Macomb Michigan Probate Lawyers
Probate Lawyers in Michigan?
Despite peoples’ best intentions, families often fight when someone dies. Probate and related proceedings often end up in disputes, including contests of wills and trusts, construction (interpretation) of wills and trusts, disputed joint tenancies, claims against estates for debts of or services rendered to the decedent, division of personal property, proceedings by estates to retrieve assets from individuals who received them improperly, and other areas too numerous to list. We do not look for contests, but they often arise. We try to settle those contests to our clients’ satisfaction, but we will fight if necessary. Not all Probate attorneys handle proceedings, WE DO.
Probate law has to do with the handling of an estate when someone, such as a family member or other loved one, passes away. These are the laws that make sure that the creditors are paid properly and that assets are distributed to the “heirs,” or the descendant. When you find yourself in a situation where you’ll be dealing with probate law, it’s a good idea to already have in mind what you are going to need to do.
What exactly is Probate? Probate is a legal process that begins with a “petition” (a request) to open the estate and name a personal representative who is responsible for the administration of the deceased’s property. The next step is when an official Notice of Creditors is printed in a local newspaper and Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims from the first date of publication. Then the personal representative can pay the debt and distribute the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.
While on one hand, this may sound simple, probate law and the handling of estates is in fact a complex system, which presents you with multiple requirements and tasks to be preformed by the personal representative, an experienced attorney and a tax consultant. For example, an estate including only a single house and single bank account that has been left to a single beneficiary will probably be a far easier and quicker process to deal with than an estate containing multiple houses that are located in various states, and that are left to multiple beneficiaries. This becomes especially difficult if an estate includes leaving assets to a minor.
Wills and Trusts
You may find that over your lifetime you accrue a wide variety of assets. These assets can include property, land, company shares, businesses, cash, bank accounts, artwork, jewelry, cars and basically anything else that you own. Obviously, whilst you are alive, these material things are put to good use. However, what happens to them after you die?
Well, that is basically up to you – they are your assets and you decide who gets them upon your death.
This is where a will comes in:
A will is a simple document that outlines what your assets are and whom you want them to go to. This is a legal document, which will be used in probate after your demise to ensure that your assets go to the rightful beneficiaries. A will can be made by anybody over the age of eighteen that is of sound mind, but must be witnessed. The state law will determine how many witnesses you need, and you must ensure that the witnesses are not beneficiaries of the will in any way.
Many people never get around to making a will, and when they die the courts end up dealing with any assets, which are then distributed according to the state laws. Normally an executor is appointed, and this person will deal with the disbursement of assets under the supervision of the probate court. If there is no executor, the probate court will appoint an estate administrator to deal with the distribution of assets. If you have no beneficiaries or relation and have not made a will, it is possible that all of your assets will be claimed by the state.
When you make a will you will need to list all of your assets. You should also list any outstanding debts that you have. You can then go on to make a list of all beneficiaries, and decide who should receive what. All of the outstanding debts on your will are paid off upon your debt, and the remaining assets are distributed in accordance to your wishes. If there are any items not specifically listed on your will, they are distributed by the courts in accordance to the law of the state. If you don’t wish for this to happen, you should include a clause that leaves the remainder of your estate to a specific person of your choice. You should also list your beneficiaries by full name and relationship to avoid any confusion when it comes to the reading of the will and the disbursement of assets.
Should any circumstances in your life change, such as the birth of a grandchild or child or the acquisition of new assets, you may wish to change your will. It is important that you ensure that your old will is destroyed once you have made up a new document and had it witnessed. Your will is a document that will be of paramount importance after your death, particularly if you have a lot of material assets. It is therefore important that you keep it in a safe place, and let trusted family members and your lawyer know where it can be found.
If you have any assets that have contractual beneficiaries, such as a house with a joint mortgage or a joint bank account, these would not be dealt with through a will because they already have a beneficiary, which is the joint owner. However, all other assets should be listed on the document to ensure that they go to the desired beneficiary after your death.
Completing a living will, otherwise known as an Advance Health Care Directive (AHCD), is important for all individuals over 18 years of age as they may unexpectedly be in a position where they cannot speak for themselves, such as an accident or severe illness. For more information on when and how to make these important medical decisions.
Ten things you need to know about Wills & Trusts
- 1. A living will is a legal document that declares your wishes regarding the use of life-sustaining treatment should you become incapacitated from a terminal illness or a persistent/permanent vegetative state.
