Michigan Estate Planning Lawyer Blog

The Estate of Steve McNair continues to make headlines due to his lack of property, make that any estate planning. According to WBIR.com, one of Steve McNair's sons prior to his marriage is preparing to make a claim to his inheritance. According to the article, this could set the stage for drawn out probate litigation.  You can read the article here: "Steve McNair's estate left in limbo."

The fact that neither mother of his sons previous to his marriage were married to Steve McNair will have no bearing on the sons potential inheritance, according to the article.

In the article, an attorney who worked on the Conway Twitty estate (which was a mess itself) is quoted as saying "This is why you have to leave a will so your wishes and desires are carried out."

Christopher J. Berry, Esq., A Bloomfield Hills Probate Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Living Trusts and Living Wills, and Michigan Probate Litigation.

Since Steve McNair was paid over $90 Million throughout his career, safe money is on the fact that his estate is worth more than $3.5million. As I've blogged here: "Steve McNair | Unfortunately Horrible Estate Planning", the Estate of Steve McNair will most likely be writing a hefty check to the IRS, because Steve McNair during his lifetime inexcusably failed to do the proper estate planning necessary.

USA Today has an interesting post on some of the issues and lessons we can learn from the Estate of Steve McNair, which you can read: "McNair's messy estate is a lesson about Wills".  The article references the need for a last will and testament, in reality he needed a full, comprehensive estate plan that included a revocable living trust and further advanced estate planning techniques to plan for his NFL wealth.

Adding do the confusion of dying intestate (with out a last will and testament or estate plan), is the fact that Steve McNair had two children with other women.  Paternity will have to be established for the sons to make a claim on his estate.

Christopher J. Berry, Esq., An Oakland County Probate and Estate Administration Lawyer, 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.

Just like the Michigan probate court process, Steve McNair's wife has published the required Notice to Creditors in the local paper, according to the Nasvhille News. 

Complicating matters, because Steve McNair had not done any estate planning, Steve McNair's wife will have to open two probate estates.  One in Tennesee and one in Mississippit because he had assets in both states.  Now if Steve McNair had a properly funded living trust placing the assets in the trust, probate in both states most likely would have been avoided.  Instead Steve McNair's wife must go through two probate estate processes.

According to the article, once the Notice to Creditors is filed, Steve McNair's wife will have 30 days to file the Inventory in Mississippi and 60 days to file in the inventory in Tennessee.  This differs from the Michigan probate process.

When you open a Michigan probate, you have 91 days to file the Inventory.  The Notice to Creditors filing begins the clock for creditors to attach to the estate.  Once the Notice to Creditors filing happens there is a 4 month window for creditors.

Christopher J. Berry, Esq., A Oakland County Probate Litigation Lawyer, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Michigan Estate Administration, and Michigan Probate Litigation.

Financial Durable Power of Attorney. Many people focus their time and need only on the last will and testament (or living trust) or medical directive. How do I know? Because 9 times out of 10 when a potential client contacts us they ask for a will, living trust, or living will. Hardly anyone ever asks initially for a financial durable power of attorney (otherwise known as a DPOA).

A Michigan financial durable power of attorney allows someone else to make decisions regarding financial matters. The durable power of attorney can become effective either upon incapacity or immediately.

The purpose of the Michigan financial durable power of attorney is to allow someone else to be able handle all financial matters. This includes handling business interests, buying and selling real estate, paying bills, and even making gifts and authorizing Medicaid planning.

The Michigan financial power of attorney is a powerful document that should not be used lightly or prepared haphazardly. The drafter of the document must be careful in choosing which powers to include and which powers to exclude. Additionally, specificity is very important in the document. Many of the Legalzoom, Quicken Willmaker, or Suze Orman, do it your self documents are over broad and can be dangerous in the wrong hands to the creator. This is why it is important to see an experienced estate planning lawyer to assist you by drafting a quality financial durable power of attorney.

Christopher J. Berry, Esq., A Bloomfield Hills Living Trusts and Wills Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation.

According to recent probate court papers, the administrators for Michael Jackson's estate have recovered $5.5 million from one of Michael Jackson's "former financial advisers," according to a CNN story. 

Along with some contracts that Michael Jackson's estate possess, the lawyers for the administrators are hinting that even with the monstrous debt Michael Jackson had, that the estate will be solvent and will be able pay out to a trust for the benefit of his three minor children, according to the article.

