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Introductory Clause or Preamble

Article I. Declarations

1.1 Identifications

1.2 Anatomical Gift

1.3 Cremation

Article II. Fiduciaries

2.1 Personal representative(s)

2.2 Guardian(s)

2.3 Conservator(s)

2.4 Trustee(s)

2.5 Disability of fiduciary

2.6 Compensation

2.7 Bond

2.8 Successor in interest

Article III. Specific Gifts

3.1 [Principal residence / Real estate / Life estate in residence]

3.2 [Club membership / Cooperative apartment]

3.3 [Specific tangible personal property / list]

3.4 Tangible personal property

3.5 Resolution of disputes

3.6 Travel rewards programs

3.7 Expenses

3.8 Cash bequest

3.9 Charitable bequest

3.10 Gift of stock

3.11 Forgiveness of debts

3.12 Exercise of power of appointment

3.13 Crossover from trust

3.14 Insurance policies

3.15 Ademption of specific gifts

3.16 Marital gift

Article IV. Residue

4.1 Residue

4.2 Spouse’s family trust

4.3 Shared trust

4.4 Separate trusts

4.5 [Distribution to custodian / Retained share]

4.6 Absence of beneficiaries

4.7 Spendthrift provision

4.8 Minimum size trust

4.9 Facility of payments

4.10 Alternative trust

4.13 Collection trust

Article V. General Provisions

5.1 Choice of law

5.2 Simplified probate

5.3 Statutory benefits

5.4 Payment of charges

5.5 Portability election

5.6 Powers (Short and Long Forms)

5.7 Limitations

Article VI. Definitions

6.1 Disability

6.2 Survival

6.3 Representation

6.4 Child and descendant

Introductory Clause or Preamble WILL OF [TESTATOR’S NAME]

[DRAFTING NOTE: The introductory paragraph identifies the testator and can include a special testimonial section or message to survivors that can be created by the client.]

I, [testator’s name], also known as [other names], state that my home is in [county] County, [state]. This document is my will, and I revoke all my prior wills and codicils.

Article I. Declarations

[DRAFTING NOTE: The principal purpose of Article I is to identify the testator’s family or others. Generally, these persons also will be the primary beneficiaries under the will. Some, of course, might not be takers. Their identification in Article I, nevertheless, will indicate the testator knew who were members of his or her family and will assist in identifying the testator’s heirs upon death. These provisions are alternative suggestions for common situations. They, of course, must be modified as necessary to mention facts regarding beneficiaries or others whose identification will assist in interpretation of family relationships and provisions in the will. Additional declarations, such as organ donation or burial instructions, may also be placed in Article I.]

[Choose one version of ¶1.1.]

1.1 Identifications. My spouse is [spouse’s name]. My living children are [children’s names]. [My “child” or “children” mean [these children / this child] and all children who may be born to or adopted by me in the future.] [My “child” or “children” mean only [these children / this child].]

1.1 Identifications. My spouse is [spouse’s name]. I have no living descendants.

1.1 Identifications. I am unmarried. My living children are [children’s names].

1.1 Identifications. I am unmarried, and I have no children. My parents are [parents’ names]. My brothers and sisters are [brothers’ and sisters’ names].

1.2 Anatomical gift. I give [any of my needed organs or body parts / only the following organs or body parts: ________________________] for the purposes of transplantation, therapy, medical research, or education. [I give my body for anatomical study if needed.]

1.3 Cremation. I request that my body be cremated [and my ashes be [specify disposition of ashes]].

Article II. Fiduciaries

[DRAFTING NOTE: There are numerous alternatives for naming personal representatives, trustees, and other fiduciaries. The clauses below provide guidance for most client preferences. The drafter, of course, may modify these provisions to attain specific client objectives.]


2.1 Personal representative. I nominate [name] as Personal Representative.

2.1 Personal representatives. I nominate [names] as Personal Representatives. If a personal representative is or becomes unable or unwilling to serve, the other(s) shall serve alone.

2.1 Personal representative. I nominate [name] as Personal Representative. If [he / she / it] is or becomes unable or unwilling to serve, I nominate [name] as successor or alternate Personal Representative.

2.1 Personal representative. I nominate [name] as Personal Representative. If [he / she / it] is or becomes unable or unwilling to serve, I nominate [names] as successor or alternate Personal Representatives. If a successor or alternate personal representative is or becomes unable or unwilling to serve, the other(s) shall serve alone.

2.1 Personal representatives. I nominate [names] as Personal Representatives. If a personal representative is or becomes unable or unwilling to serve, I nominate [name] as a successor or alternate personal representative to serve with the other(s). If only one nominee remains willing and able to serve, that nominee shall act alone.

2.1 Personal representative. I nominate as Personal Representative or successor Personal Representative each of the following persons to serve alone in the following order of preference:

[name]

[name]

[name]

[name]

[DRAFTING NOTE: If minor children are not children of the marriage and if the other parent’s rights have not been terminated judicially or by death, the drafter should modify the guardian provision to condition the appointment on the other parent’s death or on the existence of circumstances permitting the testator to appoint a guardian.]

[Choose one version of ¶2.2 if there are minor or disabled children.]

2.2 Guardians. [If my spouse fails to survive me,] I appoint [Guardians’ names] as Guardians of any child of mine who is a minor at my death. If either of them does not survive me, fails to qualify, or ceases to serve, I appoint the other as Guardian. If both do not survive me, fail to qualify, or cease to serve, I appoint [alternates’ names] as Guardians of any child of mine who is a minor at my death. If either of them does not survive me, fails to qualify, or ceases to serve, I appoint the other as Guardian.

2.2 Guardians. [If my spouse fails to survive me,] I appoint [Guardians’ names] as Guardians of any child of mine who is a minor at my death. If either of them does not survive me, fails to qualify, or ceases to serve, I appoint [alternates’ names] as Guardians of any child of mine who is a minor at my death.

2.2 Guardian. [If my spouse fails to survive me,] I appoint [Guardian’s name] as Guardian of any child of mine who is a minor at my death. If [he / she] does not survive me, fails to qualify, or ceases to serve, I appoint [alternate’s name] as Guardian of any child of mine who is a minor at my death.

[Choose one version of ¶2.3 if there are minor or disabled children (with modifications for disabled children).]

2.3 Conservator. [If my spouse fails to survive me,] I nominate [Conservator’s name] as Conservator for any child of mine who is a minor at my death.

2.3 Conservators. [If my spouse fails to survive me,] I nominate [Conservator’s name] and [Conservator’s name] as Conservators for any child of mine who is a minor at my death. If either fails to qualify or ceases to serve, the other shall serve alone.

2.3 Conservator. I nominate the Guardian appointed under this will as Conservator for any child of mine who is a minor at my death.

[Choose one version of ¶2.4 if the will has a testamentary trust.]

2.4 Trustee. I nominate [name] as Trustee. A trustee shall qualify by signing an Acceptance of Trust.

2.4 Trustees. I nominate [names] as Trustees. If a trustee is or becomes unable or unwilling to serve, the other(s) shall serve alone. A trustee shall qualify by signing an Acceptance of Trust.

2.4 Trustee. I nominate [name] as Trustee. If [he / she / it] is or becomes unable or unwilling to serve, I nominate [name] as successor or alternate Trustee. A trustee shall qualify by signing an Acceptance of Trust.

2.4 Trustee. I nominate [name] as Trustee. If [he / she / it] is or becomes unable or unwilling to serve, I nominate [names] as successor or alternate Trustees. If a successor or alternate trustee is or becomes unable or unwilling to serve, the other(s) shall serve alone. A trustee shall qualify by signing an Acceptance of Trust.

2.4 Trustees. I nominate [names] as Trustees. If a trustee is or becomes unable or unwilling to serve, I nominate [name] as a successor or alternate Trustee to serve with the other(s). If only one nominee remains willing and able to serve, that nominee should act alone. A trustee shall qualify by signing an Acceptance of Trust.

2.4 Trustee. I nominate as Trustee or successor Trustee each of the following persons to serve alone in the following order of preference:

[name]

[name]

[name]

A trustee shall qualify by signing an Acceptance of Trust.

2.5 Disability of fiduciary. The determination that a fiduciary is disabled as defined in the section of Article VI entitled “Disability” constitutes the resignation of that person as a fiduciary.

2.6 Compensation. My fiduciaries are entitled to reimbursement for out-of-pocket expenses and may receive reasonable compensation for services.


2.7 Bond. No bond shall be required of my fiduciaries.

2.7 Bond. No bond shall be required of a corporate fiduciary or of individual cofiduciaries serving with a corporate fiduciary. If no corporate fiduciary is serving, a reasonable bond may be required of my individual fiduciaries in the court’s discretion.

2.8 Successor in interest. Any reference to a fiduciary in my will or to an entity referenced in this Article shall include any successor in interest to that entity arising by merger, consolidation, reorganization in another form, or name change.

Article III. Specific Gifts

[DRAFTING NOTE: The identification of real estate must be certain. Therefore, a legal description, if known for certain, should be used. If there are several beneficiaries, specify the form of title (tenancy in common, joint tenancy, etc.) and the share or shares for each person.

Under state law, generally a devisee takes real property subject to any lien, security interest, or other charge, including any lien for unpaid purchase-money mortgages and unpaid real property taxes constituting a lien at death, unless the will provides that such encumbrance be otherwise paid. Therefore, if the testator desires that any such encumbrance, including a mortgage on the property, be paid out of his or her estate, a specific provision to that effect should be added, e.g., “I direct that any mortgage debt on my residence shall be satisfied out of the residue of my estate.”

When the real property owned by the testator constitutes a substantial part of his or her estate and his or her remaining property is not sufficient to exhaust the credit shelter, a gift of the real property to the spouse may result in additional estate taxes at the spouse’s death that may or may not be reduced by estate tax portability.]


3.1 Principal residence. I give any interest that I may own in my principal residence to my spouse if [he / she] survives me.

3.1 Real estate. I give my real property at [address or description] and my tangible personal property customarily used with this real property [to my spouse or, if [he / she] does not survive me,] in equal shares as [tenants in common / joint tenants with rights of survivorship] to my children who survive me [with the share for any predeceased child to lapse]. My personal representative’s determination of the tangible personal property that passes under this section is final and binding on all persons interested in my estate.

