Does my stepmother get all my father's property despite what the will says?

02/01/2007 - Wills and Estates - State: MI #1351

Full Question:

My father was married to my mother for almost 45 years. She died in 2002. Dad drew up a will at that time leaving me as executor. My siblings and I were left everything and a deed to the house was drawn up at the same time. Dad remarried in 2005 and didn’t revise the will stating to me that he had given me instructions to have her still live in the house as long as she was able to or could afford to. He left her his IRA’s and Life insurances. We were to take a bank account and use that money to keep up the home if the furnace were to go out or if and when she moves out and/or to be able to pay the property taxes and such. Dad died Aug. 10, 2006. She has since moved out and wiped out the household belongings. The deed was recorded after dad’s death due to dad’s wishes not to record it in case one of us were sued while he was alive. He didn’t wish to lose a third of his home. The step mom’s attorney says that she is entitled to everything due to the original will being null and void due to the marriage? He also says that since the deed wasn’t recorded before Dad’s death she can go after us in court to obtain it? This is all very confusing as I thought that a will was solid.


A deed has no effect, and title does not pass, until the deed has been delivered. Delivery can be shown by words and conduct. The grantor must deliver the deed with the intent that it should take effect as a deed and convey an interest in the property. A deed is ordinarily made effective by handing it to the grantee. A delivery may also be made by placing the deed in the mail addressed to the grantee or giving it to a third person with directions to hand it to the grantee. Delivery has been defined as “The final and absolute transfer of a deed from seller to buyer in such a manner that it cannot be recalled by the seller. A necessary requisite to the transfer of title.”

If you have not already done so, you need to hire an attorney and ask him/her to file a petition to admit your father’s will for probate as soon as possible.

Probate is a legal process that begins with a “petition” (a request) to open the estate and name a personal representative who is responsible for the administration of the deceased’s property. The next step is when an official Notice of Creditors is printed in a local newspaper and Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims from the first date of publication. Then the personal representative can pay the debt and distribute the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.

The formal testate proceeding begins, when the court decides on a time and place for the hearing. Petitions must give notice in the way that the state of Michigan describes in the statutes. These notices will need to be sent out to the decedent’s heirs, as well as to the devisees and personal representatives named in the will. These petitions must meet Michigan state standards, which can be difficult for people inexperienced in writing and reading legal documentation.

Pursuant to MCL 700.2202 the surviving spouse of a decedent who was domiciled in Michigan and who dies testate (with a will) may file with the court an election in writing that the spouse elects 1 of the following:
• That the spouse will abide by the terms of the will.
• That the spouse will take 1/2 of the sum or share that would have passed to the spouse had the decedent died intestate (without a will), reduced by 1/2 of the value of all property derived from decedent by any other means other than testate or intestate succession upon decedent's death. The property derived by the surviving spouse includes the following:

o A transfer made within 2 years before the decedent's death to the extent that the transfer is subject to federal gift or estate tax.

o A transfer made before the date of death subject to a power retained by the decedent that would make the property, or a portion of the property, subject to federal estate tax.

o A transfer effectuated by the decedent's death through joint ownership, tenancy by the entireties, insurance beneficiary, or similar means.

If a widow, that she will take her dower right as provided by law. Dower entitles the widow to the use during her natural life, of 1/3 part of all the lands in which her husband was seized of an estate of inheritance at any time during the marriage. It would be rare for this election to be made. In an intestate estate (without a will) if the surviving spouse is a widow, she may elect to take her intestate share or her dower rights. It should be noted that this election only applies to a widow and not a widower.

Within 28 days after the personal representative's appointment, the personal representative must give notice of the rights of election, allowances and exempt property to the surviving spouse. This may be accomplished by using Notice to Spouse of Rights of Election and Allowances, Proof of Service, and Election ( PC 581). MCR 5.305(B) provides the proof of service of the notice does not need to be filed with the court. MCR 5.305(A) provides that no notice need be given in the following situations:

• The right of election is made before notice is given.

• The spouse is the personal representative or one of the personal representatives.

• There is a waiver of the rights and allowances.

Pursuant to MCR 5.305(C) if the spouse exercises the right of election, the spouse must serve a copy of the election on the personal representative personally or by mail. The election may be made on the same form used to notify the spouse of her rights of election, ( PC 581). The election must be made within 63 days after the date for presentment of claims or within 63 days after the service of the inventory upon the surviving spouse, whichever is later. The election may be filed with the court but such filing is not required unless there is supervised administration. The election must be made during the surviving spouse's lifetime. Pursuant to MCL 700.2202(4) if the surviving spouse is an incapacitated individual, the right of election may be exercised only by order of the court in which a proceeding as to that person's property is pending, after finding that exercise in necessary to provide adequate support for the incapacitated individual during that person's life expectancy.

If the surviving spouse fails to make an election within the time specified, it is conclusively presumed that the surviving spouse elects to abide by the terms or the will or to accept his or her intestate share, except:

• After the estate has been closed, there are after discovered assets.

• During the administration of the estate and upon petition of the spouse, the court determines to permit the spouse to make an election because of estate litigation, allowance of additional claims against the estate, or for other good cause.

In rare situations where there may be an election of dower, MCR 5.305(D) provides that that if there is a minor or other person under legal disability having no legal guardian or conservator other than the widow, there may not be a hearing on the petition until after the appointment of a guardian ad litem for such person. A petition for the assignment of dower must include:

• A full and accurate description of the land in Michigan owned by a deceased husband and of which he died seized, from which the petitioner asks to have the dower assigned.

• The name, age, and address of the widow and the name and addresses of the other heirs.

• 'The date on which the husband died and his domicile on the date of his death.

• The fact that the widow's right to dower has not been barred and that she or some other person interested in the land wishes it set apart.

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02/01/2007 - Category: Wills and Estates - State: MI #1351

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