This is very good news for his children.  The more assets that the administrators can uncover to fund the estate, the better off Michael Jackson's minor children will be. 

In the end, it appears that Michael Jackson's estate plan may be pretty well put together, in stark contrast to the mess that Steve McNair has created by having no estate plan at all. 

You can read about the Steve McNair estate here: Steve McNair Estate Plan Mistakes.

Christopher J. Berry, Esq., An Michigan Living Trust Lawyer, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Elder Law, and Michigan Probate Litigation.

Utilizing a Michigan Pet Trust or Animal Care Trust is a great planning tool to use when you have pets (cats, dogs, horses, etc) that you want to ensure are taken care of after you pass or become incapacitated.

Planning for your pet is very important because without proper planning your beloved pet there could be no one to care for him or her and no funds to provide for care for your pet. Worse yet, your pet could be euthanized if no home can be found.

With proper planning and using an Animal Care Trust or Pet Trust, your beloved pet can be cared for how you would want him or her to be cared for in the environment of your choosing.

Basically, a Michigan Pet Trust is similar in design to how you would select trustees and guardians for your children. However, instead of a a guardian for your children, we select a Caretaker to take care of your beloved animals. The Trustee handles the funds, while the Caretaker provides the day to day care taking of the pet ensuring a loving safe environment.

Sometimes people think a good option for setting up someone to care for their pet is to provide a monetary gift in their estate plan to an individual and then tell them to take care of the pet. This can be dangerous, because that monetary gift does not need to be used for the benefit of the pet. After you pass, they could spend that gift on anything they want and then take your pet and drop him or her off at the Humane Society.

The better alternative for your pet and your peace of mind is the Michigan Animal Care Trust.  With these trusts, your Trustee keeps the funds separate from the Caretaker's assets.  This means the assets must be used for the benefit of your pet and if the Caretaker were to get divorced, sued, go bankrupt, the assets would be protected.

It is important to work with a Michigan estate planning lawyer who is familiar with pet planning and Animal Care Trusts or Pet Trusts, because they are relatively complicated documents.

Christopher J. Berry, Esq., A Michigan Pet Trust Lawyer, is a Partner with The Law Office of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Animal Care Trusts.

"My parent is currently on Medicaid and is about to receive a windfall from an inheritance that will disqualify him from Medicaid, what can we do?"

Well, as a Michigan elder law attorney, my first response is that "it depends."  It depends on more facts.  Some possible ideas include, basically, converting the new assets into exempt assets in the month the windfall or inheritance was received.  For example, the Medicaid parent could purchase a prepaid funeral, buy a car if he doesn't own one, by medical equipment, or furniture. 

What Michigan Medicaid planning strategies we can use depends on more facts.  But, basically, one of the easiest and best options is convert the assets into exempt assets.

Christopher J. Berry, Esq., A Oakland County Medicaid Planning Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Michigan Long-term Care Planning, and Michigan Medicaid Planning.

The Michael Jackson estate plan could turn out alright. He had a Will that poured over into a Living Trust for the benefit of his family and children. If he had assets after all his liabilities his Living Trust should provide the tax planning necessary to reduce his Federal Estate Tax amount to a manageable number or even zero.

Well, Steve McNair estate appears to be in an entirely different boat. By all reports, Steve McNair, the former Tennessee Titan quarterback, died "intestate", in other words, without a Will or Living Trust. Wow! Just wow!

Steve McNair may have just been able to fund one of President Obama's Federal programs himself with the estate taxes that his estate and family may end up paying. On top of this is the fact that his wife (who he was apparently cheating on) is now the administrator of his estate and will be walking away with a portion of his assets that could have been held for the benefit of the children.

Focusing more on the Federal Tax aspect of Steve McNair's failure to plan, Florida Estate planning lawyer David Shulman, who beat me to the punch (as he usually does), has a great post that reviews the Federal Tax implications. You can read David's well written post here: Steve McNair died without a Will. The consequences could be disastrous.

To break it down to show just how much Steve McNair is "gifting" to the IRS because he had not done a proper estate plan, this year the Federal Estate Tax exemption is $3.5 Million.  What that means is that anything left to anyone other than his wife this year over $3.5 Million will be taxed.  The tax rate is 45%.  I don't know the size of McNair's estate, but I do not according to ESPN, his last contract if it paid out the maximum was worth $32 Million.  So, let's assume his estate is worth $32 Million.I am not licensed in Tennessee, so let's just assume the spousal share is 50% and the child's share is 50%.  