[DRAFTING NOTE: When a mortgage exists on the property, the life tenant has no obligation to make principal payments. Consider how such payments are to be made. This provision as drafted qualifies for the marital deduction; exercise caution when modifying.]

3.1 Life estate in residence. I give my residence at [address or description] and all my tangible personal property customarily used with this real property to my spouse, if [he / she]

survives me, for [his / her] life use and possession without any bond or other security. My personal representative’s determination of the tangible personal property that passes under this section is final and binding on all persons interested in my estate.

My spouse shall keep the property in good condition and repair; pay all taxes and other carrying charges; and keep the property insured against loss, theft, or damage at its fair value but shall not be liable for waste and shall not have to account to the remainder beneficiaries. My spouse may rent and alter or improve the property as [he / she] deems appropriate. The cost of such improvements and other expenses, and receipts from the property, shall be allocated between my spouse’s life estate and the remainder beneficiaries as provided by law for trusts, and my spouse may encumber the property to provide funds chargeable to the remainder beneficiaries.

My spouse shall have with respect to the property all powers granted to a trustee, including the power to sell and to reinvest without the consent of the remainder beneficiaries.

My spouse may relinquish the life estate in whole or in part by an acknowledged instrument of release, which in the case of the real property shall be recorded where conveyances are recorded.

Any purchaser of property disposed of by this Article shall deal with my spouse as the sole owner and shall have no responsibility to inquire into the application of the sale proceeds or into any other matter involving the interests of the remainder beneficiaries.

Upon my spouse’s death, or upon the execution of an instrument of release, I give and devise the property disposed of by this Article or released to my then living descendants by right of representation.


3.2 Club membership. I give to my spouse, if [he / she] survives me, my interest in any club that is transferable to [him / her] pursuant to the rules of the club.

3.2 Cooperative apartment. I give to my spouse, if [he / she] survives me, any cooperative apartment that I own, including my interest in any proprietary lease and all shares of stock or other interest in the landlord corporation.

[DRAFTING NOTE: If the testator is a sole proprietor or otherwise has assets used in a business or profession, it may be appropriate to exclude or include these items under the gift of tangible personal property.]


3.3 Specific tangible personal property. I give my [wearing apparel / jewelry / furniture / furnishings / household goods / hunting and fishing equipment / watercraft /

motor vehicles] to my [spouse if [he / she] survives me / children who survive me in as nearly equal shares as possible /[relationship and name] if [he / she] survives me].

[DRAFTING NOTE: In Michigan and other states that have enacted the Uniform Probate Code, a will may refer to a written statement or list to dispose of tangible personal property not otherwise specifically disposed of by will. The writing must be signed by the testator and describe the items and the persons to receive the items with reasonable certainty. The writing may be referred to in the will as one in existence at the testator’s death and thus may be changed after the execution of the will.]

3.3 List. I may leave a list, either entirely in my handwriting or just signed by me, that specifies gifts of tangible personal property. If I do, I intend it to be an amendment to my will. If the list does not qualify as an amendment, I nevertheless hope those entitled to my estate will respect it.


3.4

(a) [Other tangible / Tangible] personal property. I give my tangible personal property [not effectively disposed of above] to my spouse if [he / she] survives me. My tangible personal property includes my personal effects, furniture, household goods, jewelry, motor vehicles, watercraft, and other tangible items.

[Choose one version of ¶3.4(b).]

(b) Alternate gift. If my spouse does not survive me, I give my tangible personal property [not effectively disposed of above] to my children who survive me in as nearly equal shares as possible. [If items are inappropriate for distribution to a child at the time my estate is closed, they may be distributed to the trustee or custodian for the child, for delivery to the child at a later date.]

(b) Alternate gift. If my spouse does not survive me, I give all my tangible personal property [not effectively disposed of above] equally to my [brothers and sisters / parents] who survive me.

3.4 Tangible personal property. I give all my tangible personal property [not effectively disposed of above] to my children who survive me in as nearly equal shares as possible. [If items are inappropriate for distribution to a child at the time my estate is closed, they may be distributed to the trustee or custodian for the child for delivery to the child at a later date.] My tangible personal property includes my personal effects, furniture, household goods, jewelry, motor vehicles, watercraft, and other tangible items.


3.5 Resolution of disputes. If there is a dispute among my beneficiaries over which items of tangible personal property each is to receive, my personal representative shall place a value on each item (by appraisal if appropriate) and then each beneficiary shall select in rotation (the order of choice to be determined by lot) the items each desires until all have received approximately equal value.

3.5 Resolution of disputes. If there is a dispute among my beneficiaries over which items of tangible personal property each is to receive, my personal representative shall determine the items each beneficiary shall receive.

3.6 Gifts of travel rewards program rights. I give and assign all of my rights and benefits under any frequent flyer, hotel, or similar travel rewards program [to my spouse if [she / he] survives me / in equal shares to my adult children who survive me.]

[DRAFTING NOTE: Absent this provision, the expense of packing, shipping, and delivering chattels to a beneficiary is, under Michigan and state law in general, chargeable to the beneficiary. This provision will, in general, be in accordance with the testator’s intent.]

3.7 Expenses. I direct that all expenses of packing, insuring, shipping, and delivering my tangible personal property to the residence of each beneficiary be paid from my estate as an expense of administration.


3.8 Cash bequest. I give the sum of $[amount] to [name], if [he / she] survives me, [or, if [he / she] does not survive me, to [his / her] descendants by right of representation]. Interest shall be paid in accordance with governing law.

3.8 Cash bequest. I give the sum of $[amount] to [name] and [name], if they survive me, or to the survivor of them if only one survives me. Interest shall be paid in accordance with governing law.

3.8 Cash bequest. I give the sum of $[amount] to each of the following individuals who survives me:

[name]

[name]

[name]

Interest shall be paid in accordance with governing law.

[DRAFTING NOTE: Abatement. Add one of the following if you do not want the cash gifts to use up too much of the estate.]

[However, if the value of my gross estate as finally determined for federal estate tax purposes (whether or not a return must be filed) does not exceed $[amount], the amount that each individual receives shall instead be an amount determined by dividing the amount set forth next to the beneficiary's name by $[amount] and multiplying the result by the value of my gross estate.]

[However, if the probate inventory value of my estate does not exceed $[amount], these gifts shall abate entirely.]

3.8 Cash bequest. I give the sum of $[amount] to each of my [children / grandchildren / parents / siblings] who survives me. Interest shall be paid in accordance with governing law.

3.9 Charitable bequest. I give to [charity] the sum of $[amount]. This gift is unrestricted, and the organization’s governing body may use and expend the gift in any manner.

3.10 Gift of stock. I give to [name], if [he / she] survives me, ________ shares of common stock of ________ owned by me or my trust, if any, at my death. This gift includes all shares received by me after the date of this will with respect to my shares, whether as a stock dividend, stock split, or otherwise, and shares of any other corporation received in exchange for such shares by a merger, consolidation, reorganization, or other similar action.

[DRAFTING NOTE: In the absence of a provision to the contrary, a bequest to a debtor of the decedent does not extinguish the debt. Marvin v Bowlby, 142 Mich 245, 105 NW 751 (1905). Also, a testamentary effort to extinguish a debt due the decedent would be not effective if the decedent’s estate is insolvent. In re Ruggles’ Estate, 275 Mich 237, 266 NW 332 (1936).]

3.11 Forgiveness of debts. I forgive all debts (including interest) representing loans made by me before or after the date of this will to natural persons, whether or not evidenced by notes or other obligations in writing.

[DRAFTING NOTE: The instrument creating the power of appointment should be examined carefully to determine if there are conditions or limitations on the time and manner of exercise. If you are exercising a narrow special limited power of appointment in favor of a trust, pay attention to limiting the permissible trust beneficiaries in order to fall within the scope of the limitations found in the grant of the power. The planner also must consider the consequences of a particular exercise under transfer tax laws and the rule against perpetuities. The “Payment of charges” section in Article 5.4 needs to be selected or modified with these consequences in mind.]


3.12 Exercise of power of appointment. I possess a general power of appointment under paragraph [number] of the [specifics of trust] established for my benefit. I exercise that power and appoint the assets to [my descendants who survive me by right of

representation / my estate / the trustee of the [trust name], which I established before signing this will, to be held, administered, and distributed [under its terms / as a separate trust under Article __ of that trust]].

3.12 Exercise of power of appointment. I possess a special power of appointment under paragraph [number] of the [specifics of trust]. I exercise that power and appoint the assets to [my descendants by right of representation / the trustee of the [trust name], which I established before signing this will, to be held, administered, and distributed [under its terms / as a separate trust under Article __ of that trust]].

[DRAFTING NOTE: Include 3.13 if there is a revocable trust as part of the estate plan.]

3.13 Crossover from trust. If I have provided in this will specific devised gifts of assets that actually are held in the [trust name], the terms of which are contained in a separate written document [signed by me today / dated [date of trust, as amended]], my personal representative shall direct the trustee to deliver those assets to the devisee in satisfaction of the devise.

3.14 Insurance policies. I give the policies of insurance covering any personal or real property in which I have an interest, including any claims I have thereunder, to those persons who succeed to the ownership of the property by reason of my death.

3.15 Ademption of specific gifts. If I have directed that specific property be given to a person under this will and if my personal representative does not collect or receive that property following my death, the property is adeemed and the gift fails. Notwithstanding the foregoing, if a condemnation award, insurance proceeds, or a recovery for injury to the property unpaid at my death is paid to my personal representative following my death, the person has the right to a general pecuniary gift that is equal to the amount of the condemnation award, the insurance proceeds, or the recovery.

[DRAFTING NOTE: If the spouse survives the testator, residue is to be distributed as a pecuniary reduce-to-zero (RTZ) outright marital gift and in a testamentary credit trust. This RTZ gift and a testamentary trust can save estate taxes if a revocable trust is not used. CAUTION: Changes in tax law can greatly alter the allocation between the marital gift and the residue and could result in the spouse’s being disinherited. Be especially cautious if the spouse is not the beneficiary of the residue in trust or outright, as might be the case in second-marriage situations. The formula gift to the spouse is not needed if the residue is to pass outright to the spouse.]

3.16 Marital gift. If my spouse survives me or we die simultaneously, I give to [him / her] the smallest amount that, if allowed as a federal estate tax marital deduction, would result in the least possible federal estate tax liability by reason of my death, taking into consideration the federal unified credit, the state death tax credit (but only to the extent that state death taxes are not incurred or increased), and all other credits allowable and deductions claimed on the federal estate tax return and assuming that all other specific gifts have been paid or satisfied in full.

