We've compiled a list of frequently asked questions to help address some of your concerns.
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Our attorney may recommend you create a living trust to avoid probate. A living trust explains what your wishes are while you are alive and in good health, while you are alive and in poor health, and after your death. A living trust must be funded to work properly, which means changing the titles on your assets or accounts to the name of your living trust.
No. A living trust does not protect your estate from nursing home costs because it is fully revocable. This means that as the trust owner, you can take back the trust principal at any time. Under state and federal law, your trust principal is viewed as an available resource to pay for nursing home care. If you wish to protect your assets from being spent down, we recommend scheduling an appointment with our estate attorney to discuss other estate planning documents.
If you die without creating a will (a legal circumstance called intestate), your assets will be divided according to Michigan’s inheritance law. Without a will, the court will decide who to put in charge of your estate and how to divide your assets. When you fail to give instructions about what you wish, you cause further costs and time delays for your family. Your estate can also be held up in probate as the court system records assets, pays debts, identifies heirs, and distributes what’s left of your estate. Thankfully, our elder law attorney can help you with writing a will so you can distribute your money and property as you see fit.
In addition to your Last Will and Testament, we recommend that even the most basic plan should include a General Durable Power of Attorney to appoint an agent to act for you if you are disabled and Durable Power of Attonrey for Health Care including instructions about your wishes for the use or removal of life sustaining treatment.
Yes! Even if you wish to write a simple will, it’s still a good idea to hire an estate planning attorney. Our attorney can recognize inconsistencies and loopholes that could lead to family members contesting a will. We recommend making a will with your attorney present so they can advise you on how to legally express your final wishes.
Probate is a process the courts go through to authenticate a will and ensure everything is carried out according to the decedent’s final wishes. The personal representative you appoint for your estate will go through the process of locating and securing assets. They will also be responsible for making sure debts, bills, and taxes are paid before distributing the remainder of the estate to beneficiaries. The probate process can take months (or even years) before your beneficiaries are able to inherit what remains of your estate after probate court costs and attorney fees.
The best ways to avoid probate is to create a revocable living trust. Another method for avoiding probate at death is to name beneficiaries or make the transfer on death designations, banks accounts, and retirement accounts. Some families attempt to avoid probate at death by placing assets in joint ownership with another person. We strongly recommend against this practice in most cases because of the risk of loss it creates. Our attorney will be able to help you determine the best ways to avoid probate for your estate.
