Since life can be unpredictable, it’s wise to take a proactive approach to estate planning. By making arrangements long before you actually need to, you’ll ensure your loved ones are taken care of no matter what happens.

Of course, that’s assuming the arrangements you make are actually legally binding. The best way to guarantee as much is by enlisting help from a seasoned estate planning attorney.

With your family’s financial security at stake, however, you shouldn’t turn to just anyone. Estate planning is a vast practice area, encompassing everything from wills and trusts to special needs planning. To ensure you’ve found the right lawyer, ask the following questions before hiring them:

1. Have You Helped Many Clients Whose Situations Were Similar to My Own?

Do you own a small business? Are you a real estate investor? Do you have loved ones who aren’t related by blood or marriage relying on you for financial support?

Whatever your situation, it’s imperative that you find an attorney who’s familiar with your estate planning needs. You need someone who can propose practical solutions for ensuring all your wishes and contingencies are carried out after your passing.

2. How Long Will It Take You to Get Back to Me?

As you consider the kinds of arrangements you’re going to have to put in place, questions will inevitably arise. When they do, you deserve a prompt answer from your lawyer. That means if you end up having to leave a message, you should be able to count on them getting back to you within a matter of days, not weeks.

While you can ask the attorney about their average response time during your initial consultation, it’s also wise to do a little research of your own. One of the easiest ways to gauge a firm’s commitment to their clients is by reading reviews from past clients.

3. What Is Your Fee Structure?

Since everyone has unique needs when it comes to estate planning, there’s really no standard pricing structure for formalizing the arrangements. As such, it’s important to confirm that the attorney you’re considering hiring is within your budget before you proceed with their counsel.

You should also inquire about the firm’s fees should you ever have to modify your estate plan. Since your circumstances will likely change over the years, your wishes probably will, too. When that time comes, it would be nice to know the practice will honor whatever fee structure you agreed upon from the start.

4. What Do You Need from Me to Get Started on My Estate Plan?

If, at the end of your consultation, you’ve decided to hire the attorney in question, ask for a list of all the documents they’ll need from you to start making your arrangements. The sooner you get everything to them, the sooner they can put your plans in place, and the sooner you’ll have peace of mind knowing your family is protected.

Speak with a Michigan Estate Planning Lawyer

For a knowledgeable estate and trust attorney who’s well-versed in Michigan law, look no further than Smith & Johnson. Our team assists clients with all kinds of probate matters. To schedule a free initial consultation with one of our Michigan estate planning attorneys, call 231-946-0700 or submit our Online Contact Form.

The best time to write your will was the day you turned 18. Since most teenagers aren’t thinking about their mortality on their 18thbirthday, however, chances are you weren’t, either. Thankfully, the second best time to write your will is today.

By making arrangements long before you actually need them, you’ll have peace of mind knowing your family is protected in all eventualities. Since the foundation of every comprehensive estate plan is a last will and testament, drafting this document is a great place to start. Here are a few tips on proceeding:

1. Do Include Alternates

If you name an executor, health care proxy, and/or power-of-attorney in your will, it’s wise to include alternates. There’s always a chance that the parties you include will be unwilling or unable to step up should the time come. In such a scenario, the court would have to assign the role to someone else, and it might not necessarily be the person you would have chosen.

2. Don’t Let Minutiae Slow You Down

It’s easy to get overwhelmed when drafting your will. How do you distill your entire life and legacy into the terms of a single document?

While there is undoubtedly a lot to address, it’s best to start with the biggest issues first. Examples include things like asset distribution and guardianship of any minor children. As long as your will addresses 90 percent of the issues at hand, you’ll have peace of mind. What’s more, you can go back and add additional terms later, once you’ve tackled all the most important elements of the estate.

3. Do Ensure the Terms Are Legally Binding

For a will to be legally binding in Michigan, it must be in writing, signed by the testator (or at the testator’s direction), and signed by at least two witnesses. Just because you ensure all of the above, however, doesn’t mean the court will abide by the terms you included.

When it comes to estate planning, there are certain things you simply cannot do within the confines of a will. For example, you cannot leave money to your pets.

