Estate Planning Attorney
As your estate planning attorney, we can assist you with the preparation of trusts, wills, and other legal documentation to protect your property. Estate planning is critical to individuals and families concerned about the management of assets after disability or death.
We can assist you in lifetime and post-death planning, so that you would be able to eliminate or minimize federal gift, estate, and generation-skipping taxes, and avoid probate.
Prior to disability, there should be planning for potential Medicaid nursing home qualification.
The Medicaid program permits individuals to qualify for government-paid nursing home assistance. There are certain income and asset requirements which must be met before someone can qualify.
As we have done with many clients, we can give you the necessary advice and make the appropriate asset conversions, so that if you, your spouse or your parent must enter a nursing home, that person could qualify for governmental assistance and preserve their assets.
Living Trust and Pour-Over Will Preparation
A popular legal tool used by estate planning attorneys is a living trust. These trusts vary from state to state, although the primary benefit in terms of estate planning is the absence of probate proceedings for assets held in trust. Under the trust, you are the settlor (or creator of it) and you (and your spouse if you prefer) are the co-trustees of the trust. We would discuss retitling your property into the name of your trust, and making your trust the beneficiary of pension, profit-sharing, IRA, and life insurance benefits.
Following your death, a successor trustee would be named (who could be your spouse, your children, or others) who would collect your assets, and either hold or disburse them for your beneficiaries.
A trust is a valuable mechanism to manage assets during lifetime and to provide for their management post-death. For example, if you have an incapacitated child or one who cannot handle money well, then the trust could be used to invest that money for the benefit of that child and disburse the funds as needed. With proper language in the trust, creditors of the beneficiary could not reach the trust assets for purposes of satisfying their debts.
Accompanying the trust would be a pour-over will, which would provide that any assets which are in your name at the time of your death would pass to the trust.
Last Will and Testament
Clients who do not desire to go to the expense of a trust, or who have simple estates, may choose only to have a last will and testament prepared. Generally, such a will leaves property outright to the surviving spouse, or if there is no surviving spouse, then it can be left to the children. The will appoints a personal representative who would administer the property owned by the deceased person. A will does not avoid probate, contrary to popular belief. Rather, it governs property subject to probate (meaning property which is in the deceased person’s own name at the time of death).
Wills generally contain directions concerning the payment of debts and administration expenses following death, and may also appoint a guardian and conservator for any minor children.
General Durable Power of Attorney
A power of attorney is a document where a husband appoints his wife, and a wife appoints her husband, or a parent may appoint one or more of their children, as their attorney-in-fact, who can handle their assets and undertake legal matters on their behalf. This grant of power over one’s assets and legal affairs can either be effective upon execution, or can spring into effect when the appointor is determined to be disabled. The existence of a general durable power of attorney enables the agent to perform all actions on behalf of the appointor.
In the absence of such a document, if you become disabled, it might be necessary for a guardian and conservator to be appointed and supervised by the probate court. This person would take possession of your property and make all of your legal decisions. This can be an expensive, time-consuming process.
Michigan has legislation whereby a person may appoint a “patient advocate” to make medical treatment decisions in a situation where the patient is unable to make them. This may be a temporary situation, for example, where the patient has been in an automobile accident and is in a coma, or where a patient suffers from long-term dementia.
Normally, a patient would appoint a spouse first as the initial patient advocate, and then would appoint a child second, and perhaps another child third. Each patient advocate must sign an acceptance form which is prescribed by Michigan law.
If authorized under the patient advocate form, a person may give the patient advocate authority to terminate life support under certain situations.
In order for life support to be terminated, Michigan law requires that a person express in a clear manner that they do not want their life to be continued under certain situations. Our firm has prepared and had clients execute living wills, whereby they clearly express that if they have a terminal condition, and are in a coma or persistent vegetative state, that they want their patient advocate to terminate life support. This avoids highly-publicized situations where one faction of a family wants a relative to be kept alive, while the other faction wants life support terminated.
Patient Disclosure Authorization Form
For the last several years, our office has prepared patient disclosure release forms so that family members can have access to medical records. Recent federal legislation has made it very difficult for close family members to find out about the condition of their loved one from a hospital or health care provider, without an appropriate authorization form.
Sophisticated Estate Planning
The estate tax planning exemption has been substantially increased. If persons or families have property (including pension and profit-sharing benefits, IRAs, and life insurance benefits) exceeding the exemption amount, then sophisticated estate tax planning is needed. This might include estate tax by-pass trusts, irrevocable trusts, intentionally defective trusts, qualified personal residence trusts, family LLCs and partnerships, grantor-retained annuity and unitrusts, and charitable remainder trusts. We have also advised clients concerning gifting and the ramifications of the generation-skipping tax.
Contact us today to get more information and advice concerning the estate planning matters described above.