A revocable living trust — also known as an inter-vivos trust — is a useful estate planning mechanism for many reasons. Living trusts can be used to help assets avoid probate, protecting your family’s privacy while helping them to avoid court fees and oversight. Living trusts also afford you a significant level of control, even after you become incapacitated or pass away.

With that being said, there are several common errors that can prevent your trust from reaching its full efficacy. One of the most common trust errors is to leave the trust as an “empty vessel” by not properly re-titling assets into it when you have the chance. Let’s explore some of the important considerations for funding a living trust to know during Michigan estate planning:

What Is a Living Trust? A Brief Overview

A trust is a written agreement created by the settlor or grantor, which names an individual who is responsible for managing trust property, as directed by the trust agreement. This person is known as the trustee. A revocable living trust allows the settlor to maintain control of their assets during their lifetime, and modify or revoke the trust at any time.

The revocable living trust is one of the most popular types of trusts in the United States, because it offers many benefits appealing to a range of individual circumstances.

For instance, placing assets into a living trust can allow them to pass to your beneficiaries without having to go through the oversight of the probate courts. This can save time, money, and stress for your loved ones during the estate administration process, and can help protect your family’s privacy. Crucially, establishing a trust can also offer you a great deal of control over your assets, both while you are living and after you have passed. A trust can be a straightforward way to set aside assets in order to care for a minor, or a dependent with special needs. Trusts can also enable you to set down rules, requirements, and restrictions for your beneficiaries, controlling conditions for if, how, and when they may receive their inheritance.

The creation of a trust can also help protect your estate from certain taxes and fees, which might ultimately allow you to provide more for your beneficiaries.

There are many important considerations to be addressed in the creation of a trust, so that it is designed to your specifications and in line with all necessary legal formalities. One of the practicalities involved in creating a trust, for example, is appointing the trustee, along with one or more successor trustees, who will take on the responsibilities of managing the trust if the primary trustee is unable to do so. Typically, the settlor will act as the trustee for as long as they are living, with a designated successor trustee stepping in after their death.

Another crucial yet frequently overlooked consideration is taking care to properly fund the trust with the assets that you choose; otherwise, it will remain an empty vessel, and may not provide any of the advantages or opportunities that we discussed above.

Don’t Leave an Empty Vessel: What Goes Into Funding a Trust?

Once the trust is created, it is essential to re-title your selected assets into the trust.

As you consider the ins and outs of properly funding a living trust, there are a few important considerations to discuss with your estate planning attorney —  an important partner who can help ensure that your trust is complete, and designed to ensure that your wishes will be executed as you see fit.

One of the most important things to discuss with your estate planning attorney is which of your assets should be used to fund the living trust, and which should not.

Broadly speaking, many important assets can be transferred into a trust, including but not limited to:

• Real estate (including property that is mortgaged)
• Business interests
• Investments and securities
• Valuable personal property (such as artwork, antique furniture, precious metals and jewelry, or private collections)
• Bank accounts and holdings

An attorney can help you assess and understand your unique circumstances, and take appropriate actions based on the specific variables of your situation.

For instance, if you have real estate that should be transferred into a trust, your attorney can help you execute the proper paperwork to ensure that you successfully transfer the property into the name of the trust. An attorney can help you understand which methods to use for your situation, and take steps to ensure that all paperwork is filed properly. An attorney can also offer keen insight into variables you might overlook on your own; for instance, if you own real property in multiple states, an attorney can help you take steps to prepare for the possibility of ancillary probate. An attorney can also offer their experienced perspective on next steps when it comes to taxes, title insurance, mortgages, and other important practicalities that go hand-in-hand with owning or transferring real estate in Michigan.

For property that may not be titled — such as valuable family heirlooms or an antiques collection — an attorney can help you draft documents that properly transfer the assets into your trust. An attorney may also help you consider whether to take advantage of a pour-over will, a mechanism that helps to “pour” all of the estate assets that pass through your will directly into a previously created trust at your death.

An attorney can also help you understand alternative mechanisms for transferring assets such as motor vehicles and financial accounts, such as naming a transfer on death or payable on death beneficiary for bank accounts and mutual funds, or utilizing joint tenancy with rights of survivorship for titled property — both of which can enable assets to be transferred outside of probate.

It is also important to understand the difference between transferring assets into a trust, and naming the trust as a beneficiary. A knowledgeable and savvy estates and probate attorney can help you consider the best course of action for your unique situation, based on your assets, your goals, and any specific individual challenges that you may be facing.

Looking for Assistance with Trust Creation, Administration, or Issues?

Trusts are a popular estate planning tool, but it is often essential to receive guidance from an experienced, skillful, and knowledgeable attorney in order to ensure that they are properly established and maintained.

Similarly, if you are a trustee, personal representative, or otherwise involved in the administration of an estate, last will, or trust, you probably have questions. An experienced probate and trust attorney can provide informed professional advice to guide you through the legal process, explain your legal obligations as a fiduciary, and help you discharge your duties in an efficient and expedient manner to avoid personal liability.

Our probate and trusts attorney Dean E. Patrick has years of valuable experience helping those in the Metro-Detroit area establish, administer, and litigate trust estates. If you have questions on trusts or other estate planning matters, contact Dean E. Patrick at his Southfield, Michigan office at (248) 663-2566 or click here to arrange your initial consultation.

Mr. Patrick is a licensed Michigan lawyer with a focus in probate law. He has the legal counseling skills, experience, and dedication that your legal matter deserves. Whether you are looking for a probate attorney, an estate planning attorney, or need legal advice when dealing with these emotional issues, you can trust our office to guide you through the process and deliver results.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Today, most of us use computers, phones, and tablets to send messages, check in with friends, carry out important financial transactions, watch TV and listen to music, and even to conduct business. Case in point? Odds are very good that you’re reading this post on a smartphone, tablet, or computer screen right now! 

The more we all use technology in our everyday lives, the more digital assets we create. Have you ever thought about what might happen to your digital assets when you’re no longer around to manage them? What do you want to happen to your social media and email accounts? Who do you want having the log-in information for your online financial accounts? How will you ensure that your loved ones are able to download precious family photos and videos? 

Just as it’s important to have a plan for your tangible property, real estate, and financial accounts, it is essential to consider what will happen to this ever-growing list of digital assets should you become incapacitated or pass way. 

For this reason, it is crucial that you discuss a plan for your digital and hybrid assets with your estate planning attorney. A knowledgeable and savvy lawyer can assist you in identifying your most prominent digital assets, while also taking care to ensure that you maintain control over these important accounts and profiles after you’re gone — such as determining how these assets will be managed, and who will be able to access them. 

Let’s dig into a few major FAQs about estate planning for digital assets:

“What Digital Assets Should Be Considered for Estate Planning Purposes?”

Today, nearly every facet of our day-to-day lives can be performed and managed online. As a result, a digital asset could refer to any number of things — ranging from media files to social networking accounts. You may also have some important estate planning assets that could be considered “hybrid” assets, such as an investment account that you generally access and manage online. 

Curious what might fall into this broad and ever-expanding category? Here are a few of the common digital assets that you may already own: 

• Social media accounts
• Email accounts
• “Paperless” online banking and investment accounts
• Online subscription accounts
• Website domains
• Cryptocurrencies (such as Bitcoin)
• Digital photos, vidoes, and other files stored in the cloud or on Dropbox
• Income-generating content published on the web (such as blog posts, written articles, or videos)
• Digital copyrights and trademarks

If you do not make a plan for these assets, they could become incredibly difficult for your loved ones to access when you are gone. Issues like lost passwords, data encryption, and byzantine platform terms of service agreements can make accessing, closing, or transferring these common assets a nightmare. 

“Does Michigan Have Any Laws Governing Access to a Decedent’s Digital Assets?”

Michigan is among the sizable group of states that has enacted a version of the Revised Uniform Fiduciary Digital Assets Act, which governs access to an individual’s digital assets when the account owner dies or becomes unable to manage them. 

Enacted in 2016, Michigan’s Fiduciary Access to Digital Assets Act defines a digital asset as “an electronic record in which a user has a right or interest.” The person or company that “carries, maintains, processes, receives, or stores a digital asset of a user” is known as a digital custodian. This law provides for access to a decedent or protected individual’s digital assets by a fiduciary, such as a personal representative, trustee, conservator, or agent under power of attorney.

Broadly speaking, the Fiduciary Access to Digital Assets Act helps extend the power of a fiduciary to encompass the management of digital assets. While the act allows fiduciaries to manage digital property such as computer files, web domains, and cryptocurrencies, it largely restricts a fiduciary’s access to electronic communications unless the original user gives their fiduciary access through a will, trust, power of attorney, or other written mechanism. The act also specifies what information a fiduciary may need to present to a digital custodian in order to gain access to digital assets,  as well the requirements and procedures for disclosure by a digital custodian. 

If you are interested in how this act may affect you as a testator, personal representative, or trustee, do not hesitate to contact a shrewd and savvy estate planning attorney in your area. An estate planning lawyer can help you understand everything that goes into creating a functional estate plan that includes your digital assets.

 If you are acting on behalf of an estate, an estates and probate attorney can provide informed professional advice to guide you through the legal process, explain your legal obligations as a fiduciary, and help you discharge your duties in an efficient and expedient manner to avoid personal liability.

“How Can I Make a Plan for My Digital Assets?”

So, what goes into addressing your digital assets within your comprehensive estate plan? Here are a few important steps to keep in mind as you move forward:

• Inventory. One of the most important steps you can take is to thoughtfully and comprehensively list your digital assets. Create a list of online accounts and profiles that your loved ones need to know, as well as information for how to access them. Consider backing up cloud-based data on a physical hard drive, or using an online password manager to keep your records organized. Make sure your inventory is safely stored with your attorney or in a secure place — but take care to ensure that your fiduciaries will be able to access it when the time comes. Learn more about safeguarding your estate plan here. 
• Plan. Once you have gotten a handle on your digital assets, talk with your attorney about who you want to be able to have access, and what steps you want them to be able to take to manage, transfer, or close the accounts. For instance, you may want to have your social profiles deleted, or empower your fiduciary to change the passwords for your business accounts. Look into the terms of service and rules for the various online platforms you use, and consider looking into online tools that can streamline communication between your fiduciary and any digital custodians. 
• Execute. Work closely with your attorney to draw up will, trust, and power of attorney documents that thoughtfully address your estate’s digital needs. For instance, you may specify whether or not you want to grant your personal representative full or partial access to a specific account. An attorney can help assure that your language is clear, precise, actionable, and effective. 

Have Any More Questions About Michigan Estate Planning and Probate? We Are Here For You

There is no reason to put off taking care of those you love and that which you have worked hard for. 

Looking for guidance on the many moving pieces that go into successful estate and incapacity planning, including wills, trusts, powers of attorney, guardianship, and conservatorship? Your Michigan probate attorney Dean E. Patrick is here to help.

Mr. Patrick is a licensed Michigan lawyer specializing in estates and probate law. He has helped hundreds with their estate planning needs, giving him the necessary knowledge to provide unparalleled legal advice and assistance that can make your life a little easier.

If you have questions or are curious about how to move forward, contact our offices at (248) 663-2566 or reach out online to set up your initial consultation.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Will and trust contests can often cause estate administration to drag on — while pitting family members against each other. 

To minimize the likelihood of contests during probate, one action that you may take as part of your estate plan is to add a “no-contest clause” to your will and/or trust. 

Also known as a “penalty clause,” “in terrorem clause,” or “terror clause,” this language is intended to deter beneficiaries from contesting the will — lest they lose their entire inheritance altogether. 

Let’s explore the ins and outs of no-contest clauses in more depth: 

What Is a No-Contest or Penalty Clause?

A no-contest clause is language inserted into a will or trust that is meant to discourage named beneficiaries from filing a contest or other proceeding against the validity of the will or trust. Broadly speaking, this clause generally states that any beneficiary who files a proceeding against the provisions of a will or trust will forfeit their right to receive any distribution at all from the estate. 

These penalty clauses are often called “terror” clauses for that reason — because they are meant to strike true fear into the hearts of any disgruntled beneficiaries, and prevent them from taking action against the estate! 

Below is a broad and general example of sample language that may be representative of a no-contest clause for a will, courtesy of the legal resources site NOLO. If you are considering implementing a no-contest clause to your will or trust, it is imperative that you consult with an experienced estate planning attorney in Michigan, who can help you understand the specific language that should be used based on your individual circumstances.

If any beneficiary under this will seeks to obtain in any proceeding in any court an adjudication that this will or any of its provisions is void, or seeks otherwise to void, nullify, or set aside this will or any of its provisions, then the right of that person to take any interest given to him or her by this will shall be determined as it would have been determined had such person predeceased the execution of this will without issue.

A no-contest clause may be worth considering if you are worried about a devisee or beneficiary contesting your will or trust. For instance, if you were to distribute your property in such a way that one child stood to inherit substantially more than his or her sibling, which could potentially be viewed as unfair, a penalty clause could be used to deter the sibling who inherited less from considering mounting a costly and time-consuming challenge. 

With that said, there are limits to what a no-contest clause can achieve. Most importantly, penalty clauses are unenforceable if the court determines that “probable cause” for implementing proceedings exists (we will explore this in more depth below). What’s more, terror clauses are generally only applicable to named beneficiaries — meaning that omitted children, heirs, or other interested persons may still wish to pursue a contest. No-contest clauses may also fail to act as a deterrent against beneficiaries who receive so little from the estate that they feel as though they have nothing left to lose, so to speak. 

While a no-contest clause can give your estate some protection, it is only one of many tools that you can use as part of your estate plan. It is important to discuss all of your options with a skilled and experienced Michigan attorney, who can help you create a comprehensive estate plan that takes appropriate steps to safeguard your assets, keep you in control, and ensure that you achieve all of your most pressing goals.

Will a No-Contest Clause Always Be Enforced?

Michigan law makes clear that a penalty clause in a will or trust is unenforceable “if probable cause exists” for instituting proceedings. 

What does this mean? Broadly speaking, the court will determine if there is probable cause based on the specific circumstances and facts of the case. Michigan case law offers some clarity: 

Probable cause exists when, at the time of instituting the proceeding, there was evidence that would lead a reasonable person, properly informed and advised, to conclude that there was a substantial likelihood that the challenge would be successful.

What Constitutes Probable Cause for a Will or Trust Contest?

Generally speaking, it is not enough to feel that the decedent was unfair in their choices. Instead, a will or trust challenge must be based on evidence. Typically, proceedings against the validity of a will or trust may be raised due to issues including: 

• Lack of Testamentary Intent or Capacity. In order for a will to be valid in Michigan, the testator must have sufficient mental capacity at the time of its creation. 

• Improper Execution or Revocation. An individual may have grounds to contest a will or trust if a significant mistake or error was made when the documents were being created. A will may also be contested and ultimately rendered invalid if it can be shown that there is another valid will or codicil executed on a later date, which would replace the terms of the earlier document. 

• Undue Influence or Duress. A contestant may have grounds for a dispute if they suspect that a will or trust was created under undue influence or duress — which might include physical abuse, threats of violence, blackmail, separating the decedent from their family, or even withholding food or medication. 

• Fraud, Forgery, or Misrepresentation. A contestant may have grounds if they believe that the testator or settlor was deliberately tricked into signing a document — for instance, if someone lied to the decedent, telling them they were signing another document instead of a will, or misrepresenting what the language in the document actually says. A contest on the grounds of forgery may apply if someone attempts to create documents under the testator’s name, or if signatures from witnesses have been falsified. 

Get the Experienced Insight of a Michigan Estates and Probates Attorney

Whether you believe you have grounds to challenge the validity of a will or trust; you are put in the position of defending a decedent’s will or trust from contests; or you are interested in learning more about how to utilize no-contest clauses in your estate plan, it is important that you bring your questions to an experienced and knowledgeable local probates and estates attorney as quickly as possible. 

The many steps involved with contesting or defending a will or trust in court can be complex and time-intensive. A lawyer skilled in probate litigation can help you understand all of your options and navigate through the probate courts with the guidance and advice your matter requires —from doing research and determining the validity of the contest, to filing all of the proper paperwork at the right time, to aggressively representing your interests in the courtroom should it become necessary.

Whether you are a spouse, child, beneficiary, creditor, or personal representative involved in a contested probate matter, you can rely on our firm to aggressively advocate for your position. Want to minimize the likelihood for family disagreements and contests when you’re gone? An estate planning attorney can ensure that you get answers to the questions you have concerning wills, trusts, and powers of attorney so that you can choose which tools are best suited for your individual circumstances. 

About The Patrick & Associates, PLLC.

At The Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies. We will be flexible in order to accommodate your needs, and we work hard to discuss these difficult matters in terms that are easy to comprehend. With staff available 24 hours a day, we’re also never far from your questions and concerns. 

If you have further questions or are looking for representation as you navigate no-contest clauses, will and trust disputes, or any other matter that forces you into Michigan’s tricky probate court system, we are here for you. Don’t hesitate to call our Southfield, Michigan office at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

A trustee has many important responsibilities and duties, including managing, controlling, and distributing trust property, while keeping beneficiaries and other relevant parties informed about the administration of the trust. 

