Michigan Estate Planning Lawyer Blog

Noone enjoys thinking about dieing. That is one of the reasons that people continue to procrastinate on putting together their estate planning documents. Estate planning documents are the key to determine where your money will go when you pass away. Failure to prepare proper estate planning documents can lead to a a legal nightmare that causes undue stress and financial burden on your loved ones and heirs.

The New York Times has a great article entitled "Assemble a Paper Trail, and Make Sure Your Heirs Can Follow It.", that talks about some important concepts in estate planning including reviewing wills, living trusts, and powers of attorney.

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.

Talking to Loved Ones about What Really Matters

 

"The Holidays" can mean travel, excitement, gathering together with those you love, stress, conflict, and any or all of these things. 

 

We wish you the happiest of holidays.

 

We also urge you to take the time this holiday season to talk with those you love about what's truly important to you, and what's important for them to know.  Make sure you tell them that you love them.  Make sure you tell them about your estate plan, about where they can find your important legal and financial documents in an emergency, and who your important advisors are (e.g. estate planning attorney, financial advisor, accountant).  We understand that these conversations with family members can be difficult to start.  But they are important.  Talk to those you love about the legal, financial and health care decisions you have made, and take the time, while you still can, to explain your choices. 

 

Talking about your healthcare directives can also be a good lead-in to talking about your other personal and financial choices with those you love.  It's important -- for you and for them.  Take this extra step to ensure that everyone knows what you want while you can still answer questions and provide feedback.  And then eat a lot, have a wonderful time, and enjoy your holiday! 

I was in Troy, Michigan giving an estate planning presentation when someone in the audience asked "whether he should be on a joint account with his parents to aide them in paying their bills?"

My answer was that there is a better way to go about things utilizing a Michigan financial durable power of attorney.  With a financial power of attorney in place naming the son as agent-in-fact, he would be able to aide his parents with their bill paying and finances while protecting his parents from creditor claims against himself and providing the parents the peace of mind knowing that the son owes the parents a fiduciary duty.

If you have named anyone other than your spouse jointly on a bank account or deed, you may be opening up a can of worms.  Feel free to contact us if you are in this situation, as there may be a better way to handle it.

Tuesday, October 6th, I will be presenting again on Michigan Estate Planning in Troy, Michigan in the afternoon.

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

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.

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.

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.

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.

Michigan Estate planning often does not get the attention it deserves.  It is more exciting to talk about saving for your kids education, purchasing a second home, or deciding how to retire.  Unfortunately, ignoring what happens to your affairs when you pass away will not prevent the day from happening, regardless of the size of your estate.

The New York times had an interesting article on the matter, which you can read here.

Two important issues include:

• Last Will and Testament.  Everyone should have a Last Will and Testament.  Your Will is a document that names guardians for dependent, minor children and can provide instructions to the probate court on how to distribute your assets.
• Advanced Medical Directives.  Anyone over the age 18 in Michigan NEEDS to have prepare a patient advocate designation to appoint someone to make medical decisions if they are incapacitated.  Think of the Terri Schiavo case down in Florida if you need any reminder of what can happen if you don't do this planning.

On top of these documents, other things to think about in estate planning are Trusts, Financial Powers of Attorney, and HIPAA Authorizations.  Also, don't forget to look at how all of your assets are titled.

There is quite a bit that goes into preparing a comprehensive Michigan estate plan.  The sooner you start the process the better of you and your loved ones will be if something were to happen.

-Christopher J. Berry, Esq.
Bloomfield Hills Trust and Estate Planning Laywer

If have you ever dealt with a parent's or loved one's estate,  financial affairs or Michigan probate, you most likely know what a pain it is to administer their estate, clean up their affairs, and locate important documents and records.  I wanted to provide you some straightforward easily digestible advice on how make sure you don't leave your loved ones in a lurch.

First and foremost, you must get organized.  You should begin creating a list of all your assets, liabilities, accounts, passwords.  Compile all of your records in one place and make sure they are safe and that your proposed personal representative, trustee, or whoever will handle you affairs when you pass, knows where to locate your documents.

