December 2008 Archives

December 31, 2008

Estate Planning Gone Wrong | Part 2

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" »

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December 30, 2008

Estate Planning Gone Wrong | Part 1

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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December 30, 2008

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

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?" »

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December 26, 2008

Michigan Guardianship Duties | Living Probate & Annual Reports

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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December 23, 2008

Michigan Senior News | Social Security Benefit Increase

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.

Continue reading "Michigan Senior News | Social Security Benefit Increase" »

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December 22, 2008

Michigan Senior Misinformation | By Our Own State Representatives?

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.

Continue reading "Michigan Senior Misinformation | By Our Own State Representatives?" »

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December 20, 2008

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

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. 

Continue reading "Family Matters in Estate Planning | Choosing A Guardian For Your Children" »

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December 19, 2008

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

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.

Continue reading "Don't Look A Gift House in the Mouth | Adding Children to The Deed of Your House" »

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December 18, 2008

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

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.

Continue reading "Michigan Financial Power of Attorney Explained | Springing vs. Durable Power of Attorney" »

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December 17, 2008

Macomb County Probate and Letters of Authority

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.

Continue reading "Macomb County Probate and Letters of Authority" »

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December 16, 2008

Macomb County Probate | Wills Don't Avoid Probate

I'm in the process of opening up a Macomb County Probate case.  The deceased had a will, but as I've mentioned before, a will does not avoid the probate process. 

If you want to avoid the probate process, the best way is to have a Michigan Living Trust Lawyer draft, and then assist you in funding, a revocable living trust.

In this case, instead of a smooth, quick transfer of assets through a trust, the heirs will have to go through the drawn out process of the probate system.  I have to prepare the probate documents, travel to Macomb county probate court to file, wait the statutory time for the inventory, etc, etc, etc.


Continue reading "Macomb County Probate | Wills Don't Avoid Probate" »

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December 15, 2008

Wayne County Probate | Fund Your Trust!

Today I had to open a new Wayne County Probate for a new client.  The client had executed a living trust with another lawyer.  Unfortunately, the deceased and the old attorney failed properly fund the living trust.  Because of this failure to correctly fund the revocable trust, some assets must be probated and put through the Wayne County Probate system.

The tough part of the situation is that through proper funding of the trust, the probate process could have been avoided.  Now we have to go through a six month to year long process with court involvement.

Continue reading "Wayne County Probate | Fund Your Trust!" »

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December 12, 2008

Term Life Insurance or Whole Life Insurance

For many people, choosing the right type of life insurance can be a complex and daunting experience.  This sounds very similar to the estate planning process.  Often people looking to their insurance provider, financial planner,or Michigan estate planning attorney for advice on the different types of insurance available.

As a Michigan estate planning lawyer, I do not sell the insurance or tell clients which insurance to get, but I will educate them on the difference between the types of insurance available.  I leave the selling, recommendations,  and specific advice to the insurance professionals and financial planners.

Often people are confused with the difference between term insurance and whole life insurance.

Continue reading "Term Life Insurance or Whole Life Insurance" »

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December 12, 2008

IRAs & FDIC Insurance

There is quite a bit of misinformation out there regarding FDIC Insurance.  Unfortunately, some of this is coming from the bank staff themselves. This was a discussion topic amongst a national listserve of estate planning lawyers that I am a member of.

 To clear up some misunderstandings, IRA's are covered by FDIC insurance if the account is held at an FDIC insured institution.

Continue reading "IRAs & FDIC Insurance" »

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December 11, 2008

Smart Money | Estate Planning Without Anxiety

In this down economy, especially in Michigan, planning for today seems more important than planning for the future.  That unfortanly leads to even more procrastiantion when it comes to individuals preparing their estate plan.

Smart Money has an article entitle "Estate Planning Without Anxiety".  The article discusses some simple steps to take so that you can plan your estate without anxiety.

They first recomendation is to take stock of everything you own.  I recently worked with clients who were helping their parents with their estate plan.  I told them that it is much easier when everyone is around to organize accounts, passwords, documents, deeds then once someone has passed. 

The rest of the article talks about Federal Estate Taxes and advanced estate planning techniques including Credit-Shelter Trusts, Generation-Skipping Trusts, Qualified PErsonal Residence Trusts,  and Irrevocable Life Insurance Trusts,  

Continue reading "Smart Money | Estate Planning Without Anxiety" »

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December 10, 2008

Estate Planning is More Than Just Passing Along Money

The other day I was meeting with another professional in our Bloomfield Hills office and we started talking about financial and estate planning.  We both shared the view that estate planning is more than just passing along assets to the next generation.  Estate planning is about passing on a legacy. 

Included in a legacy are family values, beliefs and spiritual principals.  I argue passing down this legacy is more important than just financial assets. 

