The short answer is “Yes.” A Will performs a number of essential functions not addressed in other estate planning documents. In a Will, the Testator appoints his or her Personal Representative, the Guardian and Conservator of minor children, disposes of personal property, and in the case of individuals who have Revocable Living Trusts, “pours over” assets at death which were not transferred into trust during life.

PERSONAL REPRESENTATIVE

The Personal Representative (“PR”) is the modern day Executor/Executrix. The terminology has changed somewhat over the years, but the job of the PR has essentially stayed the same. The PR makes the decedent’s funeral arrangements, distributes personal property (i.e., jewelry, furniture, automobiles, etc.) to the named beneficiaries, and represents the estate in matters of probate.

Ideally, the decedent has created a Revocable Living Trust and re-titled all of his or her assets into the trust to avoid probate. However, the Will acts as a safety net to catch any asset which the decedent failed to transfer to trust during his or her lifetime, and “pours” such assets over to the trust (thus the name “Pour Over Will”). Unfortunately, assets transferred into the trust through the Will must pass through probate. Once in the trust, the assets will be held and administered according to the terms of the trust.

PERSONAL EFFECTS MEMORANDUM

Rather than itemize personal property in the Will, it has become the legal custom to refer to a “separate writing” which details the disposition of tangible personal property. In the separate writing, the Testator lists heirloom items and names the beneficiary to receive each item. Since the Personal Effects Memorandum is separate and apart from the Will, it may be amended without amending the Will and without incurring legal fees.

This approach has gained popularity since it is not economical to amend a Will due to something as minor as a change of heart concerning personal property. (An amendment to a Will is known as a “codicil”)

GUARDIAN AND CONSERVATOR

Guardian and ConservatorThe Will is the appropriate document in which to name the Guardian and Conservator of minor children. To cover unforeseen contingencies, a primary and alternate Guardian should be appointed. It is recommended that prospective Guardians be contacted to confirm that they are willing to take on the responsibilities that acting as Guardian of minor children entail. The sobering responsibility of raising children makes appointing a Guardian one of the most difficult estate planning decisions.

While a Guardian has legal authority over the minor child, a Conservator manages the financial affairs of the minor child. The job of a Conservator is much less important when the client has a Revocable Living Trust since the Successor Trustee under the Trust manages money on behalf of the minor.

Where parents of minor children are divorced, the custodial parent would often prefer to name a Guardian other than the non-custodial spouse. Although the custodial parent may name a third party Guardian, the election may not be honored if the non-custodial parent objects. Michigan’s Child Custody Act creates a strong preference for the biological non-custodial parent to take over the custodial responsibilities of a minor child upon the death of the custodial parent. Nonetheless, the custodial parent should select a third party Guardian on the outside chance that the non-custodial parent may predecease the custodial parent, or is unable or unwilling to take over the legal responsibilities of raising the minor child.

TESTAMENTARY TRUSTS

In those rare cases where a trust is not utilized, a “Simple” Will is used to distribute assets at death. Assets passing through a Will of any kind, including a Simple Will, pass through probate. Testamentary Trusts are trusts which come into being upon the death of the Testator (unlike Revocable Living Trusts which are effective upon signing). Typically, Testamentary Trust provisions are added to a Will (sometimes called a “Will with Testamentary Trust”). Testamentary Trusts are disfavored since they require probate supervision at the death of the Testator and for every year of their existence thereafter.

CAPACITY

Any person 18 years or older who is of sound mind can execute a Will. To be valid in Michigan, a Will must be witnessed by at least two persons. The witnesses should not be related to the Testator, and should not be a named beneficiary under the Will. An un-witnessed Will may nonetheless be honored if it qualifies as a “holographic” Will under Michigan Law.

INTESTACY

Someone dying without a Will is said to have died “intestate.” If a person dies without a Will, the Michigan statutes of descent and distribution determine who receives the decedent’s probatable assets (See Q5).