Michigan Estate Planning Blog

Preparing for Life With an Estate Plan

 

A properly prepared estate plan includes a number of legal documents giving your specific and personal instructions to healthcare providers, financial institutions and the courts in charge of validating your will and overseeing asset distribution after you die.

According to a recent article from Kiplinger, “5 Key Components of an Estate Plan—and 7 Others to Consider,” if you don’t have an estate plan, your state’s government and local courts will make many decisions for you. Worse, your loved ones will need to petition courts to do anything for you, from making healthcare and end-of-life decisions to appointing someone to raise your children or sell your home.

An estate plan is prepared by an estate planning attorney who will know the various legal documents and strategies necessary to protect you and your loved ones. An estate plan includes the following documents:

Living Will. This document expresses your wishes for medical care, with as much detail as you want. For instance, do you want to have artificial nutrition through feeding tubes or blood transfusions if you are unable to give your consent? How do you want doctors to manage end-of-life care, if your body is living but your brain functions have ceased?

Without a living will, doctors will usually take an aggressive stance to keep you alive, even if you have something else in mind. Alternatively, your loved ones might have to make these decisions without knowing what you would have wanted. Having a living will and making sure your loved ones know what you want is a gift to them. Think of the guilt they’ll live with if they don’t know your wishes.

Healthcare Power of Attorney. This POA names someone you trust to make medical decisions when you can’t convey your wishes because of incapacity. They become your healthcare proxy, speaking with your doctors and deciding on treatment for you. Without one, your loved ones won’t be able to be involved in your care without going to court and petitioning to be named healthcare proxy.

You may remember the case of Terry Schiavo, a 26-year-old woman who had a heart attack and was only kept alive through artificial means. Her husband and parents were engaged in a court battle from 1990 to 2005 when a court ruled doctors could remove a feeding tube. Most of these situations don’t make headlines but are no less painful for families.

Financial Power of Attorney. This POA names someone to manage your money, access financial accounts, manage assets and run the day-to-day finances of your life when you are incapacitated. If you don’t have a POA, the court will name someone for you, whether you would have chosen them or not.

There are different kinds of POAs. The Durable POA is in effect the moment it is executed. The Springing POA is only executed when you become incapacitated and may lead to delays. Your estate planning attorney will know which is best for your situation.

Last Will and Testament. A will outlines your instructions for distribution of assets. If you have minor children or other dependents, it names a guardian for them. It also names an executor, the person who will be in charge of managing your estate. Without a will, again, the courts will decide who should receive your assets and raise your children.

An estate plan addresses the use of trusts to distribute your assets without court involvement. If your family includes a disabled individual, your estate plan includes plans for their future. For singles and childless couples, an estate plan spells out who will be able to make financial and healthcare decisions when you cannot.

Consult with an estate planning attorney today to give yourself and your family the peace of mind you all deserve.

Reference: Kiplinger (Jan. 6, 2025) “5 Key Components of an Estate Plan—and 7 Others to Consider”

Do You Need a Will or a Trust?

 

The start of a New Year is accompanied by wishes to make life better. Planning for the future and protecting the family means addressing your estate plan. A recent article from Parkland Talk, “Start the New Year Right: Why Estate Planning Should Be Your Top Resolution for 2025,” explains the basics of estate planning.

Everyone should have a will, a document setting out instructions for the disposition of your estate after you have died. For many families, a trust is part of an estate plan. This is a document creating a separate legal entity that takes effect once the trust is created. Trusts are used to own and manage assets during and after life. With a trust, you can assign another person to take care of assets in the trust if you become incapacitated.

Wills and trusts are very different legal documents, performing different tasks. The trust is effective while you are living and after you have died, while a will is only executed after you have died. For most people, both a will and a trust make up the foundation of an estate plan. Here are some of the differences:

A will and the property bequeathed in the will are subject to probate, while assets in the trust don’t go through probate.

Wills become part of the public record and can be read by anyone. At the same time, trusts remain private, their contents known only to the estate planning attorney who created them, the grantor—the person who created the trust—and the beneficiaries.

Wills are used to name a guardian for minor children.

