Estate Planning & Trusts
​Frequently Asked Questions

[fusion_accordion type=”” boxed_mode=”” border_size=”1″ border_color=”” background_color=”” hover_color=”” divider_line=”” title_font_size=”16″ icon_size=”” icon_color=”” icon_boxed_mode=”” icon_box_color=”” icon_alignment=”” toggle_hover_accent_color=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=””][fusion_toggle title=”I have been told by friends and family that I should see someone to do my estate plan. What does an estate plan encompass?” open=”no”]

A proper estate plans takes into account all of an individual or families assets including, but not limited to, bank accounts, real property, personal property, life insurance, retirement, educational accounts as well as all debts and liabilities. A person’s estate plan will utilize documents such as wills, letters of instruction, revocable trusts, irrevocable trusts, health care derivatives, funeral instructions etc., to ensure that your final wishes are carried out while avoiding many of the pitfalls that a protracted probate process can entail.

[/fusion_toggle][fusion_toggle title=”Why do I need a lawyer to draft my will, can’t I just get preprinted forms off the internet?” open=”no”]

Just like using the internet to diagnosis an illness or health condition, the use of preprinted trust and estate forms and documents must be utilized with great caution. A licensed trust and estate attorney is trained and experienced in the area of creating a custom estate plan that can minimize or eliminate many of the headaches and troubles that can arise from an improperly or poorly crafted plan. The attorneys at Kelly & Kelly P.C. have over 30 years of experience in crafting an estate plan that will minimize tax consequences and maximize the ease at which an individual’s final wishes are carried out. You would not trust your health to a diagnosis found on websites like WebMD alone, so why would you risk assuming your family’s financial future is secure based on forms not specifically drafted with your wishes in mind?

[/fusion_toggle][fusion_toggle title=” I wrote my own will, but I was told that it was not properly executed by a friend. How is a will supposed to be executed?” open=”no”]

In order for a will to be valid it must be signed in the presence of witnesses and certain formalities must be followed. The attorneys at Kelly & Kelly have extensive experience in drafting and executing wills to ensure that your wishes are carried out.

[/fusion_toggle][fusion_toggle title=”My father drafted his own will and I am not sure he signed it properly or at all, can it still be probated or will all his stuff pass intestate?” open=”no”]

In Michigan, you can probate a document or writing that was not executed in exact compliance with Michigan law but only if the proponent of the will establishes “by clear and convincing evidence” that the deceased intended it to be a will.  A formal court proceeding is necessary to obtain a judge’s order that the document or writing is a valid will. Intent that a document constitutes your fathers will can be established by other evidence (lawyers call this extrinsic evidence) that may not be contained on the document itself.

[/fusion_toggle][fusion_toggle title=”I do not have a lot of stuff. Do I need a will?” open=”no”]

Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. Even a simple will has advantages over proceeding without a will. You should always review your goals with a trusted advisor like the attorneys at Kelly & Kelly P.C. to ensure the best strategy for you.

[/fusion_toggle][fusion_toggle title=”Besides leaving instructions for who gets my property when I die, what else can a will contain?” open=”no”]

The answer here is limitless. Wills can be utilized not only to distribute assets as you desire, but can also be used to establish guardianships for minor children, establish trusts for future generations, provide for distributions for charities, or even provide for specific funeral and burial instructions in conformity with personal or religious traditions.

[/fusion_toggle][fusion_toggle title=”Will all my stuff just go to my wife and kids if I do not have a will?” open=”no”]

Your non-jointly held probatable assets will not simply pass to any individual without a probate estate being opened in court and a judge ordering your property transferred in compliance with the law.  If you die intestate (without a will), Michigan law, or the law of the state you are domiciled in at the time of your death, will determine who receives your property by default. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A proper estate plan allows you to alter the state’s default plan to suit your personal preferences. It also permits you to exercise control over a myriad of personal decisions that broad and general state default provisions cannot address, and further can assist you in avoiding or minimizing the often expensive and tedious process that probate court can entail.

[/fusion_toggle][fusion_toggle title=” I already have a will, how often does it need to be updated?” open=”no”]

Anytime there is a major change in either a person’s financial situation (such as buying a new home or vacation home or starting a new retirement plan) or family situation (such as the birth of a child or grandchild) is a great time to revisit your current estate plan. A will alone may not be sufficient to accomplish the goals you have for family. On average, a person should update their estate plan every five (5) to seven (7) years.