If my spouse fails to live for six months following my death, my personal representative shall reduce the amount by the smallest amount that will result in my estate and [his / her] estate being taxed in the same marginal federal estate tax bracket, determined as if [he / she] died immediately after my death and as if [his / her] estate is valued as of the date and in the manner in which my estate is valued for federal estate tax purposes.

[Choose one version of third alternative paragraph for ¶3.16.]

[DRAFTING NOTE: The first alternative paragraph results in funding fairly representative of appreciation or depreciation. The second alternative, true worth funding, may result in the recognition of gain or loss.]

Assets used to fund this marital gift must be fairly representative of appreciation or depreciation. In satisfying the amount given to my spouse, my personal representative shall value the assets distributed to [him / her] at the adjusted basis of each asset for federal income tax purposes and shall select assets for distribution that have an aggregate fair market value on their date or dates of distribution that is fairly representative of the appreciation or depreciation in value of the assets available for distribution.

[or]

Assets used to fund this marital gift shall be valued at the date of distribution values. In satisfying the amount given to my spouse, my personal representative shall value the assets distributed to [him / her] at their fair market values on the date or dates of distribution.

Article IV. Residue


4.1

(a) All to spouse. I give all other property that I own to my spouse if [he / she] survives me. If I have a power to appoint property by will that is not otherwise exercised above and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

(b) If spouse does not survive. If my spouse does not survive me, I give all other property that I own [to my surviving descendants, by right of representation / in equal portions to my nephews and nieces and my spouse’s nephews and nieces who survive me / in equal portions to my brothers and sisters, the descendants of a deceased brother or sister to take his or her share by right of representation / to the trustee of the [trust name] [dated [date] / which I have previously established today] to be held, administered, and distributed under its terms as it exists at my death]. If I have a power to appoint property by will that is not otherwise exercised above, and the

exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

4.1 All to [descendants / nephews and nieces / siblings / living trust]. I give all other property that I own [to my surviving descendants, by right of representation / in equal portions to my nephews and nieces and my spouse’s nephews and nieces who survive me / in equal portions to my brothers and sisters, the descendants of a deceased brother or sister to take his or her share by right of representation / to the trustee of the [trust name] [dated [date]/ that I have previously established today] to be held, administered, and distributed under its terms as it exists at my death]. If I have a power to appoint property by will that is not otherwise exercised above, and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

[Testamentary Trusts]

[DRAFTING NOTE: A trustee must be nominated in Article II if any of these testamentary trusts are used.]

4.1

(a) To family trust for spouse. If my spouse survives me, I give all other property that I own to my trustees to be held, administered, and distributed as a family trust, as provided below. If I have a power to appoint property by will that is not otherwise exercised above, and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.


[Shared Trust for Descendants with Alternative Remainders]

(b) [If spouse does not survive. If my spouse does not survive me and if / All to descendants or to trustee. If] any living child of mine is under age [minimum age], I give all other property that I own to my trustee to be held, administered, and distributed as a shared trust as described below. If [my spouse does not survive me and] no living child is under that age, I give all other property that I own to my surviving descendants, by right of representation. If I have a power to appoint property by will that is not otherwise exercised above, and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

(b) [If spouse does not survive. If my spouse does not survive me and if / All to descendants or to trustee. If] any living child of mine is under age [minimum distribution age], I give all other property that I own to my trustee to be held,

administered, and distributed as a shared trust as described below. If [my spouse does not survive me and] no living child is under that age, I give all other property that I own to those who would take the shared trust if it terminated at my death. If I have a power to appoint property by will that is not otherwise exercised above, and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

[Contingent Trusts for Those Under a Certain Age]

(b) [If spouse does not survive. If my spouse does not survive me, / All to descendants or to trustee.] I give all other property that I own to my surviving descendants, by right of representation. The share, however, of each beneficiary who has not attained age [age of final distribution] shall be held, administered, and distributed as a separate trust, as provided below. Before establishing the separate trust, my personal representative shall pay to the beneficiary the amount, if any, the beneficiary decides to withdraw because the beneficiary has attained an age specified below. If I have a power to appoint property by will that is not otherwise exercised above, and the exercise of the power does not require specific reference to the instrument that granted the power, I exercise the power so that the appointable property is included in the gift described in this section.

[DRAFTING NOTE: The family trust can qualify as a credit shelter trust. It can also qualify as a QTIP (qualified terminable interest property) trust if the spouse is the only beneficiary during his or her lifetime.]

4.2 Spouse’s Family Trust

[Choose one version of ¶4.2(a).]

(a) Income. Trustee shall pay the net income to my spouse annually or at more frequent intervals.

(a) Income. Trustee shall pay income to one or more of my spouse and my descendants as trustee deems appropriate under the circumstances existing at each distribution, taking into account the potential recipients’ economic needs, best interests and welfare, income tax brackets, availability of other resources, and the guidelines provided below relative to invasion of principal. Income distributions may be in unequal amounts and may exclude members of the class to be benefitted.

(a) Income. Trustee may accumulate income or pay income to my spouse as Trustee deems appropriate under the circumstances existing at each distribution, taking into account my spouse’s economic needs, best interests and welfare, income tax brackets, availability of other resources, and the guidelines provided below relative to invasions of principal.


(b) Invasion of principal for spouse. Trustee may distribute principal to my spouse (even to the exhaustion of the trust) in Trustee’s discretion to provide for my spouse’s best interests. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the distributee but may do so if Trustee deems it advisable / shall consider other resources available to the distributee / shall not consider other resources available to the distributee].

[DRAFTING NOTE: Use the following section when the surviving spouse will be the sole trustee.]

(b) Invasion of principal for spouse. Trustee may distribute principal to my spouse (even to the exhaustion of the trust) in Trustee’s discretion to provide for my spouse’s health, education, support, and maintenance in [his / her] accustomed manner of living. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the distributee but may do so if Trustee deems it advisable / shall consider other resources available to the distributee / shall not consider other resources available to the distributee].

[Choose one version of ¶4.2(c).]

(c) Invasion for descendants. Trustee may distribute principal to one or more of my descendants (if it will not impair my spouse’s security) in Trustee’s discretion to provide for the distributee’s health, education, support, and maintenance in the distributee’s accustomed manner of living. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the distributee but may do so if Trustee deems it advisable / shall consider other resources available to the distributee / shall not consider other resources available to the distributee]. These payments shall not be taken into consideration when allocating the principal upon termination of the family trust.

(c) Invasion for children. Trustee may distribute principal to one or more of my children (if it will not impair my spouse’s security) in Trustee’s discretion to provide that child with a home of [his / her] own or enable that child to embark on or pursue a business or professional venture. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the distributee but may do so if Trustee deems it advisable / shall consider other resources available to the distributee / shall not consider other resources available to the distributee]. Whenever principal is distributed for these purposes, the amount shall be treated as an advancement, without interest, to the child (or the child’s descendants) when Trustee allocates the principal upon termination of the family trust.

(d) Intent. My spouse is the primary object of my bounty. The other beneficiaries are the secondary objects. Therefore, if there is a conflict between the interest of my spouse and other beneficiaries, Trustee shall favor my spouse.

[Choose one version of ¶4.2(e).]

(e) Limited testamentary power of appointment and termination. Upon the death of my spouse, Trustee shall distribute the family trust assets to or in trust for such persons other than my spouse, [his / her] creditors, [his / her] estate, or creditors of [his / her] estate and in such amounts as [he / she] appoints by will. Any power of appointment exercised in favor of a deceased appointee shall lapse and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee unless specified in the exercise. If this power of appointment is not exercised or to the extent it is not effectively exercised, then upon the death of my spouse (or upon my death if my spouse fails to survive me), Trustee shall allocate and distribute the remaining trust assets as provided in ¶4.1(b) of this Article as if I died on the date of death of my spouse.

(e) Limited testamentary power of appointment and termination. Upon the death of my spouse, Trustee shall distribute the family trust assets to or in trust for such of my descendants[, spouses of my descendants, and charitable organizations described in IRC 170(c)] and in such amounts as my spouse appoints by will. Any power of appointment exercised in favor of a deceased appointee shall lapse and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee unless specified in the exercise. If this power of appointment is not exercised or to the extent it is not effectively exercised, then upon the death of my spouse (or upon my death if my spouse fails to survive me), Trustee shall allocate and distribute the remaining trust assets as provided in ¶4.1(b) of this Article as if I died on the date of death of my spouse.

(e) Termination. Upon the death of my spouse, Trustee shall allocate and distribute the family trust assets as provided in paragraph 4.1(b) of this Article as if I died on the date of death of my spouse.

4.3 Shared trust

(a) Income. Trustee may distribute or accumulate income of the shared trust. The distribution of current and accumulated income is governed by the provisions that authorize the use of principal.

(b) Principal. Trustee may distribute principal to one or more of my descendants in Trustee’s discretion to [provide for the child’s health, education, support, and maintenance in the child’s accustomed manner of living / provide funds for child’s best interests]. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the child but may do so if Trustee deems it advisable / shall consider other resources available to the child / shall not consider other resources available to the child].

(c) Payments to guardian. If there is a guardian appointed for a child, Trustee shall supply funds to the guardian that are adequate to maintain and support the child and to protect the guardian, to the extent possible, from suffering any significant financial

burden by reason of the appointment. Trustee also may pay to the guardian fair and reasonable compensation, determined in Trustee’s sole discretion, for services as guardian.

(d) Intent. I have provided this trust for the primary benefit of my children who have not attained age [minimum age] and secondarily to benefit my other children to provide flexibility in meeting the needs of all my children in a manner approximating what I would do if living. I expect that Trustee will encourage each younger child to obtain an education commensurate with that person’s talents and that Trustee will recognize that the children may have unequal and varying needs. I also expect Trustee will make distributions to my children who have attained age [minimum age] only if those distributions will not jeopardize the economic security of my children under that age. Any distribution to a child of mine who has attained age [minimum age] shall be treated as an advancement without interest at the time the shared trust terminates and is distributed.