A trustee is a fiduciary, meaning that they are held to a very high standard for conduct. In executing his or her duties, a trustee is expected to put the needs of the trust and the trust beneficiaries above their own. Among other things, acting as a fiduciary means serving with “undivided loyalty,” remaining impartial, being careful and prudent in all actions, and keeping trust assets separate from your own.  

Nominating a trustworthy and capable trustee or successor trustee is an important part of creating an estate plan. Unfortunately, it is not uncommon for issues with trustees to arise – such as conflicts between cotrustees, failure to meet important deadlines, self-dealing, or even trustees failing to distribute assets in compliance with the terms of the trust.

What are your options for challenging or removing a trustee who is not performing their responsibilities, hindering the administration of the trust, or actively working against the terms of the trust agreement? 

One recourse is to petition the probate court for the removal of a trustee, particularly due to breach of trust. If you believe you have cause to petition for the removal of a trustee, it is extremely important that you consult with a knowledgeable trusts attorney as soon as possible to explore your options. 

Petition for Removal of a Trustee

Under the Michigan Trust Code, certain parties – including the settlor (i.e., the creator of the trust), a cotrustee, or a qualified trust beneficiary – may request the court to remove a trustee. The court may also act to remove a trustee on its own initiative. 

The court may remove a trustee in situations where one or more of the following occur: 

• The trustee commits a serious breach of trust (that is, a significant violation by a trustee of a duty the trustee owes to a trust beneficiary)
• Lack of cooperation between cotrustees is substantially impairing the administration of the trustee
• Because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the purposes of the trust
• There has been a substantial change of circumstances, and the court finds that removal of the trustee best serves the interests of the trust beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available

Remedies for Breach of Trust

In lieu of or in addition to removing a trustee, the court may also order other relief it deems necessary to protect trust property or the interests of trust beneficiaries. Broadly speaking, the court may do any of the following to remedy a breach of trust that has occurred or may occur: 

• Compel the trustee to perform their duties
• Enjoin the trustee from committing a breach of trust
• Compel the trustee to redress a breach of trust by paying money, restoring property, or other means
• Order a trustee to account
• Appoint a special fiduciary to take possession of the trust property and administer the trust
• Suspend the trustee
• Remove the trustee
• Reduce or deny compensation to the trustee
• Void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property wrongfully disposed of and recover the property or its proceeds
• Order any other appropriate relief

When Can You Commence Proceedings?

The Michigan Trust Code also sets down some notable limitations on commencing proceedings  against a trustee:

• A trust beneficiary cannot commence a proceeding against a trustee for breach of trust more than one year after the date the trust beneficiary or a representative of the trust beneficiary was sent a report that adequately disclosed the existence of a potential claim for breach of trust and informed the trust beneficiary of the time allowed for commencing a proceeding
• A trust beneficiary who has waived their right to receive reports cannot commence a proceeding for a breach of trust more than one year after the end of the calendar year in which the alleged breach occurred. 
• In other situations, a judicial proceeding by a trust beneficiary against a trustee for breach of trust must be commenced within five years after the first of the following to occur: the removal, resignation, or death of the trustee, the termination of the trust beneficiary’s interest in the trust, or the termination of the trust

Understanding a Trustee’s Rights and Liabilities

There are also some specific circumstances and conditions to keep in mind when it comes to a trustee’s liability – and the rights of other individuals who may be dealing with the trustee. 

For instance, the Michigan Trust Code makes clear that a trustee who acts “in reasonable reliance” on the terms of the trust as expressed in the trust instrument “is not liable to a trust beneficiary for a breach of trust to the extent the breach resulted from the reliance.”

Similarly, if an event occurs that affects the administration or distribution of a trust – including, but not limited to, marriage, divorce, performance of educational requirements, attainment of a specific age, or death – a trustee “who has exercised reasonable care to ascertain the happening of the event” is not liable for a loss resulting from their lack of knowledge or lack of notice.

In some trusts, you may find exculpatory language, relieving a trustee of liability for breach of trust. Such terms are unenforceable when the term “relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the trust beneficiaries,” or if the term was inserted as the result of an abuse by the trustee. However, the terms of a trust relieving a trustee of liability for breach of trust for the acquisition or retention of a particular asset or asset class or failure to diversify investments are enforceable.

A trustee is generally not liable to a trust beneficiary for breach of trust if the trust beneficiary consented to the conduct constituting the breach, released the trustee from liability for the breach, or ratified the transaction constituting the breach – unless the consent or ratification was induced by improper conduct, or the trust beneficiary did not know of one or more material facts relating to the breach. 

Finally, it is important to keep in mind that a person who assists or deals with a trustee in good faith without knowledge that the trustee is exceeding or improperly exercising their powers is protected from liability. 

Potential Outcomes and Next Steps

The Michigan Trust Code states that a trustee who commits a breach of trust is liable to the trust beneficiaries affected for whichever of the following is larger:

• The amount required to restore the value of the trust property and trust distributions to what they would have been had the breach not occurred, or 
• The profit the trustee made by reason of the breach

Even absent a breach, a trustee may be accountable to an affected trust beneficiary for any profit made arising from the administration of the trust. However, absent a breach of trust, a trustee is not liable to a trust beneficiary for a loss or depreciation in the value of trust property, for failure to generate income, or for not having made a profit. 

In a proceeding involving the administration of a trust, the court may award costs and expenses, including reasonable attorney’s fees, to any party who enhances, preserves, or protects trust property, to be paid from the trust that is the subject of the proceeding.

If a trustee participates in a civil action or proceeding in good faith, whether successful or not, the trustee is entitled to receive from the trust property all expenses and disbursements including reasonable attorney fees that are incurred. With that said, a court may reduce or deny a trustee’s claim for compensation, expenses, or disbursements with respect to a breach of trust.

What happens if a vacancy in trusteeship occurs due to disqualification or removal? If one or more cotrustees remains in office, a vacancy in a trusteeship does need not to be filled. A vacancy in a trusteeship must be filled if the vacancy leaves either:

• a trust that is not subject to a separate trustees provision as of the time of the vacancy without any remaining trustee
• any of the several separate trusteeships governed by an operative separate trustees provision without any remaining trustee

If a vacancy in a trusteeship of a noncharitable trust is to be filled, the following order of priority is used:

• In the manner designated by the terms of the trust
• By a person appointed by the court

If a vacancy in a trusteeship of a charitable trust is to be filled, the vacancy must be filled in the following order of priority:

• In the manner designated by the terms of the trust.
• By a person selected by the charitable organizations expressly designated to receive distributions under the terms of the trust
• By a person appointed by the court

Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee or special fiduciary upon the showing of good cause.

A trustee who has resigned or been removed must proceed “expeditiously” to deliver the trust property in their possession to the cotrustee, successor trustee, or another person entitled to it.

Probate Litigation Is Complex. You Don’t Have to Go Through It Alone

Coming to terms with a loved one’s passing is a difficult and emotional process – and one that is only made more fraught when you need to deal with intricate legal matters at the same time. Probate litigation can cause emotions to run high, and lead to intense family arguments. Litigation will also require an understanding of extremely complex legal matters, as well as the specific laws for your state and county, and how they may apply based on your unique situation.

Throughout this trying time, it’s important to have an experienced and professional advocate on your side, one who can patiently help you understand the ins and outs of the probate process in your area.

Whether you are a settlor, a trustee, or a named beneficiary, a probate litigation attorney in your area can help address your questions and navigate the entire process, so that you can secure the best possible outcome for your situation.

If you’re based in Michigan, Attorney Dean E. Patrick can help. Mr. Patrick is knowledgeable on all aspects of estate planning, trusts, and probate, with years of experience as a practicing attorney. Whenever you’re ready to get started, Dean is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome. 

If you have any trust-related issue that has interrupted your life, you can count on our firm to work hard to accomplish your goals — with the expertise, empathy, intellect, and professionalism your matter deserves at every step of the way.

Ready to keep the conversation going? The Patrick & Associates, PLLC.. is conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. Contact Dean E. Patrick at his Southfield, Michigan office at (248) 663-2566 or click here to arrange your initial consultation.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

When you’re gone, your most important assets will remain — and they will be reallocated. Estate planning is a process that keeps you in control of the most important things in your life. Depending on the specifics of your circumstances, there are numerous estate planning mechanisms and tools to discuss with your estate planning attorney, including the testamentary trust. 

A testamentary trust is a useful estate planning tool which can allow you to maintain control over some of your most important assets and help protect your beneficiaries in the months and years to come — particularly minor children, loved ones who happen to have a disability, and family members who may require some level of financial oversight and guidance to manage their inheritance. 

What Is a Testamentary Trust?

In most basic terms, a testamentary trust is a trust that is contained in a will. Generally speaking, a testamentary trust is created through instructions set down in a decedent’s last will and testament. 

Specifically, the testator (will-maker) may use their will to set down instructions for establishing a trust, specifying the assets that should be transferred into the trust, naming a trustee and beneficiaries of the trust, and leaving instructions for how the trustee should manage the trust contents on behalf of the beneficiaries. One example of an asset often used to fund a testamentary trust is the proceeds of a life insurance policy owned by the testator. 

You can create multiple testamentary trusts in your will — for instance, you could create one trust for the benefit of your spouse, and another for your children or grandchildren. 

Because it is established upon the death of the settlor, a testamentary trust is an irrevocable trust. With that said, you can make modifications or adjustments to the terms of the trust for as long as you are alive by amending or replacing your will with the help of a knowledgeable and thoughtful estates and trusts attorney. A testamentary trust can be used in conjunction with other estate planning mechanisms, including a revocable living trust. You can also still choose to make distributions of property or other assets through your will, and only transfer some assets into your testamentary trust. 

How Do Testamentary Trusts Work?

Like all trusts, a testamentary trust is a written agreement created by a settlor or grantor that names an individual who is responsible for managing property as directed by the trust agreement, known as the trustee. Anyone who receives assets out of the trust is known as a beneficiary. 

As we noted earlier, a testamentary trust is established through your written will. After the testator passes away, their will must be submitted for probate. It is then the responsibility of the decedent’s personal representative to see that the testamentary trust is opened and funded with the appropriate assets, following the instructions set down in the will. The trustee is then responsible for managing and distributing trust assets until the trust expires or the contents are fully distributed to the trust beneficiaries. 

Often, a trust may be set up to expire on completion of a certain event — such as a beneficiary reaching a predetermined age or completing a milestone like graduating from college. 

It is worth reiterating that the assets you want placed into your testamentary trust will not avoid probate. All wills are subject to probate in the Michigan courts. Funds and assets can only be transferred into the newly created trust after they have been probated. The trustee may also need to provide regular reports and accountings to the probate court, to prove that the trust is being properly managed. 

The probate process can become expensive and time-intensive, particularly without proper planning. If probate avoidance is one of your main estate planning goals, you may wish to discuss the benefits of creating a revocable living trust with your estate planning attorney. Unlike a testamentary trust, a revocable living trust is funded with assets while the settlor is still alive, which means that these assets can be transferred outside of probate. Revocable living trusts also tend to offer greater privacy, since they do not become a matter of public record. 

As you consider the upsides and limits of any trust, it is important to consider who you will name as trustee. It is important to find someone who will be up to the important task of managing your trust assets and distributing them appropriately. The most important thing about choosing a trustee is that they are the best choice for your circumstances. This process is not about making people feel equal; it is about ensuring your wishes are respected and carried out when you no longer have a say in the matter.

Why Use a Testamentary Trust?

Testamentary trusts are often used to help ensure that you are able to maximize the assets available to your beneficiaries, while ensuring that receiving an inheritance does not become a detriment. 

Testamentary trusts are often used to hold funds for the ongoing or future education of minor children, or to allocate funds in set increments so that they cannot be squandered by a profligate beneficiary who is irresponsible with money. Testamentary trusts can also be supplemental or special needs trusts, which are designed to provide an inheritance to beneficiaries who happen to be physically, mentally, or developmentally disabled without interrupting government benefits. 

For an example, consider the fictional couple Steve and Sandra, who have two 18 year old boys, Ricky and Spencer. When Steve and Sandra die suddenly in a car accident, the balance of their estate is transferred to the boys. 

Always the less responsible son, Spencer immediately spends his inheritance on a sports car and a new home, rather than using the money for school as his parents might have wanted.  While Ricky tries to be responsible and spend his inheritance on college expenses, unexpected car repairs and a turbulent stock market affect him financially, forcing him to take on a full-time job in addition to school.

In both cases, Spencer and Ricky might have benefitted had Steve and Sandra set up testamentary trusts, nominating a responsible trustee to manage the finances for their children and helping to ensure that their health, education, maintenance, and support would be taken care of.

The Importance of Working With an Experienced Michigan Estate Planning and Probate Attorney

Whether you are taking care to plan for your family’s future or put in the position of defending or contesting a will or trust in the Michigan probate courts, know that you do not have to go through these difficult circumstances alone. 

Ready to create a plan that will help you maintain control over your most important assets, and help take care of the people who matter most? Our firm has the experience and knowledge to walk you through the process of creating an estate plan that will protect your family.

At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies. We will be flexible in order to accommodate your needs, and we work hard to discuss these difficult matters in terms that are easy to comprehend. With staff available 24 hours a day, we’re also never far from your questions and concerns. 

If you have further questions or are looking for representation as you navigate Michigan’s tricky probate court system, don’t hesitate to call our Southfield, Michigan office at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Estate planning is one of the most powerful and important steps you can take to prepare for the future — and it’s crucial to make sure that no critical step gets overlooked, forgotten, or misplaced along the way.

Unfortunately, many people end up committing one or mistakes or mishaps during the estate planning process, which could jeopardize or invalidate their entire plan — and end up making things a lot more difficult for themselves and their loved ones in the future.

Working with an experienced and professional estate planning attorney is one way to make sure you dot every “i” and cross every “t,” so that you can move forward with confidence. Here are seven all-too-common Michigan estate planning mistakes to discuss with your lawyer:

1.) Starting Too Late

The only things that go away with time are snowflakes, youth, and opportunities. With estate planning, you have an opportunity to plan for yourself and your loved ones — and it’s important that you don’t let it pass!

A 2020 poll cited by CNBC suggests that about 62% of Americans say that they do not have a will. A 2020 report from Caring.com, meanwhile, indicates that less than one-third of all Americans (32%) have any estate planning documents in place. What’s more, Caring.com data suggests that the number of older and middle-age adults with estate planning documents actually fell by 20% and 25% between 2019 and 2020.

When we pass on, the assets we have acquired throughout our lifetimes will remain,  and they will be reallocated. The question is: Will you have a say in the matter? 

If you do not have an estate plan in place, you are giving up control. If you do not make a plan, the state of Michigan will create one for you. Michigan’s rules of intestate succession are very strict, which could result in your assets being distributed in ways that you would not have wanted. Meanwhile, failing to make a plan could cause the estate administration process to be significantly longer, more costly, and more contentious for your surviving loved ones. 

2.) Forgetting to Plan for Probate and Estate Administration

Probate is often used as a catch-all term to refer to the legal process a decedent’s estate must succumb to in the courts. Here in Michigan, the ins and outs of the estate administration process can be complex, costly, and time-intensive — particularly if a will contest or similar issue arises after your passing. 

Fortunately, there are many important steps you can take proactively, to help ensure that you have made probate as smooth and simple as possible for your loved ones. For instance, you can utilize a number of different mechanisms to transfer many of your most important and valuable assets outside of probate, including: 

• Trusts. Trusts offer numerous estate planning advantages, including the capability to help many types of assets — such as investments and securities, tangible personal property, bank accounts, business interests, and real estate  — bypass probate. The inter-vivos or revocable living trust is one of the most popular types of trusts in the United States, in part because it can help avoid probate and help families avoid court fees and stringent oversight. Learn more about using trusts as part of your estate plan here. 

• Beneficiary Designations. Retirement accounts, life insurance policies, bank accounts, annuities, pension plans, investment accounts, and securities can be set up with a designated beneficiary, known as a “pay on death” or “transfer on death” beneficiary. When executed properly, this designation allows for the assets in an account or proceeds of a policy to transfer directly to the named beneficiaries upon the death of the account owner or policy holder, outside of probate. 

• Jointly Owned Assets. Full ownership of real property owned through joint tenancy with rights of survivorship automatically transfers to the surviving co-owner upon the passing of the decedent, outside of the oversight of the probate courts. Property that is owned by married couples who share ownership as tenants by the entireties also transfers outside of probate. Joint tenancy designations can allow you to avoid probate without increasing your liability. Learn more about joint tenancy and tenancy by the entireties here. 

Taking steps to help assets avoid probate can have numerous positive benefits for yourself, your estate, and your family and friends, including: 

• Peace of mind knowing you minimized the stress of your circumstances for your family
• Assurance that your partner will the assets and control you want them to have
• Allowing for immediate distribution of your assets
• Maximizing the assets available to your beneficiaries when you have passed
• Minimizing or eliminating the cost of probate fees

An experienced legal professional can help you coordinate the use of probate and nonprobate transfers as part of your estate plan.

3.) Failing to Properly Fund Your Revocable Living Trust

Funding a trust is just as important as creating it in the first place. Too often, though, people overlook this important step! 

Once you have set up your trust, it is very important to re-title your chosen assets into the trust, or this incredibly useful mechanism will remain an empty vessel. Remember that assets not properly titled into the name of your living trust will be subject to probate as part of your estate. 

