MICHIGAN STATUTORY WILL NOTICE
An individual age 18 or older who has sufficient mental capacity may make a will.INSTRUCTIONS:
MICHIGAN STATUTORY WILL OF _______________ (Print or type your full name)
ARTICLE 1. DECLARATIONS
This is my will and I revoke any prior wills and codicils. I live in ___________________________ County, Michigan. My spouse is ___________________________________________. (Insert spouse's name or write "none"). My children now living are: _______________________________. (Insert names or write "none").ARTICLE 2. DISPOSITION OF MY ASSETS
2.1 CASH GIFTS TO PERSONS OR CHARITIES (Optional)
I can leave no more than two (2) cash gifts. I make the following cash gifts to the persons or charities in the amount stated here. Any transfer tax due upon my death shall be paid from the balance of my estate and not from these gifts. Full name and address of person or charity to receive cash gift (name only 1 person or charity here):
___________________________(Insert name of person or charity)
___________________________(Insert address)
AMOUNT OF GIFT (In figures): $______
AMOUNT OF GIFT (In words): ___________ Dollars
___________________________(Your signature)
Full name and address of person or charity to receive cash gift (Name only 1 person or charity):
___________________________ (Insert name of person or charity)
___________________________ (Insert address)
AMOUNT OF GIFT (In figures): $______
AMOUNT OF GIFT (In words): ___________ Dollars
___________________________ (Your signature)
2.2 PERSONAL AND HOUSEHOLD ITEMS.
I may leave a separate list or statement, either in my handwriting or signed by me at the end, regarding gifts of specific books, jewelry, clothing, automobiles, furniture, and other personal and household items. I give my spouse all my books, jewelry, clothing, automobiles, furniture, and other personal and household items not included on such a separate list or statement. If I am not married at the time I sign this will or if my spouse dies before me, my personal representative shall distribute those items, as equally as possible, among my children who survive me. If no children survive me, these items shall be distributed as set forth in paragraph 2.3.2.3 ALL OTHER ASSETS.
I give everything else I own to my spouse. If I am not married at the time I sign this will or if my spouse dies before me, I give these assets to my children and the descendants of any deceased child. If no spouse, children, or descendants of children survive me, I choose 1 of the following distribution clauses by signing my name on the line after that clause. If I sign on both lines, if I fail to sign on either line, or if I am not now married, these assets will go under distribution clause (b).Distribution clause, if no spouse, children, or descendants of children survive me.
(Select only 1)
(a) One-half to be distributed to my heirs as if I did not have a will, and one-half to be distributed to my spouse’s heirs as if my spouse had died just after me without a will.
___________________________ (Your signature)
(b) All to be distributed to my heirs as if I did not have a will.
___________________________ (Your signature)
ARTICLE 3. NOMINATIONS OF PERSONAL REPRESENTATIVE, GUARDIAN, AND CONSERVATOR
Personal representatives, guardians, and conservators have a great deal of responsibility. The role of a personal representative is to collect your assets, pay debts and taxes from those assets, and distribute the remaining assets as directed in the will. A guardian is a person who will look after the physical well-being of a child. A conservator is a person who will manage a child’s assets and make payments from those assets for the child’s benefit. Select them carefully. Also, before you select them, ask them whether they are willing and able to serve.3.1 PERSONAL REPRESENTATIVE.
I nominate ___________________________ (Insert name of person or eligible financial institution) of ___________________ (Insert address) to serve as personal representative. If my first choice does not serve, I nominate ___________________________ (Insert name of person or eligible financial institution) of ___________________ (Insert address) to serve as personal representative.3.2 GUARDIAN AND CONSERVATOR.
