On April 1, 2000, the Estates and Protected Individuals Code or EPIC became effective in Michigan. Are wills, trust agreements, durable powers of attorney and other estate planning documents signed before that date still valid?

The answer is a resounding "yes."

EPIC represents the first comprehensive rewriting of Michigan's probate and estate law in 21 years. Because there are many changes, you should review your existing documents. The first question to ask is: Do the documents dispose of your assets in the manner you still want? If they don't, it's time for new documents.

EPIC makes no changes in tax law, but it does make a number of changes which may affect your present estate planning documents. Under Michigan law prior to April 1, 2000, "surviving" children meant just that—the children who are alive. As an example, most clients leave all or most of their tangible personal property to a surviving spouse. The surviving spouse leaves the personal and household effects and other tangible personal property to the then surviving children. Grandchildren who are the children of a deceased child do not take part in the division of this property, particularly if they are young and if their surviving parent (e.g., a son-in-law) has remarried.

Under EPIC, we are required to say, "surviving children and not to the descendants of any deceased child." The reason for this change is that a majority of the drafters of the Uniform Probate Code upon which EPIC is based felt that naïve persons or inept lawyers accidentally would disinherit grandchildren by using the word "surviving."

EPIC has a new method to execute wills and trusts, using a notary public as well as two witnesses. This process makes a will or codicil "self proving" in court, and eliminates, in some cases, the need for testimony of witnesses.

EPIC can affect the final distribution of estate and trust assets in ways different from prior law. Suppose you, as a surviving parent, had three children, two of whom died before you did. Further suppose that one of those deceased children left one grandchild who survived you. The other deceased child left four grandchildren who survived you. Most clients now have wills and trusts which give one-third of the remaining assets to the surviving child. Now, consider how you would want the other two-thirds distributed. Would you want the "only" grandchild to receive one-third (the amount her or his deceased parent would have received) and the other four grandchildren, who are the children of your other deceased child, to divide one-third, so they each receive one-twelfth? Or, would you instead want your five grandchildren to divide equally the entire two-thirds their parents would have received had these two children not predeceased you?

To get the result you want, it may be necessary to replace present documents. Under EPIC, words like "by representation," "per capita at each generation" and "per stirpes" have very specific meanings and results, no matter what you intended when you signed your documents.

EPIC presents the opportunity to review all of your estate planning documents. If you see provisions you'd like to change, have any doubts, or if your documents were drafted more than five years ago, it's a good idea to discuss possible changes and perhaps prepare entirely new estate planning documents.

This summary is intended as a source of general information.  If you have questions or desire additional information, please contact Ryan M. Wilson at (517) 377-0897 or rwilson@fraserlawfirm.com.