WHAT IS AN ESTATE PLAN?
A set of documents reflecting your wishes and intentions for your care, and the administration and distribution of your assets (money, property, business interests, vehicles, real estate, etc.). Specifically, documents prepared by an attorney that specify in part: (1) how you do or do not want your assets distributed or handled in the event of incapacity and/or upon death, (2) who you want or do not want to carry out your plan, (3) who you want or do not want to make your financial or medical decisions in the event that you are legally unable to do so, and (4) if you have minor children, who you want (again, and who you would not want) to raise them if you could not. With an estate plan, you are able to rewrite the statutory default laws in place to fit your specific circumstances.
WHAT IS A REVOCABLE LIVING TRUST?
A Revocable Living Trust, like a Will, is a legal document that contains your instructions for what you want to happen to your assets when you die and who you want to administer them through a probate or non-probate process. But, unlike a Will, this type of Trust can also outline how you want your assets handled in the event that you are incapacitated (during your lifetime). Also, trusts (if properly funded) avoid probate at death (which a Will may not do), are handled without court supervision (unlike a Will), and can provide creditor protection for assets left for beneficiaries that are minors, spendthrifts, immature, etc. A Trust can be as complex or as straightforward as you'd like to carry out the most specific or broad wishes and plans.
Once you set up and "fund" (retitle assets) a trust with your assets, then you no longer legally own them, your Trust does. However, you retain control over these assets during your lifetime (as the Trustee of this Trust). When you die, trust assets do not require court supervision for their administration or distribution.
Simply, a trust in place is what keeps your estate plan private, your family out of court, and let's you determine the course for you assets, as well as minimize costs.
HOW MUCH WILL THIS ESTATE PLAN COST?
This is not an answer anyone likes, but its a honest one - "it depends". However, the cost for you to determine your fee is $0.
WHAT IF I ALREADY HAVE AN ESTATE PLAN?
Good for you! You are among the 40% of Americans that have estate plan documents in place. But... is your plan still the best plan for you, does your plan state your current wishes, are the individuals named in your documents still the best to fit each role?
I HAVE A WILL- ISN'T THIS ALL I NEED?
Maybe, but probably not. A Will is simply a set of instructions to a judge describing how and to whom you want your assets distributed and who (Personal Representative/Executor) will handle this for you.
CAN’T I JUST USE DOCUMENTS ON THE INTERNET?
Sure can, but is that the best idea when dealing with something so important? You can look up medical conditions on the internet too, but isn't it usually a better idea to see a doctor if you are not feeling well?
Documents that are available online might be fine... or they might cause problems down the road. This could be an expensive internet search. There is no guarantee that these documents will fit your unique situation or are even valid in Michigan.
If you already prepared a “D-I-Y Estate Plan”, your intentions were good, however, it is a good idea to have it reviewed by an attorney.
WHAT IF I DON'T HAVE TIME TO PLAN OR DON'T WANT TO PLAN?
Of course that is your choice, however, the people that will pay the price for your choice will most likely be your children, family, and loved ones trying to figure out what to do without your guidance or input.
Most people that have dealt with estate administration in some way will probably tell you that this is stressful, time-consuming, expensive, and a burden for family and loved ones during an emotional time in their lives and they would have gladly paid someone to take care of things BEFOREHAND!
Also, if you have beneficiaries that could use the money or other property that you would leave them, it could be months, if not years, before a probate court settles the estate and distributes your assets to your beneficiaries.
WHAT IS PROBATE? AND WHY IS IT SO BAD?
Probate is a legal process that may be required to distributed your assets. Also, during this process, a Court determines if your Will is valid, your debts are paid, appoints a Guardian for minor children, and then distributes your assets according to the terms of your Will.
If you do not have a Will, or the Will you had is invalid for some reason, your assets are distributed according to Michigan law (this is called Intestate Succession) to people in your blood-line - whether you want them to inherit your assets or not.
If Probate is required for your estate, it is a public process, can be expensive (paying hourly fees to an attorney), and time consuming; however, it is not always necessarily "bad." For some, the idea of a court overseeing their affairs and distribution of property to family or loved ones is preferred. This is probably a minority group, but worth mentioning.
ESTATE PLANS ARE JUST FOR MARRIED PEOPLE WITH LOTS OF MONEY?
Not true! Estate Plans are important for everyone - we cannot foresee incapacity during our lifetime, nor can we predict death.
- If you are over 18 years old, single and not a parent, you may only need a simple plan – proper beneficiary designations, a general financial power of attorney, and a healthcare power of attorney.
- If you are an unmarried couple, without a power of attorney in place, you may not be able to legally step in if your partner needs someone to make medical or legal decisions for them because you are not a legal spouse or next of kin.
- If you have children under age 18, a Will is the document that identifies your choice(s) for a Guardian and Conservator to care for them when you are gone. If you do not have this in place, the Court will make this decision for you.
- If you leave money or property to children (or another person) with poor spending habits, no knowledge of financial planning, or creditor issues, you cannot control if your hard-earned money will be quickly wasted. Also, if someone receiving governmental benefits or assistance receives an inheritance, he or she may lose these benefits.
- If you prefer organization, planning, control, and avoiding a “see what happens” approach, you are a candidate for an estate plan, which can allow you to control how your assets are managed, distributed, taxed, and protected.
WHAT CAN AN ESTATE PLAN DO FOR ME?
Most importantly, it can help your children, family members, and loved ones when you are not here to help them. Other benefits include:
Avoiding probate. Probate cost is between 3-8% of the estate’s market value. The time required for probate can be anywhere from 6 months to 2+ years (during which time accounts can be frozen, even if loved ones may need money sooner)
Avoiding “living probate” (conservatorship and guardianship proceedings if you become incapacitated and do not have current (not more than 2-3 years old) powers of attorney in place)
Identifying someone you select and trust to make decisions for you if you become incapacitated
Specifying who will care for your minor children if you are unable to do so
Carrying out charitable objectives
Providing instructions and care for your pets
Protecting assets from divorce and creditors
Designating end-of-life medical wishes
Transfering wealth to others
Planning for business succession
Minimizing tax liability (although there is no Michigan estate (death) tax and the federal estate tax allows for an exemption (in 2021) of $11.7 million per person. For a married couple, that comes to a combined exemption of $23.4 million)
WHEN WOULD I NEED A POWER OF ATTORNEY?
At some point during your lifetime, will you deal with a bank, realtor, need to sign a contract, etc. If you are incapacitated and unable to sign a legal document giving someone the legal authority to handle these things for you, a court will appoint someone to do so.
Also, for parents with "children" 18+ years of age (whether you see them this way or not, legally in Michigan they are now adults), you may not be able to access your child's medical records, educational records, or handle financial affairs for them without these documents giving you that power.
You need to have the legal capacity to sign these documents, therefore it is important to have them in place before incapacity or disability arises.
A general (or also referred to as financial) power of attorney, and a healthcare power of attorney, are two essential, basic, estate planning documents, that everyone over 18 years of age should have in place.
WHY THE LAW OFFICE OF KELLY T. BRAUN, PLLC?
You will receive prompt, professional, and thoughtful service.
WHAT IS A LADYBIRD DEED?
This type of deed affectionately known as a "Lady Bird" deed (only available in a few states, including Michigan) is a quitclaim deed named after President Lyndon Johnson's wife, because the President was thought to have once used this type of deed to convey land to her upon his death.