Your spouse may die before you. Therefore, if you have a child under age 18, name an individual as guardian of the child, and an individual or eligible financial institution as conservator of the child’s assets. The guardian and the conservator may, but need not be, the same person. If a guardian or conservator is needed for a child of mine, I nominate ___________________________ (Insert name of individual) of ___________ (Insert address) as guardian and ___________________________ (Insert name of individual or eligible financial institution) of ___________ (Insert address) to serve as conservator. If my first choice cannot serve, I nominate ___________________________ (Insert name of individual) of ___________ (Insert address) as guardian and ___________________________ (Insert name of individual or eligible financial institution) of ___________ (Insert address) to serve as conservator.3.3 BOND.
A bond is a form of insurance in case your personal representative or a conservator performs improperly and jeopardizes your assets. A bond is not required. You may choose whether you wish to require your personal representative and any conservator to serve with or without bond. Bond premiums would be paid out of your assets. (Select only 1): (a) My personal representative and any conservator I have named shall serve with bond. ___________________________ (Your signature) (b) My personal representative and any conservator I have named shall serve without bond. ___________________________ (Your signature)3.4 DEFINITIONS AND ADDITIONAL CLAUSES.
Definitions and additional clauses found at the end of this form are part of this will. I sign my name to this Michigan statutory will on ______, 20__. ___________________________ (Your signature)NOTICE REGARDING WITNESSES
You must use 2 adults as witnesses. It is preferable to have 3 adult witnesses. All the witnesses must observe you sign the will, have you tell them you signed the will, or have you tell them the will was signed at your direction in your presence.STATEMENT OF WITNESSES
We sign below as witnesses, declaring that the individual who is making this will appears to have sufficient mental capacity to make this will and appears to be making this will freely, without duress, fraud, or undue influence, and that the individual making this will acknowledges that he or she has read the will, or has had it read to him or her, and understands the contents of this will. _________________________ (Print name) _________________________ (Signature of witness) _________________________ (Address) _________________________ (City)(State)(Zip) _________________________ (Print name) _________________________ (Signature of witness) _________________________ (Address) _________________________ (City)(State)(Zip)DEFINITIONS
The following definitions and rules of construction apply to this Michigan statutory will:
(a) “Assets” means all types of property you can own, such as real estate, stocks and bonds, bank accounts, business interests, furniture, and automobiles.
(b) “Descendants” means your children, grandchildren, and their descendants.
(c) “Descendants” or “children” includes individuals born or conceived during marriage, individuals legally adopted, and individuals born out of wedlock who would inherit if their parent died without a will.
(d) “Jointly held assets” means those assets to which ownership is transferred automatically upon the death of 1 of the owners to the remaining owner or owners.
(e) “Spouse” means your husband or wife at the time you sign this will.
(f) Whenever a distribution under a Michigan statutory will is to be made to an individual’s descendants, the assets are to be divided into as many equal shares as there are then living descendants of the nearest degree of living descendants and deceased descendants of that same degree who leave living descendants. Each living descendant of the nearest degree shall receive 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the descendant. In this manner, all descendants who are in the same generation will take an equal share.
(g) “Heirs” means those persons who would have received your assets if you had died without a will, domiciled in Michigan, under the laws that are then in effect.
(h) “Person” includes individuals and institutions.
(i) Plural and singular words include each other, where appropriate.
(j) If a Michigan statutory will states that a person shall perform an act, the person is required to perform that act. If a Michigan statutory will states that a person may do an act, the person’s decision to do or not to do the act shall be made in good faith exercise of the person’s powers.
ADDITIONAL CLAUSES
Powers of personal representative
1. A personal representative has all powers of administration given by Michigan law to personal representatives and, to the extent funds are not needed to meet debts and expenses currently payable and are not immediately distributable, the power to invest and reinvest the estate from time to time in accordance with the Michigan prudent investor rule. In dividing and distributing the estate, the personal representative may distribute partially or totally in kind, may determine the value of distributions in kind without reference to income tax bases, and may make non-pro rata distributions.