(e) Termination. When no living child of mine is under age [minimum age], Trustee shall terminate the shared trust and distribute the fund to my then living descendants, by right of representation. [The share, however, of each beneficiary who has not attained age [final distribution age under ¶4.4(d)] shall be held, administered, and distributed as a separate trust, as provided below. Before establishing the separate trust, my trustee shall pay to the beneficiary the amount, if any, the beneficiary decides to withdraw because the beneficiary has attained an age specified below.] [Trustee may continue to hold, administer, and distribute each portion and subportion under the terms of the shared trust, but only for the benefit of the one for whom the portion or subportion was set aside. The beneficiary has a continuing right to withdraw his or her entire trust fund. If the beneficiary dies before withdrawing the entire trust fund, Trustee shall pay the balance to the personal representative of the beneficiary’s estate.]

4.4 Separate trusts

(a) Identification of trusts. To facilitate identification, Trustee shall designate each separate trust with the name of the beneficiary for whom it was established.

(b) Income. Trustee may distribute net income or may accumulate income of a separate trust or add it to principal. The distribution of current and accumulated income is governed by the provisions that authorize the use of principal.

(c) Principal. Trustee may distribute principal to the beneficiary (even to the exhaustion of the Separate Trust) in Trustee’s discretion to [provide for the beneficiary’s health, education, support, and maintenance in the beneficiary’s accustomed manner of living / provide the beneficiary with a home of his or her own / enable the beneficiary to embark on or pursue a business or professional venture / provide funds for distributee’s best interests]. When making distributions under this section, Trustee [shall have no duty to consider other resources available to the distributee

but may do so if Trustee deems it advisable / shall consider other resources available to the distributee / shall not consider other resources available to the distributee].

[(d) Payments to guardian. If there is a guardian appointed for the beneficiary, Trustee shall supply funds to the guardian that are adequate to maintain and support the beneficiary and to protect the guardian, to the extent possible, from suffering any significant financial burden by reason of the appointment. Trustee also may pay to the guardian fair and reasonable compensation, determined in Trustee’s sole discretion, for services as guardian.]

[Choose one version of ¶4.4(d).]

(e) Age distribution. After the beneficiary attains age [age of distribution], the beneficiary has a continuing right to withdraw all trust assets.

(e) Age distribution. After the beneficiary attains age [first age of distribution], the beneficiary has a continuing right to withdraw up to one-half of the value of the trust assets on that date; after the beneficiary attains age [second age of distribution], the beneficiary has a continuing right to withdraw all trust assets. The amount subject to withdrawal will be computed on the date the beneficiary attains the specified age or, if later, the date of the creation of the separate trust.

(e) Age distribution. After the beneficiary attains age [first age of distribution], the beneficiary has a continuing right to withdraw up to one-third of the value of the trust assets. After the beneficiary attains age [second age of distribution], the beneficiary has a continuing right to withdraw up to one-half of the value of the trust assets. After the beneficiary attains age [third age of distribution], the beneficiary has a continuing right to withdraw all trust assets. In each instance, the amount subject to withdrawal will be computed on the date the beneficiary attains the specified age or, if later, the date of the creation of the separate trust. The amount subject to withdrawal will be determined after excluding from the value of the trust amounts subject to prior unexercised rights of withdrawal.

[Choose one version of ¶4.4(e).]

(f) Testamentary limited power of appointment. If the beneficiary dies before complete distribution, Trustee shall distribute remaining trust assets to or in trust for those persons other than the beneficiary, the beneficiary’s creditors, the beneficiary’s estate, or creditors of the beneficiary’s estate and in the amounts the beneficiary appoints by will. Any power of appointment exercised in favor of a deceased appointee shall lapse, and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee unless otherwise provided in the exercise of the power.

(f) Testamentary limited power of appointment. If the beneficiary dies before complete distribution, Trustee shall distribute the remaining trust assets to, among, or in trust for the beneficiary’s descendants[, spouses of the beneficiary’s descendants, my

descendants other than the beneficiary, spouses of my descendants, and charitable organizations described in IRC 170(c)] in the amounts or proportions and on the terms the beneficiary appoints by will. Any power of appointment exercised in favor of a deceased appointee shall lapse, and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee unless otherwise provided in the exercise of the power.

(f) Testamentary general power of appointment. If the beneficiary dies before complete distribution, Trustee shall distribute the remaining trust assets to or in trust for those persons and in the amounts the beneficiary appoints by will. Any power of appointment exercised in favor of a deceased appointee shall lapse, and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee unless otherwise provided in the exercise of the power.

(g) [Substitute transfer / Termination]. [If the power of appointment is not exercised or to the extent it is not effectively exercised, Trustee / Trustee] shall pay the remaining trust assets, upon termination by death, to the beneficiary’s descendants then living by right of representation or, if there is no descendant then living, to the then living descendants by right of representation of the beneficiary’s nearest ancestor in my lineage who has then living descendants.

[DRAFTING NOTE: Consider using this as an additional section at the end of all distributions except to a trustee of a living trust or all to spouse.]


4.5 Distribution to custodian. When any share is or may be distributable to a person under age 21, my fiduciary may hold or distribute the property as or to a custodian for the beneficiary under any applicable uniform transfers to minors act until he or she reaches age 21. When distribution is made to a minor or a custodian, the minor’s or custodian’s receipt is sufficient to exonerate my fiduciary.

4.5 Retained share. Whenever any type of property is distributable to a person who has not attained age 21, my fiduciary shall hold the same in trust for the beneficiary. Distributions of income and principal may be made in the discretion of my fiduciary in order to provide the beneficiary with care and support, resources to meet medical or other extraordinary needs, and an education (including tuition, room and board, books, and incidentals). When the beneficiary attains age 21, the principal, together with any accumulated income, shall be paid over to him or her. If the beneficiary dies before attaining age 21, the principal, together with any accumulated income, shall be paid to such persons and in such amounts as the beneficiary appoints by will. This power of appointment is a “general power.” Any power of appointment exercised in favor of a deceased appointee shall lapse, and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee. In default of the beneficiary’s effective exercise of the power of appointment, my fiduciary shall allocate and distribute the remaining trust assets among the beneficiary’s then living descendants in shares determined by right of representation or, if none, among the then living

descendants of the beneficiary’s nearest ancestor in my lineage who has then living descendants in shares determined by right of representation. The beneficiary’s ancestor for such purpose, however, must be either me or a descendant of mine. When distribution is made to a minor, the minor’s receipt shall exonerate my fiduciary.

4.5 Retained share. My fiduciary will hold in further trust all or any portion of a share of assets otherwise distributable to a beneficiary other than my spouse if (1) the beneficiary is a person who has not attained age 21 and there is no other trust described to receive the distribution or (2) my fiduciary determines that there is a substantial possibility that the beneficiary will be unable or unwilling to use the distributed trust assets in the beneficiary’s best interests due to personal circumstance. Circumstances warranting retention include but are not limited to mental or physical incapacity, difficulty in exercising judgment about or attending to financial and property affairs, alcoholism, drug abuse, gambling, incarceration, pending or threatened bankruptcy, marital disharmony or pending divorce, pending or threatened litigation, or residence in a jurisdiction or affiliation with a group or sect where all or a majority of the distribution may be confiscated or appropriated by the government or others. As an alternative to using a retained share trust, Trustee may hold the beneficiary’s share of trust assets in another trust subject to this Article. My fiduciary shall be fully exonerated in his or her decision under this section to hold, continue to hold, or decline to hold assets in a retained share trust unless such decision is made in bad faith.

The following provisions govern a retained share trust.

(a) Income. Net income shall be accumulated and added to principal.

(b) Principal. My fiduciary may invade principal for the benefit of the beneficiary if he or she determines that it is appropriate in order to (1) provide for the beneficiary’s reasonable comfort, welfare, and benefit; (2) provide an education for the beneficiary if he or she is striving diligently for an education (including technical and trade training, camp, and study-related travel, as well as college, postgraduate, and professional training); (3) pay expenses caused by illness or other misfortune and provide extra goods and services that are over and above those expenses, goods, and services that are paid for by insurance, government programs, public assistance, or other resources known to my fiduciary to be available for these purposes; (4) pay expenses of burial; or (5) terminate the trust because the reason for which my fiduciary retained the beneficiary’s distributable share no longer applies under the beneficiary’s current circumstance.

(c) Termination. The trust shall terminate and the remaining share shall be distributed at the death of the beneficiary, unless terminated earlier through invasion of principal. On termination by death, my fiduciary [shall pay over the trust fund as the beneficiary may appoint by will. This power of appointment is a “general power.” Any power of appointment exercised in favor of a deceased appointee shall lapse, and a surviving descendant of the deceased appointee shall not be substituted for the deceased appointee. In default of the beneficiary’s effective exercise of the power of appointment, my fiduciary] shall allocate and distribute the remaining trust assets among the beneficiary’s then living descendants in shares determined by right of

representation or, if none, among the then living descendants of the beneficiary’s nearest ancestor in my lineage who has then living descendants in shares determined by right of representation. The beneficiary’s ancestor for such purpose, however, must be either me or a descendant of mine. When distribution is made to a minor, the minor’s receipt shall exonerate my fiduciary.


4.6 Absence of beneficiaries. If, at any time, there is no one to take under the other provisions of this will, I give my assets [to my spouse if he or she survives me. If my spouse does not survive me, I give my assets]to those persons who would inherit my estate if I had then died intestate under Michigan law then in effect with the shares and proportions determined by that law.

4.6 Absence of beneficiaries. If, at any time, there is no one to take under the other provisions of this will, I give my assets [to my spouse if he or she survives me. If my spouse does not survive me, I give my assets] one-half to those persons who would inherit my estate and the other one-half to those persons who would inherit my spouse’s estate, in each case as if we had then died intestate under the law of Michigan then in effect with the shares and proportions determined by that law. For purposes of this paragraph, however, a governmental entity is not an heir of either of us if there is a natural person who is an heir of the other person, in which case, all of the assets shall be distributed among heirs who are natural persons.

4.6 Absence of beneficiaries. If, at any time, there is no one to take under the other provisions of this will, I give my assets to my parents if both survive me or, if only one survives me, to my parent who survives me or, if neither parent survives me, to my parents’ descendants who survive me by right of representation.

4.6 Absence of beneficiaries. If, at any time, there is no one to take under the other provisions of this will, I give my assets to the following organizations in the proportions specified: [list division among charities].