[/fusion_toggle][fusion_toggle title=”I do not want to revoke my old will, but I just want to add additional instructions. Do I have to redraft my entire will?” open=”no”]

No, a will can be supplemented by what is called a codicil. This acts as an addendum to the will, supplying additional instructions to be read in conjunction with your existing will. Great care must be given when drafting a codicil. Any terms of the codicil that contradict the existing will, will be the controlling terms followed by the court and your personal representative.

[/fusion_toggle][fusion_toggle title=”Our family recently lost a loved one, what are the first steps we should be taking? Where do we start?” open=”no”]

It is important to share with your family your wishes, this way they know what you would have wanted when you are no longer around to supply instructions. Even if you do not share every detail of your estate plan, the location, or name of the law firm who assisted you in drafting your plan should be shared with close relatives so that they may begin carrying out our wishes. If you have a copy of a loved ones will or other estate plan documents, you should contact the attorneys at Kelly & Kelly immediately so that we may guide you through the next steps.

[/fusion_toggle][fusion_toggle title=”I have a copy of my deceased relatives will; do I have to go to probate court?” open=”no”]

Most likely, yes. Assets that are not already jointly held or held in name of a trust will likely need to go through a probate process in order to be transferred to any heirs or beneficiaries. Non-probate assets, such as life insurance or payable on death accounts (POD), will transfer by operation of law to the designated beneficiaries. All other assets will need to be probated.

[/fusion_toggle][fusion_toggle title=”What happens if I cannot find my relatives will?” open=”no”]

Many people prefer to be private about their affairs. Often the location of important documents like a will are hidden.  There is a balance that must be struck between safeguarding the will to ensure that a family member does not tamper with it or protecting them from peeking at its contents and hiding it so well that no one can find it. If you can recall the name of the family attorney who may have prepared such documents for a loved one, you should contact them immediately. If no will can be found, the case may proceed intestate, meaning the state rules for distribution will control.

[/fusion_toggle][fusion_toggle title=”I was only able to find a copy of a loved ones will, can that be used for probate purposes?” open=”no”]

When an original will cannot be found upon the death of a loved one, and the loved one that passed was in possession of the original, there exists a rebuttable presumption under the law that it was destroyed with the intent to revoke it.  This presumption can be overcome with appropriate evidence of the loved one’s intent was not to revoke his or her will, and that the copy should be allowed to be probated to carry forth that persons wish.

[/fusion_toggle][fusion_toggle title=”I want to revoke an old will I signed years ago, how do I go about doing that?” open=”no”]

There is more than one way to revoke a prior will. Simply destroying the original will can suffice to revoke it, however, if copies of the will are still out in the world and no new will is drafted, a relative or beneficiary may try and probate that copy of the will by claiming the original was merely lost and not destroyed. Aside from destroying the original and each copy, a newly drafted will has the effect of revoking all prior wills, if drafted correctly and containing the proper language.

[/fusion_toggle][fusion_toggle title=”What assets do not have to go through the probate process when I die?” open=”no”]

Your estate plan does not govern the disposition of your property that is controlled by beneficiary designations or by proper titling and so passes outside your probate estate.  These non-probate assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits.  These assets pass automatically at death to another person, and a will is not applicable to them unless they are payable to an estate by the terms of the beneficiary designations for them. A probate estate consists only of the assets subject to a will, or to a state’s intestacy laws if no will exist or is found, and over which the probate court (in some jurisdictions referred to as surrogate’s or orphan’s court) may have authority.  This is why reviewing beneficiary designations, in addition to preparing a will, is a critical part of the estate planning process.  It is important to note that whether property is part of your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes.

[/fusion_toggle][fusion_toggle title=”What happens to property that I own with someone else when I die?” open=”no”]

This question may have multiple answers, depending on how property is titled. Jointly held property with right of survivorship will pass to the other joint owner by operation of law upon a person’s death. Property that is held as tenants in common will not pass automatically, and the portion of the property titled in the name of a deceased individual, absent a proper estate plan, will have to go through the probate process before it can pass to another individual.

[/fusion_toggle][fusion_toggle title=”My wife and I want to ensure that our home goes to our kids when we die, what options do we have to avoid probate besides a will or trust?” open=”no”]

An enhanced life estate, also known as a Ladybird Deed (sometimes written Lady Bird Deed) in one option. A Ladybird Deed allows you to keep a life estate in the property and grants a remainder to the person or persons of your choosing. Michigan probate courts have held that once the grantor is deceased, the property vests as a transfer on death in the individual or individuals named as your remainderman or remaindermen. Your estate has no interest in the property and the property is out of the reach of creditors of the estate. The property would be considered a non-probate asset.

