A question many potential Michigan probate clients have is “how is a Last Will and Testament probated?”

The Michigan probate process is typically a 5-12 month process that begins with filing the appropriate forms with the local probate court. The Michigan probate court you need to file the appropriate forms and Last Will and Testament at depends on where the deceased resided. For example, if the decedent lived in Oakland county, then the Last Will and Testament would be probated at the Oakland County Probate court, located in Pontiac.

Depending on your goals the appropriate forms to open up a probate estate with a Last Will and Testament included the Application or Petition for Probate, Testimony of Interested Parties, Supplemental Testimony, Acceptance of Appointment, Register of Deeds and the Death Certificate of the Deceased. This is just a general starting point. In addition to this paper work, the filing fees and fees for the Letters of Authority must be paid to the court.

Now this only opens up the Michigan probate and starts the process. You now must navigate the Michigan probate process through the local county court, such as the Wayne County Probate Court, the Oakland County Probate Court, or the Macomb County Probate Court.

Christopher J. Berry, Esq., A Bloomfield Hills Probate Litigation Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Michigan Living Trusts, Living Wills, and Michigan Probate Litigation. We can be reached at 248-971-1700.

After a spirited discussion with another estate planning lawyer, I wanted to share some insight into the questions of who needs a living trust (revocable living trust). As a Michigan estate planning attorney, a common question I hear is “do I need a living trust?”. Like all questions posed to attorneys, the answer is “it depends.”

Let’s walk through a scenario. Take a young married couple with a new born baby. They have a house and one of the parents has some life insurance. Assuming they had a will based estate plan, but no living trust or testamentary trust and they had passed away in a car accident here is what would happen.

First, guardianship of their baby would probably be handled in the last will and testament. A Michigan probate would have to be opened. The house would of course have to be probated. Most likely the life insurance would not be probated because typically parents in this situation would name their child as a contingent beneficiary. Likewise for any retirement accounts. However, the retirement accounts and life insurance still are not handled in the best way because what happens now is that a court supervised conservator will have to be established to handle the financial management of any assets left to the child, since the child is a minor.

So, initially you are looking at 6-12 month Michigan probate process to transfer the house out of the deceased parents names. Most likely thousands of dollars in legal fees and court costs. That’s not the end of it though…

You also now have a 17 year living probate case that needs to be opened. The conservatorship for the children must be established. That means that for 17 years the Michigan probate court will be involved monitoring the activities of whoever was appointed conservator along with all the fees, costs and hassles that go along with the court process.

What a mess. That’s not all. At age 18 that child will now inherit everything in a lump sum that the conservator was managing. Regardless of the size of that inheritance, at age 18 if you had a lump sum of money in your bank, would you make good decisions with it?

Now, lets say they had a Michigan living trust based estate plan. They’ve passed away. Immediately the person they’ve named as trustee who is a family member or family friend now manages the assets for the children and ensures the assets, including house, life insurance, and retirement accounts. There is little to no court involvement, there is no time consuming, costly Michigan probate, and there is no 17 year long living probate with a conservator and court monitoring. Plus, the trust that was set up can push the child towards college with incentives and can distribute assets at a later age, say 25, 30 and 35, when the child is more mature to handle the money.

Now if you are a parent with a young child, you don’t have millions, but you want to ensure your child is protected and that if something happened to you, things would be handled in a way not only best provided for your child, but also that was as low stress as possible given the situation, which scenario would you choose?

Do you need a living trust?

A Unitrust is a type of trust where a certain percentage of annually assess fair market vale of trust property is paid to the trust’s beneficiary. Quite often a Unitrust is used as a Charitable Remainder Uni Trust (CRUT). A Unitrust will usually be revalued at the beginning of every year. Think of the Unitrust as a variable annuity that pays a different amount of income based upon the value of the principal. Unitrusts can be used as a way to assist with college funding or a way to convert appreciated assets into a high yielding diversified portfolio without incurring any capital gains tax.

This is an irrevocable type of trust, which differs from your common revocable living trust in that the terms cannot necessarily change or be revoke like you can with a living trust.

Christopher J. Berry, Esq., A Macomb County Estate Planning Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Michigan Elder Law, Michigan Living Wills, and Michigan Probate Litigation, serving Oakland County, Macomb County, and Wayne County. We can be reached at 248-971-1700.

In the continuing news of the Estate of Michal Jackson, NPR.org is reporting that the probate judge has appointed Michael Jackson’s mother, Katherine Jackson, as guardian of his children.

As we saw in Michael Jackson’s Last Will and Testament, this was his wishes since he named her as guardian in the document. Per NPR, Mrs. Jackson was the only person to petition the probate court for formal custody of the children. Additionally, there seems to be a custody agreement between Katherine Jackson and Michael Jackson’s ex-wife, Deborah Rowe.

