Michigan Guardianship Duties | Living Probate & Annual Reports

December 26, 2008

Filed under: Estate Planning,Probate — Christopher J. Berry @ 7:15 pm

Most people when they hear the word “probate” think of the probate that occurs when someone passes away without using a living trust or other probate avoidance device.  There is also what is called “living probate.”  This is the court procedure of apppointing a guardian or conservator to serve for the benefit of a minor or legally incapciated individual.

I was recently reviewing a Wayne County guardianship file.  The guardian was appointed to oversee an incapacitated ward suffering from dementia.  I was reviewing the file to ensure that the guardian was aware of the duties of serving as a guardian in a Michigan guardianship case.

Once appointed one of the key duties the guardian, who is appointed to oversee a legally incapacitated individual, must be aware of is the requirement of the completion of the Annual Report of Guardian on Condition of Legally Incapacitated Individual.  All records should be maintained throughout the year to aid in completing this form.  Failure to complete the report is a sure fire way to face the ire of the court and possibly get removed from your role as guardian.

-Christopher J. Berry, Esq.
Michigan Estate Planning Lawyer

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Michigan Senior News | Social Security Benefit Increase

December 23, 2008

Filed under: Elder Law,Estate Planning,Holistic Estate Planning — Christopher J. Berry @ 7:16 pm

Monthly Social Security and Supplemental Income benefits will be increasing in 2009.  55 Million Americans will see a jump in their benefits of 5.8%.  This jump in benefits is the largest by SSA since 1982.  You can read more at the Social Security webpage.

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Michigan Senior Misinformation | By Our Own State Representatives?

December 22, 2008

Filed under: Elder Law,Estate Planning,Holistic Estate Planning — Christopher J. Berry @ 7:17 pm

I was at my local library in Oakland county (I don’t want to name which library) and a booklet caught my eye near the entrance.  The booklet was entitled “Changes and Choices; Legal Rights of Senior Adults.”  As a Michigan estate planning lawyer who also focuses on Michigan elder law and senior issues, I was intrigued.  I saw a long time state representative  (I won’t name who, it’s not important) had affixed his information to the booklet.

I thought, “well that is a helpful resource.”  A guide to advise Michigan seniors.  So, I grabbed a free copy and took it back to my office.

Well, the first thing I noticed on this guide to Michigan seniors was the date of publication.  It was printed in 2005.  Quite a bit has changed since 2005, especially in terms of Medicaid planning.  That was the first red flag.

I flipped through a couple pages and quite frankly, I was taken aback by the amount of misinformation, out dated law, and blatantly wrong statements.

For example, the whole section on Medicaid is outdated, as the rules and law are currently in flux with estate recovery in Michigan on the horizon (when the Feds at the Center for Medicaid Services accept our proposed plan).

The next big issue I saw was the definition of tenancy by the entirety.  According to the Michigan senior guide, this type of ownership is the exact same as joint tenants with full rights of survivorship, but for husband and wife.  This is blatantly wrong!  Tenancy by the entirety, sure is between husband and wife, but there are added benefits including added levels of creditor protection.  This is vitally important when deciding to fund a trust with a residence between husband and wife in Michigan.

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Family Matters in Estate Planning | Choosing A Guardian For Your Children

December 20, 2008

Filed under: Estate Planning,Holistic Estate Planning,Planning for Parents with Minor Children — Christopher J. Berry @ 7:17 pm

As a Michigan estate planning lawyer, one of the most important decisions I walk my clients through during the estate planning process is who to choose for guardians of their minor children.  This is a key decision if the children are orphaned.  You do not want them spending time in foster care or letting a judge who is not familiar with the family dynamics choose who will raise the children.

In Michigan, even if you are separated or divorced, the surviving biological parent will continue to be the legal guardian, assuming their is not a court order that the surviving parent is unfit. However, if their is no surviving biological parent, then the choice falls to you and must be made by appointing a guardian in your estate planning documents.

This decisions is one of the most difficult decisions for parents to make.  As a Michigan estate planning lawyer, this is one of the areas where my counsel aids in the decision making.  You won’t find this assistance in wills bought from office supply stores, Suze Ormand trust kits, Quicken Willmaker, or Legalzoom downloaded estate plans.  This is another area where estate planning is more than just preparing documents.

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Don’t Look A Gift House in the Mouth | Adding Children to The Deed of Your House

December 19, 2008

Filed under: Elder Law,Estate Planning,Living Trust,Probate — Christopher J. Berry @ 7:19 pm

Many people want to avoid Michigan probate.  Typically one of the largest assets people have when they pass is their home.  There is a poor estate planning “strategy” bouncing around out there that if you add your children to the deed of your house as joint tenants that the house will avoid Michigan probate and everything will be swell.  Easy enough, no need to talk to a Michigan estate planning lawyer…

Well, the house WILL avoid probate through this gifting strategy.  However, I hope your kids are ready for a hefty tax hit.

Let’s look at an example.  Say you had purchased your home for $50,000.   Now let’s say the house is worth $500,000 (in this economy?  Let’s think positively.)  If you were to sell the house today (assuming you could) you would be on the hook for a capital gains tax for the difference in the purchase price and sale price or $450,000 in this situation.

