Michigan Estate Planning Lawyer Blog

A new law suit in Missouri has been started against LegalZoom, those creators of do-it-yourself estate planning documents. The lawsuit claims that LegalZoom is engaged in the unauthorized practice of law and sites a cease-and-desist letter from the North Carolina State Bar's Unauthorized Practice Committee. You can read a short article about the suit at Suit Claims LegalZoom's Document Prep is Unauthorized Practice.

Well, it looks like there are more problems with using LegalZoom, according to Texas attorney Rania Combs. If you remember she had a great post about LegalZoom on her blog entitled The Problem with LegalZoom(And Other Do-It-Yourself Estate Planning Solutions). Well, apparently, LegalZoom was also paying attention. They corrected a few of the problems as it relates to Texas law in their documents.

In her new post entitled The Problem With LegalZoom (Part 2)- Inaccuracies Corrected But Problem Remains, she points on the biggest inherent problem with using LegalZoom, or any other Do-it-yourself approach to estate planning.  Look at the disclaimer.  Attorney Combs analyzes the LegalZoom disclaimer in great detail.

Some of the troubling language includes "the legal information on LegalZoom's website is not guaranteed to be correct or up-to-date" and "LegalZoom does not review your answers for legal sufficiency..".  Yikes!  

Attorney Combs ends her post with the conclusion that LegalZoom and all of the do-it-yourself options are a risky approach to completing your estate plan.  As a Michigan estate planning attorney, I concur.

As a Michigan trust attorney, I've blogged many times about the issues using Legalzoom, Suze Orman Trust Kit, Willmaker, or any number of the other "do it yourself" estate planning kits. Texas estate attorney Rania Combs has put together a great blog post on the topic that you should read.

You can read the post here: The Problem with Legalzoom and Other Do-It-Yourself Estate Planning Solutions.

With Michigan Estate Planning, there are a few basic things that you need to know.

First, no matter what your net worth is, how much in assets you have, how much debt you have, you need an estate plan. In Michigan, once you turn 18 you are legally an adult. So, even if you're a college age adult who lives at home with your parents, there is a certain level of estate planning that should be done. That is you need, what our office calls, a disability plan. A disability plan plans for your disability or incapacity.  We would put together a Patient Advocate Designation (which is the Michigan equivalent to a health care power of attorney), HIPAA Authorization, and a Financial Power of Attorney that most likely would name your parents as decision makers and agents.

Now that we've established that if you're over the age of 18, you need the disability documents, the next step would be once you have assets (now matter how meager) or children, it is important to plan for your assets and children.  This is done through using Revocable Living Trusts and Last Wills and Testaments.  Whether you opt for a Living Trust based estate plan or a Will based estate plan will depend on your goals.  Remember a Last Will and Testament only gives instructions to the Michigan Probate court on how to administer your estate, it does not avoid probate.

Lastly, it is important to consult a Michigan estate planning attorney in preparing your estate plan.  Proper Michigan estate planning involves more than buying Nolo Willmaker software or reading the latest Suze Orman Trust Kit book.  It involves analyzing your goals and situation and using the estate planning tools we've discussed in the most effective and cost effective way.

Mention Legalzoom and Suze Orman's Will and Trust Kit and it raises my blood pressure a bit. Many attorneys and experts have spoken about the dangers of these products for unsuspecting consumers. Well, South Florida estate planning attorney, David A. Shulman, has added further evidence to the assertion that documents prepared by these "products" may not be the best for consumers.

In his blog he writes that the Wall Street Journal editorial page did a review of the two Online will packages and compared them. South Florida estate planning lawyer, David A. Shulman continues:

But there should be one and only one relevant question, and this is "Do the documents work?" In the event of her death, do the documents accomplish what she wants them to do, while minimizing taxes, protecting her heirs from creditors, and keeping administrative expenses and time and headaches to a minimum?

What's the idiot consumer's answer to that question?

"We didn't hire a lawyer to review them."

You can read David's entire blog post here: The Wall Street Journal Totally Blows it on Online Wills. I recommend you check out his blog, especially if you are looking for a South Florida estate planning attorney.

There are quite a few myths regarding Trusts, Wills and Estate Planning. A recent USA Today article address some of these myths. The article interviewed two colleagues from WealthCounsel, which is a national association of estate planning attorneys.

The myths that the article addresses include:

1. Estate planing is only for the rich.
2. If I die without a Will, everything will go to my spouse.
3. I have a Will, my estate wont go through probate.
4. After I create my Last Will and Testament or Living Trust, I'm set.
5. I could be held responsible for a deceased parent's debts.

You can read the article in its entirety here: 5 Myths about wills, and what you should do.