If any of the above-described organization is not then in existence or is not then an organization described in IRC 170(c) and 2055(a), the share to that organization shall lapse and the other shares shall be increased proportionately. If all shares lapse, my personal representative or trustee shall distribute the assets to and among such other organizations as are then so described in such proportions and on such limitations as my personal representative or trustee determines.

4.7 Spendthrift provision. A beneficiary may not assign any portion of his or her beneficial interest in income or principal. No creditor of any beneficiary may attach, interfere, take, or reach by any legal or equitable process any part of a beneficiary’s interest in satisfaction of any debt or liability of the beneficiary before actual receipt by the beneficiary after payment from Trustee. Trustee may withhold distributions to any trust beneficiary [(other than

income payable to my spouse from trust assets that qualify for the marital deduction)] whose interest would or likely could become payable to anyone other than the beneficiary.

4.8 Minimum size trust. If a trust is reduced to a size that, in Trustee’s opinion, makes continuation economically undesirable or impractical, Trustee may distribute the trust assets to the beneficiary or beneficiaries for whom the trust was established. A spendthrift provision does not prevent termination under this section.

4.9 Facility of payments. Whenever income or principal may be paid to a beneficiary, Trustee may, in Trustee’s discretion, apply payments for the benefit of the beneficiary. Whenever an income beneficiary dies, accrued but undistributed income shall be paid, when distributable, to the holder or holders of the next estate.

[DRAFTING NOTE: The problem of potential diversion of a gift to repay public benefits or a gift disqualifying a beneficiary from desirable assistance lurks as an unknown element in many estate plans. This provision may be used to convert an outright gift to a discretionary trust arrangement to defeat unwanted and unintended burdens that might otherwise accompany the gift.]

4.10 Alternative trust. If Personal Representative or Trustee determines that outright distribution made in this will may disqualify the beneficiary from receiving governmental assistance or may be claimed in whole or in part by a governmental entity in repayment of prior assistance or benefits, Personal Representative or Trustee, in its sole and absolute discretion, may convert distributable property to a trust to be held by [Personal Representative as Trustee / Trustee]. Trustee may pay income and principal, in its sole discretion, for the beneficiary’s best interests. The trust is to terminate at the beneficiary’s death (if not exhausted earlier through invasion of principal) with the remaining assets being distributed to the beneficiary’s then living descendants by right of representation or, if none, to my then living descendants by right of representation.

4.11 Collection trust. My Trustee, or, if none is named, my Personal Representative acting as Trustee, shall collect all insurance, annuity contract proceeds, and other benefits payable under any beneficiary designation or contracted agreement that designates the trustee under my will as the recipient. These receipts shall constitute the collection trust. Trustee shall hold and invest the receipts, and accumulate income, until Trustee makes distribution. At that time selected by Trustee, but not later than the completion of the settlement of my estate (nor longer than the period permitted by the rule against perpetuities), Trustee shall allocate and distribute the assets in this collection trust to the same persons who are entitled to the residue of my probate estate and in the same proportions as specified under the preceding sections of this Article.

Article V. General Provisions

5.1 Choice of law. This will is to be interpreted and construed under Michigan law, without regard to conflict of law principles.

5.2 Simplified probate. If my estate may be settled under simplified or informal procedures, I direct that my personal representative elect to do so unless my personal representative decides the supervised or formal procedures are preferable.

5.3 Statutory benefits. The value of a homestead allowance, family allowance, exempt property allowance, or similar statutory benefit that is received by a beneficiary shall be charged against the share given under this will to or for the beneficiary.


[DRAFTING NOTE: The alternatives are as follows:

Option 1: no apportionment, no revocable trust, no other estate tax inclusions

Option 2: no apportionment, no revocable trust, other inclusions possible

Option 3: no apportionment, revocable trust, no other estate tax inclusions

Option 4: no apportionment, revocable trust, other inclusions possible

Option 5: no apportionment, reverse qualified terminable interest property (QTIP), each of married couple

Option 6: no apportionment, reverse QTIP, surviving spouse

Option 7: apportionment proportionately to all taxable transfers

Option 8: apportionment proportionately to all taxable and nontaxable transfers

Option 9: apportionment in accordance with MCL 700.3920–.3923

CAUTIONARY NOTE: Consider apportioning debts, taxes, and expenses (variation 7, 8, or 9 above) when a buy-sell, jointly owned property, retirement accounts, or other nonprobate assets, nonrevocable trust transfer may generate taxation. Failure to consider tax apportionment or payment of debts and expenses can significantly alter the estate plan design.]

[DRAFTING NOTE: The apportionment clauses may or may not be appropriate for a resident of a state that has decoupled from the federal estate tax.]

[Option 1: No apportionment, no revocable trust, no other estate tax inclusions.

DRAFTING NOTE: Requires the payment of debts, expenses, and taxes from the residue of the testator’s estate. Use when testator has no separate revocable living trust. If testator makes a devise to a spouse that does not qualify for the marital deduction,

consider using other apportionment and nonapportionment variations below if testator wants that devise to bear any estate tax.]

5.4 Payment of charges. I direct my personal representative to pay the following items from the residue of my estate, without apportionment among my beneficiaries:

(a) my legally enforceable debts (other than debts secured by real or tangible property, which property shall pass subject to those obligations)

(b) funeral expenses

(c) expenses of administering my estate

(d) taxes, including any interest and penalties, imposed by reason of my death on any transfer of property

[Option 2: No apportionment, no revocable trust, other estate tax inclusions possible.

DRAFTING NOTE: Requires the payment of debts, expenses, and taxes, excluding taxes on QTIP, general power of appointment (GPOA), and generation-skipping transfer (GST) property, from the residue of the testator’s estate. Use when the testator has no separate revocable living trust but the testator’s taxable estate may contain assets from a marital trust created by a predeceased spouse.]





(d) taxes, including any interest and penalties attributable to those taxes imposed by reason of my death on any transfer of property, excluding the following:

(1) taxes for which sources of payment are provided under IRC 2206 (relating to life insurance payable to a beneficiary other than my personal representative), IRC 2207 (relating to property subject to a general power of appointment), IRC 2207A (relating to qualified terminable interest property), IRC 2207B (relating to property subject to a retained interest), and IRC 2603 (relating to property subject to generation-skipping transfer tax) and any interest and penalties attributable to those taxes

(2) taxes imposed on transfers of property to or in trust for my spouse that do not qualify for the marital deduction and any interest and penalties attributable to those taxes

(3) any additional taxes imposed under IRC 2032A(c) (relating to qualified real property) and any interest and penalties attributable to those taxes. Property with respect to which these excluded taxes are imposed shall bear such taxes and any interest and penalties attributable to those taxes. The amount of each excluded tax shall be calculated in the manner provided in the Internal Revenue Code, or if no method is provided in the Code, shall be an amount that bears the same proportion to the total estate tax liability as the value of the property to which the excluded tax relates bears to the taxable estate.

[Option 3: No apportionment, have revocable trust, no other inclusions.

DRAFTING NOTE: Requires the payment of debts, expenses, and taxes from the residue of the testator’s estate or the testator’s trust. Use when the testator has a separate revocable living trust but there will be no QTIP, GPOA, or GST property included in the testator’s estate. If testator makes a devise to a spouse that does not qualify for the marital deduction, consider using other apportionment and nonapportionment variations below if testator wants that devise to bear any estate tax.]





(d) taxes, including any interest and penalties, imposed by reason of my death on any transfer of property

If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts, transfer taxes, and expenses for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts, transfer taxes, and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

[Option 4: No apportionment, have revocable trust, other estate tax inclusions possible.

DRAFTING NOTE: Requires the payment of debts, expenses, and taxes, excluding taxes on QTIP, GPOA, and GST property and transfers to a spouse that do not qualify for the marital deduction, from the residue of the testator’s estate or the testator’s trust. Use when the testator has a separate revocable living trust and there may be marital deduction property included in the gross estate.]





(d) taxes, including any interest and penalties attributable to those taxes, imposed by reason of my death on any transfer of property, excluding the following:



If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts, transfer taxes, and expenses for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts, transfer taxes, and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may

be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

[Option 5: No apportionment, reverse QTIP situation, each of married couple.

DRAFTING NOTE: This provision should be used for both spouses when the estate plans of each spouse contemplate a reverse QTIP election for a marital trust. The taxes and expenses of the marital trusts included in the survivor’s estate are directed to be paid from the marital trust for which there was no reverse election. All other charges are paid from the residue of the estate (or a revocable trust), excluding taxes on QTIP, GPOA, and GST property and transfers to a spouse that do not qualify for the marital deduction.

In a second-marriage situation, if a marital trust for which there is no reverse QTIP election is insufficient to pay taxes and expenses, consider paying taxes and expenses from the marital trust for which a reverse QTIP election has been made by deleting the first bracketed language and adding the second bracketed language.]

5.4 Payment of charges. If my spouse predeceased me and established a marital trust for my benefit for which a special election was made in my spouse’s estate under IRC 2652(a)(3), I direct that all transfer taxes attributable to that trust together with all transfer taxes attributable to any other marital trusts established by my spouse for my benefit plus any interest and penalties attributable to those taxes, be paid proportionately from those other marital trusts (and for this limited purpose I exercise any general power of appointment I may have over those other marital trusts)[, or, if there are no other marital trusts or to the extent they are insufficient to satisfy those obligations, be paid from the residue of my estate]. I specifically waive the right of my estate under IRC 2207A to recover estate taxes and any interest and penalties attributable to those taxes from the marital trust for which the special election was made[, to the extent such taxes, interest, and penalties are paid from those other marital trusts]. The transfer taxes to be borne by the other marital trusts or the residue of my estate shall be the increase in those taxes caused by the inclusion of the marital trusts in the tax base.

Whether my spouse survived me or failed to survive me, I direct my personal representative to pay the following items from the residue of my estate, without apportionment among my beneficiaries:




(d) all other taxes, including any interest and penalties attributable to those taxes, imposed by reason of my death on any transfer of property, excluding the following:


(2) taxes imposed on transfers of property to or in trust for my spouse that do not qualify for the marital deduction and any interest and penalties attributable to those taxes


If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts, transfer taxes, and expenses for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts, transfer taxes, and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

[Option 6: No apportionment, reverse QTIP situation, surviving spouse.

