Frequently Asked Questions

Most people would rather put off the topic of estate planning for another day…or another year. They say things like:

“I don’t want to spend the money right now.”

“It’s just easier not to think about it.”

“It’ll take care of itself.”

“It won’t be my problem.”

“I’ll live forever.”

“I know I need to do it; I’ll get around to it soon.”

“I don’t know how to start or who to talk to.”

It’s easy to put it off, but better to get it handled. The consultation is free and with no obligation. Get the advice you need and the help you deserve.

When you don’t plan ahead by having a comprehensive estate plan:

• The Court appoints a guardian for you if you are incapacitated.
• Doctors and the Court make medical decisions for you if you are incapacitated.
• The Court appoints your personal representative upon your death.
• The Court appoints guardians for your minor children.
• Michigan law directs distribution of your estate to your “heirs at law”:
  • Spouse.
  • Children.
  • Grandchildren, etc.
• If you have no spouse, your children receive your estate.
• If you have no spouse or children, your parents receive your estate.
• If you have no spouse, children or parents, your siblings, nieces and nephews receive your estate.
• If you have no spouse, children, parents, siblings, nieces or nephews (or descendents), your grandparents (or descendents) receive your estate.
• If you have no spouse, children, parents, siblings, nieces, nephews, grandparents, aunts, uncles or first cousins. . .
• The State of Michigan receives your estate.

By developing and implementing a comprehensive estate plan that includes a revocable living trust to hold and direct assets, you can help ensure your family can avoid the time, expense and hassle of Probate Court when the time comes.

A comprehensive estate plan should include:

• Letter of Instruction—Letters of Instruction provide detailed instructions as to what final arrangements you desire, as well as other important information, such as the names of key advisors and financial service providers.
• Will—Your will names your family members, nominate guardians for minor children, and to direct any remaining probate assets (ideally, there won’t be any) to the trust for distribution under its terms.
• Funeral Representative Designation—A Funeral Representative Designation nominates someone to have final authority over making funeral arrangements.
• Revocable Living Trust—The Revocable Living Trust holds assets for distribution upon your death and to specify what those distributions will entail.
• Certificate of Trust—The Certificate of Trust provide basic information about the trust to financial institutions and title companies as needed.
• Basic Trust Funding Documents—Basic Trust Funding assigns or directs assets to the trust.
• General Power of Attorney—General Powers of Attorney allow your agent, generally trusted family or friend, to conduct business on your behalf while you are alive.
• Medical Power of Attorney—Medical Powers of Attorney allow your patient advocate to make decisions regarding your medical care if you are unable to participate in those decisions.
• Medical Records Release Power of Attorney—Medical Records Release Powers of Attorney allow your patient access to gain access to your medical records to assist them in making decisions regarding your medical care if you are unable to participate in those decisions.
• Advance Medical Care Directive—Advance Medical Care Directives allow you to specify what level of medical care you will receive.

A trust is a legal mechanism, not unlike a corporation or other legal entity, that can be used to hold property for later distribution to individuals and organizations. Unlike a will, which is a set of instructions for how to distribute assets, a trust is, in a sense, a “completed gift.” It names individuals or organizations as beneficiaries to receive trust assets.

Also unlike a will, a trust need not be administered or overseen by the Probate Court. It is a private document and generally results in a private distribution of assets.

When coupled with properly-drafted durable powers of attorney (financial, business, and health care), a trust can also provide guardian-like and consevator-like powers for the successor trustee (often an adult child of the trust creator) without the incuring the hassle and expense of petitioning the Court for these powers. These powers can help you manage and preserve parents’ assets to better provide for their care.

While not every estate fares better with a trust than with a will, it is often the case that a revocable living trust is a much better way to transfer assets than a will. Here’s why.

A will is a set of instructions that the Personal Representative (appointed by the Probate Court) uses to distribute assets to those named in the will to receive the estate (once all the bills have been paid, of course). The will is entered into probate; it’s part of the public record. The Court requires that notice of the death and of the probate process be published. The Court also requires that an inventory fee be paid to the court based on the value of the estate’s assets.

A trust, on the other hand, is a mechanism to transfer assets without going through the probate process. Unlike a will, a trust agreement is private. Publication of notice is not required (although there are situations when it’s still a good idea). There are no inventory fees due to the Court. Most important, though, is that a trust agreement is much more flexible, allowing you to defer distributions to beneficiaries, as well as to place certain conditions on those distributions.

You fund your trust for the same reason you deposit money into your bank account: so the trust holds your property. A trust without assets assigned to it is nothing more than a piece of paper. Assigning assets to your trust takes those assets out of your estate, generally putting them beyond the reach of the Probate Court.