By adding kids to to the title of the property now, after you pass if they sold the house they would owe taxes on $450,000.

Now if you sold your own home, you could get some tax breaks.  But not your kids.  Your kids would face the capital gains tax that would depend on their tax bracket.  This could stick your kids with a tax bill of $67,000 in our scenario.

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Michigan Financial Power of Attorney Explained | Springing vs. Durable Power of Attorney

December 18, 2008

Filed under: Estate Planning,Power of Attorney — Christopher J. Berry @ 7:20 pm

To complete a comprehensive Michigan estate plan you need to have powers of attorney in addition to your will or living trust.  The key to powers of attorney are to the know the different types and which one fits your specific situation.

As a Michigan estate planning lawyer, it is my duty to educate clients on the differences and help them customize the documents to their individual situation.

A Michigan financial power of attorney is a document that is used to appoint someone to make financial decisions and sign legal documents on your behalf.  There are actually two types of financial powers of attorney.

One type is called a “springing” power of attorney.  This type of financial power of attorney does not go into effect until there is a stated event, such as disability proven by two licensed physicians signing letters stating the disability.

The second type of financial power of attorney in Michigan is called a “durable” power of attorney.  This document is similar to the springing power of attorney in that it gives power to another to make financial decisions and sign legal documents.  However, instead of springing into life upon disability, it is effective immediately.

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Macomb County Probate and Letters of Authority

December 17, 2008

Filed under: Estate Planning,Probate — Christopher J. Berry @ 7:21 pm

Today I was filing to open a Macomb County probate for a client’s deceased relative and I remembered another frustration I have with the whole probate process.  As a Michigan estate planning lawyer, my goal is to help my clients avoid probate, when possible.  However, occasionally, our clients will have loved ones and family members pass who were not our clients.  Therefore, they will need lawyers to help with Oakland County Probate, Macomb County Probate, and Wayne County Probate.

Well, the remembered frustration is the differing processes to receive Letters of Authority.  Letters of Authority are necessary for the Personal Representative to handle transitioning accounts in the name of the estate.

The issues is that Macomb County Probate court mails out letters of authority.  Wayne Country Probate court, where I was yesterday, will prepare the forms for you immediatly.

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Estate Planning Gone Wrong | Part 2

December 31, 2008

Filed under: Estate Administration,Estate Planning,Probate — Christopher J. Berry @ 7:10 pm

In Part 1 of Estate Planning Gone Wrong, I talked about how, as a Michigan estate planning lawyer, I have seen some common issues in messy Michigan estate administrations and probates from clients who did not do their estate planning with our law firm.  Notably when they do their estate plan themselves.

The second major issue we commonly spot is when an individual executes an estate plan with another lawyer or law firm, but then never updates their plan.  This does not happen at our Bloomfield Hills estate planning law firm because we have a system in place called Foundations, where we review with our clients their estate plans on an annual basis.

Too often people think estate planning can be “one and done,” where once they have executed their estate plan they can forget about it until they pass or are incapacitated.  However, this is not the case.  If you create an estate plan while your are young with no children, then do not update the plan until you pass or are incapacitated when you’re in your 80′s, do you think your original estate plan will meet your goals?  Of course not.

Continue reading “Estate Planning Gone Wrong | Part 2″ »

Year End Estate Planning | How Does Your To-Do List Look?

December 30, 2008

Filed under: Estate Planning,Living Will,Will — Christopher J. Berry @ 7:13 pm

last will.jpgAs the end of the year approaches, most people start reflecting on things they did or did not accomplish in 2008.  Frequently, people may have estate planning on their to-do list, but procrastination leads to rolling it over to the next year.  As a Michigan estate planning lawyer, I know this first hand as their have been people that have contacted our Bloomfield Hills estate planning law firm, but never followed through on the planning.

If you have not done an estate plan (will or trust based estate plan), you are not alone.  A Lawyers.com survey concluded that more than half of adults do not have a will.

Continue reading “Year End Estate Planning | How Does Your To-Do List Look?” »

Estate Planning Gone Wrong | Part 1

Filed under: Estate Administration,Estate Planning,Probate,Will — Christopher J. Berry @ 7:11 pm

As Michigan estate planning lawyers, our clients appreciate the work we put in to make sure their estate plans are properly set up and work the way our clients want and expect.  Unfortunately, we also review estate plans and handle the estate administration and Michigan probates for people that did not do their initial estate planning with our Bloomfield Hills law firm.

These estates that haven’t gone well that were not handled by our firm typically have a few common issues or planning mistakes.

One of the biggest problems we see that leads to a messy estate administration is people doing it themselves.  Thanks to the internet (Legalzoom), software (Quicken Willmaker), and personal finance “gurus” (Suze Orman), many people think they can set up their estate plan on their own.  They think that their situation is simple and maybe they just need a simple will.  Unfortunately, every family situation is a little different, and downloading a one-size fits all estate plan just doesn’t cut it.  These types of plans often lead to higher administration expenses and legal fees when the person who uses these products passes.   Thereby leaving the burden to loved ones.

Continue reading “Estate Planning Gone Wrong | Part 1″ »


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