DRAFTING NOTE: Use in the will of a surviving spouse who is the beneficiary of a marital trust for which a reverse QTIP election has been made. The taxes and expenses of the marital trusts included in the survivor’s estate are paid from the marital trust for which there was no reverse election. All other charges are paid from the residue of the estate (or a revocable trust), excluding taxes on QTIP, GPOA, and GST property and transfers to a spouse that do not qualify for the marital deduction.

In a second-marriage situation, if a marital trust for which there is no reverse QTIP election is insufficient to pay taxes and expenses, consider paying taxes and expenses

from the marital trust for which a reverse QTIP election has been made by deleting the first bracketed language and adding the second bracketed language.]

5.4 Payment of charges. I direct that all transfer taxes attributable to the inclusion in my estate of the marital trust for which a special election was made in my deceased spouse’s estate under IRC 2652(a)(3), together with all transfer taxes attributable to any other marital trusts established by my spouse for my benefit, plus any interest and penalties attributable to those taxes, be paid proportionately from those other marital trusts (and for this limited purpose I exercise any general power of appointment I may have over those other marital trusts)[, or, if there are no other marital trusts or to the extent they are insufficient to satisfy those obligations, be paid from the residue of my estate]. I specifically waive the right of my estate under IRC 2207A to recover estate taxes and any interest and penalties attributable to those taxes from the marital trust for which the special election was made[, to the extent such taxes, interest, and penalties are paid from those other marital trusts]. The transfer taxes to be borne by the other marital trusts or the residue of my estate shall be the increase in those taxes caused by the inclusion of all the marital trusts in the tax base.

I direct my personal representative to pay the following items from the residue of my estate, without apportionment among my beneficiaries:




(d) all other taxes, including any interest and penalties attributable to those taxes, imposed by reason of my death on any transfer of property, excluding the following:



If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts, transfer taxes, and expenses, for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts, transfer taxes, and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

[Option 7: Apportionment of taxes proportionately to all taxable transfers.

DRAFTING NOTE: Directs the payment of debts and expenses from the residue or from a revocable trust but apportions taxes proportionately among all beneficiaries of probate and nonprobate property except recipients of tangible personal property and recipients of specific monetary gifts. No allocation is made to transfers that are exempt or deductible. This gives the advantage of reduced taxes to the recipient of IRC 2032A property. Use when the testator has a separate revocable living trust.]





If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts and expenses for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

I further direct that all federal and state estate taxes (other than those described below), including any interest and penalties, be paid from each transfer, whether made under this will or otherwise, that generated an estate tax liability in the proportion that the value of the

transfer that is taxed bears to the total tax liability, except that no allocation shall be made to transfers of tangible personal property or to gifts of a specific dollar amount, whether made under this will or my revocable trust. Property for which any additional taxes are imposed under IRC 2032A(c) (relating to qualified real property) shall bear such taxes and any interest and penalties attributable to those taxes. Inheritance taxes shall be paid from each transfer subject to tax excluding transfers of tangible personal property and excluding bequests of a specific dollar amount, the taxes on excluded property to be paid proportionately from transfers subject to tax. All transfer taxes shall be paid from principal.

[Option 8: Apportionment of taxes proportionately to all taxable and nontaxable transfers.

DRAFTING NOTE: Directs the payment of debts and expenses from the residue or from a revocable trust but apportions taxes to all probate and nonprobate property, including property that is exempt or deductible and bequests of a specific dollar amount but excluding gifts of tangible personal property. Assets bear tax in the proportion that the value of the assets bear to total liability. This gives the advantage of reduced taxes to the recipient of IRC 2032A property. This clause is used when a testator has a separate revocable living trust.]





If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts and expenses, for which the residue of my estate otherwise is liable. The burden of payments made by the trustee shall be allocated as specified in the trust. Debts and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s discretion, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

I further direct that all federal and state estate taxes (other than those described below), including any interest and penalties, be paid from all property included in my gross estate for federal estate tax purposes in the proportion that the value of the property included in my estate (reduced by debts secured by the property) bears to the total tax liability, except that no

allocation shall be made to transfers of tangible personal property, whether made under this will or my revocable trust. This direction applies to property, whether transferred under this will or otherwise and whether or not the property transferred is subject to estate tax. The value of property included in my estate is the value as finally determined for federal estate tax purposes after application of IRC 2031(c) (relating to qualified conservation easements) and IRC 2032A (relating to qualified real property) and all other applicable valuation principles. Property with respect to which any additional taxes are imposed under IRC 2032A(c) (relating to qualified real property) shall bear such taxes and any interest and penalties attributable to those taxes. Inheritance taxes shall be paid from each transfer subject to tax excluding transfers of tangible personal property, the tax on which shall be paid proportionately from transfers subject to tax. All transfer taxes shall be paid from principal.

[Option 9: Apportionment of death taxes in accordance with MCL 700.3920–.3923.

DRAFTING NOTE: EPIC apportions all death taxes under the following rules:

a. The rules of IRC 2206 (life insurance), IRC 2207 (property subject to a general power of appointment), IRC 2207A (QTIP property), IRC 2207B (property subject to a retained interest), or IRC 2603 (property subject to generation-skipping transfer tax) are preserved. Property of that type will have the tax imposed on that property paid from that type of property.

b. The tax on property passing under a will is paid from the residue.

c. The tax on property passing under an inter vivos trust is paid from the balance of the trust property after satisfaction of specific gifts.

d. The tax on other property is paid from that type of property.

e. Transfers that are eligible for the marital deduction or the charitable deduction receive the benefit of the deduction.]





If the residue is insufficient or contains assets that my personal representative concludes cannot or should not be liquidated, my personal representative may direct the trustee of any trust then in existence that I established as a revocable trust to pay debts and expenses for which the residue of my estate otherwise is liable. The burden of payments made by the

trustee shall be allocated as specified in the trust. Debts and expenses incurred because of my death that are treated as estate transmission expenses for federal tax purposes, whether paid by my personal representative or by a trustee at my personal representative’s direction, shall be paid from principal. Other estate expenses may be paid from income or principal, but an expense shall not be paid from income on property that qualifies for an estate tax marital or charitable deduction if the expense is attributable to other property or if a deduction for the expense is taken on my federal estate tax return.

I further direct that the burden of payments of all federal and state estate and inheritance taxes (other than those described below), including any interest and penalties, be apportioned under the rules contained in MCL 700.3920–.3923 of the Michigan Estates and Protected Individuals Code. Property with respect to which any additional taxes are imposed under IRC 2032A(c) (relating to qualified real property) shall bear such taxes and any interest and penalties attributable to those taxes.

[DRAFTING NOTE: The portability election allows the estate of a deceased spouse to transfer the decedent’s unused estate tax exclusion amount to the surviving spouse. Either option should be used if the testator is married.]

5.5 Portability election. If my spouse survives me for any period, the provisions of this section will apply with respect to the election described in IRC 2010(c)(5)(A) (portability election) to preserve for my surviving spouse the ability to use the deceased spousal unused exclusion amount relating to the unused portion of my federal applicable exclusion amount.

[DRAFTING NOTE: The surviving spouse may first be given the authority to direct the personal representative to make the portability election, or that authority may be given to the personal representative alone. The portability election requires the preparation of IRS Form 706, and if an estate tax return would otherwise not be required due to the size of the testator’s estate, its preparation incurs additional expense to the estate. Consider the relationship of the personal representative to the testator and spouse, as well as family dynamics (e.g., presence of second marriage, conflict among beneficiaries), when deciding whether to give the surviving spouse this authority.]

[Option 1: Surviving spouse has first option to make the election.]

(a) Notice to surviving spouse; making the request. My personal representative shall promptly notify my surviving spouse in writing of the right to request the portability election and shall provide my spouse a period of not less than 60 days to exercise that right. If my spouse is disabled, the notice may be given to, and the right may be exercised by, a conservator, guardian, or agent under durable power of attorney acting on behalf of my spouse. If my spouse dies after my death, the notice may be given to, and the right may be exercised by, the personal representative of my spouse’s estate or, if none, the successor trustee of a trust established by my spouse that was revocable immediately before my spouse’s death.

(b) Making the portability election.

(i) Authorization. If requested to do so by or on behalf of my surviving spouse in accordance with the procedures specified above, I authorize and direct my personal representative to make the portability election. Notwithstanding the foregoing, if my surviving spouse does not exercise [his / her] right to request the portability election within the period established by my personal representative, I authorize my personal representative, in my personal representative’s sole discretion, to make the portability election, and my personal representative shall not be liable to any interested person for the decision to make, or not make, the portability election if the decision is made in good faith and with a reasonable basis.

(ii) Permitted actions. To make the portability election authorized above, my personal representative shall take all actions necessary, including but not limited to the filing of a federal estate tax return (even if a federal estate tax return would not otherwise be required for my estate) and making all required elections on that return.

[DRAFTING NOTE: If the surviving spouse directs the personal representative to make the portability election, the testator may require the surviving spouse to pay the expenses associated with filing the election (e.g., tax return preparation, legal and accountant fees). This requirement may be desirable in circumstances where preparing IRS Form 706 would not have been necessary but for the making of the portability election. Otherwise, the expenses will be paid as a general expense of the testator’s estate administration as provided in “Payment of charges.”]

(c) Election costs. The costs associated with making the portability election (election costs), including the expense of preparing and filing a federal estate tax return for my estate that would not otherwise have been required, shall be paid [by my surviving spouse if [he / she] exercised the right to request the portability election, otherwise the election costs shall be paid] as a general expense of administering my estate in accordance with the section of this Article entitled “Payment of charges.” [If my spouse is obligated to pay the election costs, my personal representative shall determine, in my personal representative’s sole discretion, which expenses are included in the election costs. My personal representative may choose to charge the value of the election costs against other obligations owing to my spouse as a result of my death.]

(d) Disclosure of federal estate tax return. If the portability election is made, I authorize and direct my personal representative to provide a complete copy of my federal estate tax return, with all attachments, to my surviving spouse or, if my spouse is disabled, to a conservator, guardian, or agent under durable power of attorney acting on [his / her] behalf.

[Option 2: Personal representative solely has option to make the election.]

(a) Making the portability election.

(i) Authorization. I authorize my personal representative, in my personal representative’s sole discretion, to make the portability election. My personal representative shall not be liable to any interested person for the decision to make, or not make, the portability election if the decision is made in good faith and with a reasonable basis.