McNair's estate could be writing the Federal Government-IRS a check for $5,625,000.

This is calculated by taking the amount not left to the spouse $16 Million, subtracting the exemption amount $3.5 Million, multiplying by the tax rate of 45%, and there you have it.  McNair writing the Feds a big hefty check for money that could have went to his children or charity.

This sad story all around is a tale of why if you have loved ones, you need to think about estate planning.  You never know when life is going to throw you a curve ball.  If you want to ensure that your loved ones receive the support after you pass or are incapacitated, you need to sit down with an estate planning attorney.  You don't need to be writing a huge check to the Federal Government and the IRS.  That money could go to your children, loved ones, or your favorite non-profit.

Christopher J. Berry, Esq., An Oakland County Living Trust Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Medicaid Planning, and Michigan Probate Litigation.

The confusion over whether Michael Jackson had a will based estate plan or a living trust based estate plan probably led to the AP article discussing the differences between a will and living trust. You can read the article, including the Michael Jackson reference here: Will or Trust? Understanding the differences.

As the article explains, a will based estate plan is typically used when you're only making one time distributions to individuals and do not care that your heirs have to use the Michigan probate court to administer the estate.

A living trust based estate plan avoids probate and also has provisions so that you are not leaving lump sum assets to beneficiaries.

Christopher J. Berry, Esq., A Bloomfield Hills Living Trust Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation.

With the down economy Michiganders and the rest of the nation faces, it is important to review your last will and testament, your revocable living trust, and your designated beneficiaries to make sure they still make logical sense.

Why? Because when your estate plan was created, most likely, you had more assets then you currently do. For example, maybe in your revocable living trust you made a $10,000 gift to the Michigan Humane Society or your church. Well, now that your overall portfolio is down, that $10,000 gift may be a larger percentage of your estate than you had really planned and you would like to see more left to your children instead.

Another reason you need to review your estate plan (wills, trusts, beneficiary designations of accounts and life insurance), is because of the Federal Estate Taxes.  With no change on the Federal Estate Tax exemption amounts on the books yet and a down economy, maybe your estate plan tried to plan around the Federal Estate Taxes at a certain exemption amount.  Well with the depressed economy, maybe you are nowhere near the Federal Exemption amount (this year $3.5 million).  Well, it might make sense to simplify your trust based estate plan now so that the administration is easier for the beneficiaries.

Our office recommend annual meetings to review estate plans.  The economy is just one of the reasons an annual review with your Michigan estate planning lawyer make sense.

Christopher J. Berry, Esq., A Bloomfield Hills Trusts and Wills Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation.

There are many tools in the Michigan Medicaid planner's tool box when assisting elder law clients. One of those tools is the SBO Trust ("Soley for the Benefit of" Trust).

For purposes of Michigan Medicaid planning, the SBO Trust is an irrevocable trust that holds assets entirely for the benefit of another. The assets are held for the benefit of the community, non-Medicaid applicant, spouse. Through this type of planning assets which would have been considered countable by Medicaid, now become unavailable. This allows the Medicaid applicant to qualify sooner for Medicaid and defray the Michigan nursing home costs, which can be well over $6000.00 per year.

There are certain requirements for the SBO Trust. For example it must be irrevocable, in writing and established after the admission to a nursing home by the Medicaid Applicant, and must distribute an annuitized portion of trust corpus to the community spouse on an actuarial sound annual basis.

The Michigan SBO Trust is just one Michigan Medicaid planning technique in an elder law lawyer's tool box.

Christopher J. Berry, Esq., A Bloomfield Hills Elder Law Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Michigan Long-term Care Planning, and Michigan Medicaid Planning.

It will be August shortly and if you have children or grandchildren they will be heading back to school or off to college. Now is the time to take the necessary legal steps to make sure that they are protected in case of an emergency.

