How many of us have heard horror stories of families arguing, stealing, and never speaking to each other again after a family member has passed due to their estate? How many of us experienced this exact situation? I can remember when my Grandfather passed away and that side of the family going to battle for his belongings. In my opinion, it should not be the way we remember and honor the passing of a loved one. That is why I believe a will is necessary for each and every one of us at some point in time in our lives.
If an individual passes away without a will, the estate will go through a probate court process known as "Intestate Succession." In Michigan, the Estates and Protected Individuals Code (EPIC) governs all matters with estates. MCL 700.2101 through 700.2114 covers Intestate Succession.
If a family member dies (decedent) leaving behind a spouse, that spouse has several options. The main option being to obtain the entire estate IF no descendant (child) OR parent of the decedent survives the decedent [MCL 700.2101(1)(a)]. If a child or parents is living at the time of the decedent's passing, then the other distribution of the estate is triggered in MCL 700.2102(1)(b) through 2102(1)(f). If a family member dies without a spouse, MCL 700.2103 will direct the court to distribute the estate accordingly.
Intestate Succession may seem easy, but everything a will can do may take months to a year to establish. Furthermore, the court will be in charge of the estate and handles the payments of estate taxes (luckily Michigan does not collect estate tax but federal still does), debts, and resolves conflicts between heirs. Prolonging the distribution of the estate through intestate succession. Lastly, without a will devising property and titles to family members, creditors will soon begin to foreclose on the assets in the decedent's name. This may further complications if you're still in that home, or should be receiving benefits in one form or another.
Reasons to get a will:
Recently had kid(s)
Recently Acquired new property/significant assets
Because we can't predict the future.
Why a will is important. First, it brings the family together as a collective to understand how assets will be handled and distributed. When everyone is on the same page, it makes the passing easier and maintains the family fabric. Secondly, the decedent will have chosen a personal representative to oversee their estate. This personal representative may be the spouse, child, good friend, etc.. Mainly, this person should be a person the decedent trust to abide by their wishes. The appointment of a personal representative does take some time, but completing the application while the decedent is still alive makes the process easier than appointing the personal representative after the death. If everything in the will is solid and the representative has been established, then an informal probate is the easiest method of distributing the estate with little court intervention. Lastly, having an attorney draft you a will is relatively inexpensive.
To continue the importance of the will, the will is drafted in a way that everything is laid out clearly. Some may think it is as easy as saying "car to my daughter" or "house to my spouse." Not necessarily. By adding specific clauses to your will, your ability to specifically devise and distribute will provide clarity to the personal representative. Leaving little room for dispute (hopefully there is none) among family members. Such clauses are:
Presumption of Survival Between Spouses. This clause is helpful for tax purposes.
Payments to Minors. Absent a trust for the minor child, this clause will help the personal representative distribute property to the child while they are still a minor.
Alternative Trust. If your spouse or child receives governmental benefits, this clause is beneficial to safeguard those benefits.
No-Contest Clause. To prevent family members from arguing their distributions, this clause notifies the family of the decedent's desire to settle their matters quickly, without any issues.
While there is much more to discuss, the above are essential basics to understand the need for a will. Intestate Succession may take much longer for the estate to be distributed and is not necessarily in the full control of the personal representative. A will outlining the wishes of the decedent and how their personal representative should handle distributions will make the process smoother, and more importantly, more peaceful to honor the passing of a loved one.