An expert in estate planning and trust law like our own Dean E. Patrick can not only assist you with the creation of the trust, but also ensure that all legal formalities are addressed so that your trust is completed to your specifications. In addition to selecting and re-titling the assets you want to place into your trust, this might also include naming a successor trustee to assume responsibility for managing and distributing trust assets when you are no longer able to do so. 

4.) Not Planning Ahead for Incapacity

While it is never pleasant to think about, the reality is that no one is immune from suffering an accident or falling victim to an unexpected illness. An important part of estate planning that many people forget about is making plans for incapacity, including naming the person you want making decisions for you when you are unable to do so for yourself. 

If you do not take precautions when you have the chance, your loved ones could be subject to the arduous and costly process of living probate. 

Even if you do not have many high value assets, it is important to plan ahead for the possibility of incapacity; the experiences of 2020 are a painful reminder of that fact. One of the most important steps you can take to prepare for incapacity is to utilize durable powers of attorney. 

A durable power of attorney is a legal document that gives someone of your choice (known as your agent, advocate, or attorney-in-fact) the right to handle your decisions if you become incapacitated. With a durable power of attorney, you don’t give up any control as long as you are capable. In Michigan, you can name a power of attorney for health care, a power of attorney for mental health, and a power of attorney for financial matters. 

5.) Forgetting to Review or Update Your Plan Over Time

The only constant in life is change. For this reason, it is important to remember that creating an estate plan is not a one-time, “set it and forget it” process. Instead, it is crucial to regularly reevaluate and, if needed, update or revise your estate plan over time. 

The reality is that no one knows for sure what’s in store for the future. Your named beneficiaries might predecease you; you could go through a divorce or estrangement that changes your personal relationships with your family members; you might move to a new state, acquire valuable new assets, or make new investments. Things outside of your control with estate planning implications might change over time, as well, such as state and federal tax laws. 

Depending on your circumstances, there are many steps you can take to stay on top of things, including: 

• Regularly reviewing your beneficiary designations
• Naming contingent beneficiaries 
• Reviewing your will and trust paperwork and replacing documents, as needed
• Reviewing your powers of attorney 
• Reviewing your guardianship, conservatorship nominations

A knowledgeable local attorney can make sure to keep things on track. A legal professional can help you to set a schedule to revisit your estate plan, while considering all the unique variables of your situation. When it’s necessary to make changes, an attorney’s shrewd guidance can help you to ensure that you update or replace your documents correctly, to make sure that things are as clear and direct as possible for your personal representative and trustee in the future.

6.) Failing to Plan for Minors or Beneficiaries WIth Disabilities

It is natural to want to make sure your loved ones are well cared-for when you are no longer around. But do you have a specific plan to make it happen? Estate planning is a powerful way to provide for the people who matter most to you. But it is important to be thorough and thoughtful, especially if you are planning ahead for minor children or adult beneficiaries who happen to be physically or mentally disabled. 

One of the most important considerations when creating a will is nominating a guardian, who will become responsible for the care and custody of your minor children when you are no longer around. An attorney can help you consider your options and make the best selection for your circumstances. 

Meanwhile, you can utilize your estate plan to help make sure your loved ones receive crucial assets and funds — while making sure that inheritance is not detrimental to your beneficiaries down the line. For instance, you can utilize trust provisions to help ensure that funds meant for your minor children are not squandered by a guardian, or that children are not able to access funds until a certain date. Similarly, a trust can help you provide for your loved ones with special needs, particularly if they are receiving government benefits that might be affected by receiving an inheritance. You can also include spendthrift provisions, to help prevent beneficiaries from wasting their trust assets from excessive spending. 

7.) Not Working With an Experienced Professional

As we often say: When you have a foot problem, you go to the podiatrist. When you have a heart problem, you go to the cardiologist. When you are forced into the probate court or want to create a comprehensive estate plan that will take care of your assets and provide for your loved ones, you need to go to an established probate and estate planning attorney.

An attorney is uniquely qualified and capable to help you consider your specialized circumstances, and create the estate plan that will best suit your goals. A knowledgeable legal professional can help you understand how all of the important pieces of an estate plan may work together, while also getting a handle on the financial and tax implications of estate planning and inheritance, and how they might apply in your situation. As you create estate planning documents, an attorney can help ensure that the language is clear and concise, and that every formality is executed fully and properly — so that you can get some well-deserved peace of mind. 

Have Any More Questions About Michigan Estate Planning?

At the Law Office of Dean E. Patrick, our goal is to provide you with only the best professional legal services available in Michigan. Work with us and you have our sincere promise to carefully plan and manage each and every step of your legal matter from start to finish.

When it is time to take care of your estate planning needs, get the answers, insight, and guidance you and your beneficiaries deserve. Whether you are trying to avoid probate with a trust, want to make sure your assets are protected and transferred according to your wishes, or want to plan for incapacity with powers of attorney, we can custom tailor a solution to suit your needs.

Mr. Patrick is a licensed Michigan lawyer specializing in estates and probate law. He has helped hundreds with their estate planning needs, giving him the necessary knowledge to provide unparalleled legal advice and assistance that can make your life a little easier.

If you have questions or are curious about how to move forward, contact our offices at (248) 663-2566 or reach out online to set up your initial consultation.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Whatever stage of life’s journey you may currently be facing, estate planning is one of the most important ways to prepare for whatever the future may hold. An estate plan can empower you to keep control of your most important assets, and have a say in the matters that will directly impact you and the people you care about. 

However, it’s important to remember that crafting your estate plan is not a one-time, “set-it-and-forget-it” proposition. You should regularly review and consider updating your estate planning documents — particularly in the face of a major life event, such as a marriage or divorce.

For Michigan families, divorce can be a particularly challenging situation, with many moving parts to address. In the shuffle, it is important to take some time to review your estate plan and execute new documents as needed — so that you can maintain control over the assets and decisions that matter most to you. 

What Goes Into Estate Planning?

Over the course of a lifetime, we all acquire assets. When we pass on, those assets remain and they will be reallocated. The question is: will you have a say in the matter?

Estate planning is the process that gives you a say. If you become incapacitated, and even when you’re gone, estate planning keeps you in control. 

Thoughtful and comprehensive estate planning can help make a difficult transition much easier for your loved ones. It can help ensure the swift distribution of your assets in a manner appropriate for your circumstances, minimize the potential for conflicts among your family members, and minimize or even eliminate the financial and time costs involved with probate. 

There are a variety of estate planning tools that you can put in place to help ensure that you keep control even when you are unable to speak on your own behalf. The specific instruments that you may use will depend on the specifics of your circumstances. Some of the most important estate planning mechanisms to keep in mind include:

• Wills: A will is a valuable estate planning tool that allows you to plan for the distribution of your estate and nominate someone you trust to handle your affairs in the probate court as your personal representative. If you do not take advantage of your ability to determine how your properties and assets will be handled in the event of your passing, the state will make these decisions for you.
• Trusts: A trust is a written agreement created by a settlor or grantor that names an individual (known as the trustee) who is responsible for managing property as directed by the trust agreement. From an estate planning perspective, trusts can be used to direct the distribution of your property, help protect your estate from certain taxes and fees, and minimize the potential for lengthy probate issues. 
• Powers of Attorney: A power of attorney is a writing that gives legal authority to a third party (known as the agent) to act on the behalf of someone else (the principal). In estate planning, these tools are used to ensure someone you trust manages your financial and health care decisions when you can no longer do so on your own. For estate planning purposes, it is imperative that the power of attorney used can be classified as a “durable” power of attorney. In short, this classification allows your agent to act even if you become incapacitated.
• Beneficiary Designations: Retirement accounts, life insurance policies, bank accounts, annuities, pension plans, investment accounts, and securities can be set up with a designated beneficiary, known as a “pay on death” or “transfer on death” beneficiary. When executed properly, this designation allows for the assets in an account or proceeds of a policy to transfer directly to the named beneficiaries upon the death of the account owner or policy holder, outside of probate. 

Updating Your Estate Plan After a Divorce

Divorce will necessarily involve extricating your lifestyle and finances from those of your former spouse. This might include dividing up assets, as well as determining a plan for child custody and calculating child support and alimony payments. 

Many people get started with estate planning after they get married, and set up their plan with the assumption that many of their valuable assets — and much of the decision-making power and responsibility — will go to their spouse. While Michigan’s probate law does build in some protections regarding the revocation of probate and nonprobate transfers after a divorce, it is still important to be proactive and take steps to ensure that your wishes will be carried out — and that your estate plan clearly and accurately reflects your most up-to-date goals.Taking time to clear up confusion or uncertainty now could make a significant difference during estate administration in the future. 

During and after your divorce, it is important to consult with a knowledgeable local estate planning and probate attorney to discuss the best course of action based on your circumstances. Some important steps to take from an estate planning perspective include:

Revoking your current will and creating a new one

The Michigan statutory will notice puts it bluntly:

“You may make and sign a new will at any time. If you marry or divorce after you sign this will, you should make and sign a new will.”

Following a divorce, you will most likely want to update your will. This may include nominating a new personal representative and changing who you want to inherit certain assets. 

The most effective way to amend your will is to work with an experienced estate planning attorney to revoke your current will and create an entirely new document that better reflects your current circumstances. 

Reviewing and updating your trust documents. 

The period after a divorce is an important time to review your trust documents. 

If you have a revocable living trust, one common formality is that you will generally name yourself as the primary trustee, with a successor trustee named who will manage the trust when you pass away or become incapacitated. If your spouse is your successor trustee, it is important to name a new one. 

You may also want to use this time to review and update the beneficiaries of your revocable trusts, if any of your personal relationships have changed as a result of your divorce. This might also be an opportune time to set up a new trust that better reflects your goals — for instance, establishing a trust for the protection of your minor children’s funds which an ex-spouse cannot access. 

A knowledgeable trust and estates attorney can help you understand all your options and take the appropriate action for your situation. 

Reviewing and updating your powers of attorney.

There are several types of power of attorney designations you may utilize as part of your estate plan, including a power of attorney for financial matters and a power of attorney for health care. 

With a durable financial power of attorney, you can provide someone that you trust with the right to handle your financial affairs if you become incapacitated. A durable power of attorney for health care gives your chosen agent or advocate the ability to handle your health care decisions if you become incapacitated.. 

With each type of power of attorney, you do not give up control of your affairs while you still have the capability to manage them — but can sleep better knowing you have a plan in place in case you do not.

If you currently have documents in place that give your ex-spouse authority over your decision-making, an attorney can help you revoke your existing powers of attorney and create new documents. This is particularly important if you do not already have a successor agent named. 

An attorney can help you weigh all of your options as you think about who to name as your new agent or advocate, while also helping you take care to ensure that your chosen agent will receive only the powers that you want them to have. 

Updating your beneficiary designations

One of the most effective ways to set up a nonprobate transfer is to designate a beneficiary on certain assets, including life insurance policies, retirement accounts, bank accounts, and brokerage accounts. When you divorce or your personal circumstances change, it is important to work with the institution to update your beneficiary designations. Broadly speaking, if your former spouse is still named beneficiary on an account they will stand to inherit unless you take action to replace them. Do not assume that the financial institution will make changes for you, and be ready to act swiftly.

Start the Conversation with Metro Detroit’s Probate and Estate Planning Attorneys

Interested in learning more about estate planning and probate in Michigan? Ready to start preparing for the future, and make sure that you always have a say in what happens to your most important assets — and the people who matter most?

For all these important matters and more, it’s wise to have an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of your loved ones. That’s where our attorney Dean E. Patrick comes in. 

You can depend on our law firm’s ability to listen to you and our talent for creative strategies as we help you prepare your estate plan and navigate complicated probate matters.

Whenever you’re ready to get started, Mr. Patrick is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome – with the expertise, empathy, intellect, and professionalism your situation requires at every step of the way.

Have any more questions regarding any estate planning or administration matters you may have? Ready to get started? Contact Dean E. Patrick at his Southfield office at (248) 663-2566 or click here to arrange your initial consultation. Our staff is available 24/7 to answer any questions and help you with your legal matters.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

If you are the parent or sibling of a loved one with special needs, you know the importance of making sure they’re protected and able to enjoy the best possible quality of life. These crucial and meaningful goals should also be considered as part of your estate plan. 

A writing from the Special Needs Alliance sums it up effectively:

While planning considerations for such a child will vary depending upon the child’s age, competency, and other family considerations, the goal is always the same: parents want their estates utilized to enhance and enrich the life of their special needs child while maintaining the child’s enrollment in essential public benefits programs.

Let’s explore some of the important considerations to discuss with your estate planning attorney as you seek to provide for your loved one who has special needs, including guardianships, conservatorships, and specialized trusts:

Guardianships and Conservatorships

If your child currently has a guardianship or conservatorship in place, it is important to review those arrangements. In particular, if you are currently serving in the role of guardian or conservator to a person with special needs, it is important to plan ahead, and take steps to ensure that someone of your choosing will be in a position to succeed you when you are unable to serve. 

Guardianship

A guardianship may be established when an individual cannot make or communicate informed general care decisions for themselves. In such circumstances, a guardian would act as a substitute decision maker for the individual (known as the “ward.”) 

Broadly speaking, a guardian is responsible for providing for the general well-being and care of their ward. Depending on the specific needs of the ward, a guardian’s powers can be quite broad or fairly limited. Michigan law is designed to “encourage the development of maximum self-reliance and independence in the individual,” and allows for guardianships to be closely tailored to each individual’s unique situation.

Generally. depending on the powers granted by the court, a guardian is responsible for the individual’s care and comfort, including providing suitable food, clothing, and shelter; applying for and obtaining services on their behalf; and authorizing or refusing medical treatments.

As Michigan’s Handbook for Guardians of Adults explains, if you are currently serving as guardian for your child of any age, “you may in your will nominate a successor guardian,” who would “take over the guardianship when you die.” This may also be accomplished through another writing signed by the parent and attested by at least two witnesses.The individual in question or another interested person would have the opportunity to object to the appointment of the successor guardian in court. 

Conservatorship

A conservator is appointed by the court to manage a protected individual’s estate and finances. Conservatorships are established when an individual can no longer effectively manage his or her own property and financial decisions, generally due to conditions including “mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.” For a conservator to be appointed, the court must also find that

the individual has property that will be wasted or dissipated unless proper management is provided, or money is needed for the individual’s support, care, and welfare or for those entitled to the individual’s support, and that protection is necessary to obtain or provide money.

Whereas a guardian is broadly responsible for making medical, housing, and other personal decisions about the person, the conservator is responsible for the care and preservation of all the individual’s assets and property. The same individual can be appointed to serve as guardian and conservator, or these roles can be delegated to two different parties.

Conservatorships are important to consider as you begin the process of estate planning. Generally speaking, “a parent of the protected individual or a person nominated by the will of a deceased parent” has high priority to be appointed as conservator if necessary, behind only 

• A conservator, guardian of property, or similar fiduciary appointed or recognized by the appropriate court of another jurisdiction in which the protected individual resides
• An individual or corporation nominated by the protected individual if he or she is 14 years of age or older and of sufficient mental capacity to make an intelligent choice, including a nomination made in a durable power of attorney.
• The protected individual’s spouse
• An adult child of the protected individual

Whether you are considering who to appoint as a successor guardian or conservator, or you are considering whether creating a guardianship or conservatorship will be necessary when you are no longer around, it is important to get guidance and insights from an experienced local probate attorney. 

Guardianship and conservatorship matters are highly emotional, and the rules surrounding these proceedings can be confusing and difficult to parse. There are many steps that one has to take — and it is unwise to go into them without an intelligent and experienced lawyer at your side, fighting for your rights and the well-being of others.

Supplemental (Special) Needs Trust

A trust is a written agreement created by a settlor or grantor, which names an individual who is responsible for managing property transferred into the trust as directed by the trust agreement. Trusts are frequently used in Michigan to supplement estate plans, and can help avoid lengthy probate issues. With that said, it is important to note that there are several different types of trusts that suit different needs — including providing for your loved ones with special needs. 

To help illustrate this, let’s consider a (fictional) married couple, Al and Michelle. Al and Michelle have a disabled child, Larry, who is receiving government benefits. 

Unaware of the interaction between inheritance and government benefits, Al and Michelle create a simple will that distributes their assets equally among their two children, Larry and his brother Ronald. Michelle and Al eventually pass away within days of each other. 

A subject of the probate process, Larry, now without his parents to care for him, receives a letter from the State of Michigan. Without compassion for his situation, the letter reads that the state will be making a claim against his inheritance for the past governmental benefits he had received.

This situation is more common than you might think — and could likely have been avoided with a supplemental (special) needs trust established for Larry’s benefit. 

A supplemental (special) needs trust is designed to help your future beneficiaries who happen to be physically, mentally, or developmentally disabled and who are receiving — or are likely to receive — government benefits, such as Supplemental Security Income (SSI). 

The structure of a special needs trust helps provide for the continuing care and maintaining quality of life for your loved ones with a disability, while increasing the probability that an inheritance will not disrupt their government benefits. 

It is imperative that you create the trust and not leave it to your heirs to do so. These specialized trust structures can be set up through a revocable living trust while you are still alive, or incorporated into your will as an irrevocable testamentary trust. 