You can read the NPR article here: Judge Names Michael Jackson’s Mom as Guardian.

If a Person Passes and No Will is Enforced, Who Takes the Property of the Deceased?

August 31, 2009

Filed under: Estate Administration,Estate Planning,Probate — Christopher J. Berry @ 12:17 am

Today’s Michigan Estate Planning and Michigan Probate common question heard is “if a person passes in Michigan and no Last Will and Testament is enforced, who takes or gets the property of the deceased, including personal things, etc?”

In Michigan, if you pass away without a Last Will and Testament, which is called intestate, then you follow the Michigan laws of intestacy. While it can be complicated, basically, the spouse (if any) of the deceased is entitled to an adjusted $100,000 or $150,000 of the estate plus and additional amount. Then the children or parents are entitled to a smaller amount.

There are many permutations and fact patterns, that is why it is important to speak with a Michigan probate or Michigan estate administration attorney to walk you through the process.

As an aid, the following is an excerpt from the Michigan Estates and Protected Individuals Code, commonly called in Michigan, EPIC.

700.2101 Intestate estate.
(1) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act, except as modified by the decedent’s will.
(2) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent that passes by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share.

700.2102 Share of spouse.
(1) The intestate share of a decedent’s surviving spouse is 1 of the following:
(a) The entire intestate estate if no descendant or parent of the decedent survives the decedent.
(b) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent.
(d) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent.
(e) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse.
(f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse.

700.2103 Share of heirs other than surviving spouse.
Any part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:
(a) The decedent’s descendants by representation. (b) If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent.
(c) If there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation.

(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the 1/2.

700.2105 No taker; effect.
If there is no taker under the provisions of this article, the intestate estate passes to this state.

700.2106 Representation.
(1) If, under section 2103(a), a decedent’s intestate estate or a part of the estate passes by representation to the decedent’s descendants, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 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 decedent.
(2) If, under section 2103(c) or (d), a decedent’s intestate estate or a part of the estate passes by representation to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 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 decedent.
(3) As used in this section:
(a) “Deceased descendant”, “deceased parent”, or “deceased grandparent” means a descendant, parent, or grandparent who either predeceased the decedent or is considered to have predeceased the decedent under section 2104.
(b) “Surviving descendant” means a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under section 2104.

700.2107 Relative of half blood.
A relative of the half blood inherits the same share he or she would inherit if he or she were of the whole blood.

If you want to read the whole Michigan Estates and Protected Individuals Code in it’s entirety, you can read it here: Michigan EPIC.

Christopher J. Berry, Esq., An Oakland County Probate Lawyer, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Michigan Living Trusts, Living Wills, and Michigan Probate Litigation, serving Oakland County, Macomb County, and Wayne County. We can be reached at 248-971-1700.