(ii) Permitted actions. To make the portability election authorized above, my personal representative shall take all actions necessary, including but not limited to the filing of a federal estate tax return (even if a federal estate tax return would not otherwise be required for my estate) and making all required elections on that return.

(b) Election costs. The costs associated with making the portability election (election costs), including the expense of preparing and filing a federal estate tax return for my estate that would not otherwise have been required, shall be paid as a general expense of administering my estate in accordance with the section of this Article entitled “Payment of charges.”

(c) Disclosure of federal estate tax return. If the portability election is made, I authorize and direct my personal representative to provide a complete copy of my federal estate tax return, with all attachments, to my surviving spouse or, if my spouse is disabled, to a conservator, guardian, or agent under durable power of attorney acting on [his / her] behalf.

[Choose one version of ¶5.6, either the short or long form.]

[Short Form Powers]

5.6 Powers. I give to my personal representative [and trustee, if one is appointed,] all the authority possessed by a personal representative [and trustee] under Michigan law during the period my estate [and trust] is administered.

[Long Form Powers]

5.6 Powers. My personal representative [and trustee, if one is appointed], including successors, shall have the following powers without court order:

(a) Retention of assets. Retain assets I owned pending distribution or liquidation, including those in which a fiduciary is personally interested or that are otherwise improper for trust investment.

(b) Receipt of assets. Receive assets from fiduciaries or other sources.

(c) Contractual obligations. Perform, compromise, or refuse performance of my contracts that continue as obligations of my estate, as my fiduciary may determine under the circumstances. If the contract is for conveyance of real estate and requires warranties, my fiduciary may give the warranties, which will bind my estate but not my fiduciary,

except in a representative capacity. In performing enforceable contracts to convey or lease land, my fiduciary, among other possible courses of action, may

(i) Conveyance. Execute and deliver a deed of conveyance for cash payment of all sums remaining due or for the purchaser’s note for the sum remaining due secured by a mortgage on the land or

(ii) Contingent conveyance. Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to my successors, as designated in the escrow agreement.

(d) Charitable pledges. Satisfy my written charitable pledges irrespective of whether the pledges constituted binding obligations or were properly presented as claims if, in the judgment of the personal representative, I would have wanted the pledges completed under the circumstances.

(e) Investments. If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, then to invest and reinvest assets as would a prudent investor (operating under the Michigan Prudent Investor Rule) taking into account the purpose of the estate, its terms, its distribution requirements, and other circumstances; selecting investments as part of a coherent investment strategy that reflects appropriate risk and return objectives; and diversifying investments to minimize available risk unless relevant factors indicate diversification is inappropriate. In exercising these powers, my fiduciary may invest in and terminate investments in securities, common trust funds, and deposit accounts of any fiduciary or its affiliate or in a mutual fund of which any fiduciary or its affiliate serves as investment adviser or in any other capacity; may effect investment transactions through a brokerage company that is affiliated with a fiduciary; and may purchase annuities, insurance policies, and other insurance or investment products through an insurance company that is affiliated with a fiduciary.

(f) Acquisition and disposition. Acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale, and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset.

(g) Repairs and alterations. Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings.

(h) Administer real property. Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving consideration; grant or retain easements; dedicate easements to public use without consideration; or otherwise deal in real property, or any interest therein, as my fiduciary deems appropriate and without regard to the duration of such interests.

(i) Leases. Enter for any purpose into a lease as lessor or lessee, with or without the option to purchase or renew, for a term within or extending beyond the period of administration.

(j) Mineral interests. Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.

(k) Disclaimer. Disclaim property or interests in property transferred to my fiduciary and powers conferred on my fiduciary, provided that if a trust qualifies for a transfer tax deduction, only the trust beneficiary (or an agent or fiduciary acting on his or her behalf) may disclaim a beneficial interest of that trust.

(l) Abandon assets. Abandon property when, in the opinion of my fiduciary, it is valueless, is so encumbered, or is in condition that it is of no benefit to the estate.

(m) Vote securities. Vote or decline to vote securities, in person or by general or limited proxy, or enter into voting agreements or trusts for a term within or extending beyond the period of administration.

(n) Pay liabilities on securities. Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims.

(o) Nominee. Hold a security in the name of a nominee or in another form without disclosure of the interest of the estate, but my fiduciary is liable for any act of the nominee in connection with the security so held.

(p) Insurance. Insure the assets of the estate against damage, loss, and liability and my fiduciary against liability as to third persons.

(q) Borrow and loan funds. Borrow or loan money, with or without security, on such terms and interest rates as my fiduciary deems appropriate and from or to such persons and entities, including a fiduciary, an affiliate of a fiduciary, a beneficiary, a trust, or an estate, as my fiduciary deems advisable; repay borrowed money from estate assets; and advance money for the estate’s protection.

(r) Compromise. Effect a fair and reasonable compromise with any debtor or obligor or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If my fiduciary holds a mortgage, pledge, or other lien on property of another person, my fiduciary may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien.

(s) Expenses of administration. Pay taxes, assessments, compensation of my fiduciary, and other expenses incident to the administration of the estate.

(t) Exercise rights; reorganization. Sell or exercise stock subscription or conversion rights; consent to or participate in, directly or through a committee or other agent, the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.

(u) Principal and income allocations. Make reasonable allocations of receipts and disbursements between principal and income; my fiduciary (other than a fiduciary who is a beneficiary) may (1) consistent with Treas Reg 1.643(a)-3(b), allocate to income or to principal, or partly to income and partly to principal, all or part of the realized gains from the sale or exchange of fiduciary assets and (2) consistent with Treas Reg 1.643(a)-3(e), deem any discretionary distribution of principal as being paid from capital gains realized during the year and specify the tax character of any unitrust amount paid; my fiduciary may take any action that may be necessary in order for any such allocation, deeming, or specification to be respected for tax purposes.

(v) Agents. Employ and pay reasonable compensation for reasonably necessary services performed by auditors, accountants, investment advisers, or agents, even if they are associated with my fiduciary, to advise or assist my fiduciary in the performance of administrative duties; act without independent investigation on their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary.

(w) Attorneys. Employ an attorney to perform necessary legal services or to advise or assist the fiduciary in the performance of the fiduciary’s duties, and pay reasonable compensation for that employment.

(x) Legal proceedings. Prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of my fiduciary in the performance of my fiduciary’s duties.

(y) Sale of assets. Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit and with or without security for unpaid balances.

(z) Business interests. Retain and continue indefinitely, invest in, contribute capital to, sell, or liquidate any business or business interest in which I am engaged; manage the business or delegate discretionary power to manage the business; and effect incorporation, formation of a limited liability company, formation of a partnership or limited partnership, merger, consolidation, dissolution, or other combination or change in the form of the business.

(aa) Exoneration. Provide for exoneration of my fiduciary from personal liability in any contract entered into on behalf of the estate.

(bb) Distributions. Make distribution or division, partially or totally, in cash or in kind; allocate specific assets disproportionately; and determine the value of distributions in kind.

(cc) Tax elections. Make tax elections and enter into agreements that are appropriate in order to carry out my estate planning objectives and to reduce the overall burden of taxation, both in the present and in the future. This authority includes but is not limited to (1) electing to take expenses as estate tax or income tax deductions; (2) electing to allocate the exemption from the tax on generation-skipping transfers among transfers subject to estate or gift tax[; and (3) electing to have all or a portion of any transfer for my spouse’s benefit qualify for the marital deduction].

(dd) Division of estate or trusts. Divide portions of the estate, including portions to be allocated into trust, into two or more separate portions or trusts with substantially identical terms and conditions; allocate assets between them in order to simplify administration for generation-skipping transfer tax purposes, segregate assets for management purposes, or meet other estate or trust objectives; and combine portions or trusts that have previously been divided.

[DRAFTING NOTE: Add the following subsection whenever there is a testamentary trust in the will.]

(ee) Common ownership. Hold trust property of several trusts under this will in common ownership or in a common fund, each trust having an undivided interest in the property or fund, until actual division becomes necessary or desirable.

(ff) Deal with other fiduciaries. Enter into any transaction authorized by this Article with the fiduciary of any other trust or estate even though the other fiduciary is also a fiduciary under this document.

(gg) Benefit of transaction. Deal with the estate or trust on a fair, arm’s-length basis, having in mind that potential benefit from the transaction must inure to the estate or trust. [This includes the right of a corporate fiduciary to deal with its own stock. If a corporate fiduciary is acting as a fiduciary and its own stock is held as a part of the estate or trust, it shall delegate to its cofiduciary the power to vote such stock; or if it is acting as a sole fiduciary, it shall vote such stock pursuant to the directions of a majority in number of the beneficiaries who are competent adults.]

(hh) Delegation of powers. Delegate to a cofiduciary, from time to time, any of the administrative powers, but not powers of distribution, given under this will, except that no power to invade principal for a cofiduciary’s benefit may be delegated to him or her.

(ii) Substitute fiduciary. Petition the court having jurisdiction to request that the court exercise the fiduciary power or appoint a special, independent fiduciary to exercise the power on a temporary or permanent basis if the fiduciary is unable or unwilling to serve

or to exercise a fiduciary power, from time to time, regarding a specific estate matter or asset.

(jj) Benefits. Direct the payout of benefits from retirement plans, life insurance policies, and annuities and make tax elections connected with those payments.

(kk) Digital assets. Access, modify, control, archive, transfer, delete, and terminate my digital assets and the content thereof in any location, including my usernames, passwords, and any other electronic credentials related to my digital assets or digital devices. My personal representative may access, use, and control my digital devices in order to access my digital assets or communicate with and make requests to a digital custodian in order to exercise any of the powers provided herein.

(i) For purposes of this will, “digital asset” means an electronic record in which a user has a right or interest and does not include an underlying asset or liability unless the asset or liability is itself an electronic record, such as Bitcoin. Examples of digital assets shall include but not be limited to information created, generated, sent, communicated, received, or stored by electronic means on any electronic device that can receive, store, process, or send digital information, including but not limited to personal computers, tablets, peripherals, storage devices, cellular telephones, and any other similar device that currently exists or may exist as technology develops, including e-mail accounts, digital music files, digital photographs, digital videos, blogs, vlogs, written documents, software licenses, social media accounts, file-sharing accounts, financial accounts, bank accounts, domain registrations, web-hosting accounts, tax preparation and service accounts, online stores, affiliate programs stored on any media in any mode locally or remotely, and any other digital media currently in existence or that may exist as technology develops, regardless of the ownership of the physical device on which the media is stored. “Digital custodian” shall mean a person that carries, maintains, processes, receives, or stores a digital asset of a user.