As Michigan estate planning attorneys, we can help you. Here are some tips:

• For minor children (under the age of 18), make sure that ALL of the people who take care of your children-including grandparents, babysitters, older siblings, neighbors, family friends, etc- have your up-to-date contact information, including changes to your cell phone numbers.  Don't forget the emergency contact list on your fridge or bulletin board.
• For minor children it is also important that the appropriate people have the ability to make decisions about your child (e.g. in a medical emergency) if you can't be reached or are out of town.  This is done by having a Michigan estate planning attorney draft the appropriate legal documents.
• For young adult children (over the age of 18), make sure that he or she has executed the necessary health care power of attorney, financial power of attorney, and HIPAA authorization that is prepared by a Michigan estate planning lawyer.  This is important, especially if they are off to college, because your "children" are now legally an adult in Michigan now, and you do not have the power or access to their medical information any more.

These steps can make a critical difference to the treatment your child receives in an emergency and also the information you will be able to receive as a parent if something happens to your child when you are unavailable.

Speak with your Michigan estate planning attorney who focuses on estate planning for parents to make sure your children are protected.

Christopher J. Berry, Esq., A Bloomfield Hills Trusts and Wills Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation..

While at first are thought the Michael Jackson estate would be a complete mess, it turns out he did do some things right in setting up his estate plan. I may blog about the things he did right in a future post, but right now I want to talk about a lesson you can learn from something Michael Jackson did wrong in regards to his estate plan.

There was utter confusion when he passed away with regard to his estate plan. 

This is a no-no in my book.

As Oakland County estate planning lawyers, we make sure, to the extent clients allow us, to make sure the whole family is on the same page with regards to the client's Michigan estate plan.  Michael Jackson's family had troubles finding the last will and testament and seemed to have some confusion as to who was supposed to administer the estate.

Get your family on the same page as you.   Let them know you have an estate plan.  If someone is serving a particular role in your estate plan.  Let them know what that role is and how you expect them to fulfill their duties.  Provide them copies of the documents.

The more your family members are kept in the loop of the planning, the better chance there will be no confusion or hurt feelings when that estate plan needs to spring into action.

Christopher J. Berry, Esq., A Bloomfield Hills Elder Law Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Michgian Long-term Care Planning, and Michigan Medicaid Planning.

Ever wonder what the absolute essential Michigan Estate Planning documents are? Well, Business Week put together a list, from caregiving.com listing the essential documents for any estate plan not including a Will. You can read the article here: The Essentials.

The key estate planning documents, according to the article, are:

• Medical Directive. This is also commonly called a living will.  This document makes known your wishes regarding life support.  Michigan is the only state that does not recognize by statute a living will.  However, we do have case law stemming from the Martin case, that recognizes living will type language.
• Durable Power of Attorney for Health Care. This document appoints someone to make your medical decisions for you if you become incapacitated.  In Michigan, we call this document the Patient Advocate Designation.
• Privacy Release.  This document allows your patient advocate to get access to your medical directives.  In our office we call this a HIPAA Authorization.  HIPAA places severe penalties on physicians who release your medical information to an unauthorized party.  The HIPAA Authorization releases the physician from liability for sharing your information with the individiuals named in the document.
• Durable Power of Attorney for Finances.  The individually tailored durable power of attorney appoints someone to manage your finances for you.  The document can be effective immedialty or upon disability.
• Revocable Living Trust.  A Revocable living trust allows you to avoid probate while exerting more control over your assets than what a last will and testament would provide.

It goes without saying, these documents should be prepared by a Michigan Estate Planning Attorney.

Christopher J. Berry, Esq., A Bloomfield Hills Elder Law Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Michgian Long-term Care Planning, and Michigan Medicaid Planning.

The Michael Jackson Estate probate hearing was today, TMZ has a quick and dirty live blog summary of what is taking place which you can read here.

Basically, the Probate Judge has enforced the provisions of the 2002 Jackson last will and testament that we have all seen.  That means that Branca and McClain will be the administrators (called personal representatives or executors) for the Michael Jackson estate.  Additionally, the probate judge may appoint a special attorney for the children's interest in the matter.

Christopher J. Berry, Esq., A Bloomfield Hills Trusts and Wills Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation.

As Michigan Wills and Trusts attorneys, we've reviewed many estate plans during our 25+ years of practicing estate and business planning. Many people think they are "all-set" because they had an estate plan done years ago. They have their revocable living trust, their last will and testament, their disability documents including powers of attorney for financial decisions and medical power of attorney for health care decisions. 

Unfortunately, we've seen to many cases where, in reality, they were not all set and if something had happened they would have been better suited to rely on Michigan laws of intestacy than what their estate plan said.  Luckily, because of our reviews we've been able to remedy the situation.