2. The personal representative may distribute estate assets otherwise distributable to a minor beneficiary to the minor’s conservator or, in amounts not exceeding $5,000.00 per year, either to the minor, if married; to a parent or another adult with whom the minor resides and who has the care, custody, or control of the minor; or to the guardian. The personal representative is free of liability and is discharged from further accountability for distributing assets in compliance with the provisions of this paragraph.
POWERS OF GUARDIAN AND CONSERVATOR
A guardian named in this will has the same authority with respect to the child as a parent having legal custody would have. A conservator named in this will has all of the powers conferred by law. WHAT ARE THE PROS AND CONS OF A STATUTORY WILL? A statutory will is a great solution in the following situations:“In the present case, the circuit court has found that the divorce was the fault of Mr. McDougal. His wrongful acts, particularly the September 1989 assault of Ms. McDougal, easily allow such a finding. However…, fault is an element in the search for an equitable division — it is not a punitive basis for an inequitable division. We cannot agree that the element of fault in this case supports the extreme financial penalties imposed by the circuit court.” McDougal, 451 Mich at 90.
“Bearing in mind not just fault, but also (1) the eight-year duration of this marriage, (2) the significant contributions of both parties to the marital estate, (3) the ages of the parties, including the twenty-two-year age difference between them, (4) the good health of Ms. McDougal and the terminal illness of Mr. McDougal, (5) Ms. McDougal's employment and Mr. McDougal's retirement, (6) the "necessities and circumstances" of the parties, (7) Ms. McDougal's $46,000 annual salary and the various sources of Mr. McDougal's earnings, including the patents, (8) the actions of these parties before and during the marriage, and (9) general principles of equity, we are firmly convinced that the circuit court's dispositive ruling was inequitable.” McDougal, 451 Mich at 90-91.
“A substantial award to Ms. McDougal is appropriate in this case. However, the circuit court has given Ms. McDougal far more of the parties' financial assets than is equitable. She is slated to receive most of the parties' financial assets, as well as a continuing interest in the patents themselves.” McDougal, 451 Mich at 91.
In weighing a party’s conduct, the trial court’s purpose is to reach an equitable division of the marital property, not to punish the party found at fault. Courts must strike a delicate balance to determine what is fair (even in the face of domestic violence), so victimized spouses should know that the application of past behavior is complicated. DOMESTIC VIOLENCE IS A FACTOR IN ALIMONY AND SPOUSAL SUPPORT The Michigan Court of Appeals held in Beason v Beason, 435 Mich App 791; 460 NW2d 207 (1990) that judges should consider the following factors whenever they are relevant to decide if spousal support should be awarded and how much:"In spite of these findings, the court held that alimony was not appropriate for either party. However, the factors considered by the trial court clearly weigh in favor of awarding alimony to plaintiff. In addition, the past conduct of the parties factor weighs in plaintiff's favor in light of the testimony regarding defendant's violent behavior. Moreover, while plaintiff's testimony that she was disabled was disputed, there was absolutely no testimony indicating that defendant's surgery left him disabled in any respect. Inasmuch as defendant's earnings are well into the mid-$30,000 range, defendant had the ability to pay alimony. Even if plaintiff could return to work, her earnings were just over $5 per hour. In addition, the prior standard of living of the parties was based on defendant's being the major "breadwinner" who paid the bills and gave plaintiff $100 per week for groceries, clothing for the children, medicine, etc. Finally, plaintiff has medical expenses that she must pay because defendant was not ordered to maintain plaintiff's Blue Cross and Blue Shield coverage. Since virtually every factor weighs in plaintiff's favor, the trial court should have awarded alimony to plaintiff." 165 Mich App at 761.
