Probate, Wills and Trusts:

You worked your whole life and earned everything you have. Did you know that if you don’t decide who inherits from you, the State of Michigan will? You should maximize your estate for the benefit of your heirs and not the IRS, the probate court, or even the lawyers.

We are an established law office in the Downriver Michigan area located in Taylor that focuses on comprehensive estate planning. It is our goal to explain, in terms and concepts you can understand, the types of estate planning available to you so you will be able to select the estate plan that is right for you.

An estate plan is like an insurance policy: Once you need it and don’t have it, it is too late.  A failure to plan your estate in advance can, and usually does, result in unintended consequences that you never imagined would happen.  On the other hand, a comprehensive estate plan allows for asset management and peace of mind for you and your family.

Fundamental Estate Plan.  An essential estate plan would include a Last Will and Testament, a financial power of attorney, a medical power of attorney, and a living will/advanced directive. Any Will or powers of attorney more than five years old should be reviewed for accuracy and validity. We are committed to making estate plans affordable for everyone. Home or hospital visits are available for an additional fee. Consultations and document reviews are with our compliments and at no charge.

Advanced Estate Plan. Other estate plans may be necessary to accomplish certain goals, such as: Avoiding probate, special needs, or estate tax liability reduction. If appropriate, we offer revocable living trusts, irrevocable life insurance trusts, and special needs trusts.

Probate, Estate Administration and Trust Administration.  Probate can be a time consuming and frustrating process but, because we are familiar with the local courts, customs and practice of the probate judges, we can efficiently move an estate through its administration.

Powers of Attorney: While Wills and Trusts are for distributing your estate to your heirs, a power of attorney allows someone you appoint to make medical and/or financial decisions for you if you cannot make them for yourself because of disability. A properly drafted power of attorney will help avoid having a guardian or conservator appointed by the Probate Court.

Frequently Asked Questions

  • Can’t I use a Will but keep my estate out of court?

No.  Using a Will alone ensures that your estate will go through probate.  A Will is literally an instruction to the Probate Court indicating how your property is to be distributed. Wills do not avoid probate. They guarantee it.

  • I don’t have a very large estate, so it seems to me that having a Trust is overkill and would be more expensive.  Why can’t I simply use a simple Will? 

You are right. Trusts are not for everyone. It is a matter of personal choice and making sure that a Trust is right for you and your situation. There is no right or wrong way. Both are fine just as long as you understand the pros and cons of each.

  • I hold everything joint with my spouse; therefore, I thought I would simply put my children’s names on all real estate that we own so we can avoid probate that way.  Is there any problem with this? 

This type of “estate planning” often results in a family feud and may also result in unnecessary income taxes. The use of joint tenancy between husband and wife will avoid the time and cost of probate at the first death but probate at the second death will be required.  The addition of children as owners introduces a lack of control by the parents over the disposition of that joint property because all joint owners must agree.  You may have inadvertently included dower rights of in-laws and creditors of the children may then be able to attack and attempt to apportion property to satisfy the children’s debts. For example, if your child is sued or files for bankruptcy,  would you like his creditors to go after your house?

  • Why does a trust avoid probate? 

The key in avoiding probate with a revocable living trust is the retitling of assets.  Assets titled in the name of the trust avoid probate.  At the time of the person’s death, if the asset is owned by the trust and is not in the decedent’s name alone, that asset does not pass through the probate estate.  Therefore the Successor Trustee of the trust is now able to handle the asset as the trust document instructs. Note that after a trust has been established, it is still necessary to transfer the ownership of the assets held in the person’s name over to the trust during the person’s lifetime. Failure to do this will result in probate.

  • Wouldn’t using a trust during my lifetime restrict me in what I can do with my own property? 

No.  A revocable living trust is a document created while you are living, but does not prevent you from continuing to use your property as you wish during your lifetime. An irrevocable trust will restrict your property rights.

  • I do not believe that our family needs a trust since we have small children and our estate is well under the applicable exclusion amount for state taxes.  Is this correct? 

Even though your estate may be considered modest in terms of the likelihood of needing to pay federal estate taxes, you should consider what would occur if your parents died prematurely.  Would you want your children to be able to receive their entire inheritance at age 18?  Any inheritance left to a minor child will not be available to the child, absent an Order of the Probate Court, until the child reaches the age of majority. While most everyone wants their children to inherit from them, many parents are concerned about the maturity level of an 18 year old to properly manage the funds. 

  • Aren’t Patient Advocate Designation documents for people over sixty (60) years of age? 

No.   Beginning at age 18 Michigan law enables you to name a surrogate known as a “patient advocate” to make medical care decisions for you in the event you become incapable of communicating such decisions for yourself.  Your patient advocate can make any decision you can make within the limitations you set forth in the documents.

  • If I am going to use a trust, why do I have to use a will at all? 

There are still very good reasons for having what is called a “pour-over” Will.  First, if you have a minor child, the Last Will and Testament is the document in which to nominate a guardian and/or conservator for the child.  There will need to be a court proceeding in order to appoint a guardian or conservator and so it is appropriate that the Will be used to make those nominations.  The Will is referred to as a “pour-over” Will because the Will instructs that after any taxes and expenses are paid, the remainder of any assets would “pour over” into the trust and then be handled according to the instructions in the trust.  In other words, the Will “catches” any assets that were held in your name alone at your death and “pour them over” into the trust to be handled as you have directed in that document.

The McAvoy Law Firm helps people who live in Allen Park, Brownstown Township, Belleville, Canton, Dearborn, Dearborn Heights, Ecorse, Flat Rock, Garden City, Gibraltar, Grosse Ile, Huron Charter Township, Livonia, Lincoln Park, Melvindale, Plymouth, Plymouth Township, Redford, River Rouge, Riverview, Rockwood, Romulus, Southgate, Taylor, Trenton, Wayne, Woodhaven, and Wyandotte. We also help residents of Detroit, Dearborn, Dearborn Heights, Belleville, Westland, and Garden City, Monroe and Ypsilanti. We have clients who live in Wayne County, Monroe County, Oakland County, Washtenaw County and Macomb County.
20155 Goddard
Taylor, MI 48180
313-291-0240
313-291-2124 (fax)