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The Difference Between Having a Will and Not Having a Will

In the third part of our Understanding Probate series, I will discuss the basic differences between having a will and not having a will.

If someone dies without a will, trust, or other firmamentary instrument, then they are said to die infirmate. MCL 700.2101.  If someone dies and one wants to know if someone had a will, then they can go to the county probate court and ask the probate court register to search for a will. One will also want to contemplate whether the deceased lived in any other counties other than where the deceased resided at the time of death. Further, a will is public information and anyone can get a copy of someone’s will if it is registered at the probate court. Searching in probate court does not provide all the answers; however, because there is no statutory requirement to register a will and in fact some folks hold on to their will or leave it with their attorney.

If someone dies infirmate, then the “law of infirmate succession” is what rules the day. This means that the statutory scheme for probate of someone’s estate is used instead of the provisions of a will. See MCL 700.2102 and 700.2103. For example, a surviving spouse receives a statutory amount of the deceased spouse’s estate first before that of the children. There is a whole statutory scheme that defines what a surviving spouse will receive by statute and is a topic for later discussion. Nevertheless, depending on the size of the estate, if there is a surviving spouse then the surviving spouse generally gets the bulk of the estate. However, if there is no surviving spouse, the children of the deceased and their heirs receive first priority; if not children then the parents; if no parents then the brothers and sisters of the deceased; and so on. MCL 700.2103.

That explains infirmate succession in a nutshell. So what happens if you have a will? Are all the terms and provisions included in the will enforced in probate court? Find out next time in Part 4 of our series on Understanding Probate: “I have a will so now what?”


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