[/fusion_toggle][fusion_toggle title=”As I age I worry about who can make health decisions for me if I am unable to. What do I need to do to designate a friend or family member to make my medical decisions if I cannot?” open=”no”]

One option is to establish a durable power of attorney for health care, also known as a health care proxy or a patient advocate designation. This is a written document in which you specify what type of medical care you want in the future, or who you want to make decisions for you, should you lose the ability to make decisions for yourself.

[/fusion_toggle][fusion_toggle title=”I am in perfectly good health, why would I need a health care proxy (Advanced Directive)?” open=”no”]

A fact of life is that tragedy does not come when expected. A health care proxy or advanced directive allows you to designate a trusted individual to make the decisions you would want made if you were able to make them for yourself. It is always better to be prepared, and a health care proxy can lift the burden from family and friends when deciding who is best equipped to make vital calls in regard to your health and well-being.

[/fusion_toggle][fusion_toggle title=”How does the law define when someone is unable to care for themselves?” open=”no”]

In Michigan, the law defines an incapacitated individual as “an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.”

[/fusion_toggle][fusion_toggle title=”What can I do if I believe a family member is no longer able to take care of themselves?” open=”no”]

If a person meets the qualifications of incapacity, any interested party can apply for a guardianship on their behalf. This is done through the probate court and will help to grant a trusted friend of family member the authority to manage the person’s finances and major health and well-being decisions.

[/fusion_toggle][fusion_toggle title=”My father is no longer able to manage his own finances but he is not incapacitated. What can I do to help?” open=”no”]

One option may be to seek to be appointed as a conservator for your father. The standard for appointment of a conservator to manage the individual’s assets is whether the individual “is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance,” and has property that would otherwise be wasted or dissipated or that is needed for the individual’s support, care, and welfare. As a conservator, your job is to legally protect your father and his assets.

[/fusion_toggle][fusion_toggle title=”My Mother in-law’s finances are handled by another member of my family who I believe is taking advantage of her. What can I do?” open=”no”]

If you believe a loved one is being taken advantage of by someone who has been designated as a guardian or conservator you can petition the probate court in guardianship to have a new representative appointed.

[/fusion_toggle][fusion_toggle title=”If I designate my husband as my my patient advocate, what authority and limitations does that give him?” open=”no”]

A properly drafted health care directive will outline exactly what powers and limitations an individual acting on your behalf can have. It is important to plan for as many outcomes and situations as possible and make your designation clear as to what someone has the power to do, and what they have the power not to do.

[/fusion_toggle][fusion_toggle title=”Can a durable power of attorney be used instead of a will to give someone power to transfer my stuff when I am gone?” open=”no”]

No. A durable power of attorney, though it survives the incapacitation of an individual, terminates upon the death of an individual. Proper estate planning is necessary to ensure that your wishes are carried out after your death.

[/fusion_toggle][fusion_toggle title=”Who can I designate as a patient advocate for health care decisions?” open=”no”]

Any individual of sound mind who is at least 18 years old, and who is capable of understanding that you are giving them power to make certain decisions for you should you become unable to make them. It should be someone you trust and who will act in your best interest when you are unable to do so for yourself.

[/fusion_toggle][fusion_toggle title=”Can I give my patient advocate the right to withhold treatment that would allow me to die?” open=”no”]

Yes, but you must express in a clear and convincing manner the patient advocate is authorized to make such decisions, and you must acknowledge these decisions could or would allow your death.

[/fusion_toggle][fusion_toggle title=”What types of directions can I place in a durable power of attorney for health care purposes or designation of patient advocate?” open=”no”]

There are many options including but not limited to withholding treatment, withholding food or water through the use of tubes, or withholding any extraordinary efforts to revive you.  You could also express a desire not to be placed in a nursing home and a desire to die at home.  A properly drafted document should spell out all of your desired wishes.

[/fusion_toggle][fusion_toggle title=”I want my spouse to be my patient advocate, but what if she is unable or unwilling to follow my directions?” open=”no”]

Your health care derivative can name alternate individuals who can step in the event your designated patient advocate is unable or unwilling to do so. It is always a good idea to designate alternative individuals for just this reason.