Trusts let you control when and how minor children, grandchildren, or other beneficiaries receive assets in the trust.

You manage property in your will, while the trustee manages assets in the trust. An irrevocable trust is managed by the named trustee, while the grantor may be the trustee of a revocable trust.

A court does not get involved with the trust, while the executor, the person named to carry out the instructions in the will, is court-supervised during probate.

A will is only effective upon the death of the testator, the person creating the will. There are no provisions in a will for what should happen if the person should become incapacitated because of illness or injury. The trust is a tool for incapacity.

Both the will and trusts have their uses in a comprehensive estate plan. An experienced and knowledgeable estate planning attorney will help create an estate plan to best suit your needs.

Reference: Parkland Talk (Jan. 6, 2025) “Start the New Year Right: Why Estate Planning Should Be Your Top Resolution for 2025”

Do I Need a Living Will?

 

Most people have strong feelings about what kind of medical care they want if they are incapacitated but don’t know if they can put those wishes into a legally enforceable document. A living will expresses whether or not you want all means taken to save your life, to refuse medical treatment, or any steps in the middle, according to a recent article from The Wall Street Journal, “A Living Will Covers Your Most Important Asset: You.”

A last will and testament distributes assets, like real estate and investments, and directs what you want to happen after you die. A living will is a separate document addressing healthcare decision-making if you are unable to express your wishes because of being in a coma, having an accident, or being at the end stage of a terminal illness.

There’s a lot of confusion about end-of-life issues in hospitals and emergency rooms. A living will can remove almost all ambiguities.

Everyone should have both a living will and a regular will. However, only about a third of people do. Older people tend to have more living wills than younger people. However, the number of those who have both documents is far too low.

A living will can be very specific. You might want to receive artificial hydration and nutrition but not artificial respiration. You can even add whether or not you want music to be played by your bedside, or whether or not you want to have a visit by a chaplain in the hospital.

Some states have different names for these documents. However, in most states, there is one form called an advanced directive, which includes a living will. You also want to have a healthcare proxy, a document naming a person you want to make medical decisions for you. Your healthcare proxy is also the person who follows the living will directions.

People who are incapacitated and don’t have a living will create confusion and stress for loved ones. Let’s say you have three adult children, and none of them know what kind of care you want. What will they do if the doctor asks them?

Another problem is if you have a living will, but no one knows where it is except you. The living will should be with other estate planning documents. Important people in your life should know where they are located and be able to access them.

If you have a living will, your healthcare proxy should have a copy of it. Ask your doctor if they can include a copy in your patient chart or on the portal they use to communicate and share medical records.

Finally, you’ll want to keep your living will up to date. As you age or illnesses change your health, you may have different feelings about your wishes. The most recent living will with the most recent date will be the one used by medical providers.

The living will is part of your comprehensive estate plan. Like the rest of your estate plan, it is a gift to others so they know what your wishes are.

Reference: The Wall Street Journal (Dec. 2, 2024) “A Living Will Covers Your Most Important Asset: You”

Why Singles and Child-Free People Need Estate Plans

 

A growing number of Americans are single or have chosen to be child-free. They may feel they don’t need estate planning, since so many articles about this topic concern couples, children, and grandchildren. However, estate planning can be more important for these individuals, according to a recent article from Yahoo! finance, “Don’t let the government inherit your wealth: Estate planning is essential for those who are single or child free.”

Without spouses and children, most state laws about inheriting property when there is no will rely on kinship or bloodlines, and assets will go to the next of kin, whether you like them or not. The other estate planning issue facing singles and child-free people is planning in advance, so someone you trust can manage your financial life and make health decisions on your behalf if you are incapacitated. All of these things are part of an estate plan.

For starters, review your financial accounts. Which ones allow you to name beneficiaries? If you have nieces or nephews, beloved friends who are your family, or charitable organizations you care about, you could name them to receive these assets.

If you don’t already have a durable and medical power of attorney, speak with an estate planning attorney to get these started immediately. Downloading templates from the web is not a good idea for these documents, as you may give someone expanded powers you didn’t intend to, or they may be deemed invalid. An estate planning attorney will create these documents to reflect your wishes. Do you want someone to be able to pay your bills but not to sell your house? Do you want to be kept on life support only if certain indicators are present? These are specific wishes to discuss and document.