The easiest way to confirm everything you’ve included in the document will be honored is by consulting a local attorney. After discussing your wishes, a lawyer will help you draft your will and then implement any additional arrangements needed to ensure the court will honor everything.

4. Don’t Forget to Review It Periodically

Once you’ve finished writing your will, make a note to pull it out from time to time and review it. Since your circumstances will likely change over time, you’ll probably want to modify some of the terms in your will, as well.

Call 231-946-0700 for a Free Consultation with a Michigan Estate Planning Attorney

When you’re ready to write your last will, turn to the knowledgeable team at Smith & Johnson. We can help you draft a comprehensive document that will ensure your loved ones are taken care of even after you’re gone. Call 231-946-0700 or complete the Contact Form on our website to schedule a free initial consultation with an estate planning lawyer in Michigan.

Since life is ultimately unpredictable, it’s wise to take a proactive approach to estate planning. You should consider drafting a last will and testament as soon as possible, for example, instead of waiting until you’ve reached old age. In doing so, you’ll be able to put certain protections in place that ensure your loved ones are taken care of in all eventualities.

It’s important to remember, however, that your circumstances will inevitably change over time. That means if you do write a last will sooner rather than later, you should be prepared to review it periodically. Chances are you’ll need to modify its terms on occasion, so they always align with your current situation.

Read on for some of the most common scenarios that should prompt a review of your last will:

1. Changing Your Marital Status

Whether getting married or divorced, you’re probably going to want to update your estate plan. While the laws of intestate succession grant certain rights to spouses—and take them away from ex-spouses—modifying your will is the only way to ensure your precise wishes will be honored.

2. Having Children or Grandchildren

Whenever you gain a new descendant, you should consider whether you want to include them in your last will. If they rely on you financially, it’s also advisable to update other aspects of your estate. You might want to purchase life insurance, for example, to ensure they have ample financial security in the event of your passing.

3. Starting a Business

Every business should have a succession plan. If you start a company, make sure the terms of your will are in line with the succession plan. This will help mitigate disputes in the event of your untimely passing.

4. Moving out of State

Every state has slightly different laws when it comes to estate planning. That means if you relocate, some of the terms in your will may no longer be enforceable. Consequently, you’re going to want to review the document carefully with an attorney who practices in your new home state as soon as you get settled.

5. Acquiring a Major Asset

Whether you win the lottery, buy a home, or receive an inheritance, you shouldn’t wait too long to add the new asset to your will. Otherwise, the state will decide how it’s distributed upon your passing, which may not actually be consistent with your wishes.

Discuss Your Case with an Estate Planning Attorney in Michigan

For help writing or updating your will, turn to the knowledgeable team at Smith & Johnson. Our estate and trust attorneys are well-versed in all aspects of wealth transfers, as well as probate, guardianships, contested wills, and special needs trusts.

We’ll address your concerns, answer your questions, and ultimately help you decide how best to plan for the future, so your family is protected no matter what. To schedule a free initial consultation with an estate planning lawyer in Michigan, call 231-946-0700 or submit our Contact Form.

Plaintiff rented out a condominium to his mother and the decedent, his mother’s husband. The couple paid the mortgage payment directly to the mortgage holder.  After plaintiff’s mother died, the decedent continued to live in the residence and pay the mortgage.  After the decedent passed away, the plaintiff filed a claim for unpaid back rent. The plaintiff claimed that he did not charge the couple full rental value during the decedent’s lifetime because of a promise that the outstanding balance would be paid back through a provision in the decedent’s will. In other words, he claimed that the decedent promised to leave the plaintiff something in his will. The Personal Representative filed a disallowance of the claim.   The plaintiff thereupon filed a complaint in the probate court on the theories of breach of contract, promissory estoppel, and quantum meruit (an equitable theory to receive remuneration on the basis of fairness).

The probate court dismissed the case on the basis that MCL 700.2514, which requires that contracts to make a will must be in writing,  barred the action.  The probate court raised this statute on its own.  The plaintiff claimed on appeal that it was error for the probate court to raise this statute on its own.  The plaintiff claimed that his case was an ordinary breach of contract action.  The Court of Appeals disagreed.  The Court of Appeals held that a party’s choice of labels for a cause of action is not dispositive.  A party cannot avoid the dismissal of a cause of action through “artful pleading.”  The Court of Appeals further held that MCL 700.2514 directly applied to this situation.  This statute provides that a contract to make a will, or to die without a will, must be in writing.  The Court of Appeals held that because the terms of the alleged contract in this case were to arise after death, it was clearly an agreement to make a will.  Since it was not in writing, it was unenforceable.  The trial court correctly dismissed the case.

