Are you looking for a local estate planning attorney?
Michigan has a specific statute that covers the estates of decedents. If you live in Michigan, you need an attorney who is familiar with Michigan probate laws as well as the Internal Revenue Code to effectively handle your Michigan estate plan. Estate planning is a difficult subject to talk about. Let’s face it, nobody wants to think about their ultimate demise. Nonetheless, death for all of us is inevitable. Estate planning is not for you, it is for the loved ones left behind.
So, what is estate planning?
Well, simply put, estate planning is the process of passing your assets to those persons whom you want to receive them, for the least possible cost, at the least burden to your survivors. This could mean using anything from a simple will to a complex estate plan using various forms of trusts. Estate planning is not simply for the rich. Setting up an estate plan is essential for everyone who has any kind of property or minor children. Most people know what a will is and have some understanding what a trust actually is. However, most people do not know how these documents fit into their complete estate plan. We look at wills and trusts as only but a couple of tools to use to set up a complete estate plan.
How to get started
At Barone Law, we try to simplify the process as much as possible for you. We realize that you are busy and, let’s face it, it is a difficult subject to plan for. The first step is to contact our office to schedule an appointment. This can even be done directly online without even picking up the phone (simply select Attorney Consultation-Estate Planning–please note–the fee charged for booking online $150 will be credited to your account if you choose our office to complete your estate plan). It is helpful to download our Estate Planning Worksheet, fill it out to the best of your ability, and bring it to your appointment. From there, we recommend the best plan for you and your family after which we send you rough drafts of the documents for your review. You then would contact our office to ask questions or make any needed changes. Finally, you schedule your signing appointment. Viola! That’s all there is to it so why not get started today by contacting our office?
Durable Power of Attorney
Perhaps one of the most forgotten estate planning tools is the durable power of attorney. The power of attorney is a legal document that allows you to designate who can act for you in case of your incompetence.
For example, if your spouse has become mentally incompetent due to an accident or illness, and you wish to sell the family home so that you can move closer to your spouse’s family, someone has to be able to sign the closing papers on your spouse’s behalf. Just because you are legally married does not give you the right to sign for him or her.
For example, if your spouse has become mentally incompetent due to an accident or illness, and you wish to sell the family home so that you can move closer to your spouse’s family, someone has to be able to sign the closing papers on your spouse’s behalf. Just because you are legally married does not give you the right to sign for him or her.
Without a durable power of attorney, a conservator would have to be appointed by the probate court. This typically requires a probate court hearing and testimony from medical professionals.
Patient Advocate Designations
Many times, an individual becomes ill and is unable to communicate his or her wishes regarding health care decisions. A patient advocate designation allows an individual to designate a patient advocate to make medical decisions on his or her behalf when he or she is unable to communicate his or her own wishes. A patient advocate also allows individuals to make pre-determined choices regarding life support, thereby telling family members what his or her wishes are regarding difficult life support decisions.
A patient advocate avoids the need to appoint a Guardian to make medical decisions. See MCL 700.5306 which states, “If the court is aware that an individual has executed a patient advocate designation under Section 5506, the court shall not grant a guardian any of the same powers that are held by the patient advocate.” However, MCL 700.5306 provides an exception to this rule if: (a) the patient advocate designation was not executed properly; or (b) the patient advocate is acting improperly.
A patient advocate also provides family members with directions regarding life support, decreases the response time for making medical decisions because there is no need for court involvement and the treating physician knows who has the authority to make medical decisions.
Everyone Needs a Will
A will is important because if you do not designate who will inherit your property, our state statute will. And, very likely, the statutory distribution scheme (known as intestate distribution) will differ from your wishes.
Typically, intestate law divides the decedent’s estate between the surviving spouse and children. The distribution scheme of our intestacy laws vary depending on if the decedent leaves surviving parents or children from a previous marriage. If your children are minors, the court will require a conservator to be appointed to receive and manage the property the children inherit. This can be a cumbersome and expensive process, requiring court supervision throughout the children’s minorities.
Perhaps most important, a will gives you the opportunity to designate a guardian for your children. You have better insight than a court into which of your relatives or friends will best be able to care for your children, both emotionally and financially. Your will can put the structure in place, designating the best person for each type of function.
A will also can simplify the probate process for your survivors. For example, you can designate a personal representative (also known as an executor) to handle your estate. You can direct how taxes and debts should be paid. If you so desire, you can waive or require supervised or independent administration. You can waive any requirements that your personal representative post a bond.
A revocable living trust is typically used by estate planners as a method of avoiding probate. If assets are owned by a trust, court involvement is not required to transfer assets upon death. Probate only arises when the legal owner of property dies, leaving no joint owner or beneficiary.
A living trust is an estate planning document which:
- Avoids probate of the estate, so no court is involved.
- Reduces fees associated with administering a probate estate.
- Keeps your plan of distribution private.
- Provides for management of assets by a family member or an institution (if you prefer) if you are unable to manage assets due to health problems and avoids proving incompetency in court.
- Helps in organizing lists of assets for personal financial planning and helps beneficiaries in locating assets.
- Allows for optimum tax planning using federal and state income, gift, and estate tax law, yet requires no extra tax returns or filings.
- Does not affect your ability to manage and control your own property and does not require management fees to be paid to anyone unless you wish to appoint an outside manager.
Despite what you may have heard, there is no hard and fast rule to determine when you should use a living trust as part of your estate plan. One of the main reasons a person executes a living trust is to avoid the expense and delays associated with administering your estate through the probate court. These fees can easily reach thousands of dollars in court costs and attorney fees. A living trust is a document that is signed during your lifetime where you maintain complete control over your assets for as long as you are alive and competent.
At your death, your successor trustee distributes your assets according to the plan you set forth in your living trust. All of this happens without the need for probate court proceedings.
Some people feel that if they have a Last Will and Testament, their loved ones do not need to involve lawyers and the probate court. This is wrong. If you have assets in your own name, a Will won’t avoid the probate court. On the contrary, you can think of a properly executed Will as your “admission ticket” to court. A personal representative must be appointed and your estate will have to be administered in the probate court for the county in which you lived at the time of your death. A properly drafted and executed revocable living trust can avoid this.
For a complete analysis of your particular situation, please contact our office for a free and confidential consultation with one of our attorneys. For those individuals that have a difficult time getting to our office, we also offer our unique “Lawyer on Call” service where one of our attorneys comes to your house to discuss your plan and sign your documents. Our fees are clearly spelled out for and you will not be charged until you authorize us to draft your estate plan.
The time you spend today can save your loved ones thousands of dollars and hours of heartache in the future!!
Please feel free to contact our office should you have additional questions about living trusts and the benefits they could provide to you.
For a more detailed discussion on the Federal Estate Tax and its implication for a married couple, please see the thesis paper authored by Joe Barone below:
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For a comprehensive evaluation of your estate planning needs, please click the link below and fill in the required information. Please note, you will not be able to save the data input into the form. After filling out the form, please print a copy and return it to our office by dropping it off or mailing it to us. Alternatively, you can fax the completed form to us at (734) 414-0359 or scan and email it to our office at joe@baronelaw.net. We will contact you shortly.
estate_planning_worksheet.pdf
