The Will is the classic means of disposing of property upon your death. It is possible to incorporate a trust into a Will. It used to be commonly done, but is no longer with the increased popularity of revocable trusts. If however you plan on making a complete distribution of your estate on your death and you are satisfied that a family member will care for your estate under a durable power of attorney if you become incompetent, you may not need nor wish to incur the expense now of creating a trust.
While it is absolutely the law that if you are competent you can leave your estate to whomever you wish, there are certain election rights which allow a spouse to prevent disinheritance or "under inheritance". You should also consider carefully the impact that an "unusual" estate plan will have on your family after your death. Enmity, discord, and confusion may attend such unusual plan, and the unintended but principal legacies that may be produced are huge attorneys fees extracted from the estate by disputing parties and generations long bitterness and anger focused on the Will maker.
The principal objectives of a Will are to:
1. Dispose of the probate estate of the decedent upon death. This does not include jointly held property, life insurance, or other property "owned" by the decedent but not included in his or her probate estate.
2. Appoint a personal representative to handle the details of getting the bequests made and the bills and taxes paid.
3. Give direction as to certain elections, primarily of a tax nature. These directions affect property inside and outside of the probate estate.
4. Exercise certain powers to direct the disposition of assets which may be in other trusts or estates.
The Probate Process:
For a Will to be effective it must be probated, that is it must be filed with the Probate Court of the county of residence of the decedent and admitted to probate, that is proved to be that person's Will. The probate process may be relatively quick and painless or long and tedious with many problems. Whether there is a Will or not,and whether there is even a probate estate or not, there are still certain steps that must be taken. The decedent's final income tax returns need to be prepared. The funeral and burial expenses, expenses of the last illness, and other bills of the deceased need to be settled and paid. If there is a Federal Estate tax return to be filed it is generally not done until after 6 months have elapsed from death and generally must be done within 9 months after the death. The return must be allowed by the IRS and the state estate tax return must be allowed by the State Department of Treasury. Sometimes such determinations are made promptly and sometimes not.
In the probate estate a notice to claimants is published and 4 months must elapse after such publication before the estate can be closed as to claims. When matters can be brought into order and bills and taxes taken care of, the personal representative can arrange for distribution of the estate and preparation of a final accounting of the estate which informs all interested persons of the receipts and disbursements of the estate. Generally we can and do provide assistance to personal representatives in the probating of estates, complete with handling all of the tax and bookkeeping responsibilities for the estate, consulting on the interpretation of the Will, and the making of partial and final distributions. We routinely prepare the accountings and Court documents and see to the preparation of the Federal and State Estate Tax and Generation Skipping Transfer Tax returns and fiduciary income tax returns. We also provide complete notices of all events to interested persons and respond to all inquiries regarding the probate process. Michigan Court rules require the personal representative to enter into a fee agreement with the estate's attorney. We provide copies of the agreement and notices of the same to all interested persons.
In thinking about a Will you should consider:
1. Who do I want to get what?
2. tangible personal property items
3. gifts of financial nature
4. gifts to charity, if any, and under what circumstances
5. who gets the residue of the estate and in what proportions
6. Who do I want to appoint as my personal representative?
7. If I need to appoint a guardian as conservator for a family
member who do I want to appoint?
8. If I have a power of appointment under someone else Trust or
Will how do I want to exercise it?
© John A. Scott, P.C.
© John A. Scott, P.C.
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