[/fusion_toggle][fusion_toggle title=”What if I change my mind, can I revoke a power of attorney or patient advocate?” open=”no”]

Yes, a power of attorney can be revoked either through creation and destruction of a new power of attorney, or through simple destruction and revocation of the original. You can always change, alter, or destroy you power of attorney or designation of patient advocate, assuming you are of sound mind to do so.

[/fusion_toggle][fusion_toggle title=”What if I change my mind about wanting life extending treatment but my health care directives say otherwise?” open=”no”]

Any spoken wish to have a specific life-extending treatment provided must be honored by a patient advocate, even if the wish contradicts your written instructions. Remember, regardless of your physical or mental condition, you can revoke or cancel a durable power of attorney by indicating in any way the document does not reflect your current wishes.

[/fusion_toggle][fusion_toggle title=”Can a person I designate as my patient advocate refuse to act as my patient advocate?” open=”no”]

Yes. Your patient advocate needs to execute an acceptance of your designation. They can do so when you designate them or any time after. A patient advocate can also revoke their acceptance at any time, in which case your alternate would have the right to accept as the new advocate.

[/fusion_toggle][fusion_toggle title=”Can my children dispute decisions my spouse makes as my patient advocate?” open=”no”]

Any interested person who believes that your advocate is not acting in your best interest and in conformity with your wishes can petition the probate court and try and intervene. The court will hold a hearing to determine if the actions taken are in your best interest and has the power to stop the advocate from making decision that violate your best interest.

[/fusion_toggle][fusion_toggle title=”If I have a will do I need a trust?” open=”no”]

A simple will gives outright gifts and has no complex provisions creating future interests or establishing trusts. Although a will is an integral part of almost every estate plan, it alone may not adequately meet your needs. Trusts are usually used to save taxes, to avoid the probate of the assets after death, to provide assistance in managing assets while delaying outright distribution, to provide for multiple or successive beneficiaries, or to achieve some combination of all of these. Depending on your needs and wishes, a trust/will combination may be the best course of action.

[/fusion_toggle][fusion_toggle title=”Why might I want to utilize an irrevocable trust instead of having the power to revoke?” open=”no”]

Trusts are not only useful for probate and estate planning purposes but are extremely useful in tax avoidance and asset protection. One reason for using an irrevocable trust may be to protect certain assets from possible creditors. Due to the fact that the grantor loses all interest in the property transferred, that property cannot be reached by creditors of the grantor.

[/fusion_toggle][fusion_toggle title=”Does a revocable trust ever become irrevocable?” open=”no”]

Yes, a revocable trust becomes irrevocable upon the death of the grantor or trust maker.

[/fusion_toggle][fusion_toggle title=”Does a beneficiary of my revocable trust receive any asset protection from their creditors?” open=”no”]

Asset protection can be provided to the beneficiaries of a revocable trust. The assets must remain in the trust to provide ongoing asset protection to a beneficiary. In other words, once assets transfer to a beneficiary, those assets are no longer protected. Trusts for the lifetime of the beneficiaries provide prolonged asset protection for the trust assets.

[/fusion_toggle][fusion_toggle title=”If I form a revocable family trust for my assets, who is responsible for maintaining those assets?” open=”no”]

The trustee of the trust is responsible for the maintenance of the assets. The trustee must use reasonable efforts to prevent the assets from decreasing or “wasting”. This does not mean the trustee must ensure the house titled in the name of the trust increases in value or that the stocks continue to grow if those things are outside his or her reasonable control.

[/fusion_toggle][fusion_toggle title=”Can I be the trustee of my own trust?” open=”no”]

Yes. Very often this is how trusts are drafted, with a successor trustee named in the event the trustee is incapable of administering the duties of the trust.

[/fusion_toggle][fusion_toggle title=”I do not trust any of my friends or family to act as a trustee of my trust, what can I do?” open=”no”]

A trustee can be anyone, including a corporate entity. Many law firms or banks and financial organizations operate as trustees for clients who wish to designate them as trustees of their trust. Generally, corporate trustees such as these will charge a fee for such service. Any trusted individual can be named as a trustee and they must follow the directions given within the trust, with limited exceptions.

[/fusion_toggle][fusion_toggle title=”Can a trustee ever violate the terms of a trust and distribute assets to a beneficiary before the trust instructs them to do so?” open=”no”]

There are limited instances where a trustee can ignore the terms of a trust and distribute to a beneficiary. Where failing to distribute would frustrated the ultimate purpose of the trust, the trustee may be authorized to distribute to a beneficiary to ensure that the ultimate goal the creator was hoping to achieve is not frustrated by an unforeseen change in circumstance.