Trusts are a popular estate planning tool, but it is often essential to receive guidance from an experienced, skillful, and knowledgeable attorney in order to ensure that they are properly established and maintained. You should not hesitate in contacting a professional and shrewd trust attorney, who can help you to assess your estate, find the right type of trust for your needs and goals, and gain a better understanding of the benefits that might result from establishing a trust — particularly if you have a loved one who receives or is likely to receive government benefits in the future.

Keep the Discussion Going with Michigan’s Probate Attorneys

Interested in learning more about the ins and outs of guardianships, conservatorships, and trusts in Michigan?  Ready to start making plans for your future, tailored to the specifics of your unique circumstances? 

Our skilled law firm is here and ready to assist with all of your estate planning and probate needs, including all of the specialized steps you may wish to consider to provide for and protect your loved ones who happen to be physically, mentally, or developmentally disabled.

If you require further legal advice or if you are looking for representation as you move forward with your estate planning goals, don’t hesitate to call our Southfield, Michigan office at (248) 663-2566 to set up your initial consultation. You may also click here to get in touch online.

At The estate planning attorneys at Patrick & Associates, PLLC, will work hard to accomplish your goals, while handling your matter with professionalism and expertise. Mr. Patrick and his team can help you navigate through all the legalities and formalities, so that you can rest assured that you and your loved ones will be taken care of, whatever life brings.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Setting up your estate plan isn’t always a pleasant thing to think about; however, it’s a very important step to take when you have the opportunity.  

Often, taking time to plan for what will happen to the people who matter most and the assets you’ve spent a lifetime acquiring will include considering who you will entrust with important responsibilities when you are gone or unable to communicate on your own behalf — such as naming who you want to oversee the administration of your estate and any trusts, or who you want making your financial and healthcare decisions as a conservator or agent. 

These are important decisions, which should not be taken lightly. There are a lot of important factors to weigh as you consider who to name as your personal representative, trustee, agent, or conservator — including whether or not you should consider choosing a trusted friend or family member or a professional fiduciary to act on your behalf. 

What Is a Fiduciary? What Does It Mean for Your Michigan Estate Plan?

Black’s Law Dictionary defines a fiduciary as a person “invested with rights and powers to be exercised for the benefit of another person.” Generally, a fiduciary is entrusted with the care of property or funds, and is required to act with “scrupulous good faith and candor.” 

In essence, a fiduciary is obligated to put the needs of the estate or person they are representing above their own. Under Michigan’s Estates and Protected Individuals Code, this includes acting with undivided loyalty; impartiality between heirs, devisees, and beneficiaries; and care and prudence in all actions. A fiduciary must also commit to the segregation of assets held in the fiduciary capacity, and abide by Michigan’s prudent investor rule when applicable. 

As it applies to estate planning and probate law, a “fiduciary” might refer to one of any number of important roles, including but not limited to: 

• Personal Representative. This is the person tasked with guiding your estate through the probate courts, following any directions set down by your will. Their duties might typically include collecting, inventorying, managing, and protecting estate assets; handling creditors and resolving debts of the estate; providing regular reports and accountings; making distributions; and closing the estate. 
• Conservator. A conservator is a person appointed by a court to manage a protected individual’s estate and finances. Conservatorships are established when an individual can no longer effectively manage his or her own property and financial decisions. An individual can request the appointment of a conservator for themselves, if they recognize that they are unable to manage their property and affairs effectively due to age or physical infirmity.
• Trustee. A trustee is the person responsible for managing and distributing any of the assets held in a trust, while also handling several important duties that may arise during the course of trust administration — including overseeing tax filings for the trust and communicating with beneficiaries of the trust. Generally, with a revocable living trust, the person who creates the trust (known as the settlor or grantor), will name themselves as trustee in order to maintain control of their assets for as long as possible, with a successor trustee in place to take over in the event that they can no longer perform the responsibilities for themselves. 
• Agent, advocate, or attorney-in-fact. A power of attorney (POA) is a written instrument that gives legal authority to a third party (known as the agent orattorney-in-fact) to act on the behalf of someone else (known as the principal). In estate planning, the durable power of attorney is a tool that can be used to ensure that someone you trust manages your financial and health care decisions when you can no longer do so. With powers of attorney, you can exert a great deal of control over your chosen agent, granting them broad power to make decisions on your behalf, or limiting their scope to only a few pressing matters.

Choosing a Personal Representative, Trustee, Conservator, or Agent

The individuals nominated to handle your financial and personal decisions will have a real and significant responsibility — and it is important to have someone in place who you trust fully to handle this obligation. 

Often, if you’re married, your spouse is a common first choice to be your personal representative or agent. If you are not married, children or close family are often chosen to handle the responsibility. 

Whomever you choose, it’s important to look for a fiduciary who can fulfill their duties efficiently and effectively. Important attributes for a good candidate include: 

• Trustworthiness
• Previous experience making decisions similar to those they will be faced with
• Being easy to communicate with, as necessary
• Fiscally responsible, so as to handle your financial affairs appropriately
• Living in close proximity to the probate court (depending on the goals of your will)
• Being willing and able to serve.
• Being willing to abide by the wishes and directions that you set forth in your trust, will, or other estate planning documents

What is most important is that the people you select are the best choices for your individual circumstances. This process is not about making people feel equal; it is about ensuring that your wishes will be followed when you no longer have a say in the matter.

When Might You Choose a Professional Fiduciary?

There are also many situations in which people can’t or do not want to rely on family and friends. Perhaps you have a particularly complex estate, and don’t want to burden your loved ones with the responsibility of seeing it through probate. Maybe you do not have strong relationships with your children, or do not have any nearby family members who would be willing or able to serve.

For those who can’t or won’t rely on family and friends, professional fiduciaries are an option worth discussing with your estate planning and probate attorney. 

Opting for a professional to serve as personal representative, trustee, agent, or conservator may be a prudent consideration in situations where you hope to: 

Simplify Things for Your Loved Ones

Losing a loved one is never easy — and it becomes even more difficult when faced with pressing and intricate legal matters at the same time. Estate and trust administration are not always simple and straightforward, and may become burdensome for your loved ones in an already difficult time. Having a trustworthy professional step in can help take some of the responsibilities off of their plate, allowing your loved ones to focus on moving forward, while also making sure your financial and personal matters get the time and attention they truly deserve. 

Minimize the Risk for Family Conflicts

Estate and probate issues can often dredge up old arguments, or create bitter new conflicts among family members. This is a moment when tensions run high. In some cases, choosing one child over another to serve might lead to bitter disputes or lifelong disagreements. Similarly, if you choose two different people to serve as co-agents or co-trustees, they may disagree over key decisions — which could potentially cause the situation to drag out and become even more complex. Having a trusted and experienced professional fiduciary can help make sure that your affairs are handled in line with your wishes and directions, while leaving less room for family divisions. 

Ensure That Matters Are Handled With Impartiality and Expertise

Compared with friends or family members who may have a personal, emotional, or financial investment in your affairs, a professional fiduciary can truly act with objectivity and impartiality — assuring that the actions that they take will be in the best interests of you and your estate, while minimizing the likelihood for harmful mistakes or errors.

A professional fiduciary will have training, experience, and expertise that may help make handling your financial affairs smoother and simpler, particularly when it comes to complex or unexpected obstacles that arise. At the same time, they will likely know how to communicate about these matters efficiently and effectively, giving your loved ones a steady and reliable resource that they can turn to with questions or concerns. 

Maintain Control

What happens if the person who you nominated to serve as a personal representative or conservator predeceases you, or is otherwise unable to accept the responsibilities? In such circumstances, the court would then turn to other relatives, following a set order of priority. Ultimately, this could result in someone that you do not want assuming substantial control over your affairs. 

Naming a professional firm helps minimize the risk of you having to give up control down the line. Similarly, it is extremely common for personal representatives and other fiduciaries to hire attorneys, financial professionals, or other experts to assist with their duties; appointing a professional may help ensure that someone you trust will be able to continue acting on behalf of yourself or your estate. 

Get the Answers You’ve Been Searching for from Michigan’s Probate Experts

If you want to ensure your final wishes are carried out, legal help from our experienced probate and estates attorney Dean E. Patrick can make it happen. Getting guidance from an attorney is the first step in making sure your possessions and the people you care about are taken care of when you’re gone.

In addition to offering probate and estate planning guidance tailored to your unique circumstances, our firm can offer fiduciary services, including but not limited to:

• Professional Trustee
• Professional Conservator
• Professional Agent

Whether you have decided it’s time to plan for your family’s future or you have any probate-related issue that has interrupted your life, you and your family can rest assured knowing that our office is handling your matter with the professionalism and expertise it deserves. 

Our meeting schedules are flexible in order to accommodate your needs, and we work hard to discuss these difficult matters in terms that are easy to comprehend. Our office is conveniently located in Southfield, Michigan and our staff is available 24 hours a day, 7 days a week to receive phone calls and help you with your legal matters. Do not hesitate to give us a call at (248) 663-2566, or click here to arrange your initial consultation. 

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

When you pass away, what will happen to the assets you’ve spent a lifetime acquiring? Developing an estate plan is a process that keeps you in control if you become incapacitated, and even when you’re gone. For some people, this may mean taking action to deliberately exclude or disinherit certain individuals from their wills or trusts — including their own adult children. 

It is certainly possible to disinherit a child from your will — provided that the will maker (known as the testator) takes care to use the correct mechanisms and follow all proper legal procedures at every step of the way. With that being said, this is not a decision to be made lightly, and it is one that could ultimately be challenged in court depending on the specifics of your circumstances. Similarly, if you are not careful and deliberate about your actions, the very people you are seeking to exclude may still stand to receive some of your estate through Michigan’s laws of intestate succession or through exempt property rights. 

Why Would Someone Disinherit a Child in Michigan?

Everyone’s circumstances are different, and there are any number of personal reasons why someone may choose to disinherit a child from their will. 

In some cases, it could be due to a poor personal relationship. The simple reality is that family members become estranged all the time, for any number of different reasons — whether because the parent and child have a contentious or difficult relationship, or because the child has deliberately isolated themselves from their family. 

As  Nathan R. Piwowarski once put it succinctly in an article for the Michigan Bar Journal, there may also be practical reasons to disinherit a child:

• The child may have severe debts or problems with creditors, which could immediately impact any funds or property they receive
• The child may have mental illness or addiction, and a distribution could be used to “fund self-destructive behaviors”
• You may have already taken action to provide substantially for your child (or children) outside of probate — perhaps through beneficiary designations, trusts, or lifetime gifts
• The child may be physically, mentally, or developmentally disabled and receiving government benefits; in such a situation, receiving an allowance or inheritance might actually disrupt their ability to access important programs like Medicaid or Supplemental Security Income

Disinheriting a Child in Michigan: Important Considerations

All told, if you are weighing the possibility of disinheriting a child from your estate in Michigan, there are a number of important considerations to keep in mind and explore with the insight and guidance of an experienced and knowledgeable probate and estates attorney. 

Michigan law makes provisions for children born or adopted after the execution of the will

One important thing to remember is that Michigan law does make some provisions for omitted children. Specifically, pursuant to MCL 700.2302, if a testator fails to provide in his or her will for a child born or adopted after the execution of the will, then the omitted after-born or after-adopted child is entitled to receive a share unless: 

• It appears from the will that the omission was intentional
• The testator provided for the omitted after-born or after-adopted child by transfer outside the will, and the parent’s intent for a substitute transfer can be established or reasonably inferred 

In cases where the omitted child does stand to inherit, the share of the omitted after-born or after-adopted child would consist of: 

• An intestate share, if the decedent had no other living children
• A reasonable share equal to that devised to the decedent’s other children. Under EPIC, in abating the devises of the other children, the court shall “preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.”

What’s more, if a testator fails to provide for a living child in their will because they believe the child to be deceased, then the child is entitled to share in the estate as if they were an omitted after-born or after-adopted child.

Can children be excluded from taking a share of exempt property?

It is important to remember that Michigan law makes allowances for spouses and children to hold onto some modest property, to help ensure that they do not become impoverished due to the passing of a loved one — even if it may mean somewhat limiting or overriding “testamentary consultationdom,” as the Michigan Bar Journal puts it. 

One of the most important things to keep in mind for the issues we are discussing here is exempt property, as described in MCL 700.2404.

This provision states that a decedent’s surviving spouse is entitled to “household furniture, automobiles, furnishings, appliances, and personal effects from the estate up to a value not to exceed $10,000.00* more than the amount of any security interests to which the property is subject.”

*Adjusted to $16,000 as of 2020, as provided in MCL 700.1210; you can find a chart of relevant cost of living adjustments from 2001 through 2020 here, courtesy of the Wayne County Probate Court. An experienced and knowledgeable probate and estates attorney can also help you determine the most up-to-date figures.

If there is no surviving spouse, then the decedent’s children may be entitled jointly to the same value, unless they are specifically excluded. 

Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except as necessary to permit payment of administration costs and expenses, reasonable funeral and burial expenses, the homestead allowance, and the family allowance. Exempt property rights are in addition to a benefit or share passing to the surviving spouse or children by the decedent’s will, unless otherwise provided, by intestate succession, or by elective share. 

These provisions were famously challenged in the case In re Jajuga Estate, in which the Michigan Court of Appeals ultimately determined that the decedent’s children should receive exempt property from the estate, even though her will explicitly disinherited them. 

This led to 2018 PA 143, additional language added to the statute making it clear that a decedent may exclude one or more of the their children from receiving exempt property or assets by:

• Expressly stating by will that the child takes nothing, or the child takes an amount of $10.00 or less from the estate 
• Expressly stating by will that the child is not to receive exempt property under this section.

The Importance of Working With an Experienced Michigan Estate Planning and Probate Attorney

In short? As with so many other matters relating to estate planning and probate, attempting to exclude a child for any reason can become very complicated, very quickly. 

As Piwowarski writes for the Michigan Bar Journal: 

[W]hile 2018 PA 143 fixed what was broken, it did not eliminate the need for nuance and close familiarity with the EPIC when preparing, administering, and litigating wills and trusts.

It is important to have a thorough understanding of all of the elements that may go into a Michigan estate plan and how they may be used together — including both testamentary and nontestamentary transfers. It is also critical to receive insight and guidance tailored to the unique specifics of your situation.

A probate and estates attorney can help address your questions and navigate the process from beginning to end, so that you can secure the best possible outcome for your circumstances, whatever they may be.

If you’re based in Michigan, Attorney Dean E. Patrick can help you plan for the future through estate planning — while also gaining a better understanding of how your loved ones may be impacted throughout the probate and estate administration process. 

Mr. Patrick is knowledgeable on all aspects of Michigan probate, with years of experience as a practicing attorney. Whenever you’re ready to get started, he is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome, whether you are a testator, a personal representative, an heir, a creditor, a named beneficiary, an omitted child, or a widow/widower.

If you have any probate-related issue that has interrupted your life, our entire firm will work hard to accomplish your goals – with the expertise, empathy, intellect, and professionalism that your matter deserves at every step of the way. 

Ready to keep the conversation going? The Patrick & Associates, PLLC.. is conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. You may click here to arrange your initial consultation or call us at (248) 663-2566 today.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

You may be familiar with the concept of “Do It Yourself,” or “DIY.” In short, this ethos is all about tackling important projects on your own, without having to involve professionals.

Most people associate DIY with homeowners researching solutions, buying their own tools, and getting to work making fixes and repairs around the house. Other people bring the DIY spirit to cooking and crafting, looking to recreate their favorite items at home or on a limited budget. Others still try to take the DIY spirit one step forward — into more complex matters like estate planning. 

The Dangers of DIY Estate Planning

It’s easy to see the appeal of the “DIY” spirit. When you fly solo, you get the opportunity to do things your way, and potentially control your costs along the way. With that said, most people realize that there are crucial limits to what can actually be done via DIY methods.  Around the home, for instance, most people acknowledge the importance of bringing on a professional to deal with a house’s electrical or HVAC systems. 

Similarly, while some might be tempted by the allure of DIY estate planning, the reality is that going it alone will not be the most efficient, productive, or cost-effective path forward for the vast majority of people. The documents and processes involved in estate and incapacity planning are complex. Impersonal online tools and estate planning services will never be a substitute for the personable, hands-on expertise provided by an experienced estates and probate attorney. 

As the American Bar Association (ABA) put it in a writing:

Those who seek to replace proper professional advice with a do-it-yourself online document in complex fields like estate planning should understand the effects of their actions. One should bear in mind that even those with fairly sophisticated skills think twice before venturing beyond their area of expertise.

As we often say: When you have a foot problem, you go to the podiatrist. When you have a heart problem, you go to the cardiologist. When you are forced into the probate court or want to create a comprehensive estate plan that will take care of your assets and provide for your loved ones, you need to go to an established probate and estate planning attorney.

What Is Estate Planning, and Why Is It Important?

Over the course of a lifetime, we all acquire assets. When we pass on, those assets remain and they will be reallocated. The question is: Will you have a say in the matter?

Estate planning is the process that gives you a say. If you become incapacitated, and even when you’re gone, estate planning keeps you in control, through any number of different tools and mechanisms —  including wills, trusts, and powers of attorney. 