(ii) To the maximum extent permitted by law, my personal representative is an authorized user, and the powers granted herein shall be considered or deemed to be my consent for all purposes of the Michigan Fiduciary Access to Digital Assets Act, MCL 700.1001 et seq., the Electronic Communications Privacy Act—Stored Communications Act, 18 USC 2701 et seq., the Computer Fraud and Abuse Act, 18 USC 1030 et seq., and any other applicable state enactment of the Revised Uniform Fiduciary Access to Digital Assets Act as they may be amended or substituted from time to time.

(ll) General authority. In general, exercise all powers in the management of the estate on such terms and conditions as seem best to my fiduciary and do all acts that are necessary or proper to carry out the purposes of this will. In furtherance of this general intent, I also authorize my fiduciary to exercise powers conferred by common or statutory law to the extent those laws may enlarge the authority specifically mentioned in these provisions.

(mm) Environmental matters. Respond to environmental concerns and hazards affecting estate assets, including but not limited to the following:

(i) Inspection and response. Inspect property and the operation of business activities on property held by the fiduciary, including property held in or operated by sole proprietorships, partnerships, or corporations, for the purpose of determining compliance with environmental law affecting such property and respond to any actual or threatened violation of any environmental law affecting property held by the fiduciary.

(ii) Remediation. Take any action necessary to prevent, abate, or otherwise remedy any actual or threatened violation of any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body.

(iii) Refuse additions. Refuse to accept property if the fiduciary determines that any property to be transferred to the fiduciary either is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving a hazardous substance that could result in liability to the trust or estate or otherwise impair the value of the assets held in the trust or estate.

(iv) Settle claims. Settle or compromise at any time any and all claims against the trust or estate that may be asserted by any governmental body or private party involving the alleged violation of any environmental law affecting property held in the trust or estate.

(v) Disclaim fiduciary powers. Disclaim any power granted by any document, statute, or rule of law that, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law.

(vi) Declination or resignation. Decline to serve or resign as a fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between it in its fiduciary capacity and in its individual capacity because of potential claims or liabilities that may be asserted against it on behalf of the trust or estate because of the type or condition of assets held therein.

(vii) Costs. Charge the cost of any inspection, review, abatement, response, cleanup, settlement of claim, or remedial action authorized in these provisions against the income or principal of the trust or estate.

(viii) Definitions and limitations. For purposes of these provisions, “environmental law” means any federal, state, or local law, rule, regulation, or ordinance relating to the protection of the environment or human health, and “hazardous substance” means any substance defined as hazardous or toxic or otherwise regulated by any environmental law. A fiduciary shall not be personally liable to any beneficiary or other party for any decrease in the value of assets in the trust or estate by reason of

the fiduciary’s compliance with any environmental law, specifically including any reporting requirement under such law. Neither the acceptance by the fiduciary of property nor a failure by the fiduciary to inspect property or business operations shall create any inference that there is or may be any liability under any environmental law with respect to such property or business operations. The authority granted by these provisions is solely to facilitate the administration and protection of estate and trust assets and is not to impose greater responsibility or liability on the fiduciary than imposed by law absent these provisions.

5.7 Limitations. In exercising the powers conferred under this will, my fiduciary shall be bound by the following limitations:

(a) Self-dealing. An individual fiduciary shall neither make a discretionary distribution of income or principal to satisfy his or her personal legal obligation to support another nor, if the fiduciary is a beneficiary, make a discretionary distribution of income or principal to him or her or for his or her benefit (except for distributions, when permitted, that are limited to the beneficiary’s health, education, support, or maintenance).

(b) Insurance. No fiduciary may exercise any incident of ownership over insurance owned by my estate or trust on his or her life.

Article VI. Definitions

6.1 Disability. A fiduciary or a beneficiary shall be deemed to be disabled if a licensed physician certifies or, if required, a court having jurisdiction determines that due to physical or mental conditions the person is unable to exercise judgment about or attend to property or financial matters. I desire that, if requested, any fiduciary or successor fiduciary sign an authorization under the Health Insurance Portability and Accountability Act permitting any cofiduciary or named successor fiduciary to receive medical information necessary to confirm his or her ability or inability to serve as fiduciary.

6.2 Survival. For purposes of this will only, a person has survived me or is living at a particular date only if he or she lives for more than 30 days after my death or after the particular date. Unless otherwise specifically provided in this will, a gift fails if a beneficiary does not survive and there is no substitute beneficiary indicated in this will who satisfies the conditions for taking. The provisions of an antilapse statute shall not apply to preserve a gift for a person or persons who are not identified as a substitute or substitutes in this will.


[DRAFTING NOTE: The first alternative is the Estates and Protected Individuals Code definition. The second alternative is the Revised Probate Code definition. The third alternative is pure per stirpes distribution.

[DRAFTING NOTE: EPIC §2106 (MCL 700.2106) defines “representation” differently than did RPC §108. RPC §108 followed a per stirpes distribution with allocation at the first

generation with a living member. (A pure per stirpes allocation makes the division into shares at the first generation, even if there is no living person in that generation.) EPIC §2106 contemplates a “per capita at each generation” distribution. An example will be illustrative. Assume X dies and had three children: A, B, and C. A survives (and A had one child who also survived). B predeceased with two children, and C predeceased leaving three children. Under the RPC, A would receive one-third, B’s one-third would be distributed equally between her two children, and C’s one-third would be distributed among her three children equally. Under EPIC §2106, the distribution is different. One share is created for each surviving descendant in the nearest generation to the decedent, and one share is created for each predeceased descendant in the same generation who left surviving descendants. The descendant in the nearest generation receives the one share, but the descendants in the next lower generation receive an amount equal to the combined shares divided by the number of the descendants in that next generation. In our example, A would still receive one-third, but the other two shares (comprising two-thirds of the estate) would be divided equally among the five children of B and C. If A also had predeceased but the allocation was per stirpes, A’s child would receive one-third. B’s two children would share one-third—i.e., one-sixth each; and C’s three children would get the remaining one-third, or one-ninth each.]

6.3 Representation. If assets pass under this will “by right of representation” to the descendants of a specified individual, the assets shall be divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the specified individual that contains one or more surviving descendants and (2) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one 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 specified individual. A posthumous child shall be considered as living at the death of the child’s parent.

6.3 Representation. If assets pass under this will “by right of representation” to the descendants of a specified individual, the assets shall be divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the specified individual that contains one or more surviving descendants and (2) deceased descendants in the same generation who left descendants who survived the specified individual, if any. Each surviving descendant in the nearest generation is allocated one share. The share of each deceased person in the same generation is divided among his or her descendants in the same manner. A posthumous child shall be considered as living at the death of the child’s parent.

6.3 Representation. If assets pass under this will “by right of representation” to the descendants of a specified individual, the assets shall be divided into as many equal shares as there are surviving children of the individual and deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision at each succeeding generation until the assets are fully allocated.

6.4 Child and descendant. Unless named in the section of Article I entitled “Identifications,” a “child” or “descendant” of mine or of another is limited to an individual so defined under Michigan law, but does not include an individual adopted after age 21 by someone other than me nor any adoptee older than the adoptive parent.

[Choose one.]

[DRAFTING NOTE: The first version of the signature form is not self-proving. The second two versions of the signature form are self-proving. The second requires a notary, and the third does not. Addresses of witnesses are optional but can help locate witnesses if necessary.]Dated: ____________ /s/____________

[Typed name]Testator

On [date], [name], the testator, signed the foregoing document as [his / her] last will. We witnessed the signing by the testator, and we now sign as witnesses and state that, to the best of our knowledge, the testator is 18 years of age or older, is under no constraint or undue influence, has sufficient mental capacity to make this will, and signed this document voluntarily.Witness 1

Dated: ____________ /s/____________[Typed name][Address (if desired)]

Witness 2

Dated: ____________ /s/____________[Typed name][Address (if desired) ]

[or]

I, [name], the testator, sign my name to this document on [date]. I have taken an oath, administered by the officer whose signature and seal appear on this document, swearing that the statements in this document are true. I declare to that officer that this document is my will; that I sign it willingly or willingly direct another to sign for me; that I sign it as my voluntary act for the purposes expressed in this will; that I am 18 years of age or older and under no constraint or undue influence; and that I have sufficient mental capacity to make this will.

/s/____________[Typed name]Testator

We, [name] and [name], the witnesses, sign our names to this document and have taken an oath, administered by the officer whose signature and seal appear on this document, to swear that all of the following statements are true: the individual signing this document as the testator signed the document as [his / her] will, signed it willingly or willingly directed another to sign it for [him / her], and signed it as [his / her] voluntary act for the purposes expressed in this will; each of us, in the testator’s presence, signs this will as witness to the testator’s signing; and, to the best of our knowledge, the testator is 18 years of age or older, is under no constraint or undue influence, and has sufficient mental capacity to make this will.

Witness 1


Witness 2


STATE OF MICHIGAN________ COUNTY

))

Subscribed and sworn to before me on [date].

/s/____________[Notary public’s name, as it appears on application for commission]Notary public, State of Michigan, County of [county].My commission expires [date].[If acting in county other than county of commission: Acting in the County of [county].]

[or]

I, [name], the testator, declare under penalty for perjury under the law of the state of Michigan that I sign my name to this document on [date]; that this document is my will; that I sign it willingly; that I sign it as my voluntary act for the purposes expressed in this will; that I am 18 years of age or older and under no constraint or undue influence; and that I have sufficient mental capacity to make this will.

Dated: ____________ /s/____________

[Typed name]Testator

We, [name] and [name], the witnesses, declare under penalty for perjury under the law of the state of Michigan that we sign our names to this document on [date], that the individual who signed this document as the testator signed the document as [his / her] will, signed it willingly or willingly directed another to sign it for [him / her], and signed it as [his / her] voluntary act for the purposes expressed in this will; that each of us, in the testator’s presence, signs this will as witness to the testator’s signing; and, to the best of our knowledge, the testator is 18 years of age or older, is under no constraint or undue influence, and has sufficient mental capacity to make this will.

Witness 1


Witness 2


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