A Will has two functions: It states who we want to receive our property when we die and who will be our 'personal representative."

A Will is not effective until the person who makes it, the "testator," dies and it is formally "admitted to probate." That means a Will goes through probate. A Will may be changed at anytime even on the deathbed.

Without a Will, the laws of "intestate succession" provide who will get the property and that can lead to surprises. Most married couples intend that children inherit after the death of the last spouse. The intestate laws provide an allowance for the spouse and anything over that must be shared with the children.

A Will may be formal or holographic. A formal Will must be in writing and signed by the testator and witnessed by two persons who must sign in the presence of the testator and each other. A holographic is handwritten, signed and dated by the testator. Witnesses are not required for a holographic will.

A testator should not rely on a holographic will to save money. Many require court hearings for admission to probate and interpretation of various clauses. For example suppose a testator makes gifts "to my living children." At the time of the will one child had died and at the time testator died a second child predeceased. Does "living children" mean those living at the time the will was made or at the time of testator's death? The money that may be saved in having legal advice to prepare and sign a will is usually spent many times over in court proceedings.

The Michigan statutory will is safer than the holographic will for those with very simple estate plans. The law provides a form to be filled in, which should be strictly followed. No changes should be made to the form otherwise the risks of the holographic will arise.

A Will may either make gifts outright or in trust. Outright means the devisee receives the gift with no strings attached. In trust, means that the gift has conditions on it. A gift for a grandchild's education only is a gift in trust. A gift may be made in trust for a child with a substance abuse or gambling problem.

The receipt of government benefits by an adult disabled child is another reason to make a gift in trust. Some government benefits will end if a gift is received. A gift in the form of a "special needs trust" will not cause the loss of benefits and will provide for money to pay for extras for the child. Special needs trusts are very complicated and should only be drafted by an attorney experienced in benefits related planning.

A gift in a Trust in a Will requires probate court approval. The Trust will need to be prepared by an attorney and approved by the probate court. It is less expensive to have a living trust prepared while the testator is alive. There are times when a court approved trust is preferred over a living trust. A testator may not know whether the trust will be needed. For example, grandchildren may graduate from school and the testator may have great-grandchildren who are well provided for. In other cases the testator may need court supervision of the trust as in the case where the trust is for an only child who has a substance abuse problem.

Many people plan to avoid probate by having joint owners on property. There are many problems with using joint accounts as a will substitute. They do not have any means of attaching instructions on the intent of the original owner or allow for contingent planning.

For example, many parents name a child joint owner on a bank account so that person will be able to pay bills if the parent cannot. Under the banking laws the child becomes sole owner of the account on the parent's death. However, that does not mean that the parent intended that child to get the entire account. That may conflict with the parent's will that says all property will be shared equally by all children.

In other cases, some accounts are overlooked and there is no joint owner and that requires probate. Joint accounts do not allow for contingent planning. If a co-owner dies there is no provision for others to receive the account. Some joint property, such as real estate and investment stocks require the consent of all owners. Any single owner has a veto power. For example a child may not agree with the parent getting home equity loan or reverse mortgage.

A will is a serious, but easily accomplished, undertaking that every person should complete. Even where a person plans to avoid probate, there should be a will to act as a road map to the person's intentions. That way there will be no arguments about "who gets what."

Article by Jim Schuster, Certified Elder Law Attorney