Select Page

Wills, Trusts, and Estates
WMU-Cooley Law School
Torielli, Gina M.

A. The Law of Wills:
1. Overview/History
a. Statute of Uses- foundation for law of trusts. At Common Law (CL) property went to the eldest son.
b. Statute of Wills- Basis for modern Wills law. Passes real property (land) by wills
c. Statute of Frauds (1567)- all wills must be in writing and signed by their maker
d. Wills Act of 1837- wills must have a signature AND witnesses
e. Uniform Probate Code (UPC) rev. 1990- basis for current statute in MI (each state has its own statute based on the UPC)
2. There is no federal code; statutes and common law determine the law of wills.
3. General Rule: the law that is applied to the decedent’s estate is the law of the state where the decedent was domiciled at the time of death.
B. Basic Terms

Probate/Testacy Proceeding- process of proving a will, or having it declared valid and effective and determining will property will go
Personal Representative/Executor- person that the law puts in charge of the transfer process (1106) Duties: The personal representative collects and inventories the estate’s assets, invests or manages them to the extent necessary, gives all required notices to interested parties, sees that taxes are paid and creditor’s claims are satisfied or rejected, and distributes the remaining assets to legatees or heirs.
Estate (1104b)- property owned at the time of death
Gross Estate- everything that passes through probate
Net Estate/Distributable Estate- what is left after creditors and priority bills
Testate(Testacy)- to have a will at death. To die with an effective will
Testator- person who dies with a will. The term is used also to refer to one who has executed a will but is still alive
Will- instrument one uses to direct disposition of property
Codicil- a document executed with the formalities of a will that amends an existing will. It brings the will forward as though it was written on the day of publishing
Bequest- gift through inheritance. Also known as a legacy (term was used to describe personal property v. real property. No longer a distinction.).
Devise (Devisee)- gift given through a will
Devisee/Legatee- a will beneficiary, who receives a gift of real property or other benefit under a will or trust.
Intestate- a person who dies without a will that effectively leaves property. Note: Can die partially intestateEPIC 2101(1): Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act, except as modified by the decedent’s will.
(Intestacy)Intestate Succession: Intestacy refers to the passage at death of the property of a person who has died without a valid will.
Decedent- a person who dies without a will
Deceased- dead person
Heir (1104)- people who could take property under the law if you don’t direct property with a will

a. EPIC 700.1104(m): “Heir” means, except as controlled by 2720, a person, including the surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent’s property.
b. Note: Those entitled to another’s personal property are the intestate’s distributes, or next-of-kin.
c. Michigan does not make the distinctionbetween real and personal property; many modern statutes use the term “heir” to designate the intestate takers of any type of property.
d. Heir P

t’s intent is against public policy and will not be honored.Property owners cannot violate public policy.
i. Eyerman v. Merchantile Trust Case: p. 6 Woman wanted her lovely home razed and the land sold. Razing the home would go against public policy. She would not have to deal with the consequences of her actions since she was dead.
ii. To determine if some request is against public policy the court will look:
1. Morals of the times
2. Constitution (federal and state)
3. Statutes
4. State and national case law

Courts are hesitant to take oral testimony of testator’s intent (he’s dead, not available)
Courts will consider other reliable evidence to determine D’s intent:

a. The most reliable evidence is a person’s will.
b. Court may look outside the will for additional evidence in certain situations.

When there is no reliable evidence or the court doesn’t feel confident due to ambiguity in the will, then the court has to make presumptions. The presumptions will be based on statutes or common law.

C. Property and Property Rights:

Types of Property:

a. Personal Property (2 types):
i. Tangible Property: Car, Clothing, Furniture, Computer
ii. Intangible Property: Bank Accounts, Stocks, Patent Rights, Contract Rights, Retirement Plans, Life Insurance.
b. Real Property: House, Condo

Rights to Property:

a. Sell it; Give it away