Everyone should have a last will and testament. The will is used to name the executor overseeing your estate upon your passing. They will need to notify the Social Security Administration, Medicare and/or Medicaid and your state’s motor vehicle bureau, of your passing. They’ll also create an estate bank account, file for an estate taxpayer identification number, pay taxes and more. They’ll be in charge of distributing assets according to the directions you’ve left in your will. Without a will and a named executor, a court will name someone you don’t know as your estate administrator.

If you are a member of the LGBTQ+ community, having an estate plan is even more important to protect your wishes and, if you have one, a long-term partner. Without being legally married, even someone who has been part of your life for decades will not have any rights to inherit from you. Another reason to work with an experienced estate planning attorney is that every state’s laws regarding same-sex marriages, domestic partnerships and civil unions vary. An estate planning attorney will make sure that your documents align with state laws.

An unpleasant but necessary fact to consider: financial elder abuse can occur more easily when there’s no one closely involved in your life to keep an eye on you and your finances. Decision-making can be less heartfelt. Will a distant relative deciding on your nursing home pick one you would have wanted, or will their eyes be on their inheritance?

Whether you are child-free, single, or unmarried but in a serious relationship, don’t delay sitting down with an estate planning attorney to map out your future.

Reference: yahoo! finance (Dec. 19, 2024) “Don’t let the government inherit your wealth: Estate planning is essential for those who are single or child free”

Common Estate Planning Mistakes and How to Avoid Them

 

Estate planning is something everyone should do to protect themselves while they are living, ensure that assets are distributed according to their wishes after death and prevent families from fighting over estates. A recent article from The Daily Record, “Experts urge early estate planning to avoid costly mistakes,” reminds us we never know when we’ll need our estate plan to go into effect, so having one in place is important.

Remember, estate planning isn’t just about drafting and signing legal documents. It encompasses defining family goals and facilitating conversations to discuss family values and hopes for the future.

Every estate plan needs at least three core documents:

A financial power of attorney, needed to authorize another person to make financial and legal decisions on your behalf in case of incapacity.

An advanced medical directive, which gives you the opportunity to express your preferences for medical care, if you’re not able to communicate.

A last will and testament directing how you want assets to be distributed, naming an executor to administer your estate and naming guardians for minor children.

A common mistake is attempting to use online templates for critical documents like a power of attorney or wills. While it seems convenient and inexpensive, many of these documents fail when reviewed by a court because they don’t follow state law or are contradictory.

An estate plan is a highly personalized document and requires a holistic view of the family’s life and situation. A thorough review of your life, finances and family dynamics is necessary to create an effective estate plan while you are living and after you’ve passed.

Another common error is thinking your family won’t benefit from a trust. However, any family with dependents and assets needs to at least consider a trust. Using a trust can protect your family and your assets from creditors, avoid probate and maintain privacy.

Another mistake is failing to review an estate plan every three or four years. The estate plan might not achieve goals unless it keeps up with changes in tax laws and retirement rules. For example, beneficiaries now have ten years to empty an inherited IRA, when in the past, they had a lifetime to take out withdrawals.

You may want to change your IRA beneficiary if these new rules will create a tax burden for them.

The process doesn’t have to be complicated. However, it does require taking the first step, which is making an appointment to meet with an estate planning attorney. You can anticipate a feeling of relief and peace of mind from knowing you’ve protected loved ones and yourself.

Reference: The Daily Record (Dec. 17, 2024) “Experts urge early estate planning to avoid costly mistakes”

Avoid Common Estate Planning Mistakes

 

Otherwise sound estate plans can be undermined by critical mistakes. A recent article from The National Law Journal, “Estate Planning Mistakes—2025 Annual Refresher—Part 3 [Podcast],” outlines how to avoid a number of common mistakes and protect the estate plan and the family from the effects of these missteps.

Not providing complete and accurate information. Transparency is critical when creating an estate plan. There are times when life’s circumstances may be sensitive and difficult to share with a professional. However, secrets can tear estate plans to bits. If assets are being hidden to avoid paying taxes or if there is an unacknowledged biological child, the integrity of the estate plan could be jeopardized.