Proof of domestic violence during the marriage is a strong consideration for an award of spousal support in the eyes of most judges. It is especially important in a situation where one spouse exerted control by preventing the other spouse from leaving the home and having a job or career, since spousal support will offset the lost opportunities for that spouse to gain skills, education and experience to have meaningful employment to independently generate a good income. DOMESTIC VIOLENCE IS AN EXPLICIT FACTOR FOR CHILD CUSTODY MCL 722.23 lists the “best interests of the child” factors that the trial court must consider when making a custody determination:“In the underlying litigation, plaintiff sought damages of approximately $1 million, arising out of [Defendant]’s alleged embezzlement. Plaintiff claimed that [Defendant] ‘made to her husband’ certain transfers of embezzled funds by ‘paying for a substantial addition to the home’ the couple owned, ‘paying for the construction of an in-ground swimming pool on the property’ and paying for ‘other substantial improvements to the landscaping and residence.’ These allegations simply do not “affect” the title, possession, or an interest in the real property at issue in a manner contemplated by MCL 600.2701. The underlying litigation did not involve any conveyance of the property, a mortgage of it, its transfer, or any interest in it. The claimed “transfer” was of embezzled funds, not the property itself. Plaintiff effectively sought to secure itself as a prejudgment creditor, an action not contemplated under the statute. This was not an appropriate use of the lis pendens mechanism. It was not a statutorily authorized filing. Because the notice of lis pendens was improperly filed under MCL 600.2701 it was invalid as a lien on the property and had no effect on subsequently acquired interests.” Ruby, 276 Mich App at 116-117 (internal citations deleted).
DEADLINE TO FILE AND DURATION OF NOTICE OF LIS PENDENS “[A notice of lis pendens] may be filed with the complaint before the service of the summons; but, in that case, personal or substituted service of the summons must be made upon a defendant, within 60 days after the filing, or else, before the expiration of the same time, publication must be commenced, or service thereof must be made without the state, as prescribed by law.” MCL 600.2701(2). “If the defendant dies within 60 days after the filing of the notice and before commencement or completion of service of the summons, the summons may be served upon the person substituted for the defendant within 60 days after such substitution.” Id. “A [notice of lis pendens]… filed for record shall be effective as notice for a period of 3 years from the date of filing.” MCL 600.2715(1). “Before the expiration of the period, the court upon application of the plaintiff and upon such notice as may be directed or approved by the court, and for good cause shown, may from time to time grant additional orders each extending the period of duration of the notice of pendency for a period of not more than 3 years.” Id. “If a plaintiff filing the notice before the service of the summons fails to serve the same within the time prescribed in [MCL 600.2701(2)], or after the action is settled, discontinued or abated, or final judgment is rendered therein against the party filing the notice, and the time to appeal therefrom has expired, the court, upon the application of any person aggrieved and upon such notice as may be directed or approved by it, shall direct that a notice of the pendency of an action be canceled of record by a particular register of deeds, or by all the registers of deeds, with whom it is filed.” MCL 600.2725(1). Likewise, “[i]f a plaintiff filing the notice unreasonably neglects to proceed in the action, or does not commence or prosecute the action in good faith, the court, in its discretion, upon the application of any person aggrieved and upon such notice as may be directed or approved by it, may direct that a notice of the pendency of an action be canceled of record by a particular register of deeds, or by all the registers of deeds, with whom it is filed.” MCL 600.2725(2). “The court, in its discretion, upon directing cancellation of the notice upon termination of the action, or during the pendency thereof if satisfied that the plaintiff who filed the notice unreasonably neglected to proceed in the action or did not commence or prosecute the same in good faith, may direct the plaintiff to pay all or any of the costs and expenses occasioned by filing the notice and the cancellation of the record, aside from the costs of the action itself.” MCL 600.2725(4). A notice of lis pendens applies to lawsuits filed in both state and federal court. MCL 600.2735. It should be noted that, even if a notice of lis pendens appears in the chain of title as a warning, it does not actually prohibit the owner of property from conveying title. “While a notice of lis pendens may, as a practical matter, inhibit