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Oakland County MI Estate Planning Law Blog

What is a durable power of attorney?

If you are like most Michiganders, you have heard a lot about durable powers of attorney but have no clear idea of just what they are, how they work and whether you may benefit from having one. In answer to the first point, a durable power of attorney is a legal document that your attorney drafts for you per your instructions. It designates the person of your choice, called your attorney-in-fact, who will make your health care and/or financial decisions for you in the event you become unable to make these decisions yourself.

The durability aspect of your power of attorney rests in the fact that the document becomes effective the moment you sign it. It then remains in effect until you revoke it or until you die, whichever event occurs first. There is, however, one exception. If you appoint your spouse as your attorney-in-fact and you and (s)he subsequently divorce, your durable power of attorney automatically terminates when your divorce becomes final.

Having a say after death

Estate planning is not restricted to the wealthy. Estate documents, such as wills, are necessary for anyone who wants a say on how their property will be distributed after they die. Families of those who failed to make plans are not completely unprotected, however. Michigan law governs the distribution of property for people who die intestate.

These intestacy laws will determine who receives personal property and other assets and the amount each heir receives. Property normally passes to spouses, children, parents, siblings or the closest living relatives under these laws. Having a will, however, places this decision in the testator's hands. It allows them to dictate who will receive the property and the amount that will be distributed to each heir.

Online estate documents have drawbacks

An online storage system for estate documents may be advantageous for those who are tech-skilled. But, all online accounts should be addressed in estate planning documents or access may be denied or accounts may be destroyed. This can allow lawyers, executors, beneficiaries and relatives to have quick access to wills, medical documents and other information.

The Revised Uniform Fiduciary Access to Digital Assets Act, adopted in Michigan and 44 other states, allows appointed fiduciaries to gain access to digital assets. However, attorneys or executors may not have full access if they were not designated in any legal document. While specific assets such as bank accounts may be accessed, they may not be able to obtain texts, emails and social media accounts unless there was specific authorization.

Country singer's children may contest will

Celebrities may remain in the news for matters unrelated to their talents and accomplishments long after they die. In an estate case that is instructive for Michigan families, a judge in Tennessee recently ruled that the children of country music singer Glenn Campbell may contest two wills that disinherited them.

For several years before his death on Aug. 7, 2017, Campbell suffered from Alzheimer's disease. He executed two wills dated Sept. 1, 2006, and Jan. 7, 2001, that left three of his children without inheritances. The singer's widow filed his 2006 will in probate court and was named the executor of his estate. Along with Campbell's five other children, she was also named as a beneficiary.

3 estate planning tips for newlyweds

If you are a newlywed, congratulations! The main things on your mind may be going on your honeymoon or having children. However, it is important to take care of some legal matters now that you are married. 

While an estate plan may be the last thing on your mind, it is crucial to take care of it earlier rather than later. Here are some estate planning tasks you should accomplish as a newlywed.

Wrong people may bring big estate problems

The designation of individuals to act upon a person's behalf on financial and medical issues if they become incapacitated is essential for estate planning in Michigan. Selecting the wrong surrogate, however, can undermine financial security.

Potential surrogates include the agent who acts on a person's behalf under a power of attorney. A trustee makes final decisions on investment management, distributions, taxes and other issues involving a trust. A person may select a designee to receive the assets of joint or transfer on death accounts.

Estate planning mistakes may be costly

Many people follow myths and rely on outdated wills for passing on property to their heirs. This can be costly. Estate planning should go beyond the drafting of wills and encompass many documents and health and legal concerns.

First, a will does not govern the distribution of all assets. It may cover heirlooms, property and any assets that are owned in the name of one individual. But, this document does not address the distribution of any jointly owned assets, such as a joint banking accounts, or accounts that name beneficiaries.

What to do when a loved one has two wills?

It should be a priority for every adult to create a will after marriage or having a child. There are new apps and software that make it easy to create a will, but to be safe, it is always a good idea to have this document reviewed by an experienced attorney to ensure the language will hold up in court. 

There are many people who pass away without a will, and this creates many problems when family members attempt to divide assets on their own. However, another problem lawyers see quite frequently is someone passing away with multiple wills in place. It can be extremely difficult for the family to know what their loved one actually wanted, especially if there are substantial differences in the division of assets. Luckily, attorneys can generally figure out which one should go to court. 

Is long-term care insurance a good option?

Everyone must eventually consider options for covering the costs of quality medical and long-term care. Long-term planning should include the consideration of insurance to cover these expenses in addition to Medicare. Understanding the advantages and disadvantages associated with long-term care insurance is also an important part of this planning.

Insurance may help protect a person's assets. In some circumstances, it conserves inheritances for family members and other beneficiaries. Insurance also provides more options for choosing long-term nursing home care in preferred facilities. It may allow a person to receive care in other settings, such as home health care, residing at an assisted living facility and attending adult day care. Polices can cover more services beyond nursing care.

Who can be the recipient of a will?

The seeds for probate litigation are sometimes planted with the drafting of wills. The Michigan supreme court recently ruled on the validity of a will and trust prepared by the attorney who was also the recipient of most of his client's estate.

The testator executed an amended trust prepared by his attorney in Aug. 2010. After the testator died in Jan. 2012, his attorney filed an action in the Charlevoix County Probate Court to introduce the amended will and trust.

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