Whether you are single, married, or cohabitating; just starting a family or moving into retirement, estate planning is a beneficial step you can take to prepare yourself and your loved ones for the future. Having a thorough and effective estate plan in place can help to: 

• Assure that your assets will be distributed in a manner appropriate for your circumstances 
• Ensure that someone you can rely on is appointed to handle your assets and affairs, and that your partner gets the assets and control you want them to have
• Assure inheritance will not become a detriment to your beneficiaries
• Minimize disagreements and conflicts among your family after you’re gone
• Reduce or eliminate certain costs, including estate taxes and probate fees
• Direct how you will be treated if you became incapacitated
• Maximize the assets available to your beneficiaries when you have passed 
• Streamline the probate process, and allow for more immediate distribution of your assets
• Assure your children will have a guardian of your choosing if you are unable to raise them
• Provide you with peace of mind knowing you minimized the stress of your circumstances for your family.

The only things that go away with time are snowflakes, youth, and opportunities. By creating an estate plan now, you have an opportunity to plan for yourself and your loved ones in the future. 

With that said, it’s also important to make sure that you approach estate planning with the right mindset — and the right level of attention and support. 

As the ABA notes, some people consider DIY estate planning sites and forms because they want to avoid going to a lawyer, or because they wish to save money. 

However, the long-term costs of turning to such a service could ultimately outweigh the short-term benefits — especially if your incomplete or inaccurate estate planning documents lead to bitter family conflicts, lengthy estate administration issues, or even complex and costly litigation. 

Instead of simplifying the probate process and making things easier for your loved ones, a less-than-stellar estate plan could cause the process to drag on and become more complicated and time-intensive. Perhaps worst of all, your wishes may not actually be carried out — meaning that important decisions about the disposition of your assets could be left to Michigan’s laws of intestate succession.

As you weigh all of your options, here are a few more questions worth evaluating and considering for yourself:

Do you understand all of the pieces that go into a Michigan estate plan?

As author Frank Addessi put it in an article for SmartAsset:

Estate planning, whether DIY or professional, does not actually include an estate plan. As funny as that may sound, there is no such thing as an actual estate plan. Estate planning is about coordinating a collection of documents from wills to trusts.

When it comes to creating a plan that will protect your property and loved ones in the event of your incapacitation or death, there are many moving parts and instruments to understand — including wills, trusts, powers of attorney for health and finances, guardianships, and conservatorships. Which instruments to use (and how those instruments can be used) will ultimately depend on the unique specifics of your circumstances.

Unlike a fill-in-the-blanks form, an attorney can help you to truly understand all of your options; make sure that you’ve fully considered every decision that may apply based on your circumstances; and take care to ensure that all of the necessary documents are executed properly. 

For example, working with an experienced attorney can help ensure that your will meets all of the requirements for probate, while minimizing the likelihood for disputes or contests from other parties; or that a trust is set up to achieve your specific goals, while making sure that all legal formalities have been addressed. Meanwhile, an attorney can also provide guidance when it comes to nonprobate assets that must still be considered as part of an overall estate plan, such as jointly owned assets, or financial accounts and securities with beneficiary designations. 

Will your plan be able to stand the test of time?

The reality is that estate planning documents might not take effect for years and years. And ultimately, they will generally be executed when you no longer have an active voice in the matter. As the ABA puts it: 

A person who drafts his own Will must bear in mind that the critical test of his efforts will occur after his death.  At that point, his voice has been forever silenced.  If he does prepare his Will on his own, it’s likely no one — or at least no person who is not seen as biased due to his financial interest in the outcome — will be able to explain his intentions.

A knowledgeable and skilled estate planning attorney can help ensure that your estate plan will stand up to the test of time. For instance, working with an attorney can provide some assurance that all of the language used in your will or trust documents is clear; as the ABA notes, the specific phrases and words used in a will could make a difference when it comes to making effective dispositions of your assets. 

By the same token, it is also important to always remember that life can change in an instant. New children are born; treasured loved ones pass away; couples get married and divorced. An estate planning attorney can help you build contingencies for these major life events into your estate plan. An attorney can also offer invaluable perspective and assistance as you move forward in life, and help you reevaluate and update elements of your plan over time as your relationships and circumstances change. 

Can you really deal with all of the complexities and challenges on your own?

Can an impersonal online editor or chatbot really ever truly understand what makes you, you? The reality is that people are not cookie cutter, and estate planning is not a “one-size-fits-all” process. As the ABA suggests, it’s important to take time to consider all of the unique circumstances that will impact your estate, such as…

Tax and financial considerations

Addressing taxes, creditors’ claims, and other financial matters is often one of the most complex parts of the probate process. An attorney can help you weigh many of the financial considerations that will come up down the line, including reducing estate taxes to help maximize the assets available to your beneficiaries 

Loved ones with special needs

As the ABA puts it: “What if a child suffers from a learning disability, incapacity or is vulnerable to the influence of people seeking to grab his inheritance?  What will happen to inherited funds if a child is disabled and requires governmental assistance such as Medicaid?” For parents or guardians of adults or minors with special needs, it may be important to take specialized action — such as setting up a supplemental trust or appointing a conservator. 

Property ownership in multiple states

It’s common to have to deal with real estate in more than one state after a loved one dies. Here in Michigan, for instance, “snowbirds” may have a vacation home in Florida, or a lake house in Wisconsin. A separate probate proceeding, called an “ancillary” probate, must be opened to deal with out-of-state real estate in the state the property is located. An ancillary probate lawyer can help handle this process, no matter how complex it may seem. 

Who will help you consider all of your options, and facilitate the process?

It’s important to remember that the estate planning process is not just about drafting documents, but making important decisions. Who do you trust to oversee the administration of your estate as a personal representative? Who will take on key responsibilities as a trustee? Who do you want to consider as the guardian for your children, taking on the responsibility of raising them if you cannot? Who do you trust to execute your wishes as an agent through a power of attorney for health care or a power of attorney for financial matters? 

An estate planning attorney can help you weigh all of your options as you consider who to name in these important roles. Broadly speaking, it is important to find individuals who are trustworthy, easy to communicate with, and responsible. The most important thing is choosing someone who will be the best choice for your circumstances. Remember, this process is not about making people feel equal; it is about ensuring your wishes are respected and carried out when you no longer have a say in the matter.

As author Liz Weston puts it for NerdWallet, working with an experienced attorney provides an opportunity “to discuss your situation with an expert who has seen many estate plans in action and who knows what can go wrong.” An attorney can walk you through the process while being genuinely attentive and responsive. They can make sure you get answers that are tailored to your circumstances, in plain language that is easy to follow. 

Over time, an attorney can help protect your estate planning documents, to minimize the risk of anything critical getting lost or misplaced. And when it is time for estate administration, having a a relationship with an attorney who is familiar with a decedent’s assets and personal circumstances may allow for a speedier administration of the estate, as the ABA notes. 

Want to Discuss Any Element of Michigan Estate Planning and Probate?

There is no reason to put off taking care of those you love and that which you have worked hard for. 

Looking for guidance on the many moving pieces that go into successful estate and incapacity planning, including wills, trusts, powers of attorney, guardianship, and conservatorship? Your Michigan probate attorney Dean E. Patrick is here to help.

Mr. Patrick is a licensed Michigan lawyer specializing in estates and probate law. He has helped hundreds with their estate planning needs, giving him the necessary knowledge to provide unparalleled legal advice and assistance that can make your life a little easier.

If you have questions or are curious about how to move forward, contact our offices at (248) 663-2566 or reach out online to set up your initial consultation.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

When you have a foot problem, you go to the podiatrist. When you have a heart problem, you go to the cardiologist. When you want to complete your estate plan or are forced into the probate courts, you need to go to an established probate and estate planning attorney. 

Michigan probate attorneys focus on the areas of law that are handled in the probate courts, including estate administration, trusts, guardianships, and conservatorships. An experienced attorney can provide fiduciary services, and assist with the many considerations that go into estate and incapacity planning. 

Ultimately, a skilled and efficient probate attorney’s job is really to help you protect the important things — including the people you hold dear and the assets you have spent a lifetime acquiring. 

Curious about what this may mean? Let’s explore what a probate and estate planning attorney can do to help Michigan families and individuals…

Navigate the Probate Court System

The Michigan probate courts have broad jurisdiction to handle matters relating to deceased estates, trust estates, guardianships, and conservatorships — all matters that can be not only complex, but stressful and emotionally taxing to face. The probate court is not a comfortable setting for handling an estate, and it can be difficult to navigate alone. 

An experienced probate attorney can make sure that you receive the expert legal guidance you need to make a difficult situation easier. Whether the estate is contested or uncontested, an attorney can make sure that you fulfill all of your legal obligations when serving as a personal representative or trustee. 

A knowledgeable legal professional can provide the assistance and support that you need as an estate is guided through the Michigan probate courts, while also helping you deal with any number of potential probate issues, including:

• Breach of fiduciary duty
• Opening or closing a probate estate
• Issues relating to an omitted spouse and/or children
• Will and trust contests and disputes
• Determination of heirs
• Handling creditor claims
• Undue influence
• Fraud
• Incapacity and living probate
• Wrongful death
• Beneficiary distributions
• Estate accountings

Stay In Control of Your Most Important Assets

If you become incapacitated, and even when you’re gone, estate planning keeps you in control of the things that matter most to you — and an experienced attorney can provide you with the knowledge and tools you need to assure assure that you have a say over your assets, based on the specifics of your circumstances. 

There are many myths and misconceptions out there about estate planning — that it is only for the ultra-wealthy, for example, or that a will is the only estate planning tool you need. An attorney can help you separate from fiction, and find the answers you’ve been looking for and choose the tools best suited to your individual circumstances. These might include: 

• Wills. Wills are an important part of an estate plan, which allow you to control the distribution of your property and nominate the person or people you choose to look after your children or incapacitated adult loved ones. If you do not take advantage of your ability to determine how your property and assets will be handled in the event of your passing, the state of Michigan will decide for you. A probate and estates attorney has the experience and knowledge it takes to empower you to create a last will that will protect your family, control the distribution of your assets, and facilitate the estate administration process.
• Trusts. A trust is a written agreement created by a settlor or grantor that names an individual who is responsible for managing property as directed by the trust agreement, who is known as the trustee.  Once the trust is created, it is very important to re-title your assets into the trust or the trust will remain an empty vessel. An expert in trust law and administration can not only help you to understand all of your options and assist you with the creation of the trust, but also ensure that all legal formalities are addressed so that you create a trust that is up to your specifications. Trusts can help assets to avoid formal estate administration in the probate courts, and could help protect your estate from certain taxes and fees, which would ultimately provide more to your beneficiaries. 
• Powers of Attorney. A power of attorney is a written instrument that gives legal authority to a third party (known as the agent or attorney in fact) to act on the behalf of someone else (known as the principal). In estate planning, a power of attorney (POA) is a tool that can be used to ensure that someone you trust manages your financial and health care decisions when you no longer can. There are different types of POA, including designations for financial matters and health care. A legal professional can work with you one-on-one to explore and discover your goals, and help ensure that your affairs will be handled the way you would want when you can no longer manage or communicate about them on your own.

Look to the Future With Confidence, Clarity, and Peace of Mind

Having a comprehensive estate plan in place can help provide any number of personal benefits, including:

• Offering peace of mind knowing that you took action to minimize the stress of your circumstances for your family.
• Providing assurance that your partner will get the assets and control you want them to have
• Helping to ensure that someone you can rely on is appointed to handle your assets and affairs.
• Assuring distribution of your assets in a manner appropriate for your circumstances.
• Helping to ensure that inheritance does not become a detriment to your beneficiaries
• Directing how you will be treated should you ever become incapacitated
• Making it easier to add updates or make revisions to your estate plan as your circumstances change over time

It’s never fun to think about what would happen if you were to sustain a major injury or succumb to illness, but it’s an important step to take — and one that is necessary to make sure that your wishes will be heard, respected, and carried out. When you face the future with an attorney’s guidance it’s not only legal advice that you’ll receive, but a little peace of mind as well.

Take Care of Your Loved Ones

An estates and probate attorney can help you protect the people who matter most, helping with matters including estate planning, trust administration, and guardianships and conservatorships. 

A guardianship is a legal arrangement established in the probate court to provide for the well-being of a protected individual, such as a minor or an incapacitated adult. Broadly speaking, a guardian has legal responsibility for another person and is in charge of his or her comfort, care, and general well-being.

A conservatorship is intended to help manage a protected individual’s estate if and when a situation arises when an individual can no longer effectively manage their finances or property. Here in Michigan, conservatorships and guardianships serve different functions — with conservators making decisions about the property or the finances of another person, while a guardian is responsible for medical or housing decisions. The same person can serve in both roles, or they can be assigned to different individuals.

An attorney can help you navigate the many matters relating to conservatorships and guardianships that must be settled in the probate court system — including establishing, terminating, modifying, or contesting a conservatorship or guardianship; defending your current position as conservator or guardian from contests; removing an acting conservator or guardian who has failed in their duties; filing required accounts and records; and more. 

Providing for the people closest to you is also a key component of estate planning. In addition to nominating a guardian or conservator for your minor or incapacitated adult loved ones, an attorney can help you devise strategies to help:

• Maximize the assets available to your beneficiaries when you have passed.
• Minimize or eliminate the cost of taxes probate fees
• Allow for more immediate distribution of your assets
• Assure inheritance does not become a detriment to your beneficiaries
• Prevent disagreements and conflicts among family after you are gone

Looking for Help Protecting the Important Things?

Whether you are currently dealing with the legal aftermath following the passing of a loved one, or are ready to find ways to make estate administration more efficient for your friends and family down the line, our firm is here and ready to help.

When it is time to take care of your estate planning needs, get the answers, insight, and guidance you and beneficiaries deserve. Whether you are trying to avoid probate with a trust, want to make sure your assets are protected and transferred according to your wishes, or want to plan for incapacity with powers of attorney, we can customize a solution to suit your needs.

When it’s time to navigate the probate courts, our attorneys can help ensure that you receive the expert legal advice your matter deserves. Whether you are confronted with an estate contest or want to fulfill your legal obligations and transfer assets without incurring personal liability, you can rely on us to bring you up to speed with the process, advocate for your position, and provide the support you need. 

Mr. Patrick is knowledgeable on all aspects of probate, with years of experience as a practicing attorney. Whenever you’re ready to get started, he is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome. If you have any probate-related issue that has interrupted your life, we will work hard to accomplish your goals – providing your matter with the expertise, empathy, intellect, creativity, and professionalism it deserves at every step of the way.

Ready to keep the conversation going? The probate and estate planning lawyers of Patrick & Associates, PLLC are conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. You may click here to arrange your initial consultation or call us at (248) 663-2566 today to learn more.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Estate planning is one of the most useful and important steps you can take to prepare for the future — but it is also one of the most commonly misunderstood. 

There are plenty of myths and misconceptions out there about estate planning and probate, which hold people back from taking action when they have the chance.

Put simply, having an estate plan in place is a way to keep control of your most important assets, and have a say in the matters that will directly impact the people you care about even when you are unable to speak on your own behalf. There are a variety of tools that can be used as part of an estate plan, including wills, trusts, and powers of attorney. Which instruments to use will depend on the specifics of your circumstances.

Interested in learning more about estate planning and the probate process here in Michigan? Separating fact from fiction is an important way to get started. Let’s get to the bottom of seven all-too-common estate planning myths:

MYTH #1: “Only wealthy people need to think about estate planning.”

Estate planning is not just for the wealthy; it is for anyone who wants to be able to stay in control, no matter what the future has in store. 

Regardless of how many assets you have acquired up to this point in your life, estate planning is an important step that gives you a say in how your property will be reallocated when you’re gone. Importantly, you can also use estate planning mechanisms, such as your will, to care for your loved ones when you cannot be there to provide for them yourself. Nominating a guardian for your minor children is an important piece of the typical estate plan, as is nominating a conservator to handle the financial affairs of your incapacitated loved ones. You can also use a trust to assure distribution of your assets in a manner appropriate for your circumstances, and maximize the assets available to your beneficiaries.

At a minimum, like it or not, we should also all have a plan for incapacity. While it’s never fun to think about what would happen if you were to sustain a major injury or succumb to illness, it is necessary to ensure your affairs are handled in the way you would want — and to keep your family out of the arduous and complicated process of living probate. In recent months, the coronavirus pandemic has served as a vital reminder of the importance of incapacity planning.

MYTH #2: “Estate planning isn’t something I have to think about until I’m much older.”

According to a recent poll cited by CNBC, about 62% of Americans say that they do not have a will. Taking it one step further, a report from Caring.com suggests that less than one-third of all Americans (32%) have any estate planning documents in place. 

While many people believe that they only need to start thinking about estate planning later in life, the reality is that putting it off for too long could be disastrous for yourself and your loved ones. 

Estate planning is a relevant and important concern if you have any property you want to distribute, or any loved ones you want to provide for when you’re gone. This makes it a critical consideration, no matter what stage of life’s journey you may currently be on. Whether you are recently married or divorced, a first-time homeowner or a retiree getting ready to downsize, there are estate planning tools and mechanisms that can make life easier for yourself and the people you care about. Importantly, you can also update and refine your estate plan over time, to ensure that it always aligns with your goals and expectations as your circumstances change. 