the alienation of the property in that it warns prospective purchasers that they take subject to the judgment rendered in litigation concerning the property, the lis pendens does not prohibit alienation.” Kauffman v Shefman, 169 Mich App 829, 836; 426 NW2d 819 (1988). However, the new purchaser buys at his own risk as his property interest may be affected by the future judgment. COURT CAN ORDER BOND TO BE POSTED IN LIEU OF NOTICE OF LIS PENDENS “In any pending or future action, other than an action to foreclose a mortgage or for the partition of real property or for dower, in which a notice of the pendency thereof has been filed and in which it appears to the court that adequate relief can be secured to the party who filed the same by the giving of a bond, where the cancellation of such notice is not otherwise expressly provided for or regulated, any person having an interest in the property affected by the action may apply for the cancellation thereof upon notice to all the parties to the action and to such other persons as the court may direct.” MCL 600.2731(1). “The court in which the action is pending may make an order for the bond upon such terms as to costs or otherwise as may seem just. The discretion vested in the court… may be exercised in any such action, notwithstanding the same may have been brought to recover a judgment affecting the title to, or the possession, use or enjoyment, of specific real property.” MCL 600.2731(2). “The bond shall be in an amount which the court, upon consideration of the affidavits submitted upon the application, deems sufficient to indemnify the applicant for the damages he may incur if the notice of pendency is not canceled.” MCL 600.2731(4). Upon application for cancellation, “whether or not the court determines that adequate relief can be secured to the party filing the notice of pendency by the giving of a bond, the court may order that the notice be canceled, upon the giving of a bond by the applicant upon terms fixed in the order…, unless the person filing the notice of pendency gives a bond, upon terms to be fixed by the order.” MCL 600.2731(3). “The order shall provide that upon failure of the person filing the notice of pendency to give a bond in accordance with the order, the notice of pendency shall be canceled upon the giving of a bond by the applicant, as provided therein.” MCL 600.2731(5). “Where the person who filed the notice of pendency has given a bond as provided in the order, recovery may be had upon the bond without further leave of the court, upon the discontinuance or abatement of the action, or the cancellation of the notice of pendency because of the neglect of such person to proceed in the action, or upon final judgment against him.” MCL 600.2731(6). “The recovery may be obtained by a separate civil action, or by motion in the action as to which the notice was filed.” Id. INTENTIONALLY FILING AN IMPROPER NOTICE OF LIS PENDENS CAN LEAD TO CIVIL AND CRIMIMAL PENALTIES A notice of lis pendens creates a cloud on the title chain for real property, so any person who intentionally and knowingly files an improper notice of lis pendens is in danger of facing civil and criminal penalties A person aggrieved by a false notice of lis pendens can sue for slander of title. In this lawsuit, the plaintiff must prove three elements: “falsity, malice, and special damage, i.e., that the defendant maliciously published false statements that disparaged a plaintiff’s right in property, causing special damages.” B&B Investment Group v Gitler, 229 Mich App 1, 8; 581 NW2d 17 (1998). Malice means that there was “a desire or intention to injure”. Glieberman v Fine, 248 Mich 8, 12; 226 NW 669 (1929). In serious cases, the prosecutor can also file criminal charges for improper filings. Pursuant to MCL 600.2907a(2), a person who encumbers “property through the recording of a document without lawful cause with the intent to harass or intimidate any person is guilty of a felony punishable by imprisonment for not more than 3 years or a fine of not more than $5,000.00, or both.” To prevail in both civil and criminal suits, it must be proven that the filer of the improper notice of lis pendens notice acted intentionally, knowingly and maliciously with the intent to harm someone else without lawful cause. It is not enough if the filer only acted mistakenly or negligently. OUR SKILLED LAWYERS ARE AVAILABLE TO ASSIST YOU Anyone involved in filing litigation involving real property should determine if a notice of lis pendens is necessary to preserve your rights. Likewise, if you were just served with a lawsuit and a notice of lis pendens against your own land, then you need to take action quickly to avoid adverse consequences. In any event, you should seek legal advice right away and consider retaining counsel to advocate for you in court. Ignoring the problem or going it alone can lead to financial disaster. If you or a loved one have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today. ]]>