What this means for claimants:  If you expend monies or provide other services on behalf of someone in exchange for their promise that you will be reimbursed via their Will or Trust, be sure to get that promise in writing.

You can read the entire opinion here.

Plaintiff rented out a condominium to his mother and the decedent, his mother’s husband. The couple paid the mortgage payment directly to the mortgage holder.  After plaintiff’s mother died, the decedent continued to live in the residence and pay the mortgage.  After the decedent passed away, the plaintiff filed a claim for unpaid back rent. The plaintiff claimed that he did not charge the couple full rental value during the decedent’s lifetime because of a promise that the outstanding balance would be paid back through a provision in the decedent’s will. In other words, he claimed that the decedent promised to leave the plaintiff something in his will. The Personal Representative filed a disallowance of the claim.   The plaintiff thereupon filed a complaint in the probate court on the theories of breach of contract, promissory estoppel, and quantum meruit (an equitable theory to receive remuneration on the basis of fairness).

The probate court dismissed the case on the basis that MCL 700.2514, which requires that contracts to make a will must be in writing,  barred the action.  The probate court raised this statute on its own.  The plaintiff claimed on appeal that it was error for the probate court to raise this statute on its own.  The plaintiff claimed that his case was an ordinary breach of contract action.  The Court of Appeals disagreed.  The Court of Appeals held that a party’s choice of labels for a cause of action is not dispositive.  A party cannot avoid the dismissal of a cause of action through “artful pleading.”  The Court of Appeals further held that MCL 700.2514 directly applied to this situation.  This statute provides that a contract to make a will, or to die without a will, must be in writing.  The Court of Appeals held that because the terms of the alleged contract in this case were to arise after death, it was clearly an agreement to make a will.  Since it was not in writing, it was unenforceable.  The trial court correctly dismissed the case.

What this means for claimants:  If you expend monies or provide other services on behalf of someone in exchange for their promise that you will be reimbursed via their Will or Trust, be sure to get that promise in writing.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

The Decedent had a life insurance policy which named his mother as the beneficiary.  Subsequently the decedent met and dated his girlfriend. They eventually moved in together and had a baby girl together in 2003.  While his girlfriend was pregnant, they discussed decedent changing the beneficiary of the policy.  In 2005 decedent began having serious medical problems. In August 2006 he had surgery, but it was not successful and he was thereafter confined to a hospital bed.  After the surgery he was unable to speak but he could nod, move his lips, and gesture.   Then, one week before he died, decedent told his girlfriend that he wanted her and their daughter to share the life insurance proceeds equally, and instructed her to  fill out the appropriate  change forms, which she did.   The decedent signed the change of beneficiary forms at the hospital.  The girlfriend was not present when he signed them, but a hospital social worker and a notary were present.  They testified that the decedent could communicate, that he understood the document and that he intended to execute it.

            Decedent’s mother testified that on the way to the hospital before his surgery, decedent said he wanted her (the mother) to have his life insurance benefits.  

             After decedent died, there was a dispute between decedent’s mother and his girlfriend as to who should get the life insurance proceeds. The mother claimed that decedent’s changing the beneficiary was the result of undue influence on the part of the girlfriend.  The insurance company filed an interpleader action to get the court’s ruling on who was entitled to the proceeds.   The trial court ruled that the mother did not meet the burden of a presumption of undue influence.  The Court of Appeals reversed.  Upon remand, the trial court ruled that although the mother established the presumption, the girlfriend had successfully rebutted the presumption of undue influence.   Thus, the girlfriend was entitled to the proceeds.  The mother appealed.   The Court of Appeals affirmed, finding that the trial court did not err in finding that the presumption was rebutted.  