While overall, the article is well written, I do have one large point of contention.  The article suggest that some of the do-it-yourself options are viable, such as Legalzoom, Suze Orman Trust Maker, or Quicken Willmaker.  Read some of my past posts on why these options can be even worse than having no estate plan at all.

Are you looking for a cheap living trust or a cheap will or last will and testament? Well if you are living in Ohio, there may be one less illegal trust mill taking advantage of people who are looking for a replacement to quality legal services by selling them fill in the blank garbage.

You can read more at the Florida Estate Planning blog of Jacksonville estate planning attorney David M. Goldman. Read his story here "Trust Mill Fined 6.4 Million in Ohio."

As a Michigan estate planning attorney, I won't have to deal with this much, but New York has just passed a new law that made their rules regarding powers of attorney much more complicated.

Trust and Estates has an interesting write up on the statute that effects the power of attorney. You can read it here :New York's New POA Law.  Florida Estate Planning attorney, David M. Goldman, wrote an interesting post on the New York Power of Attorney law while it was still in bill form back in February.  You can read it here : Gifting Changes Required for POA's in NY.  Also, take a look at what New Your Estate Planning lawyer, Ellen Victor has to say about the New York Power of Attorney here: New York's New Power of Attorney.

Part of the craziness is that a valid power of attorney must contain more than 600 words of language from the statute that are intended to better inform the principal about the serious nature of the power of attorney document.

What this means to me as a Michigan estate planning attorney?  Well, it shows just how each state has different statute, laws, court rules, and common law that effects your estate planning documents.  If you are one of those "do-it-yourselfers" who are using Suze Orman Trust Kits, Legalzoom online wills, Quicken Willmaker Software, I'd be a little worried.  Do you think these national packages contain the state specific details to make your important estate planning document valid in your state?

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

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.

I stumbled upon an old story about how the heirs sued because of the use of do-it-yourself estate planning software.  In this case the software was Quicken Willmaker or Quicken Family Lawyer, but it could be Legalzoom, or Suze Orman's Trust Kit, or any other of the will and trust in a box products.

What happened was that an insurance agent was sued for "unauthorized practice of law" when he used the Quicken Willmaker software to create a will for a 91 year old woman. 

This is just another case where the Nolo's, Quicken Willmaker's, Suze Orman Trust Kit's, and Legalzooms of the world have caused more problems then good as people look to create their own estate plans.  This shows why many state bar's, like Texas, have tried to ban these products because they in the end harm the consumer.

You can read the article at CNET.

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, Probate.

photo from www.gamerswithjobs.com

By the way, here are some excerpts from the case:

Continue reading "Heirs Sue Over Use of Will-Making Software | More Do-It-Yourself Estate Planning Gone Wrong" »

Probate litigator, Roy Newman, has a new blog post commenting on how the do it yourself will kits, such as legalzoom.com, Suze Orman Trust Kit, or Quicken Willmaker are a probate litigator's dream because of all the inherit flaws involved.

You can read his post at the California Probate Center.

-Christopher J. Berry, Esq.
Michigan Probate Lawyer

AG Mike Cox has done a disservice to Michigan seniors.  His office has created a website entitled "Senior Brigade" where they try to consolidate information seniors may find helpful.  Unfortunately, one of the areas on the website has free legal forms to download.  I refuse to link to the website because I think this is doing a great disservice to our Michigan seniors if they think they download a form, fill in the blanks, and have a substitute for sound legal advice.  Estate planning is more than just having a document that says Michigan living trust, last will and testament, or power of attorney.  Those documents need to meet your goals.

Some of the problems I have with this are:

1. I don't know who drafted them, but the documents themselves are far from the best legal drafting I've seen.  For example, the living trust form has no provision for the support of a spouse or dependents in the event of disability of the settlor.
2. The financial power of attorney is far to broad and gives immediate power to do just about anything (which could lead to further elder abuse, thanks Mike Cox!)
3. Read the disclaimers!  While these documents are word documents that are easily downloadable and modified, there is a disclaimer that says "This is a form and the Attorney General is not providing personal legal advice with the publication of this document. This document is an informational guide..".  In other words, this is no better than the Legalzooms, Suze Ormans, Quicken Willmakers, out there.  Use at your own risk. 
   
4. This is confusing for Michigan Seniors.  Doesn't this make it easier for unauthorized practice of law now that trust mill peddlers can say that the forms were "approved by the Michigan Attorney General himself!"?
5. This reeks of a political move my Mike Cox to win the trust of Michigan seniors for his upcoming Governor race.  In the end this is only hurting Michigan seniors.  I am not aware of his office ever contacting the Michigan Elder Law Council or Michigan Estate planning Council of the State Bar of Michigan.
6. There is more better senior information at the Michigan Long Term Care Connection website, which I am happy to link to here.
7. On the site it implies fees for even significant probate estates were only around $500, which is ridiculous.  Just a few weeks ago, we were sending a check to the Wayne County Probate court in amounts in excess of $1500 for an inventory fee.