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	If a Person Passes and No Will is Enforced, Who Takes the Property of the Deceased? August 31, 2009 Filed under: Estate Administration,Estate Planning,Probate — Christopher J. Berry @ 12:17 am Today’s Michigan Estate Planning and Michigan Probate common question heard is “if a person passes in Michigan and no Last Will and Testament is enforced, who takes or gets the property of the deceased, including personal things, etc?” In Michigan, if you pass away without a Last Will and Testament, which is called intestate, then you follow the Michigan laws of intestacy. While it can be complicated, basically, the spouse (if any) of the deceased is entitled to an adjusted $100,000 or $150,000 of the estate plus and additional amount. Then the children or parents are entitled to a smaller amount. There are many permutations and fact patterns, that is why it is important to speak with a Michigan probate or Michigan estate administration attorney to walk you through the process. As an aid, the following is an excerpt from the Michigan Estates and Protected Individuals Code, commonly called in Michigan, EPIC. 700.2101 Intestate estate. (1) Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs as prescribed in this act, except as modified by the decedent’s will. (2) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent that passes by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. 700.2102 Share of spouse. (1) The intestate share of a decedent’s surviving spouse is 1 of the following: (a) The entire intestate estate if no descendant or parent of the decedent survives the decedent. (b) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.(c) The first $150,000.00, plus 3/4 of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent. (d) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has 1 or more surviving descendants who are not descendants of the decedent. (e) The first $150,000.00, plus 1/2 of any balance of the intestate estate, if 1 or more, but not all, of the decedent’s surviving descendants are not descendants of the surviving spouse. (f) The first $100,000.00, plus 1/2 of any balance of the intestate estate, if none of the decedent’s surviving descendants are descendants of the surviving spouse. 700.2103 Share of heirs other than surviving spouse. Any part of the intestate estate that does not pass to the decedent’s surviving spouse under section 2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent: (a) The decedent’s descendants by representation. (b) If there is no surviving descendant, the decedent’s parents equally if both survive or to the surviving parent. (c) If there is no surviving descendant or parent, the descendants of the decedent’s parents or of either of them by representation. (d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the 1/2. 700.2105 No taker; effect. If there is no taker under the provisions of this article, the intestate estate passes to this state. 700.2106 Representation. (1) If, under section 2103(a), a decedent’s intestate estate or a part of the estate passes by representation to the decedent’s descendants, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 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 decedent. (2) If, under section 2103(c) or (d), a decedent’s intestate estate or a part of the estate passes by representation to the descendants of the decedent’s deceased parents or either of them or to the descendants of the decedent’s deceased paternal or maternal grandparents or either of them, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 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 decedent. (3) As used in this section: (a) “Deceased descendant”, “deceased parent”, or “deceased grandparent” means a descendant, parent, or grandparent who either predeceased the decedent or is considered to have predeceased the decedent under section 2104. (b) “Surviving descendant” means a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under section 2104. 700.2107 Relative of half blood. A relative of the half blood inherits the same share he or she would inherit if he or she were of the whole blood. If you want to read the whole Michigan Estates and Protected Individuals Code in it’s entirety, you can read it here: Michigan EPIC. Christopher J. Berry, Esq., An Oakland County Probate Lawyer, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Michigan Living Trusts, Living Wills, and Michigan Probate Litigation, serving Oakland County, Macomb County, and Wayne County. We can be reached at 248-971-1700. Share this: LinkedIn Facebook Twitter Pinterest Email Print Comments (0) Ted Kennedy’s Death Reminds Us of our Priorities, including Estate Planning August 28, 2009 Filed under: Estate Planning — Christopher J. Berry @ 12:19 am Whenever an icon or celebrity passes, such as Michael Jackson, Steve McNair, Ed McMahon, Heath Ledger, and now Senator Edward (Ted) M. Kennedy, it reminds us that we are not invincible and that we need to take responsibility and plan for our passing or incapacity. Jill Schlesinger at CBSnews.com has wrote an interesting blog about this very topic. You can read it here: Kennedy’s Death Reminds Us of Priorities. In her article she talks about as a financial planner, the biggest mistake she saw people making was not their portfolio allocation, but their lack of proper estate planning. She ends her article with the following advice, “Investment mistakes can be corrected easily-negligence in estate planning is irrevocable once a person dies. So as you watch the coverage of Ted Kennedy’s life today and take a breather from Bernanke, the economic recovery and the current stock market, write a note to yourself which says: “See lawyer re: wills, etc.” Even if you have these documents, remind yourself to revisit them to make sure they are up to date. We can always talk about the economy tomorrow.” Couldn’t have said it better myself. Christopher J. Berry, Esq., A Bloomfield Hills Estate Planning Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Michigan Living Trusts, Living Wills, and Michigan Probate Litigation, serving Oakland County, Macomb County, and Wayne County. We can be reached at 248-971-1700. Share this: LinkedIn Facebook Twitter Pinterest Email Print Comments (0) What Happens if a Person Does not have a Michigan Power of Attorney August 27, 2009 Filed under: Holistic Estate Planning,Power of Attorney — Christopher J. Berry @ 12:21 am As a Michigan probate lawyer, a question I have seen is “what happens if a person does not have a power of attorney?” Like all good legal answers, it depends. It really depends on the facts and what the future holds. Basically, if you were incapacitated and did not have an executed power of attorney form, the probate court would be forced to appoint a conservator and/or guardian for you to manage your financial affairs on your behalf. This conservatorship would then be monitored by the court. This is what we call a Living Probate. This Living Probate could last for years with continuous court involvement and legal fees. Now if that same person had executed a durable power of attorney prior to incapacitation they would be able to avoid the whole court created guardianship and conservatorship process. The power of attorney document would have language appointing who would serve the role and how the agent in fact would serve in their role. With a power of attorney, the process is streamlined, more cost effect, and you’re able to exert more control over the decisions you were able to make with regard to the powers of the attorney. Christopher J. Berry, Esq., An Oakland County Estate and Trust Attorney, is a Partner with The Law Office of Witzke Berry PLLC, which practices in the areas of Estate Planning, Michigan Medicaid Planning, and Michigan Probate Litigation. Share this: LinkedIn Facebook Twitter Pinterest Email Print Comments (0)						(248) 481-4000 Free Initial Consultation Name* Email* Phone Comments Phone This field is for validation purposes and should be left unchanged. 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