- 2. A living will, in most cases, only becomes effective when you are permanently unconscious or terminally ill and unable to communicate your wishes regarding life-sustaining treatment.
- 3. A living will cannot be revoked by anybody but you, and you can change it anytime while you have mental-competency/capacity.
- 4. Most states have laws providing that a living will’s directives may not be followed if you are pregnant.
- 5. A living will authorizes doctors to follow the instructions contained in the document once a determination of incapacity is made.
- 6. Each state has specific laws dictating how a living will is to be executed. Most states provide that any competent person eighteen years of age or older can make a living will by signing it in front of two or more witnesses (who also sign the document attesting that the document was signed in their presence). Usually the witnesses cannot be related to you, and they should not be beneficiaries of your estate or have financial responsibilities for your medical care.
- 7. A living will generally only avoids treatment when it is determined that recovery is hopeless and any treatment would only prolong the dying process. Your doctor must first determine if your prognosis fits those criteria before your living will has any effect on medical decisions.
- 8. Because it is difficult to anticipate every medical condition you may face, it is often a good idea to designate an agent to act as a substitute healthcare decision-maker for you. A Health Care Power of Attorney is a document that designates an agent to make healthcare decisions for an individual. It is different from a living will in that a living will does not appoint anyone to make medical decisions for you. A living will is only a partial safety net in the event there is nobody to assume the duties of making medical decisions on your behalf under your Health Care Power of Attorney.
- 9. Many states have laws that protect healthcare providers when they use good faith in following stipulations in a valid living will. Some statutes impose criminal penalties on those who act in bad faith.
- 10. A living will is a simple form that may be purchased in most office supply stores. Nevertheless, as part of developing an overall estate plan, you should have your attorney review this document. Failing to properly execute a living will means that it will not be recognized and your wishes will not be carried out.
Guardians – A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Legal Guardianships typically become necessary when a person no longer becomes able to manage his or her own estate and/or able to care for themselves. A Guardianship can be obtained over a person, his or her estate, or both. In its simplest terms, a Guardianship is a Court supervised proceeding where a person (the Guardian) is appointed by the Court to act on behalf of another (the Ward) and/or to manage the Ward’s assets if the Ward is a minor or incapacitated.
Guardianships are similar to Probate in the sense that they can be costly, require Court supervision, and take several weeks to establish in the ordinary course of business. However, with proper estate planning you can avoid the use of a Guardianship altogether. Nonetheless, if it becomes to necessary to establish a Guardianship, we are here to help guide you through the process.
- A probate conservatorship is a court proceeding where a judge appoints a responsible person (called a conservator) to care for another adult who cannot care for him/herself or his/her finances (called a conservatee).
- Conservators – A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.
- In some jurisdictions, a conservatorship may be referred to as a “guardianship of the estate”, or by some similar alternative name. For information on addressing matters concerning the person as opposed to property see legal our section on legal guardianship.
- A conservator of the person – cares for and protects a person when the judge decides that the person (called the “conservatee”) can’t do it.
- A conservator of the state – handles the conservatee’s financial matters like paying bills and collecting a person’s income – if the judge decides the conservatee can’t do it.
There are many circumstances where a person is still able to live an independent life, but may require assistance with his or her assets due to failing health or disability. Thus it is not unusual for a petition to be made for the appointment of a conservator, even where the allegedly incapacitated person does not require a guardian.
Power of Attorney
A “power of attorney” is a legal instrument which grants another person the authority to act as your legal representative, and to make binding legal and financial decisions on your behalf.
While it is not particularly difficult to find power of attorney forms on the Internet, there is usually little or no accompanying explanation of what a power of attorney is, when you need one, or what type to choose. Given that the power of attorney can grant considerable power to a third party to act on your behalf and sign your name to legal contracts, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the power of attorney will last, or in its scope.
It may be necessary to to designate someone (called your agent or attorneys-in-fact) make medical decisions for you. To do this, you write the agent’s name in a document called an Advanced Health Care Directive. (It used to be called a power of attorney for health care.) For more information on when and how to make these important medical decisions, click here.
Title describes the rightful ownership of property. When you are purchasing a home you are purchasing title to that real estate. Other individuals or entities could have claims on the property you ‘re trying to buy. There could be unpaid mortgages or liens for unpaid taxes filed against the property, for example, that “cloud” the title and prevent you from receiving “clear” title to the property.
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