In short? The only things that go away with time are snowflakes, youth, and opportunities. You have an opportunity to plan for you and your loved ones now. Why would you let that pass?

MYTH #3: “If I’m married, my spouse will inherit everything and get to bypass probate.”

Although your spouse is entitled to assets from your estate, if you have not put a plan in place, your spouse will likely be subject to the probate court and its control. 

Without an estate plan, you leave things up to chance. If you do not make decisions about the allocation of your property and assets when you have the chance, you will end up leaving things to Michigan’s laws of intestate succession. These strict and complicated laws determine what happens to a decedent’s estate when they do not have a will. Ultimately, leaving things up to intestate succession could result in your assets being distributed in a manner that you would not want. While your spouse is entitled to some assets, other people in your life may also be able to claim a share of your intestate estate — such as an estranged child, or a parent you’ve broken off contact with. 

What’s more, failing to leave a roadmap could open the door for bitter contests and disputes, including family arguments that turn into prolonged legal battles. 

Having an estate plan in place can help assure that your partner gets the assets and control you want them to have. If nothing else, estate planning is a straightforward way to offer guidance and protection to your spouse, making a difficult and uncertain time far easier to navigate.

MYTH #4: “Having a will is enough to bypass probate.”

Having a will does not mean that your estate will avoid probate.

However, if you have assets in your name and want to control the distribution of those assets when you pass, a will can accomplish that goal. Having a will helps facilitate the probate process, and, when executed properly, can help to avoid or minimize the potential for contests.

Importantly, wills also offer you the ability to carry out any number of important tasks, including: 

• Nominating someone you trust to serve as personal representative, and handle your affairs in the probate court.
• Nominating a conservator to handle the financial affairs of your minor or incapacitated adult children or loved ones. 
• Nominating a guardian to handle the care, custody, and control of your minor children to assure they grow up the way you intended.
• Establishing a long-term distribution scheme for loved ones who are not as financially savvy as you would like, usually working in conjunction with other estate planning tools such as a trust.

MYTH #5: “I have a power of attorney in place. My agent can distribute my assets when I pass.”

A power of attorney is an important tool, which may be used in conjunction with a will or trust. However, it is limited in its scope — particularly once you’ve passed away. 

Broadly speaking, a power of attorney is a written instrument that gives legal authority to a third party (known as the “agent” or “attorney in fact”) to act on the behalf of someone else (known as the “principal”). In estate planning, power of attorney (POA) is a tool that can be used to ensure that someone you trust manages your financial and health care decisions when you no longer can. 

For estate planning purposes, it is imperative that the power of attorney used can be classified as a “durable” power of attorney. A durable POA contains specific language that ensures your agent can act even if you become incapacitated, while keeping the power in your hands for as long you can make decisions for yourself. However, when the principal on the power of attorney passes away, the agent’s power is dissolved. 

Fortunately, there are other mechanisms that can be used to ensure that your wishes will be carried out after you’re gone — such as nominating a personal representative in your will, naming a successor trustee to oversee the management and administration of your trust, or nominating a conservator to manage the financial affairs of your minor children. 

MYTH #6: “If I die without a will, all my assets will go to the government.”

Under Michigan’s laws of intestate succession, the contents of an intestate estate only escheat to the government in very limited circumstances — namely, if you are not survived by any legal heirs. 

However, it is true that if you do not create a plan to determine how your properties and assets will be handled in the event of your passing, then the state will make many important decisions for you. This takes away your control. Having an up-to-date and thorough estate plan helps ensure that the people and properties you care about will be handled in the manner that you decide. Meanwhile, having a plan in place can help streamline and simplify things for your loved ones. The probate court is not a comfortable setting for handling an estate. Failing to create a plan can make this time even more long and arduous for your loved ones, who are already dealing with the emotions and stress of losing someone dear. 

MYTH #7: “Setting up a trust means giving up control of my assets.”

Does creating a trust mean giving up control? Not if you don’t want it to. There are many different types of trusts that can be used here in Michigan, depending on your unique goals. 

Generally speaking, with one of the most common and popular types of trusts, you will be able to maintain control of your assets for as long as possible. 

In an inter-vivos or revocable living trust, the trustee controls the assets. One of the practicalities of creating such a trust is that you can typically assign yourself as the trustee. This way, you remain in complete control of your trust assets. In the event that you can no longer perform your duties, the responsibilities would legally be granted to the successor trustee you’ve named. 

Get Real Answers from Michigan’s Probate and Estate Planning Attorneys

When it is time to take care of your estate planning needs, get the answers, insight, and guidance you and your beneficiaries deserve. Whether you are trying to avoid probate with a trust, want to make sure your assets are protected and transferred according to your wishes, or want to plan for incapacity with powers of attorney, our attorneys can help you custom tailor a solution to suit your needs.

At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies as we help you navigate estate planning and probate, including (but not limited to) general probate litigation, will and trust contests, beneficiary disputes, guardianships, and conservatorships. 

Our goal is to provide you with only the best professional legal services available in Michigan. Work with us and you have our sincere promise to carefully plan and manage each and every step of your legal matter from start to finish.

Have any questions? Ready to get started? Our staff is available 24/7 to help you with your legal matters. Contact Dean E. Patrick at his Southfield office at (248) 663-2566, or click here to arrange your initial consultation. 

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

If you spend any time researching matters relating to guardianships, conservatorships, wills, trusts, and estate administration in Michigan, you’re bound to come across the phrase “EPIC.” Short for “Estates and Protected Individuals Code,” this refers to the act that governs matters relating to the administration of estates of deceased persons and protected individuals in our state. These are matters over which the probate court has exclusive jurisdiction.

Curious about all things EPIC? Let’s take a look at the history behind this important act — and what it means for Michigan probate matters in 2020 and beyond. 

A Brief History of Michigan’s Estates and Protected Individuals Code (EPIC)

The early nineteenth century saw the beginnings of Michigan’s modern legal system. In its early days, Michigan’s legal system consisted of appointed justices, who served on courts including “The Court of Common Pleas” or “The Court of General Quarter Sessions.” The courts continued evolving from there, including the formation of the probate court system. 

As the Probate Court of Kent County puts it in a writing, the probate court is:

a Court of statutory jurisdiction, primarily concerned with the protection of incapacitated or mentally ill individuals and their assets, and the proper transfer of assets at death.

Throughout its history, Michigan’s probate courts have been governed by several different codes, including the 1939 Probate Code, and the Revised Probate Code (RPC), which was enacted in 1978. Signed into law in 1998 and becoming effective in April of 2000, EPIC was devised to replace the RPC. 

In a contemporaneous writing, the State Bar of Michigan heralded EPIC as “the most important piece of legislation affecting probate and trust administration in over 20 years.”

As the State Bar explains, EPIC retained some of the “unique and essential features” of Michigan law, while also serving as a true integration of the Uniform Probate Code (UPC) — an act meant to streamline and standardize matters relating to inheritance and decedents’ estates across the United States, which has been adopted in full or in part by 18 states. 

Preparation of EPIC took more than seven years, and included input from legal practitioners, probate judges, probate registers, and financial professionals. 

What Does The Estates and Protected Individuals Code (EPIC) Do?

As described in the act itself, EPIC is intended to:

revise, consolidate, and classify aspects of the law relating to wills and intestacy, relating to the administration and distribution of estates of certain individuals, relating to trusts, and relating to the affairs of certain individuals under legal incapacity. 

By extension, EPIC also includes provisions governing many of the transfers, contracts, and deposits relating to these matters, including the facilitation of trusts. 

EPIC also provides for the powers and procedures of the probate court, which has jurisdiction over these matters.

More specifically, EPIC’s primary purposes are to: 

• Simplify and clarify the law concerning the affairs of decedents, missing individuals, protected individuals, minors, and legally incapacitated individuals. 
• Discover and make effective a decedent’s intent in distribution of the decedent’s property.
• Promote a speedy and efficient system for liquidating a decedent’s estate and making distribution to their successors.
• Provide for a uniform law among various jurisdictions, both within and outside of the state.

EPIC applies to the affairs and estates of decedents, missing individuals, and protected individuals living in Michigan; as well as a nonresident’s property located in this state. EPIC also applies with regards to trusts subject to administration in Michigan, as well as survivorship and related accounts.

As the State of Michigan explains in a writing, protected individuals are “persons who by reason of their age or physical impairment cannot manage their own affairs,” including incapacitated individuals and minors. 

EPIC and the Michigan Probate Court

Under EPIC, the court is granted “exclusive legal and equitable jurisdiction” of all of the following:

Matters relating to the settlement of a deceased individual’s estate.

This includes both testate and intestate estates subject to administration in Michigan. A testate estate is one that involves the probate of a decedent’s will, while intestate estates are those where there is no will. The court may be involved in proceedings relating to the internal affairs of the estate; estate administration, settlement, and distribution; the construction of a will; determination of heirs; determination of death; and the rights of devisees, heirs and fiduciaries connected to the estate.

Proceedings involving trusts.

EPIC grants the court exclusive jurisdiction over proceedings concerning the validity, settlement, administration, distribution, modification, reformation, or termination of a trust, as well as the rights and obligations of trustees and trust beneficiaries — including appointing or removing a trustee, ascertaining beneficiaries, and resolving questions stemming from the administration of a trust. 

Proceedings that concern guardianships, conservatorships, and protective proceedings.

This includes matters relating to the protection of an individual under disability, and his or her property. As the Probate Court of Kent County explains: 

If a conservator or guardian of the estate is appointed, the Court must then monitor the continuing proceedings to ensure that the required annual accounts are filed and approved, showing that the assets are being held and used for the benefit of the ward. The Court also conducts hearings regarding disputes that arise concerning conservatorships and petitions to terminate or modify conservatorships.

Proceedings to require, hear, or settle the accounts of a fiduciary.

This includes ordering instructions or directions to a fiduciary that concern an estate within the court’s jurisdiction, particularly upon the request of an interested person.

Interested In Learning More About Probate In Michigan?

When you have a foot problem, you go to the podiatrist. When you have a heart problem, you go to the cardiologist. When you want to estate plan or are forced into the probate court, you need to go to an established probate and estate planning attorney. That’s where we come in. 

Attorney Dean E. Patrick focuses on:

• Estate planning, including wills and trusts
• Estate administration and settlement, including mediation
• Incapacity planning, including powers of attorney for health care and finance
• Guardianships, whether contested or uncontested
• Conservatorships, whether contested or uncontested
• Probate litigation, including will and trust contests
• Fiduciary services, including trusteeships and conservatorships

You and your family can rest assured knowing that our office is handling your matter with professionalism and expertise. Our meeting schedules are flexible in order to accommodate your needs and we work hard to discuss these difficult matters in terms that are easy to comprehend. Our office is conveniently located in Southfield, Michigan and our staff is available 24 hours a day, 7 days a week to receive phone calls and help you with your legal matters.

Have any more questions? Ready to get started? Contact Dean E. Patrick at his Southfield office at (248) 663-2566, or click here to arrange your initial consultation. 

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Losing a loved one can be an incredibly difficult time. On top of the understandable grief and devastation at losing someone dear — whether a parent, sibling, spouse, or grandparent — this moment can also bring confusion and uncertainty. There are many logistical steps and important decisions that must be taken after someone dies in Michigan, and many people don’t know how or when to begin moving forward. 

Knowing what steps to take after a loved one passes away can make life a little easier during this unusual and challenging time.

It’s important to understand that every situation is unique, and there is no single blueprint to follow when someone passes away. However, there are some important things that one must consider and actions that must be taken — both in the short window after someone passes, and over the course of the next several days and weeks.

One important first step is to contact your loved one’s estate planning attorney (if they had one), or get in touch with an experienced probate lawyer in your area. A legal professional can help you understand the process your loved one’s estate will succumb to in court, as well as the basic steps you and your family can take based on your loved one’s unique circumstances.

What action steps should you be prepared to take after a loved one dies in Michigan? Here is a quick, informal overview of what you can expect: 

Immediately After Death

After a legal pronouncement of death from a paramedic, nurse, or doctor, the next step will be to arrange for proper transportation and handling of the body by the coroner’s office or a local mortuary or crematorium. 

In the immediate aftermath of a death, communication will also be essential. At this time, it’s important to begin notifying family and friends close to you and the deceased. Shortly after, it will be important to begin informing other relevant parties, such as the decedent’s employer or  landlord, or the school where their children are enrolled. To help make things easier, many people will activate a family phone tree, so it doesn’t fall entirely on one person to spread the news. 

Immediately after a loved one passes, it will also be important to make temporary arrangements to make sure their dependents and pets are cared for.

Within a Few Days

Moving forward, there will be some important steps for the family of the decedent to take promptly, including: 

Making funeral preparations

It’s important to determine if your loved one left behind funeral arrangements or requests, including where the ceremony will be held, how they want their body to be prepared, and where they will be interred. Many people make pre-arrangements with a funeral home, to make things easier on their loved ones financially and logistically. 

The deceased may have designated a funeral representative as part of their will or in another document; this is the individual who will  have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of the decedent’s body. If the decedent did not choose a funeral representative, then this responsibility may also fall to the deceased’s spouse or children.  A special personal representative may also be appointed to step in and handle estate issues, including making funeral arrangements, before the appointment of the regular personal representative. 

A funeral director can assist with many important tasks over the course of preparing for the burial, including placing an obituary, and assisting in the completion of a death certificate.

Securing the person’s property

You may wish to take steps to protect your loved one’s property from vandalism and theft. This might include locking up their house and vehicles, and bringing in help to clean out perishable food from the fridge, water plants, and collect mail. 

Getting certified copies of a death certificate

Obtain multiple certified copies of a death certificate through the local office of vital statistics. This paperwork will be necessary to take several important steps, including receiving distribution from insurance policies, retitling financial accounts and investments, and transferring personal property or real estate.  

Collecting important documents and records

Dealing with the legal aftermath of a loved one’s passing will involve handling many different personal documents, including estate planning documents and identifying information. The State Bar of Michigan recommends locating the following items, and giving them to the person responsible for completing the deceased’s final affairs:

• Directives regarding funeral arrangements
• Prepaid funeral or burial contracts & related documents
• Last will & testament
• Trust agreements
• Marriage certificates (and premarital agreements, if applicable)
• Bank statements, account information, and safety deposit box keys
• Retirement and brokerage account statements
• Birth certificate
• Social Security card
• Military discharge documents, if applicable
• Stock certificates and savings bonds
• Recent bills 
• Tax returns and documents 
• Deeds, tax information, and other documents pertaining to real estate

Contacting legal and financial professionals who can help you move forward

Remember that you don’t need to go through this process alone. Your loved one may have been working with professionals who can help you make decisions and move forward on their behalf, including a financial advisor and an estate planning attorney. 

A financial advisor or planner can help you determine what investments your loved one owned and put a value on their assets. They may also be able to assist with transferring or retitling financial assets to a designated beneficiary. 

An estates and probate attorney can answer any legal questions and address concerns you may have, provide copies of your loved one’s estate planning documents, and help coordinate and begin the probate process — including determining whether a probate proceeding is necessary for the decedent’s estate properties, helping to determine who will be acting as personal representative, and filing the decedent’s will in the probate court for their county of residence.

Within 10-14 Days

In the weeks following a loved one’s passing, it will be important to tie up loose ends and begin the work of estate and trust administration. Here are a few key guideposts and considerations to keep in mind: 

Notify the Social Security Administration, credit card companies, and others

If your loved one was receiving Social Security benefits, be sure to notify the SSA to receive information about survivor’s benefit, or determine if any payments must be returned. 

To stop the risk of identity theft or fraud, notify the major credit reporting agencies of the death. You can request a “deceased” flag with Experian, Equifax, and TransUnion. 

Similarly, unless you are named on the account and wish to retain the card, this is also the time to notify credit card companies about the death, as well as utility companies. If needed, cancel or redirect newspaper subscriptions and other home deliveries to the deceased’s property. 

File claims with life insurance policies

If your loved one had insurance policies, it will be necessary to contact them to file a claim for life insurance benefits. Your estate planning attorney can also help transfer any annuities or benefits to heirs designated beneficiaries, as needed. 

Work to transfer or distribute nonprobate assets

Some of your loved one’s assets are likely to be nontestamentary, meaning that they will likely not have to go through probate administration. Most commonly, this includes assets held in a revocable living trust, or those with a beneficiary or payable-on-death designation or a co-owner who is legally entitled to the property. A probate attorney can help notify financial institutions to transfer or pay your loved one’s accounts to the appropriate beneficiaries; retitle jointly held assets in the name of the surviving party; and assist a successor trustee in managing and administering relevant trust property. 

Beginning the Probate Process

In Michigan, the legal process involved in administering a decedent’s estate is commonly known as probate. The probate process begins when the decedent’s will (if there is one) is filed with the court, and a personal representative is appointed. 

The personal representative assumes the important role of settling and distributing the decedent’s estate expeditiously and efficiently, in line with the terms of the decedent’s will and all relevant state laws. 

Most commonly, a personal representative is named in the decedent’s will. If the person died without a will, they are said to have died intestate. In this case, the probate court will take an active role in determining who will serve as personal representative. The laws for intestate succession will also take effect if the decedent passed away without a will, or left significant gaps in their estate plan. Broadly speaking, intestate succession means that the assets of the deceased will be distributed to their survivors following a strict order of priority, which is determined by Michigan law. 