This is especially relevant in a blended family. If a prior marriage or a child from a prior marriage is not disclosed, the result could be litigation between heirs. Hidden debts or undisclosed assets may surface after death, leaving executors and heirs with tax liabilities and family strife.

Failure to coordinate estate and financial instruments. Financial investments, life insurance policies and estate plans are rarely all started and completed at the same time. However, these and other accounts need to be coordinated so they work together. If a will says all three children should receive equal shares of an estate, but only one child is named as a beneficiary on a life insurance policy, the three are not going to receive equal shares. Provisions with different instructions in trusts, wills and beneficiary designations will only lead to trouble.

This is a relatively easy problem to solve; it just takes time and attention. Review estate planning documents every few years, including wills, trusts, any account with a beneficiary designation, power of attorney documents and life insurance policies. An estate planning attorney is always willing to speak with a financial advisor and CPA to ensure that the estate plan and financial tools will work together.

Talk with your family about your estate plan. A lack of trust and communication leads to estate plan failure and family fights. If you are uncomfortable talking with family members, consider setting up a family meeting with your estate planning attorney. If the family is spread across the country, an online video meeting can be coordinated.

Even the best of intentions can lead to problems. If one family member is struggling financially while the others enjoy robust earnings, parents may wish to leave more of their estate to the child having money problems. Talking about this openly with all of the siblings while parents are still living is far better than giving the family a major jolt when expectations aren’t met. If the conversation doesn’t happen, a painful legacy may be created.

Relying on Joint Tenancy to transfer assets. It may seem like joint tenancy is an easy way to transfer assets upon death. However, it can undo the intentions of a will or a trust. Assets held in joint tenancy pass directly to the surviving tenant, transferring outside of the estate plan. If a parent puts one child’s name on a joint account but not others, the child on the account is under no legal obligation to share the asset with their siblings, setting the stage for family discord and often, litigation.

Joint tenancy should be reviewed along with all other ownership and estate planning documents to consider how it will impact the estate plan. Revocable trusts may offer the same flexibility, while also ensuring that assets are distributed according to the intent of the overall estate plan.

Relying on informal agreements. A verbal promise between close family members may feel good. However, it won’t be enforced if one party fails to live up to their promise. This situation arises frequently when family heirlooms or personal possessions are promised but end up in another person’s hands. Documenting these promises and discussing decisions with heirs can avoid disputes and damaged relationships.

Effective estate planning requires attention to detail, communication and the guidance of an experienced estate planning attorney. Ensuring that the estate is properly planned has the added bonus of protecting the relationships between family members, which is the most valuable legacy of all.

Reference: The National Law Journal (Dec. 17, 2024) “Estate Planning Mistakes—2025 Annual Refresher—Part 3 [Podcast]”

How to Choose a Successor Trustee?

 

Trusts are a popular estate planning tool, allowing for control and protection of assets and tailored to meet specific needs. A trust requires both a trustee or successor trustee, says a recent article from Kiplinger, “You’ve Got a Trust: Now Who Should Be the Successor Trustee?”

If you have an irrevocable trust, you might want to have two different people to serve as trustees. The investment trustee is in charge of managing the investments in the trust, while the administrator trustee manages the operations aspect of the trust. One person could perform both roles, but having two people may provide a second layer of oversight. Irrevocable trusts require the grantor to give up control of the assets in the trust, which may be more acceptable when two people are in charge of the trust.

Revocable or living trusts allow the grantor to be a trustee and have complete control over the trust. A successor trustee is named so someone can take over the trust if the grantor is incapacitated or dies.

The grantor may again choose to have two trustees. One can be the trustee in case of incapacity, and the second can be the trustee when the grantor dies. If you name an adult child as your executor and they are also the trustee of your revocable will, one person is responsible for everything. Dividing the roles could lighten the load for busy adult children. If a trustee lives far away, it may be challenging for them to act on your behalf during incapacity and you may wish someone more local to serve in this role.

