What are Will Substitutes?

A good estate plan makes the transition of assets desired by the decedent an easy process. Even in the absence of good planning, the Probate Court will attempt to follow the wishes of the deceased if it is possible to establish by clear evidence what the decease wanted to happen. Establishing that by clear evidence, when potential beneficiaries disagree about intent can be very time consuming. 

Jan had two sons, Ken and Luke. Ken has three children, while Luke never married and has no children. While Jan lived comfortably and was generally well organized but never saw the need to work with an attorney to prepare an estate plan. Instead, she made lists of items in her home that she wanted distributed to her sons, daughters-in-law, and grandchildren, and prior to her death wrote a letter to Ken and two of her grandchildren telling them what she wanted to happen to her home and money after she passed away.

While Jan had good relationships with all of her family members, she was particularly close to two of her grandchildren who lived close to her in her later years. These two grandchildren provided helped Jan a great deal so in her letter Jan indicated that, with the exception of the items she listed for each of the other family members to receive from her home, she wanted these two grandchildren to inherit her remaining assets. Following Jan's death, Ken and his family engaged our firm to assist them with the probate of Jan's estate and the enforcement of her wishes.

Since Jan never created a will it was necessary to petition the Probate Court to appoint a Personal Representative (the “PR”) for her estate and to grant that person the authority to follow Jan's wishes. Normally when a decedent lacks a formal Will the intestacy statutes control the appointment of the PR and the distribution of an estate. Michigan law also allows the submission of other writings to the probate court, including letters, as evidence of the decedent’s testamentary intent (their wishes regarding the distribution of assets after their death) for the Court to rule that those writings are to be treated as a "Will Substitute." In our Petition to the Probate Court we included copies of the letters written to Ken and both grandchildren, requesting that the Probate Court appoint Ken as the PR and authorize him to distribute Jan's assets pursuant to the wishes articulated in her letter.

While under the best of circumstances it is possible to establish a document as a Will Substitute with only a single Hearing, in this case the process was complicated by Luke's desire to have his mother's assets distributed pursuant to intestacy statutes. Under the intestacy statutes Ken and Luke, as Jan's surviving children, were entitled to divide Jan's property equally between them. Since the proposed Will Substitute would result in Luke inheriting only a small number of family photos and other personal items he had substantial incentive to question and challenge the use of that document.

As a result, in order achieve the Probate Court’s permission to make distributions pursuant to Jan's letters, we undertook a lengthy process of litigation. This process required a number of hearings and delays in the administration caused by Luke's need to represent himself after the attorney he initially hired to pursue the matter requested the court's permission to stop representing Luke. While self-representation is not uncommon in probate matters, it has the potential to increase significantly the amount of time needed to resolve the matter because the self represented party may not fully understand the actions they need to take but also because in any family conflict the emotions involved may result in parties pursuing a matter well after it is clear that they lack a chance of prevailing.

Fortunately for Jan's grandchildren, Michigan law encourages judges to consider any form of a person's expressed wishes to serve as a Will Substitute. Despite our success in achieving Jan's stated goals, it is important to note that much of the complication here could have been avoided with a small amount of proper planning. While there are few barriers to a disgruntled heir, like Luke, attempting to challenge the validity of a Will or Will Substitute, it is much easier to achieve the desired results with the proper documentation. In those circumstances, being able to present Luke with a Will articulating his mother's wishes likely would have ended his efforts to overturn Jan's wishes with significantly less effort.

Matt and Al