JUDGE RUDY REPORTS: Wills Without Lawyers
By Judy Serra
Q: CAN I WRITE A VALID WILL in Michigan without hiring a lawyer?
Answer: Yes. Michigan and some other states recognize a “holographic” will. A will that is in your own writing, signed by you and dated by you, is your holographic will.
Under Michigan law, a will has to be written. The law does not allow verbal wills. The person making a will is called the “testator” if male, and the “testatrix” if female. I use “testator” to include both. Under law, a will has to be signed by the testator and at least two wit-nesses, as well as being dated. If you want to look-up the statute, it is MCL 700.2502. Under this law, there is an exception to the require-ment of two witnesses. If a will is in the testator’s hand writing, and is signed by the testator and dated, it is valid as a holographic will. When “forms” are used, these are also ac-ceptable as long as “the material portions” are in the testator’s hand-writing. The material portions of a will are the parts that say who gets what. Pre-printed parts of the form are acceptable for proving that the document was intended to be a will.
This means that it would be possi-ble under Michigan law to use a form from the Internet or to write a will in your own handwriting. The format used does not invalidate the document. Forms can be helpful, but forms are generally used to make sure the drafter does not forget something or make a mistake. This is a signal that it is possible to make such a mistake.
A common error in drafting wills is vagueness. Often people think they are being clear, but lots of confusion can arise after death. A reference to “children,” for example, could create a dispute about whether step-children or non-officially adopted persons qualify as children. Lawyers usually identify real estate with a legal description. Otherwise, refer-ences to “my home” can create con-fusion if a person moves or owns more than one piece of real estate. It is important to know that you can-not always easily “disinherit” a person who might have inheritance rights. These are all circumstances where it may be beneficial to hire a lawyer. People often draft a will assuming that their present circumstances will not change. A drafter should consider options. If one beneficiary dies, the will should say what happens to their inheritance. Events like family deaths, moving, children reaching adulthood, and so on, are among the many things to consider and include.
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