If you are like the majority of people in America, you do not have a signed will. Just because you do not have a signed will, does not mean you do not have a “will”.
In the absence of a signed will, Michigan statute determines who will get what after you are gone. So even if you think you do not have a will, you actually do. Unfortunately this one has been written for you by your State legislators.
Suppose you have been married for a number of years. Most long-term married couples generally want some variation of the “Honey I love you” plan. This type of plan is usually “Honey I love you, I leave it all to you. Our kids can have it when we are both gone.”
Unfortunately if you have no written will, that may not be what happens. Your surviving spouse would only get the first $201,000 of your probate estate in 2009. The rest of your estate would be divided between your surviving spouse and your joint biological children. This is not a “Honey I love you” plan. If your primary asset was your home, your spouse may have to sell the house to pay off the kids.
There is often an unwelcome surprise for your children in second marriage situations. Most people in short-term second marriages want their property to go to their biological children. If you died without a will after marrying Thor or Bambi and your children are not also children of Thor or Bambi, then Thor or Bambi would keep the first $134,000 of your estate in 2009 and split the rest of your estate with your biological children.
I know of one case in which an individual died without a will two weeks after remarrying. The new spouse received more than one-half million dollars for this two week marriage and was in control of the entire estate. The kids only received a fraction of what they would have received two weeks earlier before the marriage.
Conversely, in long-term second marriages, you may want all children and step-children treated the same. Without a will, this will not happen. Your step-children would receive nothing upon your death. Is this what you want?
In these situations, it is extremely important to have your estate planning documents in place to make sure that your wishes are going to be followed. It should be made clear whether or not your surviving spouse or step-children are to receive any share of your estate.
It is fairly easy to disinherit a child, but much harder to protect them from Thor or Bambi. Even if you have a will or trust, Thor or Bambi may still take certain shares or allowances that are provided for surviving spouses regardless of whether they were named beneficiaries. This may not be your intended result.
The best way to guarantee that your property would be going to your children instead of Thor or Bambi is to firstly, have a properly drafted will or trust based estate plan. And secondly, have Thor or Bambi sign a pre- or post-nuptial agreement. With this agreement, Thor or Bambi would waive any claim he or she would have against any of your property upon your death. In this way, what you have would be distributed to whom you want, when you want, the way you want.
By: Matthew M. Wallace, CPA JD
Published edited February 8, 2009 in The Times Herald newspaper, Port Huron, Michigan as: Without a will, there still is a way