It’s a beautiful thing when families get along. It’s also beautiful when families are able to be civil and loving with each other after the death of the head of the family. Unfortunately, the reality is that in many instances there is familial strife following the death of a parent or grandparent. There are many hurt feelings when it comes to inheritance and the division of the estate. This leads to many wills being contested and family members treating each other poorly.
In the State of Michigan, when a Will or Trust is contested it can significantly hinder a relative’s final wishes and tear families apart. The probate attorneys at Thav, Ryke & Associates work with families to prevent a contest from arising, but if it does, we are here to help you resolve it fairly. Our goal is for equity and a reasonable outcome so families can go back to getting along — a virtue we hold dear.
In this blog post, the attorneys at Thav, Ryke & Associates will explain what probate is and also explain when a will or trust can be contested in Michigan.
Probate is the process by which estates get settled after someone dies. It’s a court process so it can be complicated, so it is important for anybody writing a will, for any beneficiary of a will and for anybody named as an executor of a will that it is handled properly. Using our knowledge of probate law, a probate lawyer can help the process of administering an estate after someone has died. They ensure that the instructions of the deceased are followed and their heirs receive any inheritance with minimum stress.
When Can a Michigan Will or Trust be Contested?
A contest to a Will or Trust is a type of lawsuit that files a legal objection regarding the validity of a Will or Trust. If the plaintiff can prove to the court that the Will or Trust in question is invalid, the court then “throws out” the Will or Trust, declaring it invalid. This action places the client’s family in the position of having no Will or Trust to direct distribution of assets.
In order for a Michigan Will or Trust to be contested, the party filing the objection must have a vested interest in the Will or Trust in question, and the burden of proving the Will or Trust is invalid rests upon them.
Persons Who May Contest a Michigan Will or Trust
The following people may have the standing to question the validity of a Will or Trust:
- Disinherited or disadvantaged heirs at law. These are family members who would inherit something, or would inherit more, under applicable state law if the deceased person failed to make a valid Will or Trust.
- Disinherited or disadvantaged beneficiaries. Beneficiaries named or given a larger bequest in a prior Will or Trust.
Grounds for Contesting a Michigan Will or Trust
- The Will or Trust wasn’t signed as required by state law. In Michigan, the testator must sign, and two witnesses must also sign, each having witnessed the testator’s signature. In addition, a notary public must witness the signatures of the testator as well as both witnesses.
- The person making the Will or Trust lacked the necessary capacity. The capacity to make a Will means that the person understands: Their assets,Their family relationships, The legal effect of signing a Will
- The person creating the Will or Trust was unduly influenced into signing it. As clients age and become weaker both physically and mentally, others may exert influence over the client’s decisions, including how to plan their estate.
- The Will or Trust was procured by fraud. A Will or Trust that’s signed by someone who thinks they’re signing some other type of document or a document with different provisions is one that’s procured by fraud.
How Can You Avoid a Michigan Will or Trust Contest?
When formulating a Trust or Will, clients should work to ensure that their final wishes will be fulfilled. If you are concerned about your Trust(s) or Will being contested, we recommend the following:
- Avoid DIY Estate Planning – There are plenty of boxed or DVD Estate planning resources available. However, they cannot offer guidance on every situation, nor can they guide you through difficult Probate issues that may arise.
- Advise Family about your Estate Plan – It isn’t necessary to release the intimate details of your Estate plan; but your family needs to know you have taken the time to create one
- Use Discretionary Trusts for Beneficiaries – Instead of ignoring a potential beneficiary who may squander their inheritance or use it against your wishes, require their share to be held in a lifetime Discretionary Trust and name a neutral third party (a bank or trust company) as trustee. This will allow the client to control when the beneficiary will receive distributions and who will inherit anything that’s left when the beneficiary dies.
- Keep your Estate Plan Updated – Estate planning is an ongoing process. As laws and your family, assets, and circumstances change, so should your Estate plan. Such vigilance will discourage challenges.
Family is important and we hope all relatives treat each other with respect and love. However, when your family is treating you poorly, our attorneys at Thav, Ryke & Associates will treat you like family! For any questions or concerns, please contact us at 800-728-3363.