            Under the law, undue influence will presumed if evidence establishes the following three things: 1) the existence of a confidential relationship between the decedent and a fiduciary, i.e, the girlfriend; 2) the fiduciary benefits from the transaction; 3) the fiduciary had an opportunity to influence the grantor.   The party opposing the claim of undue influence then has the burden, by competent and credible evidence, of providing evidence to rebut the presumption.   The Court of Appeals held that although all three of the criteria for a presumption were met in this case, the girlfriend satisfactorily rebutted the presumption by the following evidence:  Decedent could communicate by moving his lips and gesturing.  He was medically cleared before signing the forms. The social worker and notary testified they believed he understood what he was doing.  The girlfriend was not present in the room when decedent signed the forms, and the only contra testimony indicating coercion was from the girlfriend’s sister, from whom she was estranged and whose testimony the trial court found not credible.   The Court of Appeals held that the trial court did not err in concluding that the girlfriend rebutted the presumption.  The Court of Appeals also held that the fact that the girlfriend’s testimony was self-serving did not change the conclusion, nor did the fact that the decedent was in a weakened and vulnerable physical state.

  What this means for beneficiaries:   A claim of undue influence can be made if a fiduciary to the decedent receives more from the estate than other heirs.  The girlfriend in this case was found to be a fiduciary because she was decedent’s appointed agent in his durable powers of attorney.  Fiduciaries are more vulnerable to a claim of undue influence because of the presumption mentioned in the case.   If you are a fiduciary (agent appointed in a durable power of attorney, executor, or trustee), you should take care not to take actions which could be construed as trying to exert influence on the decedent to leave more of his estate to you, especially if the grantor is elderly, frail, or in poor health.   Fortunately for the girlfriend in this case, there was enough evidence that the decedent was not unduly influenced so that the courts  denied the mother’s claim of undue influence and upheld the change in beneficiary.

You can read the entire opinion here.

Authored by Barbara A. Assendelft

            In 1984 Lyall and June Aldrich signed a quit claim deed that transferred ownership in some land to their three children, Kim Aldrich, Randy Aldrich, and Kit Price as tenants in common.   Randy Aldrich died without a Will in 1998.  No probate estate was opened at the probate court after his death.  In June 2001 Randy’s wife, Carol,  signed a deed transferring her interest in the property as survivor of her husband, to Randy’s brother, Kim Aldrich, and his sister, Kit Price.  After both Lyall and June died, Kim and Kit filed suit to quiet title in the property claiming they legally held all the interest.    Kim and Kit filed a motion for summary disposition, claiming that under the statute pertaining to intestate succession, MCL 700.2102 (1), Carol had interited  her husband’s entire estate, so that when she quitclaimed the property to Kim and Kit, she effectively transferred her husband’s one-third interest in the property to them.   Randy’s children, on the other hand, claimed that since Randy’s estate was not probated, Carol had never received a deed transferring the property to her and thus she could not transfer her interest to Kim and Kit. 

                The trial court ruled for Kim and Kit.  The trial court ruled that by executing the June 2001 quitclaim deed, Carol Aldrich in effect elected to take her survivor’s share in her husband’s estate.   The children appealed. The Court of Appeals affirmed.  The Court of Appeals noted that under Michigan law, title to real property vests in a decedent’s heirs at the moment of the decedent’s death, even if no probate estate is opened.  Hence, Carol received Randy’s 1/3 intere4st immediately when Randy died.  Thus, she could properly quit claim the 1/3 interest to Kim and Kit.   A quitclaim deed effectively transfers whatever interest in the property that the grantor had at the moment of the transfer. Because title to her husband/s one-third interest vested in her at the moment of her husband’s death, Carol Aldrich owned the one-third interest when she executed the quit claim deed.  Accordingly, there was nothing left for Randy’s children.

 

 What This Means For Heirs:

 If a person dies without a Will or Trust, a probate estate does not have to be opened at the probate court in order for legal title to real estate to pass to the decedent’s heirs.   However, be aware that this is not the rule for personal property.  The Court of Appeals specifically stated that title to personal property does not transfer to a decedent’s heirs at the moment of death; rather, it passes to the executor of the decedent’s estate upon appointment as executor by the probate court.  So, for all assets other than real estate, you should always have a probate estate opened in order to properly pass title to the heirs. 

You can view the entire Court of Appals opinion here.

Authored by Barbara A. Assendelft