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A Last Will and Testament is the basic building block of an estate plan. Depending on your circumstances, you may need a living trust or another type of trust, and it is important to have a durable financial power of attorney and a medical power of attorney as well. But in reality, most people call an estate planning law office and say, “I need a will.” How do you make a valid Michigan will? And do you really need an attorney to do it? Let’s tackle those questions one at a time.
Three Basic Requirements for a Valid Michigan Will
Note that the question above was not, “how do you make a will,” but, “how do you make a valid Michigan will?” If your will isn’t valid under the law, it is not worth the paper it’s written on. Fortunately, it is easy to make sure your will is valid.
The requirements for a valid Michigan will are set forth in Michigan Compiled Laws 700.2502. With some limited exceptions (we’ll get to those in a minute), a Michigan will must be:
- In writing;
- Signed by the person making it (the “testator”) or by some other person in the testator’s conscious presence and at their direction; and
- Signed by at least two other individuals, each of whom signed within a reasonable time of either witnessing the testator’s signature, or the testator’s acknowledgement of that signature.
Sounds pretty straightforward, and for the most part, it is. But what if you are in some dire situation, like trapped on a mountain, and you’re pretty sure you won’t be rescued in time? You can still make a valid will, as long as you have something to write on and with. A will that is in your own handwriting, signed, and dated can be valid even without witnesses. It’s called a “holographic will.” As long as the material portions of the will and the signature are in your handwriting, a court can treat it as a valid will.
MCL 700.2503 also says that a document that does not comply with MCL 700.2502, or writing that does not comply added to an otherwise valid document can still be treated as valid. A person trying to get a court to treat the non-complying language as if it were valid needs to prove their case by clear and convincing evidence. They must show that the deceased person intended the writing to be either their will; a partial or complete revocation of their will; an addition or change to their will; or a revival of a previously-revoked will.
What if a will was executed in another state or country that had different laws about what makes a will valid? According to MCL 700.2506, Michigan will treat such a will as valid.
What if a will was executed in another state or country that had different laws about what makes a will valid? According to MCL 700.2506, Michigan will treat such a will as valid.
Of course, just because a will might ultimately be found to be valid by a court doesn’t mean you want to take any chances. If you have the option, make sure your will is in writing, signed by you, with eligible witnesses (legal adults who, ideally, do not benefit from your will). The more clear and well-prepared your will is, the less likely it is to be challenged in court.
Do You Need a Lawyer to Make a Valid Michigan Will?
You do not need a lawyer to make a valid Michigan will. You also don’t need a trained barber or stylist to give you a haircut—but you’re going to get a much better result if you use one.
That’s also the reason to use an experienced Michigan estate planning attorney if you need a valid Michigan will. As the saying goes, “You don’t know what you don’t know.” You could create a valid will that doesn’t address everything that is important to you. That could lead to confusion and fighting amongst your heirs, and the waste of your estate assets trying to iron everything out in court.
An experienced estate planning attorney will explore your needs and goals, ask you questions that you may not have thought to consider, and suggest other estate planning documents that will more fully meet your needs. In addition, if taxes are a concern, your estate planning attorney can help you to minimize your heirs’ or beneficiaries’ tax liability.
If you have questions about whether your existing will is valid or whether you should update your estate plan, we invite you to contact our law office to schedule a consultation.
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