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Defining "By Representation": Under prior law, "by right of representation" was used to distribute the share of a beneficiary who predeceased the testator, by dividing that share equally among the beneficiaries' surviving children, if you chose to define it that way. This scheme can continue down for each generation in which a beneficiary predeceases, leaving children. Now that term may not be used to distribute a deceased beneficiary's share in that fashion. If you prefer this old system, use the phrase "per stirpes". If your will included a definition, it might read: As used in this will “per stirpes” means that the property is divided into as many equal shares as there are surviving children of the designated ancestor and deceased children who left surviving descendants. Each surviving child, if any, is allocated 1 share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants. The new Estates and Protected Individuals Code (EPIC) redefines "representation," in the absence of a valid will ("intestacy") or in the absence of contrary instructions in an old estate planning document. This is the statutory provision: If an applicable statute or a governing instrument calls for the property to be distributed “by representation” or “per capita at each generation,” the property is divided into as many equal shares as there are surviving descendants in the generation nearest to the designated ancestor that contains 1 or more surviving descendants and deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 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 of the deceased descendants who were allocated a share and their surviving descendants had predeceased the distribution date. This rule of construction applies to documents originally created after the effective date of this act, and to all instruments amended after the effective date of this act, that use the phrase “by representation” or “per capita at each generation.” If an amendment uses either phrase, the rule of this section applies to the entire instrument. MCL 700.2718. (1) Type of Probate: Tell your attorney what type of probate proceedings you would prefer that your personal representative initiate. The main choices are informal unsupervised, formal unsupervised, and supervised probate proceedings. For quick administration and closing of your estate by your personal representative, choose "informal, unsupervised proceedings." The difference among informal unsupervised, formal supervised, and supervised, is paperwork (notices, petitions and hearings), and the personal representative's public accountability to the probate register (a head clerk of sorts), the judge, creditors and potential beneficiaries. A higher level of court supervision and notice to heirs is desired where a challenge to the validity of the will or its distribution scheme is anticipated, or there will be a rush of creditors, or complex financial transactions to close the estate. One commentator has suggested that a testator may direct that his or her personal representative be appointed in informal probate proceedings, while the will is to be admitted to supervised proceedings. This gets the probate process off and running without delay, but allows the court to settle controversies over the will. One drawback to informal probate: EPIC contains no provision limiting the time for bringing a will contest where the will was admitted in an informal proceeding. All probate proceedings involve appointment of a personal representative, notification and payment of creditors, payment of administrative expenses, preparation and service upon interested persons of an inventory, and distribution of the estate. Sometimes, due to unanticipated circumstances (e.g. a will contest, or a challenge to an act of your personal representative), your wish for informal, unsupervised proceedings will not be respected. Self-Proving Will: Tell your attorney whether you would like to have a simple execution of the will, with a notary and one other witness, or a "self-proving" affidavit. You should be aware that EPIC permits the potentially easier admission of a will to probate in formal proceedings, if you perform additional formalities when you sign it (one additional witness to the will, a notary seal, and special affidavit forms). It may eliminate the need for testimony of a will witness in a formal proceeding. It does not expedite anything in an informal proceeding, where a non-self-proving will can be admitted without witness testimony anyway. This attorney can muster the three disinterested witnesses for a self-proving will most readily if the client brings a friend or relative to be the third witness. back to Simple Estate Planning |