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    Common Questions Regarding Wills, Trusts and Probate

    Q: What are the advantages of having a Will?
    A: A Will can do a number of things to give you peace of mind: 1) You can nominate a guardian and conservator
    for your minor children, rather than have the court decide, 2) you can appoint a personal representative, some
    one you trust, to make sure your will is carried out as it is written, 3) you can leave a percentage of your estate
    to a church or charitable organization, 4) you can give a higher percentage of your estate to a special needs
    child or even disinherit a child, 5) you can request unsupervised probate administration, which lowers court
    costs and speeds the process up. You will also have a probate judge overlooking everything to make sure your
    Will is carried out correctly and that there is no fraud or embezzlement.

    Q: Besides a Will, is there anything else I should consider in estate planning?
    A: Yes, it is good to have two other legal documents: 1) Durable Power of Attorney, and 2) Health Care
    Advocate with Living Will. The Durable Power of Attorney that we recommend is only effective if you become
    disabled and provides that you have selected a person or persons to administer your financial matters for you
    while you are unable to perform these duties. The Health Care Advocate is only effective if you become disabled
    and provides that you have selected a person or persons to take care of your health care needs. Attached to the
    Health Care Advocate is your Living Will whereby you make your intentions known to doctors and family
    whether you want to be kept alive on life sustaining equipment or to die naturally when suffering from a
    terminable injury or disease and there is no hope of recovery.

    Q: I know this sounds selfish, but I am in a second marriage and my health is not good. If I die before my wife, my
    hard earned assets will go to her, which is fine, but then when she dies will my assets go to her bratty children of
    her first marriage and none to my children from my first marriage?
    A: You are correct unless your wife's Will makes a provision in her Will for the children of your first marriage.
    One way to insure that your children receive some type of compensation is to buy a term life insurance policy
    and name your children as beneficiaries. The proceeds will go directly to them and are outside the Will and not
    enter probate.

    Q: Hey, I am the wife he is talking about and he is selfish. Can I disinherit my no-good hubby in my Will?
    A: Well you can disinherit your spouse in your Will, (believe it or not, you will not be the first spouse to do that),
    but the law provides that the disinherited spouse may over-ride the Will and take his or her elective share. What
    does that mean? Even if your Will gives everything to your children and you purposely disinherit your husband,
    your husband can step in and take a substantial amount of the marital assets. MCL 700.2202(2)(b) provides:
    That the surviving spouse (your husband) can take an elective share of 1/2 of the sum or share that would have
    passed to him if you died intestate (without a will), reduced by 1/2 of the value of all property derived to him
    from you, despite what you said in your Will to disinherit him. This over-riding of a Will is only applicable to
    spouses. Who said a marriage license is only a piece of paper?

    Q: Is there anyway I can stop him from taking his elective share?
    A: A prenuptial agreement can prevent a spouse from taking the elective share and sometimes a trust can too.

    Q: I am a very religious and health conscious person. I never want my children to drink alcohol or partake in
    nicotine products. Can I put that in my Will?
    A: Yes, actually you can. Many courts have upheld "prior conditions to be met" in order for the beneficiary to
    receive his or her inheritance. Some conditions, however, may be too difficult for the court to enforce or put too
    difficult a burden on the individual. If the court finds this, the "prior condition to be met" will be struck down by
    a court.  Check with your attorney but remember, if your child receives his inheritance in full then the conditions
    may simply no longer apply.

    Q: What is a trust and do I really need one?
    A: There are many types of trusts but the most common is the revocable grantor trust which is also called a
    living trust. The trust may be modified by the settlor (you) until the settlor's death or incapacity. This type of
    trust has many advantages: 1) It can avoid or minimize probate and thus save probate costs, if any, and keep
    your financial affairs private; 2) It can distribute or manage your assets by a person you have selected; and if
    you have minor children you can make provisions so that your children will not receive their full inheritance at
    age 18; 3) it may reduce estate taxes, if any. Whether you need a trust depends on several factors your attorney
    can review with you. Many people choose to put their marital home in a revocable trust (we do not recommend
    this if you soon plan to request Medicaid, see next question and answer). Most people do not need a trust.

    Q: How do I qualify for Medicaid? I am 64 years old.
    A: There are different income eligibility requirements depending on whether the applicant is in a nursing home,
    but generally speaking, the asset limits for a person over 65 are $2,000 for an individual and $3,000 for a
    couple. However, only countable assets are used and Medicaid excludes from the assets a) one homestead,
    regardless of value, 2) one vehicle, regardless of value, 3) household furniture, regardless of value and 4)
    prepaid funeral contracts and funeral insurance. A revocable trust, as mentioned above, is counted.

    The answers given above are intended to give you general guidance but it is always necessary to consult an
    attorney regarding your specific circumstances.
Give the Gift of Peace of Mind
Simple Estate Plan
Includes: Will, Durable Power of Attorney, Health Care
Advocate and Living Will. Quit Claim Deed extra.
Only $300 per person; $500 per couple.
We make house visits within Macomb & Oakland County.
Q: I am widowed and have two minor children. What happens if I die
without a Will?
    A: The probate will court will appoint a guardian and
    conservator for your two children, usually a family member of
    yours that hopefully you would approve. Any remaining assets
    at the time of your death would be divided equally to each
    child and when they reach the age of 18 they could spend their
    inheritance money any way they want. Rather than let a judge
    decide who will raise your minor children, you should prepare a
    Will and make your choices known. Further, you can name
    your personal representative to make sure that your Will is
    carried out, and not have your estate pay an attorney to guess
    at your intentions. Having a Will makes good sense.
Q: Is probate expensive? My uncle died and left only a used car.
A: Probate does not have to be expensive unless there is a legal
battle. A carefully drafted will, durable power of attorney, health
care advocate and possibly a trust can keep the costs to a minimum.
If the estate (or blue book value of the car) is under $15,000 then a
minimum of probate forms and costs are needed to transfer title of
the car.
Most people do not need an expensive trust which can cost
thousands of dollars. They do need a
Will, durable power of
attorney, health care advocate and living Will.