Continue reading "Estate Planning is More Than Just Passing Along Money" »

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December 9, 2008

Michigan Estate Planning How-To | How to Choose Fiduciaries

Choosing the correct trustee for your trust, personal representative for your will, and agents for your financial and health care powers of attorney are some of the most important estate planning decisions that you can make.  As Michigan estate planning lawyers, we often assist our clients in making these tough decisions through compassionate counseling (something you won't get with Legalzoom, Suze Orman, or any of the other "trusts in a box" sources).

Continue reading "Michigan Estate Planning How-To | How to Choose Fiduciaries" »

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December 8, 2008

Michigan Estate Plans Need to Be on the Agenda

With asset prices, interest rates, and our economy down, this is an opportune time for retirees and seniors to look to working on their Michigan estate planning needs.  Unfortunately, many are tightening their budget and not interested.

Janet Kidd Stewart wrote an article for the Chicago Tribune entitled "Estate Plans need to be on the Agenda."  In the article she talks about how with the down economy, one must also look to adjusting their estate plan to reflect the changes in the markets.

She writes:
Wealthy or not so wealthy, many retirees are scaling back this year on what they will do for their heirs. Wealthier families are re-examining tax strategies that involve gifts to family and charities, and retirees with more modest portfolios are reducing their help for adult children so they can preserve more of what is left of their nest eggs, financial advisers said.
This is particularly true in Michigan, where we have been hit hard by the downturn in the economy. 

Continue reading "Michigan Estate Plans Need to Be on the Agenda" »

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December 5, 2008

Discussion in Estate Planning | Should the Federal Estate Tax be Frozen?

The liberal Citizens for Tax Justice have released a report that Obama's proposed tax policy "would be a regressive and costly giveaway to the very wealthiest families in America," according to an AP report by Jim Abrams.

As a Michigan estate planning lawyer, my main concern with the tax is how it effects small business owners.  If the proper planning is not done, these "death taxes" can lead to the liquidation of family businesses just to pay the tax upon the passing of the owner.  The key is proper planning by an accomplished and experienced estate planning lawyer.

Continue reading "Discussion in Estate Planning | Should the Federal Estate Tax be Frozen? " »

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December 5, 2008

Michigan Estate Planning Topic | Moving? It's All About Title

Our Estate & Business Planning law firm recently moved from Farmington Hills & Troy to Bloomfield Hills.  This move reminded me of how we help our clients when they move, because moving your residence could have drastic effects on your estate plan.

The main concern is if you have a revocable living trust.  If you have a trust based estate plan, then the key is to keep your trust properly funded.  Changes in accounts or assets need to be analyzed by an estate planning attorney to determine if the new asset or account should be included in the trust or not.

Continue reading "Michigan Estate Planning Topic | Moving? It's All About Title" »

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December 4, 2008

Michigan Estate Planning Gifting Strategy

One aspect of estate planning involves looking at gifting as an alternative to paying the Federal Estate Tax. 

With the end of the year upon us, there is more to gifting then receiving holiday gifts from friends and loved ones.

Continue reading "Michigan Estate Planning Gifting Strategy" »

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December 3, 2008

Oakland County Estate Planning Lecture

Last night I was the guest lecturer on estate planning at Oakland Community College in Oakland County. I was excited to be given the opportunity to talk in front of the personal finance class about something I'm very passionate about. 

As a Michigan estate planning lawyer, I am always happy to spread the word and share my knowledge of estate planning in an educational atmosphere.

-Christopher J. Berry, Esq.
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December 2, 2008

Michigan Estate Planning | When to Start?

As a Michigan estate planning lawyer, I was contacted by an author who is writing a book on estate planning nationally.   One of his questions was "When should an individual begin thinking about planning their estate?"

My response was"at the age of majority."  In Michigan, an individual is legally an adult when they turn 18.  What this means is that an 18 year old (maybe college student) now has to make legal that which would be assumed, i.e. if something happened, their parents would make decisions for them. 

Our firm recommends that Michigan 18 year olds complete at least a patient advocate designation, living will, and financial power of attorney.  Most likely they would name their parents for each of these roles.

The Michigan powers of attorney and healthcare directives are especially important for those 18-25 year olds that are away to college.  If something were to happen it is important to already have the necessary documents in place so that parents can act quickly with legal authority.

Continue reading "Michigan Estate Planning | When to Start?" »

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December 1, 2008

Michigan Estate Planning Check-Up

As we near the end of the year our law firm has scheduled estate planning review meetings with our clients who have opted into Foundations, our client membership program.  Reviewing your estate plan with your Michigan estate planning lawyer is vital to the well being of your estate plan.

There are many things that can go awry with an out of date estate plan.  To often we see people from other law firms who have not updated their estate plan for years and years.  Problems include, agents passing away, Federal Tax planning gone wrong, powers of attorney documents going stale in the eyes of banks, and changes in law that make documents ineffective.

All these issues can be avoided by having your estate planning attorney review your documents on a yearly basis, similar to a doctors check up.  Some years everything will be OK, but often times there are minor tweaks, changes, and amendments needed to the will based estate plan or trust based estate plan.

Continue reading "Michigan Estate Planning Check-Up" »

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