James F. Malinowski

Attorney at Law

Estate Planning

Trusts

A “Living Trust” is a legal document that contains your instructions regarding the management of your assets while you are alive and the distribution of you assets after you die. But, unlike a “Will”, a “Living Trust” avoids probate at death, can control all your assets and prevent the court from controlling your assets if you become incapacitated.

Probate is required if you die with assets that are only in your name. When you create your “Living Trust”, you transfer assets from your name to the name of your Trust. Your real estate, stocks, CDs, bank accounts and other investments must be titled in the name of the Trust.Since you no longer have assets in your name because they are in the name of your Trust, probate is unnecessary.

You will not lose control of your assets. The “Living Trust” is managed by the Trustee. While you are alive and competent, you are the Trustee. You retain full control over all the assets of the Trust. At the time you create the “Living Trust” you select a Successor Trustee who will take your place if you become unable to manage the Trust or if you die.  The Successor Trustee is you hand chosen manager.

If you are married and have substantial assets, separate “Living Trusts” for you and your spouse can save a significant amount of Federal estate tax.

The following are just some of the benefits of a Living Trust

Avoids Probate including multiple probates if you own property in other states Prevents court control of assets at incapacity Provides maximum privacy Quicker distribution of assets to your beneficiaries May defer distribution of assets to beneficiaries until they reach an appropriate age Can reduce or eliminate estate taxes In most cases, Less expensive that Probate Easy to set up and maintain Can be changed or cancelled at any time Prevents court control of minors’ inheritances Can protect dependents with special needs Peace of mind Please contact me for more information.

Wills

A “Will” is a legal document stating precisely how a person wants his or her material possessions distributed after death. A “Will” is considered to be executory, that is, it has no effect until you die. While you are alive you may create, amend or even revoke your “Will”. If you have not taken the time to create a “Will” during your lifetime, each state has laws known as the Laws of Descent and Distribution which dictates who will receive your assets after your death. These laws have different names in different states. In Michigan the laws are known as the Estate and Protected Individuals Code or EPIC for short.

After you death, a ”Will” has no effect whatsoever until it is admitted to the Probate Court. The biggest misconception is that after your death, your “Will” is read and your property is transferred. This is the furthest thing from the truth. A “Will” mandates probate. In fact, the definition of the word “PROBATE” is ” the official proving of a Will”. A “Will” has no effect, it remains executory, until it is admitted to Probate.

Although a “Will” is a simple document and relatively inexpensive to create, the cost of probate should be considered in selecting a “Will” as your estate plan. Studies have shown that probate will cost from 4% to 10% odf the value of your estate.

Living Will

The Durable Power of Attorney for Health Care is a useful way to plan ahead for the possibility that you may become unable to participate in your medical treatment decisions. In fact, in the State of Michigan it is the only legally recognized way to ensure that your wishes are carried out should you become unable to express them.

The Durable Power of Attorney for Health Care allows you to choose someone you know and trust to make medical treatment decisions for you should you become unable to participate in those decisions. The person you select is called the Patient Advocate. Your Patient Advocate may be a family member, such as an adult child or spouse or another trusted adult. The document itself is usually called the “Designation of Patient Advocate”

Both a “Living Will” and a “Medical Directive” allow you to state your wishes concerning future medical treatment but they are not recognized by law in Michigan. However, if you have a “Living Will” or “Medical Directive” most health care providers will consider these documents should you become unable to express your wishes.

The preparation of the Designation of Patient Advocate is as simple as an email or phone call to me and the documents can be mailed or transmitted to you the same day.

Probate

Probate is the legal process through which the Court sees that your rights are protected while you are alive and, when you die, your assets are distributed to the appropriate persons and that your debts are paid.

If you need assistance in making decisions about your personal welfare or if you are unable to make these decisions, the Probate Court may appoint a Guardian to make these decisions for you.

If you need assistance in making financial decisions or in managing your finances because you are unable to do so, the Probate Court may appoint a Conservator to make financial decisions for you and to manage your assets

After you die, if you own assets in your name alone,  the Probate Court may appoint a Personal Representative to distribute your assets to the appropriate persons.

As an attorney in Wayne County I have worked in the Wayne County Probate Court since 1973.