In the mobile society that we live in, it is becoming increasingly rare to live in one place for very long. Sometimes, our adventures don't just limit us to moving between different states but also different countries. If you come to live in Michigan from other jurisdictions, you may find that some of your personal paperwork must be updated to accommodate the new state's laws and regulations. What if you had an attorney draft a last will and testament for you in another state? Do I need to have a Michigan lawyer draft a new one for me? What if my last will and testament was drafted in another country?
For out-of-state wills, it is possible that the document will be effective in Michigan. Article IV, Section 1 of the United States Constitution state that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." If the last will and testament was validly created in the state that it was drafted, then it generally will be accepted in the State of Michigan.
Of course, there are some problems with out-of-state wills. Many states have their own unique terminology to describe certain people and aspects of the probate process. Some of these terms are easy to convert. For example, Michigan describes a person who oversees an estate as a "personal representative" while other states use terms such as "executor" and "estate administrator". There is no dispute that a will appointing an executor under one state's terminology is also describing a personal representative in Michigan. However, other terms are not so easy to convert to reflect their intended meaning. For example, Michigan describes a "guardian" as someone appointed by the probate court to manage a minor or incapacitated individual's person while a "conservator" as someone appointed by the probate court to manage a minor or incapacitated individual's real and personal property or finances. Many other states describe a plenary "guardian" as someone who is appointed by their own court to manage both personal and estate affairs of another person. An out-of-state last will and testament that nominates a "guardian" over a minor child is intended to be plenary over person and property may only describe someone under Michigan law that can manage decisions about the person only. This can lead to unintended results such as the probate court also appointing someone as a conservator to manage a minor child's inheritance that is completely undesirable to the testator.
In addition, there are some types of wills that are recognized in some states that are not recognized in other states. For example, Michigan permits a "holographic will", which is drafted entirely in the testator's own handwriting, signed, and dated without the need for witnesses. Some states (e.g. Florida) do not recognize or observe holographic wills. On the other hand, there are a minority of states permit a nuncupative will (e.g. oral will) where the testator's wishes are orally communicated to a certain number of witnesses that, within a specified period of time, reduce these wishes to writing. However, a nuncupative will is not permitted in Michigan where ALL last will and testaments are required to be, at least, in writing.
What about a last will and testament that was created outside of the United States? Michigan will recognize an international will "in regard to its form irrespective of the particular place where the will is made, of the location of assets, or of the testator's nationality, domicile, or residence", provided that it comports with all of the requirements of the Estates and Protected Individuals Code. MCL 700.2952(1). In particular, an international will must meet ALL of the following requirements regarding form and procedure:
- "The will shall be made in writing, but does not need to be written by the testator personally. The will may be written in any language and may be written by hand or by any other means." MCL 700.2953(a).
- "The testator shall declare in the presence of 2 witnesses and an authorized individual that the document is the testator's will and that he or she knows its contents. The testator need not inform the witnesses or the authorized person of the will's contents." MCL 700.2953(b).
- "In the witnesses' and the authorized individual's presence, the testator shall sign the will or, if the testator has previously signed the will, shall acknowledge his or her signature." MCL 700.2953(c).
- "If the testator is unable to sign the international will, the absence of the testator's signature does not affect the will's validity if the testator indicates the reason for the inability and the authorized individual makes note of the reason on the will. In such a case, it is permissible, but not required, for another individual present, including a witness or the authorized individual, to sign the testator's name at the testator's direction, which act the authorized individual shall also note on the will." MCL 700.2953(d).
- "The witnesses and the authorized individual shall there and then attest the will by signing in the presence of the testator." MCL 700.2953(e).
An "authorized individual" means an individual who, "by the laws of the United States, including members of the diplomatic and consular service of the United States designated by foreign service regulations, is empowered to supervise the execution of international wills." MCL 700.2951(b). An individual who is admitted to practice law before the courts of this state and who is in good standing as an active law practitioner of this state (e.g. lawyer, attorney) is an "authorized individual" empowered to supervise the execution of an international will. MCL 700.2959. An authorized individual is required to attach to the will a certificate signed by the authorized individual establishing that the will complies with the requirements of this part for valid execution of an international will. MCL 700.2955. The authorized individual shall keep a copy of the certificate and deliver another to the testator.
The following provisions are also recommended regarding form and procedure of international wills:
- "The testator's, witnesses', and authorized individual's signatures should be placed at the end of the will. If the will consists of several sheets, the testator should sign each sheet. If the testator is unable to sign, the individual signing on the testator's behalf should sign each sheet or, if there is no such individual, the authorized individual should sign each sheet. In addition, each sheet should be consecutively numbered." MCL 700.2954(1)(a).
- "The will's date is the date of its signature by the authorized individual. The authorized individual should note that date at the end of the will." MCL 700.2954(1)(b).
- "The authorized individual should ask the testator whether he or she wishes to make a declaration concerning the will's safekeeping. If so and at the testator's express request, the place where the testator intends to have the will kept should be mentioned in the certificate executed by the authorized person." MCL 700.2954(1)(c).
International wills valid in form and procedure may still be contested on the grounds of lack of mental capacity, undue influence, fraud, duress or mistake of fact. In addition, the probate court must still find the international will to be valid for admission to probate and issue letters of authority to a personal representative to administer the decedent's estate.
Out-of-state and international wills can be used in Michigan, but it is advisable to have a licensed Michigan attorney review the document to ensure that its terms comport with the creator's wishes and are enforceable in this state. Taking the time to obtain confirmation today can prevent several months or years of headaches in the future. If you or a loved one has questions about any last will and testament drafted outside of Michigan, then do not hesitate to contact the experienced lawyers at Kershaw, Vititoe & Jedinak PLC for assistance today.