The next step is to identify what your goals are with regard to when you become incapacitated or pass away.  Do you want to protect your assets in case you go into a Michigan nursing home?  Do you want to protect your children from poor financial choices with your inheritance?  Do you want to avoid the hassle, stress, cost of Michigan probate? Do you want to provide for your pets to be taken care of and not euthanized?  There are many difficult decisions to take into account.  We can provide you a list of some of the items to think about with regard to Michigan estate planning.  Just contact us using the contact form on this page.

Third, you need to select your team of advisors including your Michigan estate planning lawyer or Michigan elder law attorney.  Your attorney will assist you, along with your accountant and financial professional in matching the legal environment to your goals to create an individualized Michigan estate plan to meet your goals.  Through meeting with your Michigan estate planning professionals, you will have a Michigan estate plan that may include  living trusts, wills, general durable powers of attorney, health care powers of attorney, HIPAA authorizations and living wills.  Though Michigan statute does not recognize a living will.

Next, there should be a review of how your assets are titled.  For example, who is the beneficiary of your life insurance?  Should it be titled into the trusts or should the life insurance go outright to beneficiaries?  What about the IRA's and 401k's?  These are all questions and items that will be reviewed with your Michigan estate planning attorney and the rest of your estate planning team.

Next, it is important to speak with all of your family members about what decisions you made and how your Michigan estate plan will be implemented and how it will take effect.  If our clients are interested, we have a "family meeting" where we have our clients bring in any family members or children to answer any questions in a round table format so that all of the loved ones and beneficiaries are on the same page.

Last, you need to review your estate plan annually once completed.  There can be changes in your family situation, changes in Michigan or Federal law, or changes in the tax laws.  Any changes could have drastic effects on your estate plan.  We bring our clients in every year as a part of our Foundations program to ensure that their estate plan is just effective the day they signed there documents as it is the day the the documents take effect.

The key to Michigan estate planning is taking action.  You can't wait until the day you need an estate plan to start thinking about estate planning.

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

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

Michigan is currently in a tough economy, people look at their 401k's or other investments and wonder where their money has went.  People are looking for certainty in their investments.   You cannot find that in your IRA's or 401k's right now.

One place for certainty is investing in that estate planning that you have put off.   Maybe it is time to sit down with your Michigan estate planning attorney and talk about putting together a will, living trust, power of attorney, patient advocate, or living will.

The money spent on Michigan estate planning will not lose value due to economic times.  Take this opportunity to exert some control in you financial situation and put together your estate plan that will protect your children if you were incapacitated or protect your spouse if you passed away.

-Christopher J. Berry, Esq.
Michigan Wills and Trusts Lawyer

Have you updated your Michigan financial power of attorney recently?  If your financial power of attorney is more than a few years old there have been problems with banks and other financial institutions accepting the financial power of attorney due to bank policy.

They have no legal ground to stand on, but it is often easier to visit your Michigan estate planning lawyer on an annual basis to review and update your financial power of attorney and other Michigan estate planning documents then to take the bank or financial institution to court to enforce the documents.

-Christopher J. Berry, Esq.
Bloomfield Hills Estate Planning Attorney

In Estate Planning Gone Wrong Part 1, I discussed the mistake of people trying to do their estate plan on their own without the aid of a Michigan estate planning lawyer.  In Estate Planning Gone Wrong Part 2 I discussed the second major issue we see at our Oakland county estate planning law firm, that being people not updating their estate plans.

The third major issue we see with people who either have not done an estate plan or have done an estate plan not at our firm is that people are failing to plan for incapacity.

This problem is also at the heart of the trust vs. will debate where having a living trust based estate plan prepared by a Michigan estate planning lawyer probably makes more sense then just having a Michigan will based estate plan.  The reason is that a last will and testament does not have any planning for incapacity.  Incapacity could take the form of brain injuries, strokes, Alzheimer's, and other issues not including death.  With our population living longer and longer there is a greater chance than ever that you will spend at least some time legally incapacitated.  Doesn't it make sense to take this into account in your estate planning?

The way to plan for incapacity is through executing and annually reviewing a living trust based estate plan with effective powers of attorney for health care and financial decisions.  All prepared by a Michigan estate planning lawyer.

Christopher J. Berry, Esq.
Metro Detroit Estate Planning Lawyer

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" »