 
Today, myself and many other Michigan estate planning lawyers and Michigan elder law lawyers are disappointed in the Attorney General Office and Mike Cox because he is doing a disservice to Michigan Seniors.

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

In Michigan estate planning, there are certain tools we use to help our clients achieve their Michigan estate planning goals.  Keep in mind though, estate planning is not just about the documents or tools, it is about how you use them.  I've blogged about how every estate planning document is not the same.  Anyone can make the mistake of using a legalzoom.com, Suze Orman Trust kit, or Quicken Willmaker, for their estate planning documents.  I have and many others have talked about how these cheap alternatives often do more harm then good.  With that said, my goal for this post is to educate you on the tools and documents that we, Michigan estate planning lawyers, use in helping our clients achieve their legal and estate planning goals.

The first tool/document that is important is the Michigan revocable living trust.  This document achieves our client's goals of avoiding probate and exerting control over their assets.  Additionally with the revocable living trust there is a level of incapacity planning not found in the last will and testament. 

Now remember, not every revocable living trust is created equally.  Our Bloomfield Hills Law Office reviews quite a few estate plans and revocable living trust.   Unfortunately, we review quite a few poorly done revocable trusts.  We've seen poorly drafted plans by both attorneys as wells as the do-it-yourselfers using legalzoom or Quicken willmaker.  Our advice, seek out Michigan estate planning attorneys who focus and specialize in this complicated area of law.

The second tool of the Michigan estate planning attorney is the will or last will and testament.  Wills can come in two forms, either a normal will where the will is the focal point of the estate plan or a will can be in the form of a "pour-over will" where the will acts as a back up to the revocable living trust.  A key thing to remember is the will does not avoid probate.  People make this mistake all the time, that is, they think a will avoids Michigan probate.  A will is your ticket to the Michigan probate system.  The will gives instructions to the Michigan probate judge on how to distribute your assets.  A revocable living trust that is properly funded avoids probate, not a last will and testament.

The next key tool in the Michigan Will and Trust attorney's tool box is the financial power of attorney.  There are two types, one that is effective immediately or one that is effective upon disability.  Disability can be determined by two licensed physicians, by a disability panel, or by other means.  This document allows another to handle the financial affairs for another.  It is important to remember that not every Michigan financial power of attorney is created equally.  You can buy a financial power of attorney at an office supply store fro about $10.  This 1-3 page document isn't worth the paper it's printed on.  Compare that to the type of documents are office puts together taking into account the goals, desires, and family situation of our clients.

Next on the list of Michigan estate planning documents is the Michigan patient advocate designation.  This is your health care power of attorney.  The document that appoints someone to make medical decisions on your behalf.  Included in your health care directives should be a HIPAA authorization form, along with living will style language in your patient advocate designation

Any questions?  Drop me a line or contact your Michigan estate planning attorney.

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

As a Michigan estate planning attorney, I participate in various discussion groups with other estate planning lawyers.  Another lawyer had potential client come in for an initial meeting.  The potential client brought in their old "estate plan".  What the potential client had done was create some do it yourself wills, similar to the Suze Orman kits, Legalzoom, or Quicken Willmaker.

The last will and testament left everything to the spouse, then to the two children equally.  He also had a deed, the deed named both spouses and only one of the children.  Asked why he did that, the gentleman replied he was trying to avoid probate.  The lawyer then had to explain that he was in fact disinheriting the other child, since the house would go directly to the child, not both. 

A last will and testament is your ticket to Michigan probate, only assets that are probated follow the terms of your will.  While yes, naming the one child on the deed avoids probate, it totally destroys the intent of the estate plan.

This is just another reason to be wary of thinking that because you downloaded a will off the internet that you have a quality Michigan estate plan for your family and loved ones.

-Christopher J. Berry
Bloomfield Hills Wills and Trust Lawyer

Being a Michigan Estate planning attorney, I keep meaning to actually sit down and go through all the do-it-yourself estate planning software and kits out there,  including Legalzoom, Suze Orman Trust Kits, and Quicken Willmaker. I have seen the finished product and have seen the havoc these document preparation tools wreck on people's estates, but never sat down to go through their process myself.

South Florida Estate Planning Lawyer David Shulman is in the process of using legalzoom right now, and he is blogging about it.  Follow his adventures at his wonderful blog South Florida Estate Planning Law Blog.

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