It’s important to understand that putting assets into a revocable living trust, a common estate planning tool, does not, by itself, protect those assets from creditors or from Medicaid “spend-down” requirements. These sorts of protections require more elaborate and carefully timed approaches to avoid  Medicaid coverage disqualification or delay, as well as to avoid running afoul of the Court for concealing assets.

It’s best to use beneficiary designations for IRAs and other tax-deferred accounts. This can allow survivors to keep at least some of those assets as tax-deferred for a longer time than if those accounts are distributed with other trust assets. However, it’s a good idea for the trust to be named as a contingent beneficiary after the other beneficiaries, to keep those accounts from being part of your estate and, therefore, subject to probate.

Generally, it’s a good idea to draft and record deeds to direct your home and other real estate to your revocable living trust. This is especially the case if you are not married. This way, your assets pass to your beneficiaries outside of the probate process, saving your beneficiaries substantial expense, including filing fees, notice fees, inventory fees and legal fees.

When an estate exceeds the estate tax exclusion amount, a special trust mechanism can be established to shelter those assets from estate tax. Called a bypass trust (or A-B trust), this approach helps you reduce the amount of estate tax that will be due upon trust distribution. For very large estates, other mechanisms can be employed, such as irrevocable life insurance trusts (ILITs), non-taxable gifts to individuals (currently capped at $19,000 per gift), and tax-deductable gifts to one or more non-profit organizations.

It’s important to understand that proper trust planning, drafting and implementation can be complex and is essential. The difference between doing this properly and improperly can be hundreds of thousands of dollars (or more) in tax liability that could have been avoided.

A good place to nominate a guardian and conservator for minor children is in your will. Your will is a legal document that has been signed and witnessed–it should be notarized as well. It has full legal force and effect.

Guardians and Conservators are appointed by the Probate Court. The Court generally looks favorably upon guardianship and conservatorship nominations. Judges, while always reserving the right (and having the duty) to act in the “best interests of the child,” usually give great deference to the express wishes of parents.

Yes, you can. This is generally done as part of a Durable Power of Attorney (DPOA). In addition to delegating specified powers to another person (called the Agent), a well drafted DPOA also nominates someone (usually, the Agent) to serve as your guardian and conservator should you become incapacitated.

Guardians and Conservators are appointed by the Probate Court. The Court generally looks favorably upon guardianship and conservatorship nominations. Judges, while always reserving the right (and having the duty) to act in the “best interests of the protected person,” usually give great deference to an individual’s stated wishes.

A Durable Medical Power of Attorney (MPOA) is an essential part of any serious, comprehensive estate plan. It provides a framework to allow someone else (called the Patient Advocate) to guide and manage your medical care if you are unable to participate in making those decisions.

The best medical POAs also provide guidance to your Patient Advocate as to the level of medical care you wish to receive in the form of an Advance Medical Directive (sometimes referred to as a “living will”). Providing an advance medical directive can help your Patient Advocate know what you want, making decisions a little easier at a time when they’re already difficult enough.

Absolutely! Even though your kids are away at college, they may still need you to transact business on their behalf. A durable power of attorney for your children is almost a necessity.

Even more important is to obtain a medical power of attorney for your children, including the power to authorize release of medical records. Colleges and universities are bound by very strict regulations governing the release of medical information, even to parents. The only way to ensure that you can obtain medical records in an emergency is to have the proper durable powers of attorney drafted, executed and ready to use.

Sure, you can use these kinds of services to “draft” your trust and will–you’ll probably save some money, at least in the short term. Will you get everything you need? Will you take all the steps and check all the boxes? Will you actually get it all done, and done properly? Who knows?

It boils down to if, when you need help, you’re ok with calling “tech support” or trading messages with an AI bot. Or, perhaps, you’d prefer to have your work done and your questions answered by a real, live person—an attorney with 25 years of estate planning experience, not just a phone answerer or a data set programmed to guess the next word in the response. It’s your call.

How often you should have your estate plan reviewed depends largely on where you are in life:

• In your 30s and 40s, every three to five years.
• In your 50s and 60s, every two to three years.
• In your 70s and above, every one to two years.

There are also life events that, when the occur, make it a good idea to contact your attorney to schedule an estate plan check-up:

• Marriage.
• Divorce (yours or a beneficiary of yours).
• Death of a spouse.
• A substantial change in the size of your estate (for example, if you receive a large inheritance or win the lottery).
• A move to another state.
• Death of any personal representative, trustee, agent, patient advocate, guardian, conservator or beneficiary you have named in your legal documents.
• Birth of adoption.
• Serious illness of a family member.
• Changes in any business interests you may have.
• Retirement.
• Change in your health.
• Change in your eligibility for life insurance.
• Acquisition of property located in another state.
• Changes in tax, property, probate, or trust law (if applicable to your estate).
• A change in your plans with respect to any of your personal representatives, successor trustees, agents, patient advocates, guardians, conservators or beneficiaries.
• Any new financial responsibilities.