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WILLS/TRUST 2: Without a will, your estate will pass by the rules of intestate succession.

The decedent died on June 1, 2013 in his home. The decedent had three children: respondent (Son 1), Son 2 and Daughter. At the time of his death, the decedent was married to petitioner. On June 11, 2013, petitioner filed an application for informal probate, and/or appointment of personal representative. In the application, petitioner stated that the decedent died intestate, and after exercising reasonable diligence, was unaware of any unrevoked testamentary instrument relating to property located in this state.  On June 13, 2013, letters of authority were issued naming petitioner as the personal representative of the decedent’s estate.

The amended inventory filed in this case reflects that the estate includes the decedent’s home, valued at $128,300 after taking into consideration a $25,350 mortgage. The estate also includes a 2010 Lincoln MKS valued at $18,000, a 1996 Chevrolet Blazer valued at $1,800, a credit union account valued at $5,104 and miscellaneous household furniture and personal effects valued at $1,000, for a total value of the estate of $154,204.00.

On September 5, 2013, respondent, filed a petition seeking probate of the decedent’s estate, noting that the decedent’s will was lost, destroyed or otherwise unavailable. The petition sought appointment of Daughter as the personal representative of the decedent’s estate.

After petitioner moved for summary disposition and respondent filed a response, the probate court granted petitioner’s motion, concluding that genuine issues of material fact did not exist concerning the execution of the alleged will in compliance with Michigan law, or with regard to the alleged will’s contents. Notably, a copy of the alleged will was not produced in the probate court.

At issue in this case is whether the probate court correctly concluded that genuine issues of material fact did not exist with regard to whether the alleged will of the decedent was duly executed in accordance with Michigan law.

MCL 700.2502 sets forth the general requirements for a will to be valid pursuant to Michigan law.

Generally, a will is valid only if it is all of the following:

(a) In writing.

(b) Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.

(c) Signed by at least 2 individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will as described in subdivision

(b) or the testator’s acknowledgment of that signature or acknowledgment of the will.

As the probate court recognized, the affidavits of respondent and siblings, while detailed in their recollection about what the decedent told them about his alleged will, do not contain any information relevant to the execution of the alleged will. Notably, there was nothing in the record to suggest when the decedent executed the alleged will, whether it was witnessed, drafted by an attorney, or simply prepared in his own handwriting as permitted by MCL 700.2502(2). Thus, the probate court properly determined that the record evidence, viewed in the light most favorable to respondent, did not yield genuine issues of material fact concerning whether the alleged will was properly executed in compliance with the applicable provisions of Michigan law.

Wills are an essential part of any estate plan. Without a validly executed will, your estate will pass by the rules of intestate succession at the time of your passing, which may or may not achieve your goals. A will can also help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation.

To schedule a free consultation with one of our attorneys, contact us today. From our main office in Plymouth, we serve clients throughout southeast Michigan.

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