So what's the main problem?  Typically one of two things. 

First, clients may have funded their revocable living trust properly at the time of the creation of their estate plan documents.  But over the years as they have changed accounts, bought life insurance, purchased the new house, they didn't consider the effect on their estate plan and they failed to fund the trust properly.  This is the main reason we offer annual reviews to our clients to ensure their trusts are funded properly.

The second major issue is caused by changes in family situation that should be reflected in the estate planning documents.  Depending on how the documents are written and the change in family situation, this can lead to the disinheritance of beneficiaries the grantors thought they were including in the estate plan.  For example, unexpected deaths, births or divorces can all play a major role in the dispositive terms of anyone's estate plan.

What is the solution to ensure that your estate plan is up to date?  An annual review with your Michigan estate planning attorney.  We have a system in place at our Bloomfield Hills Law office to ensure that our clients have the opportunity to come in for an estate plan review and make any changes necessary to their estate plan so that their estate planning documents are as good tomorrow as they were the day they were drafted.

Christopher J. Berry, Esq., A Oakland County Trusts and Wills Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Estate Planning, Trusts and Estates, and Michigan Probate Litigation.

As an Michigan Elder Law Attorney, I see Michigan Seniors that are often targeted by free lunch or dinner seminars where salesman try to push estate planning with the real goal of selling high commission annuities.

The WSJ has an article talking about how another state has doubled the civil penalties for financial securities violations when the victim is 65 years or older. There is quote from the head of the Michigan Office of Financial and Insurance Regulation, Kenn Ross.  "If you target an older person in Michigan we're going to target you."  

The article has some questions to ask to avoid being scammed, including:

• What are the risks of this investment?
• What ongoing costs do I have to pay?
• How liquid is the investment?
• Is this investment registered, if so who or regulates it?
  

You can read the rest of the article here: Laws Take on Financial Scams Against Seniors.

Christopher J. Berry, Esq., A Bloomfield Hills Elder Law Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Michgian Long-term Care Planning, and Michigan Medicaid Planning.

Everyone knows that Michael Jackson lead an extravagant lifestyle, with his Neverland ranch, etc. With his recent passing, one of the questions many people are now asking is just how much will his estate be worth, if anything?

In a recent article by Ethan Smith at the WSJ, one estimate of his debt is around $500 million.  On the other hand, he also had some huge assets, including a 50% ownership interest in the music publishing catalog that includes over 250 Beatles' songs.

You can read more of the WSJ Blog Wealth Report article on the topic at : What is Michael Jackson's Estate Worth?

Regardless of the size, it will be interesting to see how this all plays out, especially since there probably will be quite a bit of court involvement if there are no trust or estate planning documents that surface.

-Christopher J. Berry, Esq., a Michigan Wills and Trusts Attorney, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Elder Law, and Probate.

You can now view Michael Jackson's last will and testament, since it is a public, court document. View it here: Michael Jackson's Last Will and Testament.

Some very interesting initial points.  First, Diana Ross was named as back-up guardian to the children.  Secondly, Michael Jackson has specifically made provisions to exclude his ex-wife Deborah Jean Rowe Jackson.

It looks like Michael Jackson has set up the Michael Jackson Family Trust, judging by the Jackson's will.  This is a good thing since a living trust is a much more private document and will be kept out of the public's eye.

Most likely the Michael Jackson Family Trust will control the disposition of the assets for the benefit of family members and children.  On it's face, this is the right step in terms of estate planning. However, it is important also to put the right assets into the Trust.  We most likely will not be able to see how the trust was funded. 

• Did he have life insurance that named the trust as a beneficiary?
• Were there bank accounts that were held in the name of the trust?
• What about his business interests?
• Will the assets have to be probated then "poured-over" into the trust, making the assets public or was the trust funded correctly?

So we have more answers and some signs that his estate planning was set up in a logical manner from an outsiders view, but we still have some important questions to answer to decide if he had an effective, well planned comprehensive estate plan set up.

Also visit South Florida Estate Planning Lawyer, David Shulman's blog, as he is also covering the Michael Jackson Estate saga and providing insight as an estate planning lawyer.

Christopher J. Berry, Esq., A Michigan Estate Administration Lawyer, is a Partner with Witzke Berry PLLC, which practices in the areas of Estate Planning, Elder Law, and Michigan Probate Litigation.