Downriver's Finest Law Office
Letourneau McAvoy
20155 Goddard
Taylor, MI 48180
ph: 313-291-0240
fax: 313-291-2124
attorney
We provide peace of mind and maximize your estate for your heirs and not the government. Few areas of the law are as generally misunderstood and feared as probate and estate planning. Take some time to read some of the more frequent concerns people have. Call to set up a complimentary consultation to see what options are available to you.
No. Using a simple Will alone ensures that your estate will be involved in the probate process. A Will is literally an instruction to the Probate Court requesting that the court assure that the decedent's taxes and expenses are paid and then the remainder of the estate is handled in the matter that the decedent described in the Will.
Generally speaking, when all is said and done, your estate will have incurred more expenses by using a "simple" Will rather than using a revocable living trust with a pour-over Will. There are fees to pay in Probate Court for the filing process as well as an "Inventory fee". On the non-monetary side, going through probate will mean that your heirs will be forced to adhere to the time table set by the probate court. Finally, a simple Will does not avoid "living probate".
Having a simple Will and a Durable Power of Attorney does not guarantee that you will be able to avoid "living probate". Many institutions do not honor a Durable Power of Attorney document that is not of recent date. So, a conservatorship may still be necessary to pursue in the Probate Court. The evidence that a Durable Power of Attorney document was executed may be submitted in court, however, the court may still appoint someone else as the person's conservator.
This type of "estate planning" often results in a family feud. It must be carefully analyzed. The use of joint tenancy between husband and wife will avoid the time and cost of probate at the first death but probate at the second death will be required. The addition of children as owners introduces a lack of control by the parents over the disposition of that joint property because all joint owners must agree. You may have inadvertently included dower rights of in-laws and creditors of the children may then be able to attack and attempt to apportion property to satisfy the children's debts.
The key in avoiding probate with a revocable living trust is the retitling of assets. Assets titled in the name of the trust avoid probate. At the time of the person's death, if the asset is owned by the trust and is not in the decedent's name alone, that asset does not pass through the probate estate. Therefore the Successor Trustee of the trust is now able to handle the asset as the trust document instructs.
Note that after a trust has been established, it is still necessary to transfer the ownership of the assets held in the person's name over to the trust during the person's lifetime or it, too, will not avoid probate.
No. A revocable living trust is a document created while you are living, but does not prevent you from continuing to use your property as you wish during your lifetime.
Even though your estate may be considered modest in terms of the likelihood of needing to pay federal estate taxes, you should consider what would occur if your parents died prematurely. Would you want your children to be able to receive their entire inheritance at age 18? Any inheritance left to a minor child will not be available to the child, absent an Order of the Probate Court, until the child reaches the age of majority. While most everyone wants their children to inherit from them, many parents are concerned about the maturity level of an 18 year old to properly manage the funds.
No. Beginning at age 18 Michigan law enables you to name a surrogate known as a "patient advocate" to make medical care decisions for you in the event you become incapable of communicating such decisions for yourself. Your patient advocate can make any decision you can make within the limitations you set forth in the documents.
If you use a revocable living trust, you will be naming Successor Trustees. A Successor Trustee will, upon your death, serve the same function as an "Executor" of an estate. A significant difference is that the Successor Trustee will not have to undergo any court proceeding to accomplish your goals.
There are still very good reasons for having what is called a "pour-over" Will. First, if you have a minor child, the Last Will and Testament is the document in which to nominate a guardian and/or conservator for the child. There will need to be a court proceeding in order to appoint a guardian or conservator and so it is appropriate that the Will be used to make those nominations. The Will is referred to as a "pour-over" Will because the Will instructs that after any taxes and expenses are paid, the remainder of any assets would "pour over" into the trust and then be handled according to the instructions in the trust. In other words, the Will "catches" any assets that were held in your name alone at your death and "pour them over" into the trust to be handled as you have directed in that document
The "Quick" Claim Deed
Too often I have clients call me and ask for a "quick" claim deed. They heard it was the best way to avoid probate for their house and they need to do it right away. I guess that is why they call it "quick."
The real name is Quit Claim Deed. Putting your kids on your deed is a certain way to avoid probate but only for the house and not for any other property you may have. It also is a good way to insure your kids get stuck with a big tax bill that is avoidable by not doing a deed. This is just one of the many reasons why no one should ever do this. Call or email me today and I will send you the 10 reasons why you should never, ever add a child's name to your deed.
Letourneau McAvoy
20155 Goddard
Taylor, MI 48180
ph: 313-291-0240
fax: 313-291-2124
attorney