Wills And Trusts

Key Takeaways:

• You are not legally required to hire an attorney to write your will or trust. However, it is very strongly advised that you do so.
• People who write their own wills and trusts often make serious errors that negatively affect their estates and their heirs.
• Having an attorney draft or review your estate planning documents is important for everyone, but it is especially important for those with complex estates (i.e., assets and properties that are difficult to contain in a standard will or a trust).
• An estate planning attorney can direct you toward estate planning documents that meet your level of desired privacy. For example, they may guide more privacy-seeking clients away from wills (which are entered into the public record) and toward trusts (which can be kept private to some degree).
• In conflicts between wills and trusts, the law often defers to the trust (though there are exceptions to this rule, such as cases in which an asset in question is not actually owned by a trust).

While wills and trusts are both subject to their own legal requirements to make them valid, legally enforceable documents, neither technically require an attorney to be involved. There is no law requiring you to hire an attorney to draft a will or a trust in order to make it valid.

However, it is very strongly advisable to have an attorney help you with the drafting of both wills and trusts. This is because an attorney will be far less likely to make or miss errors that can enormously complicate or even void wills and trusts.

When people come into my office with a will that has a problem, it’s almost always because the document was prepared by an individual layperson rather than with the help of an attorney.

Often, when I see “DIY wills”, or wills prepared by an individual for themselves, they have many common (and often serious) errors.

One of the main mistakes I see in self-prepared wills is that the will is not legally valid. Because the person preparing the will was not aware of the requirements of a will under Michigan law, the will does not meet those requirements in one or several ways.

I also see wills drafted with provisions that should not be drafted in a will, and instead belong elsewhere in another estate planning structure/document, or nowhere at all.

While it is understandable to want to draft a will yourself, to your own specifications to meet your own needs, it is far more difficult to do so than it appears. Those drafting their own wills often create unintended consequences by drafting their will in a way that they believe is most straightforward, but which is in fact either incorrect, delegitimizing, or complicating in other ways.

Laypeople may approach the drafting of their own wills by thinking of things point-by-point. They may think, “This is what I want to be done with this and that. This is who I want to be in charge of my estate,” and write accordingly.

Then, as they move into more complex issues like, “This is what I want done with my property”, and as it becomes time to draft heirs, they often make mistakes that complicate the estate execution process for all parties involved.

For example, people who draft their own wills often name heirs with provisions, without understanding the actual provisions that they’re putting in their own documents. An attorney can be incredibly helpful in helping avoid those misunderstandings and the ensuing chaos.

Then there is the matter of more complex estates, with properties and assets that cannot be placed in a trust or named in a will. This is another area where an attorney can be helpful.

As an estate planning attorney, my job is to meet my client’s expectations and intent. So, when they’re telling me exactly where they want their stuff to go—say, to Individual X, or Charity Y—I can point out which items would be better to exclude from a will or a trust. Oftentimes, there is a better way to draft your estate planning documents than listing certain items of property in a trust or in a will.

There are certain assets that require a thoughtful, informed discussion about how they should be owned and titled, based on the unique circumstances of the client/estate, the relevant laws, and potential tax consequences. This is often the case for something like a 401(k) or an individual retirement account.

There’s also the matter of privacy.

Wills are subject to the public record as soon as they’re filed with the Court, so anything you put in a will is also subject to the public record. Therefore, we don’t want to be listing sensitive information—such as specific bank account numbers—in a will. We want people to approach their will-drafting with the understanding that just about anyone could do a public record search and be able to read—and use—the language in your will. We want people to protect their privacy as much as is possible in a will.

Information like this often directly benefits estate planning clients, who are in the process of deciding on what kind of estate planning documents they want drafted. Privacy comes into play in many ways, one of which is that while a will is a matter of public record, a trust is a private document (since it is an agreement between the trust-maker and the trustee). Therefore, you can keep all of the provisions of a trust private. They can be made available to those individuals who need to see them, and otherwise kept away from public access.

That sort of information can be very important to prospective clients who want to maintain privacy in their assets and asset distribution.

What Happens If A Trust Conflicts With A Will?

In most cases, if a trust and a will both have claim over an asset and are in direct conflict, we defer to the trust.

However, the question of what happens when a trust conflicts with a will depends on a few details of the case in question.

For one, how is the asset titled or owned? If the asset is not titled in the name of the trust (i.e., if the trust does not “own” the asset), then the language of the trust does not affect the asset, and we defer to the will.

However, unless there are clear reasons why we should defer to the will (i.e., if the asset is not actually owned by the trust), conflicts between wills and trusts are usually controlled by trusts.

For more information on Estate Planning Law in Michigan, a complimentary consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 800-2548 today.