Successor trustees have a number of duties. They have a fiduciary duty to identify and protect trust assets, pay bills, oversee finances, manage investments, manage the distribution of trust assets, file tax returns, make tax elections and manage any legal or financial issues relating to the trust. Depending upon the size of the trust, this could be a time-consuming responsibility.

Before automatically naming the eldest child to serve as successor trustee, take some time to think about whether or not they are the best person for the job. If the trust estate is passing to the children and the successor trustee’s role will be simple—dividing assets evenly among beneficiaries—this might be an easy decision.

Suppose there are more complex matters, like a distribution being held back because one of the beneficiaries is a minor or has a drug dependency issue, and distributions are at the discretion of the trustee. In that case, the trustee may face repercussions from family members.

Naming a successor trustee is like choosing someone to serve as your executor. They have to be honest, organized, good with financial matters, and able to communicate with heirs even when there’s little or a lot of resentment about their being in charge. They must also be available to interact with your professionals, including an estate planning attorney, financial advisor and accountant. There are instances when a bank, private fiduciary, or estate planning attorney may be a better choice for a successor trustee.

Your estate planning attorney can help you sift through the personalities and skill sets of possible trustees to determine the best candidate for the job.

Reference: Kiplinger (Dec. 18, 2024) “You’ve Got a Trust: Now Who Should Be the Successor Trustee?”

Why Your Children Need You to Complete Your Estate Planning

 

Parents of minor children need an estate plan to protect their children’s future. The article “Estate Planning Series: For Parents” from Colorado Parent explains what can happen if a family with young children doesn’t have an estate plan.

Estate planning is more than distributing assets or even planning to avoid an estate going through probate. A last will and testament is the legal document used to name a guardian for minor children if both parents should die or become incapacitated.

Without a will, the court appoints someone as the children’s guardian. Most people would instead make this decision themselves, naming a person they trust and know will help their children thrive. If parents name their own parents or anyone in a generation above them, they need to carefully consider whether or not those people can raise the children as they age.

Parents don’t have to name a family member to be their children’s guardian. Parents may get some push-back on this decision. However, they know their children and family best. It may be better for children to be raised by a trusted friend who has agreed to take on this task than the children’s grandparents. Family members who are perfectly capable of dealing with toddlers may be too elderly when children reach their teenage years and need a different kind of parenting.

A Power of Attorney is essential for everyone over 18. When someone becomes incapacitated, another person can take over the business of their lives, maintaining a house and managing day-to-day bill paying. Without a POA, a family member must have a guardianship or conservatorship approved by a judge. The judge might appoint a professional guardian who doesn’t know the person or their family or a family member who has a fraught relationship with the incapacitated person.

An estate planning attorney can create a POA to suit individual needs. A document downloaded from the internet is likely to be riddled with potential disasters, including the possibility of giving someone more decision-making power than you would have wanted.

Estate planning for families with young children also addresses how the children’s living expenses will be paid. If life insurance is purchased, what happens to the proceeds if one of the parents dies? If a child is the life insurance beneficiary, a court-appointed custodian may be appointed to receive and manage the funds. By placing the life insurance into a trust and naming a trustee, the parent can be confident the proceeds will be used solely for the child’s upbringing.

These are just a few issues parents must consider when creating an estate plan with young children in mind. Speak with an experienced estate planning attorney to protect your family and their future. Once it’s done, you can return your attention to all of the ups and downs of parenting.

Reference: Colorado Parent (December 2024) “Estate Planning Series: For Parents”

How Dying Without a Will Leaves Heirs an Extra Dose of Grief

 

Don’t delay having a will prepared by an experienced estate planning attorney, warns a frank article from Barron’s, “What Happens if You Die Without a Will? You Could Leave Heirs—and Pets—With Even More Grief.”

If you die without a will, a probate court will name heirs to receive assets and guardians to raise children. However, no one will be required to protect your pets. In worst-case scenarios, assets with no designated beneficiaries, including bank accounts, real estate property and retirement accounts, can end up in the state’s unclaimed property department.

If you’d rather choose who will be your heir, assign a person you know and trust to raise your children and want to ensure that your beloved animal companions live comfortably after you’ve passed, then you need a will.