In broad strokes, the estate administration process involves a few key steps, which are overseen by the personal representative: 

• Gathering the assets of the estate and determining their value
• Paying the decedent’s debts and final expenses from the estate
• Distributing remaining assets to the appropriate people or entities, in line with the decedent’s wishes and all relevant local laws

As they execute their duties, the personal representative will be held to a high standard of conduct. The personal representative is a fiduciary, meaning that they are expected to put the interests of the estate above their own. 

Probate also involves resolving any complications, issues, or disputes that might arise during the administration of the estate — including trust and will contests, addressing a breach of fiduciary duty, or handling guardianship and conservatorship proceedings. Along the way, it may prove important to have an experienced legal professional on your side, who can address your questions and help you navigate through probate litigation, so that you can secure the best possible outcome for your situation.

At Every Step of the Way: Don’t Forget to Take Care of Yourself

In the days, weeks, and months following the loss of a loved one, remember to take care of yourself. This time can be emotionally charged and incredibly draining, particularly if you are closely involved in administering your loved one’s estate. 

In the days after your loved one’s passing, be sure to contact your workplace, and look into their bereavement time policies if you need to step away.

Moving forward, do whatever you can to keep yourself feeling healthy and secure. Look into local support groups for grief and loss in your community, and keep in touch with friends and family. Get support from a counselor or therapist if you need it. Many people also look into talking with a faith leader at this time, or make it a point to get involved in volunteering and community organizations to stay active and engaged. Make time for exercise, keep up with doctor’s visits, and build in plenty of opportunities for self-care, in whatever form you need. If the workload involved with handling your loved one’s affairs starts to feel overwhelming, delegate to trusted friends and advisors. 

You Don’t Have to Go Through This Difficult Time Alone

Coming to terms with a loved one’s passing is a hard and emotional process – and one that is only made more difficult when you need to deal with complex legal matters at the same time. 

During this trying time, you owe it to yourself and to all involved to have a professional and experienced probate lawyer like our Attorney Dean E. Patrick at your side, guiding you through the probate courts of Michigan. 

Mr. Patrick can provide the assistance and support that you need as an estate is guided through the Michigan probate courts. Mr. Patrick has worked with many different legal issues, so you can be sure that he is knowledgeable on all aspects of probate. Whether you are a personal representative, an heir, a creditor, a named beneficiary, an omitted child, or a widow or widower, Mr. Patrick will patiently bring you up to speed with the process while understanding and being supportive as you recover from the grief.

Whenever you’re ready to get started, Dean E. Patrick is here to listen and learn more about your circumstances. If you have any probate-related issue that has interrupted your life, we will work hard to accomplish your goals – with expertise, empathy, intellect, and professionalism at every step of the way.

Ready to keep the conversation going? The Patrick & Associates, PLLC.. is conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. You may click here to arrange your initial consultation, or give us call us at (248) 663-2566

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

The probate court is not a comfortable setting for handling an estate. Not only are the emotions and stress high from losing someone dear, the process can either be long and arduous, quick and painless, or avoided altogether. With that said, many people often wonder just how long the probate process will take, from beginning to end. 

Realistically, the probate process generally takes less than a year — but It’s important to understand that everyone’s journey through the Michigan probate courts will be unique.

“How Long Does Probate Take in Michigan?”

Though there are always certain “benchmarks” that must be hit during estate administration — such as appointing a personal representative, notifying creditors and settling claims to the estate, distributing estate property, and closing the estate — the process is not necessarily always cut-and-dry.

Just as no two people lived the exact same lives, no two estates will ever face the exact same administration process in the courts. 

The length and complexity of probate will come down to many variables, some of which can be hard to predict and control — from the dynamics of the decedent’s family, to the amount of debt that they’re leaving behind, to the estate planning steps they took to simplify or avoid probate ahead of time.

Ultimately, consulting with an experienced and knowledgeable probate and estates attorney may be the best way to gain an understanding of the ins and outs of the process that a decedent’s estate will succumb to in the courts. An attorney can help you get a fuller sense of the probate process, and understand the key benchmarks and timelines to consider — while also addressing concerns such as estate planning and the potential for probate litigation, based on the specifics of your family’s situation. 

Based on the circumstances, completing all of the steps involved in settling an estate may take as little as a few months, or could stretch on for more than a year. The amount of time it may take to complete the probate process will depend on a variety of factors, including (but not limited to):

The size and value of the decedent’s estate

The amount of time it takes to administer an estate may depend in large part on what’s actually included in the estate. For example, it may take longer to inventory and gather estate assets that are particularly complex, such as specialized antiques or rare valuables that need to be appraised by an expert. Similarly, if the decedent owned real estate in multiple states, ancillary probate may be required, which can take time and careful management to complete. 

On the flip side, the estate administration process may be expedited if your loved one left behind a qualifying small estate, eligible for Michigan’s simplified probate procedures. It is important to consult with an attorney to determine whether or not a small estate might qualify to be distributed by court order or summary administrative proceedings. 

Meanwhile, it’s important to remember that there are several types of estate administration used in Michigan, including formal, informal, and supervised administration. The length and complexity of probate may be affected by how much court oversight will be required. 

The extent and quality of the decedent’s estate planning

Estate planning is about taking steps to prepare for what will happen to your most important assets, in the event that you become incapacitated or pass away. Estate planning may involve taking advantage of any number of tools and mechanisms, many of which — including trusts, beneficiary designations, and joint ownership — can help an individual to streamline or even avoid probate. 

As a result, the amount and quality of estate planning that a person takes on when they have the chance may impact how long the probate process will take in the future. For example, for individuals who pass away without a will, the contents of their estate will be subject to Michigan’s laws of intestate succession — essentially meaning that the state will create a will for them. Not only does this mean that one’s assets may not be distributed in line with one’s wishes, but it can also cause the probate process to drag on, particularly if there needs to be a determination of heirs. 

Even if an individual did take some estate planning steps, there may be gaps that can cause the probate process to take longer. Did they fail to account for any important assets? Did they leave room for questions, disputes, or contests to arise? Did they leave unclear or inaccurate paperwork? As an example, it is quite common to see situations where a father tells a son that he is supposed to get “X” amount of the estate — even if his will splits everything evenly. 

The actions of the personal representative and other fiduciaries

Settling an estate promptly will require the action of one or more fiduciaries — including the personal representative of the estate, as well as any trustees. 

The personal representative is the individual (or group) tasked with guiding the decedent’s estate through probate — including filing the will, collecting and inventorying assets, managing claims against the estate, paying taxes and fees, and ultimately distributing estate assets to the proper beneficiaries. 

The probate process may take longer if the decedent did not select a personal representative, meaning that one will have to be appointed. Once a personal representative has accepted the position, they must execute their duties responsibly, effectively, and faithfully. If a personal representative is not responsible about filing paperwork and meeting deadlines, this could cause the estate administration process to drag on.

Probate may also need to extend for longer if the PR (or another fiduciary, such as a trustee or conservator) commits a breach of fiduciary duty — from failing to take proper accounting of the estate, to actively stealing or mismanaging estate property. In such cases, litigation may be required to compel the fiduciary to perform their duties; to remove the fiduciary from their role; or to redress any wrongdoings. 

Contests, disputes, and other issues requiring litigation

Contests to wills, trusts, and beneficiary designations can significantly increase the amount of time it takes to complete probate administration. 

In Michigan, any interested party — including, but not limited to, an heir, a devisee named in the will, a spouse, or a child of the decedent — may challenge the validity of a will on grounds such as undue influence, fraud, incapacity, improper execution, or forgery. 

Disputes to a will may also arise if there are multiple, conflicting wills; missing documents; or notable omissions (such as the decedent’s spouse or one of their children). 

The validity of a trust can be similarly challenged, particularly if certain legal formalities are left incomplete or in question. An interested party may pursue litigation in order to terminate, modify, or reform a trust, or dispute the actions of a trustee.

Litigation may also be necessary if there is a contested guardianship or conservatorship associated with the estate. 

The number and complexity of claims against the estate

Many people tend to think about estate administration as being all about distributing the decedent’s assets. While transferring the estate assets to the decedent’s beneficiaries is certainly an important part of the process, it is also important to remember that probate is also the time to receive and settle claims against the estate. 

In Michigan, there is a set window of time during which the personal representative must reach out to known creditors, and publish notice for unknown creditors to come forward with claims. This notice must include certain relevant information, including the name of the deceased, the name of the personal representative, and the amount of time that creditors have to present their claims before they are barred. Typically, this period for notifying creditors and receiving claims lasts for roughly four months. 

In Michigan, claims against an estate are generally handled in a set order of priority, with estate administration and funeral costs taking the highest position. A fiduciary representing the estate may allow, settle, or disallow a claim. Claims can be contested, particularly if a creditor wishes to dispute the disallowance of a claim, or if a fiduciary must challenge an unreasonable, illegitimate, or inappropriate claim. 

Probate Can Be Complicated. You Don’t Need to Go Through This Difficult Time Alone.

Curious about how long the probate process may take for yourself or a loved one? Interested in learning more about the actions you can take to simplify, streamline, or avoid probate in Michigan? 

As you deal with these important questions, it’s helpful to have an experienced and professional advocate on your side, one who can patiently help you understand the ins and outs of the probate process in your area.

Whether you are a personal representative, an heir, a creditor, a named beneficiary, an omitted child, or a widow/widower, an experienced probate and estate attorney can help address your questions and navigate the process from beginning to end, so that you can secure the best possible outcome for your situation.

If you’re based in Michigan, Attorney Dean E. Patrick can help you gain a better understanding of probate and all that goes into it — including wills, trusts, guardianship, conservatorship, and more.

Mr. Patrick is knowledgeable on all aspects of probate, with years of experience as a practicing attorney. Whenever you’re ready to get started, Dean E. Patrick is here to listen and learn more about your circumstances, and start finding a solution to your desired outcome. If you have any probate-related issue that has interrupted your life, we will work hard to accomplish your goals – providing your matter with the expertise, empathy, intellect, and professionalism it deserves at every step of the way.

Ready to keep the conversation going? The Patrick & Associates, PLLC.. is conveniently located in Southfield, Michigan, close to both Wayne and Oakland Counties. You may click here to arrange your initial consultation or call us at (248) 663-2566 today to learn more.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

What’s the difference between an heir and a devisee? Do you know what it means to be the beneficiary of a trust? Whether you are getting started with estate planning or facing the legal aftermath following a loved one’s passing, you’re sure to encounter many unfamiliar terms and concepts along the way.

One area where there is often some confusion? In Michigan, you may come across a few different terms to refer to people who inherit or receive property from a deceased person — including heir, devisee, and beneficiary. 

While they may have some overlap depending on the unique circumstances of your situation, these three categories refer to three different ways that someone may receive property from a decedent:

• “Heir” generally refers to a person who is entitled to receive the decedent’s property under the statutes of intestate succession, the distribution process that occurs when someone passes away without a will. 
• A “devisee” is any person designated to receive real or personal property in a decedent’s will. 
• “Beneficiary” is a broad term, and may refer to a person who receives property from a trust, or anyone who receives the proceeds of an insurance or annuity policy, pension, financial account, or security with a designated “transfer on death” or “pay on death” beneficiary. This generic term also encompasses devisees, as well as donees, appointees, and any person “in whose favor a power of attorney or power held in an individual, fiduciary, or representative capacity is exercised.”

Let’s explore each of these important concepts in a bit more depth, and examine how they may come into play during estate estate planning and administration:

Heirs

Broadly speaking, an heir is going to be related to the decedent through blood, marriage, or adoption. 

An heir is anyone who would stand to inherit from the estate of the decedent if they were to pass away without a valid or complete will. In such a situation, Michigan’s statutes for intestate succession apply. 

Under Michigan law, there is a particular order of succession by which heirs stand to inherit when an individual dies intestate — as well as guidelines for how much each party might ultimately receive from the decedent’s estate. 

Generally speaking, Michigan law gives highest priority to the surviving spouse of the decedent, followed by their children and grandchildren; then their parents, siblings, nieces and nephews; and then more distant relatives. If the decedent is not survived by any heirs, then the contents of the estate will ultimately pass to the state. 

The rules for intestate succession are complex, and the process can be long and difficult — particularly if there needs to be a determination of heirs. A probate attorney can help you understand the nuances of intestate succession, and how Michigan statutes may apply in your circumstances. 

Want to control the distribution of your assets and streamline things for your loved ones down the line? Whatever stage of life you’re currently experiencing, an experienced estate planning attorney can help you take action to maintain control. Setting down a plan for your most important assets can help ensure that they will be distributed in a manner appropriate for your circumstances, while minimizing the risk for disagreements and confusion among family members after you’re gone.

Devisees

A “devisee” means a person designated in a will to receive a devise, which is defined as “a testamentary disposition of real or personal property.” 

Whereas heirs will always be family to the deceased, anyone named in a decedent’s will is considered a devisee — including friends, co-workers, and so on. 

A will is a powerful way to help you maintain control, even when you’re gone. For example? Let’s say Pat is unmarried and has no children, but has two siblings, Alex and Sam. Pat is close with Alex, but broke off contact with Sam decades ago due to a bitter personal conflict. Under the statutes of intestate succession, Alex and Sam would both receive an equal amount of Pat’s estate. A properly executed will can help Pat ensure that Alex receives a larger share, in line with her wishes, while disinheriting Sam. 

In addition, a will can help assure that someone you can rely on is appointed to handle your assets and affairs, while also ensuring that your children will have a guardian of your choosing if you are unable to raise them. Along with other estate planning mechanisms, a will is also a way to help make sure that your partner has the assets and control you want them to have.

Keep in mind that a will is subject to jurisdiction by the probate court, and a will, if there is one, must be admitted to court for estate administration to begin. A will can be contested by any interested person — including, but not limited to, an heir, a devisee named in the will, a spouse, or a child of the decedent. Grounds for contesting a will include undue influence, fraud, incapacity, improper execution, or forgery. 

If you are facing the possibility of having to defend or contest a will in the Michigan probate courts, it’s important to bring on an experienced legal professional, who can help you understand your options and aggressively advocate for your position in any contested probate matter.

Beneficiaries

“Beneficiary” is a very broad and general term. While it can be used to refer to any devisee or distributee, there are a few circumstances where “beneficiary” takes on a more significant and unique meaning — particularly in relation to nonprobate assets, such as trusts and beneficiary designations. 

Probate assets are those that are included as part of the decedent’s estate, subject to court proceedings when he or she dies. Most typically, this refers to property and assets that are owned solely by the decedent, without any co-owners or designated beneficiaries. Nonprobate assets are those that experience a nontestamentary transfer on death. Most commonly, this category includes assets with a co-owner who is legally entitled to the property; assets with a beneficiary or payable-on-death designation; and assets held in a revocable living trust. 

Assets with that are set up with a designated beneficiary — typically known as a “pay on death” (POD) or “transfer on death” (TOD) beneficiary — are transferred directly to the named beneficiary (or beneficiaries) upon the death of the account owner or policy holder, outside of probate. Common examples of assets with beneficiary designations include retirement accounts, life insurance policies, bank accounts, investment accounts, pension plans, and other securities. 

A trust beneficiary is a person who has a present or future beneficial interest in a trust, vested or contingent. A person may also be considered a trust beneficiary if they hold “power of appointment” over trust property in a capacity other than as trustee or trust director. 

Trusts and beneficiary designations are important components of the estate planning process to keep in mind. There are many different types of trusts that can be utilized to help you meet your goals. Consulting with an experienced estate planning attorney about trusts, beneficiary designations, and other types of nonprobate transfers can help you to maximize the assets available to your beneficiaries when you have passed, minimize or eliminate the cost of probate fees, allow for immediate distribution of your assets, and help ensure that inheritance does not become a detriment to your beneficiaries.

Like wills, trusts and beneficiary designations can be contested, under certain circumstances. For example, an interested party can pursue litigation in order to terminate, modify, or reform a trust, or dispute the actions of a trustee.

If you are facing the need to contest or defend the validity of a trust or the actions of a trustee, do not hesitate to get in touch with an experienced probate litigation attorney to get the expert guidance your matter deserves.

Want to Discuss Any Element of Michigan Estate Planning and Probate?

Interested in learning more about the differences between heirs, beneficiaries, and devisees, and how each of these important concepts may affect you? Curious about any aspect of estate planning, or the legal process your estate may succumb to in court during probate? 

Whether you are currently dealing with the legal aftermath following the passing of a loved one, or are ready to find ways to make estate administration more efficient for your friends and family down the line, our firm is here and ready to help.

At the Patrick & Associates, PLLC., we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies as we help you navigate estate planning and probate, including (but not limited to) general probate litigation, wills and trusts contests, beneficiary disputes, guardianships, and conservatorships.

Have any more questions? Ready to get started? Our staff is available 24/7 to answer any questions and help you with your legal matters. Contact Dean E. Patrick at his Southfield office at (248) 663-2566, or click here to arrange your initial consultation. 

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Dealing with the legal aftermath of a loved one’s passing can become complex, emotional, and time-consuming — particularly if you are named to serve as a trustee during the administration of your loved one’s estate.

