother’s home would run counter to the intent of her will. The trial court agreed with Terry and ordered that the mother’s home and the personal property therein be turned over to Dan’s estate.

Granddaughter argues that the trial court erred when it awarded the mother’s property to Dan’s estate because doing so foiled her intent that Terry take no part of her estate.

In this case, the will clearly set forth the mother’s intention that Dan receive the full undivided and unfettered interest in her home if he survived her, and that the granddaughter receive that interest if, but only if, Dan did not survive her. Under MCL 700.3101, once the mother died, the rights in her home immediately devolved to Dan, extinguishing granddaughter’s interest in the property. Accordingly, the trial court’s award of the home to Dan’s estate complied with both the will and the Estates & Protected Individuals Code (EPIC), and thus was not an abuse of its discretion.

A carefully drafted and properly executed will can pass your property to your loved ones in the manner of your choosing. Working with an attorney can help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation.

REAL ESTATE 2: Property dispute, intent is not required for a trespass.

In instances of trespass where injunctive relief and actual damages are not warranted, a plaintiff nevertheless is entitled to nominal damages. Because a trespass violates a landholder’s right to exclude others from the premises, the landholder could recover at least nominal damages even in the absence of proof of any other injury.

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