A family member embarking on a search to identify property might be able to glean some information from the prior year’s tax returns. They’ll still first have to find the tax returns and then go to court to be appointed administrator of your estate. If you have digital assets, including cryptocurrency, and haven’t made a plan for someone to take control and manage those assets, your family may never see those assets.

Having assets titled with preferred beneficiaries is as important as having a will. Retirement accounts with named beneficiaries, including 401(k)s, supersede directions in a will. If most of your wealth is in a 401(k) or other accounts with the ability to name a beneficiary, make sure that those names are correct.

In community property states like California, spouses are entitled to community property, and asset distribution follows state law.

If you have children, and especially if they are still minors, you want to have a will to explicitly state who you want to raise your children if both parents die. While other family members can petition the court for guardianship, your children could become the center of a family blowup if more than one person wants to take custody.

If you care about what will happen to your pet, you must also plan for them. Even the most well-intentioned family member isn’t required to take your pet into their home. Shelters have many senior dogs and cats left behind when their owners die and are less likely to be adopted than kittens or puppies. Most states allow you to create a pet trust, where you set aside funds for the care of your pet and name a person to be the pet’s guardian and another person to be in charge of the trust. You can name the guardian to be the same person as the trustee, or you can keep the roles separate.

Unless you want to create a maelstrom for your family and let other people make important, life-altering decisions for those you love, schedule a meeting with an estate planning attorney to review your estate and create a will, along with other necessary estate planning documents.

Reference: Barron’s (Dec. 6, 2024) “What Happens if You Die Without a Will? You Could Leave Heirs—and Pets—With Even More Grief”

What Is a Living Trust?

 

Estate planning isn’t a one-size-fits-all process. Every family situation is different. What works great for your brother-in-law, may not work for you and your spouse. Living trusts pass wealth on to the next generation. However, they are one of many ways to accomplish estate planning goals. A recent article from msn, “Is a Living Trust Really the Best Way to Pass an Inheritance to Your Family?” takes a closer look.

A living trust is created to be a legal entity separate from the person who creates it, known as the “grantor.” Sometimes referred to as a “revocable trust,” it can be changed or dissolved at any time as long as the grantor is alive. Trusts are created by estate planning attorneys and tailored to the specific needs of the individual.

There are many benefits to using a trust. Assets placed in a trust pass directly to beneficiaries without going through probate. When someone dies, their will is submitted to the local court and reviewed by a judge who determines whether or not the will is valid and if the executor is acceptable to the court. Until the court approves the will and the executor, the estate is in limbo, and nothing can move forward.

Depending on how complicated the estate is and how well the local courts perform, it can easily take six months to a year for the court to approve the will. If the decedent owned property or other assets in different states, these all have to go through probate in each state.

A trust has a trustee and a successor trustee. If the decedent was the trustee, the person in charge of the trust, then the successor trustee can step in and manage the trust. If assets were placed in the trust to pay bills while the estate is being settled, the successor trustee can do this without waiting for probate to be completed. Beneficiaries can be given their inheritance upon the death of the decedent without delays from the probate process.

Most people don’t know this. However, a will becomes a public document in the probate process. Estranged relatives, ex-spouses, creditors and thieves can all view the will. This is why families who have suffered a loss are targets of scammers and recipients of phone calls and direct mail from people seeking to buy the decedent’s home or serve as financial advisors, assuming an inheritance is being received.

A living trust also allows for great flexibility to respond to changes in life. If a family member gets divorced or married, welcomes a new baby, or dies, the trust can be changed easily to adapt to new circumstances. The same is true for financial changes in life. If the grantor needs access to the assets in the trust, they can be taken out, or the trust can be dissolved. You can’t do this with an irrevocable trust.

Meeting with an estate planning attorney is the best way to determine if your circumstances warrant a trust and which is best suited to your goals. There are trusts to protect blended families, structure donations to charity, pass wealth to grandchildren and trusts for disabled individuals. A conversation with an experienced estate planning attorney will answer questions about trusts and provide peace of mind, knowing that you’ve done the right thing for your family.

Reference: msn (Dec. 1, 2024) “Is a Living Trust Really the Best Way to Pass an Inheritance to Your Family?”