Put simply, a trustee is the person responsible for managing and distributing any of the assets held in a trust, while also handling several important duties that may arise during the course of trust administration — including overseeing tax filings for the trust and communicating with beneficiaries of the trust.

A trustee is a fiduciary, meaning that they are held to a high legal standard of conduct. In executing his or her duties, a trustee is expected to put the needs of the trust and its beneficiaries above their own. To be a fiduciary means serving with “undivided loyalty,” remaining impartial, being careful and prudent in their actions (including making investments on behalf of the trust), and keeping trust assets separate from their own. 

Interested in learning more about this important role? Let’s explore some important FAQs about trustees in Michigan:

What Is a Trust?

A trust is a written agreement created by a settlor or grantor that names an individual who is responsible for managing property as directed by the trust agreement. This person is the trustee.  The settlor may also add successor trustees, who would take on the responsibilities of the trustee should the original choice be unable to do so.

Trusts are a popular estate planning tool because they can allow certain assets to bypass administration in the courts —which can help simplify and streamline the probate process, while also helping shield the privacy and finances of the decedent and their family. Trusts are also growing in popularity because they are dynamic, and can help give the decedent a high level of control over their assets and beneficiaries, even after they’re gone — from determining when and how a beneficiary may receive their inheritance, to designating what funds should be set aside for charity or even the care of a pet. 

There are many different types of trusts which can be used to suit your needs. An experienced probate attorney can assist you on choosing what option is the best fit for your circumstances, estate, and beneficiaries. 

Broadly speaking, the most popular type of trust in the U.S. is known as the inter-vivos or revocable living trust. One of the practicalities of creating such a trust is that you would typically assign yourself as the trustee. This way, you remain in complete control of your trust assets for as long as possible. In the event that you can no longer perform your duties, the responsibilities would legally be granted to your successor trustee. 

For this reason, it’s important to nominate a successor trustee who can handle the responsibilities, abide by your wishes, and follow the directions set down by the structure of your trust. Many people choose a spouse or a trusted family member to serve as trustee; you may also name a professional, such as an attorney or financial consultant. 

What Are the Responsibilities and Duties of a Trustee?

The Michigan trust code states that upon acceptance of a trusteeship, the trustee shall “administer the trust in good faith, expeditiously, in accordance with its terms and purposes, for the benefit of the trust beneficiaries, and in accordance” with the law. 

More specifically, a trustee has several important duties and legal obligations to execute, including: 

The Duty of Loyalty

The duty of loyalty states that a trustee shall administer the trust solely in the interests of the trust beneficiaries, and avoid conflicts between the trustee’s fiduciary and personal interests — particularly involving the investment and management of trust property. Crucially, a sale, encumbrance, or other transaction involving the trust property may be presumed to be affected by a conflict if it involves the trustee’s spouse or another family member, an agent or attorney of the trustee, or a corporation or enterprise in which the trustee owns a significant interest that might affect their best judgment. 

Managing, Controlling, and Distributing Trust Property

A trustee has many key responsibilities involving trust property, including: 

• Taking reasonable steps to control and protect the trust property — using general powers that are appropriate to achieve its proper investment, management, and distribution
• Following the standards of Michigan’s prudent investor rule
• If the trustee has special skills or is named trustee on the basis of their skills or expertise, the have a duty to use those skills for the benefit of the trust 
• Keeping adequate records of the administration of the trust
• Keeping trust property separate from their own property 
• Taking reasonable steps to enforce claims of the trust (and defend claims against the trust)
• Taking reasonable steps to locate trust property, including compelling another person to deliver property to the trustee
• Responding to tax matters affecting the trust
• Following proper procedures for terminating the trust and making distributions

Duty to Inform and Report

A trustee is obligated to keep qualified trust beneficiaries reasonably informed about the administration of the trust, and any material facts that are necessary for them to protect their interests. Broadly speaking, trustees must respond promptly to a trust beneficiary’s requests for information. If requested by a beneficiary, a trustee should also be able to promptly furnish a copy of the terms of the trust that describe or affect the beneficiary’s interest, and relevant information about the trust property. 

Trustees are also required to send out notices when they accept the trusteeship, or if there are any changes to their rate or methods of compensation.

At least once per year and at the termination of the trust, the trustee must also send a thorough report of the trust property, liabilities, receipts, and disbursements, including details of their compensation as a trustee, and a list of all trust property and its market value. 

Can More Than One Person Act as a Trustee?

Yes, a settlor may nominate more than one person to serve as trustee. These parties may act as cotrustees or as separate trustees. Broadly speaking, cotrustees oversee the administration of the entire trust together, and act by majority decision.  A separate trustees provision causes  trusteeship of the aggregate trust to be divided into multiple sets of fiduciary responsibilities, each allocated to a separate trustee. An example may be having one trustee who oversees investments, and another who manages distributions. 

Do I Have to Accept the Position?

A person appointed as a trustee or successor trustee has the option of accepting or rejecting the role. 

Under the Michigan trust code,  a person designated as trustee accepts the position by either

• substantially complying with a method of acceptance provided in the terms of the trust, or
• accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise taking action indicating acceptance of the trusteeship

A person designated as a trustee who has not yet accepted the trusteeship may reject the responsibility. A person who is serving as trustee may also resign from the position, provided that they provide at least 28 days’ notice to qualified trust beneficiaries, the holders of powers of appointment,and all cotrustees, and have the approval of the court. 

If a trustee rejects or resigns from the trusteeship, this leaves a vacancy which is typically filled in order of priority — first in the manner designated by the terms of the trust, and then by a person appointed by the court, if necessary. 

Can a Trustee Be Removed?

There may be times when beneficiaries may need to contest the actions of a trustee, which can include having them removed from the trusteeship. Broadly speaking, a settlor, a cotrustee, or a qualified trust beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

There may be grounds for removal of a trustee if: 

• The trustee commits a serious breach of fiduciary duty
• Lack of cooperation among cotrustees substantially impairs the administration of the trust.
• The court determines that removing the trustee would be in the trust’s best interest, generally because of their unfitness, unwillingness, or persistent failure to administer the trust effectively
• There has been a substantial change of circumstances, and the court finds that removal of the trustee best serves the interests of the trust beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available

A trustee who has resigned or been removed must proceed to promptly deliver the trust property in their possession to the cotrustee, successor trustee, or another person entitled to it.

Before removing the trustee, the court may take other steps to remedy a breach of trust that has occurred or may occur, including (but not limited to):

• Compelling the trustee to perform their duties
• Compelling the trustee to redress a breach of trust by paying money or restoring property
• Ordering a trustee to account
• Appointing a special fiduciary to take possession of the trust property
• Suspending the trustee
• Reducing or denying compensation to the trustee

If you suspect that a fiduciary has committed a breach of fiduciary duty, it is imperative to consult with an experienced probate litigation attorney who can help you understand what steps you may take, and aggressively advocate for your position in a contested probate matter. 

Can a Trustee Be Compensated?

A trustee is entitled to be compensated. If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances. If the terms of the trust do specify the trustee’s compensation, the court may allow more or less if the duties of the trustee are substantially different that what would have been expected when the trust was created, or if the compensation specified would be unreasonably low or high. 

A trustee may also be entitled to be reimbursed out of the trust property, with interest as appropriate, for expenses that were properly incurred in the administration of the trust, or to the extent necessary to prevent unjust enrichment of the trust (for expenses not properly incurred in the creation of the trust). 

Probate and Estate Administration Can Be Complex. You Don’t Have to Go Through It All Alone

Whether you are thinking ahead to the creation of your estate plan or have been named to serve as a successor trustee for a family member, you probably have questions. 

If you have accepted the responsibilities of administering a trust, our experienced trust attorney Dean E. Patrick can provide informed professional advice to guide you through the legal process, explain your obligations as a fiduciary, and help you discharge your duties in an efficient and expedient manner to avoid personal liability. And if a contest should ever arise, Mr. Patrick can help right the ship, drawing from his extensive experience with litigating contested probate matters. Mr. Patrick has years of experience as a practicing attorney and is ready to aggressively fight for you.

If you are considering a trust as part of your overall estate plan, Mr. Patrick can help you dot the “i’s” and cross the “t’s.” Mr. Patrick would be happy to help you consider the potential benefits of different types of trusts, and assist in the creation of a trust that works for your unique situation — while ensuring that all legal formalities are addressed.

Have any more questions about the role of the trustee in Michigan? The Patrick & Associates, PLLC. is available 24/7. Whatever your situation, Mr. Patrick is keen on hearing your circumstance and even keener in finding a solution to a desired outcome. Contact Dean E. Patrick at his Southfield, Michigan office at (248) 663-2566 or click here to arrange your initial consultation.

This post has been prepared for general information purposes only. The information you obtain here is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and electronic mail.  Accessing the content of this site does not create an attorney-client relationship.  Nor, does contacting us create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Preparing a comprehensive estate plan can help ensure that your most important assets will be managed in accordance with your wishes both during your lifetime, and after you pass away. Just as crucially, your estate plan can help ensure that your loved ones will be supported during a difficult and emotional time.

Here in Michigan, one of the most important estate planning devices to understand is the trust.

Trusts come in many different “shapes and sizes,” and there are many different ways to strategically use a trust in order to suit your particular needs — from leaving money to charity, to providing for the next generation of your family, to helping some of your most important assets avoid the potential for lengthy probate issues.

Whether you are taking steps to create or update your estate plan, preparing to serve as a trustee, or are curious about your rights and responsibilities as the beneficiary of a trust, it’s important to understand the many different types of trusts that you may come across.

What Is a Trust?

As you work toward solidifying your estate plan, a trust can be an effective complement to your other legal documents.

A trust is a written agreement created by the settlor, also known as the grantor, which names an individual who is responsible for managing property, as directed by the trust agreement. The person who is responsible for managing the assets placed into the trust is known as the trustee; individuals who may be entitled to receive trust assets, as directed by the settlor, are known as beneficiaries.

It’s important to keep in mind that a trust must be funded with your assets —otherwise, it will remain an empty vessel. So, once the trust is created, it is essential to re-title the assets of your choosing into the trust. There are many important considerations to be addressed in the creation of a trust, so that it is designed to your specifications and in line with all necessary legal formalities.

For example, one of the practicalities involved in creating a trust is appointing the trustee, along with one or more successor trustees, who will take on the responsibilities of managing the trust if the primary trustee is unable to do so. In most situations, the settlor will assign themselves as the trustee, in order to maintain control over the trust assets throughout their lifetime. If the settlor is unable to perform their duties as trustee, their successor trustee would be granted the legal responsibility of managing the trust assets as directed by the terms of the trust. For this reason, it is incredibly important to nominate a successor trustee who will be able to handle the responsibility, and capably abide by the directions that you set down for the trust. 

Many different types of assets can be transferred into a trust, including investments and securities, tangible personal property, bank accounts, business interests, and real estate.

From an estate planning perspective, trusts can offer numerous advantages — both for you as the settlor, and for your future beneficiaries. Placing assets into a trust can allow them to pass to your beneficiaries, without having to go through the oversight of the probate courts. This can save time, money, and stress for your loved ones during the trust administration process, and can help protect your family’s privacy.

Crucially, trusts can give you a great deal of control over your assets, both while you are living and after you have passed on. A trust can be a straightforward way to set aside assets in order to care for a minor, or a dependent with special needs. Trusts can also enable you to set down rules, requirements, and restrictions for your beneficiaries, controlling how, when, and if they may receive their inheritance.

The creation of a trust can also help protect your estate from certain taxes and fees, which might ultimately allow you to provide more for your beneficiaries. Having a trust can also allow you to create a plan for managing your most valuable assets if you become incapacitated and upon passing.

Interested in learning more? Be sure to visit our FAQ page on trusts for more information, or read about some common scenarios and stories involving trusts here.

Understanding Common Types of Trusts

It’s important to understand that trusts, as with so many other matters pertaining to estate planning and administration, are not “one-size-fits-all.” There are many different types of trusts to be aware of and choosing the right type of trust for your needs will be entirely dependent on your unique circumstances, including the size and nature of your estate and the needs of your chosen beneficiaries.

If you are interested in learning more about the various types of trusts available to you, we are here to help. Let’s explore some of the most common types of trusts in more depth.

Revocable Vs. Irrevocable Trusts

Before we dive into specific types of trust, one concept to understand is the distinction between two categories of trusts: revocable and irrevocable.

Put simply, a revocable trust, also called a revocable living trust or an inter vivos trust, allows you to maintain control of your assets during your lifetime. Revocable trusts can be modified or revoked at any time while the settlor is alive. Typically, the settlor will act as the trustee during his or her lifetime, with the successor trustee stepping in after his or her death. Revocable trusts avoid probate and offer a high degree of flexibility. Because of their versatility and ease of use, revocable living trusts are among the most popular types of trusts used today. 

Simply put, an irrevocable trust cannot be revoked by the settlor once it is established. Once an asset is placed into an irrevocable trust, the settlor is no longer considered to be its owner. For this reason, irrevocable trusts are often used to help safeguard assets from creditors and are often used to minimize or shelter from estate and gift taxes.

Other Common Types of Trusts

Whatever your goals, there is a trust out there for you. Some of the types of trusts that are used in Michigan estate planning include:

Supplemental (Special) Needs Trusts

This type of trust is designed to help your future beneficiaries who happen to be physically, mentally, or developmentally disabled and who are receiving (or are likely to receive) government benefits. The special needs trust structure helps provide for continuing care and maintaining quality of life for your loved ones with a disability, while increasing the probability that an inheritance will not disrupt your loved one’s government benefits. It is imperative that you create the trust and not leave it to your heirs to do so. If you fail to plan, you are creating a huge loss of assets which would have otherwise been available to your loved ones after the passing of the future beneficiary receiving government benefits. Please contact an attorney immediately if you have a loved one who receives or is likely to receive government benefits in the future.

Charitable Trusts

This type of trust assigns a charitable cause or organization as one of its beneficiaries. In addition to helping support a cause that is meaningful to you, this type of trust can offer certain tax advantages. Charitable trusts are entitled to special treatment under the law and may be used to significantly reduce or even eliminate the amount of a potential estate tax.

Pet Trusts

An increasingly popular type of sub-trust, a pet trust may be used to allocate resources for the care and well-being of your furry friend.

Irrevocable Life Insurance Trusts

Funded by a life insurance policy, this type of irrevocable trust is often used to help pay for some or all of the expected estate tax, when the tax is likely unavoidable.

IRA Trusts

This type of trust can be used to manage your IRA assets after your death. If structured properly, this trust is set up to be the beneficiary of your IRA. After your death, the trustee will then be able to control how these assets are distributed or managed, in line with your directions. Keep in mind that there are often significant tax consequences associated with IRA transactions, and it may prove beneficial to consult with your attorney and financial advisors to explore the advantages and disadvantages of this strategy.

Qualified Personal Residence Trusts

A QPRT can be useful for reducing estate taxes and offering creditor protection, depending on your circumstances. This specialized type of irrevocable trust is meant to hold your primary or secondary residence. This removes its value from your taxable estate, which can reduce the tax burden on your beneficiaries.

Marital Trusts and Credit Shelter Trusts

Marital trusts are established by one spouse for the benefit of the other. Typically, these are set up so that when the first spouse passes, the trust assets transfer to the surviving spouse. There are multiple ways to structure marital trusts for tax and probate benefits, and it’s important to consult with an attorney to explore all your options.

By maximizing use of the applicable exclusion amount, credit shelter trusts are complex tools used to shelter wealth transfers from transfer tax.

Spendthrift Trusts

A common concern is that beneficiaries will waste or mismanage their inheritance. A spendthrift clause in a trust allows the settlor to dictate when and how beneficiaries may access trust assets, helping to prevent their misuse and avoid third parties taking advantage of their beneficiaries.

Testamentary Trusts

A testamentary trust is set up through your will. Often, this is used to pass assets into a trust that will be managed on behalf of the decedent’s children.

Totten Trust

Also referred to as a “payable on death” account, this type of structuring allows for assets that you put into a bank account or security to transfer to a named beneficiary upon your passing.

Looking for Assistance with Trust Creation, Administration, or Issues?

Trusts are a popular estate planning tool, but it is often essential to receive guidance from an experienced, skillful, and knowledgeable attorney in order to ensure that they are properly established and maintained.

Similarly, if you are a trustee, personal representative, or otherwise involved in the administration of an estate, last will, or trust, you probably have questions. An experienced probate and trust attorney can provide informed professional advice to guide you through the legal process, explain your legal obligations as a fiduciary, and help you discharge your duties in an efficient and expedient manner to avoid personal liability.

Our probate and trust attorney Dean E. Patrick has years of valuable experience helping those in the Metro-Detroit area establish, administer, and litigate trust estates. If you have questions on trusts or other estate planning matters, contact Dean E. Patrick at his Southfield, Michigan office at (248) 663-2566 or click here to arrange your consultation initial consultation.

Mr. Patrick is a licensed Michigan lawyer with a focus in probate law. He has the legal counseling skills, experience, and dedication that your legal matter deserves. Whether you are looking for a probate attorney, an estate attorney or need legal advice when dealing with these emotional issues, you can trust our office to guide you through the process and deliver results.