[/fusion_toggle][fusion_toggle title=”Can I create a trust that will give the beneficiary the power to decide when a distribution should occur?” open=”no”]

Yes. A trust can provide a beneficiary with the right to dictate when distributions should be made. However, the more power the beneficiary has with respect to compelling trust distributions, the less asset protection the trust provides. A creditor of a beneficiary can sometimes exercise any rights a beneficiary may have. Thus, if a beneficiary has the right to demand a distribution from a trust, so too can a creditor compel a distribution from that trust. The more rights you give a beneficiary, the less protection that trust provides for that beneficiary.

[/fusion_toggle][fusion_toggle title=”Can I draft my estate, leaving everything to my kids and nothing to my wife?” open=”no”]

A properly drafted estate plan can provide for disinheritance of a spouse. As a general rule a surviving spouse is entitled to elect against his or her spouse’s will and take a statutory share. Michigan law may permit a spouse to disinherit his or her spouse by placing all of the deceased spouse’s assets in a grantor trust before death. The trust must be drafted correctly to allow for this to happen and even than there are some statutory exemptions.

[/fusion_toggle][fusion_toggle title=”If I place my home in trust, will I lose my homestead exemption?” open=”no”]

In a revocable trust the grantor is still considered the owner and can execute the Principal Residence Exemption (PRE) Affidavit, Form 2368, allowing him or her to maintain homestead in the primary residence.

[/fusion_toggle][fusion_toggle title=”I want to pass my home to my child. When I die can they obtain homestead status in the home?” open=”no”]

If your will or trust grants a beneficiary the right to occupy the property, and they do in fact occupy the property after your death, then they are eligible to file the Principal Residence Exemption (PRE) Affidavit for homestead exemption.

[/fusion_toggle][fusion_toggle title=”I have a life insurance policy, but I am afraid my beneficiaries will not be responsible with the proceeds. What can I do?” open=”no”]

You can designate a properly formed trust as the beneficiary of your life insurance. The proceeds of your life insurance would be distributed to the trust upon your death, and the trustee of the trust would then follow the trust instructions for distributions, preventing your beneficiaries of spending the proceeds in a way the conflicts with your wishes. This also provides an asset protection for your beneficiaries.

[/fusion_toggle][fusion_toggle title=”I have a child with special needs. What can I do to ensure they are taken care of financially when I am gone?” open=”no”]

A special needs trust can be created which will allow the grantor to leave assets for the benefit of a disabled individual without jeopardizing the beneficiary’s ability to receive public benefits that have strict income and asset eligibility requirements such as Supplemental Security Income and Medicaid.

[/fusion_toggle][fusion_toggle title=”I have a child with special needs who is not currently receiving any assistance. Should I still consider a special needs trust for them?” open=”no”]

Yes. A Special Needs Trust should also be considered just as strongly for potential beneficiaries who are not currently drawing benefits such as Supplemental Security Income and Medicaid, because they might draw those benefits in the future.

[/fusion_toggle][fusion_toggle title=”If I have a will do I need a trust?” open=”no”]

A simple will gives outright gifts and has no complex provisions creating future interests or establishing trusts. Although a will is an integral part of almost every estate plan, it alone may not adequately meet your needs. Trusts are usually used to save taxes, to avoid the probate of the assets after death, to provide assistance in managing assets while delaying outright distribution, to provide for multiple or successive beneficiaries, or to achieve some combination of all of these. Depending on your needs and wishes, a trust/will combination may be the best course of action.

[/fusion_toggle][fusion_toggle title=”Can a trust be created after I die?” open=”no”]

A trust can be funded (property transferred into the trust) after death through the use of a pour over will. The trust, which contains the instructions on how you would like the assets it will contain treated, is created and formed while you are alive like any other trust, but is funded by instructions in your will.

[/fusion_toggle][fusion_toggle title=”What is the difference between a revocable and irrevocable trust?” open=”no”]

The answer is in the name itself. A revocable trust gives the grantor the ability to revoke the trust at any time, giving them a continued right to ownership. An irrevocable trust in contrast cannot be revoked, divesting the grantor of any rights to the property that they had prior to transferring it to the trust.

[/fusion_toggle][fusion_toggle title=”Why might I want to utilize an irrevocable trust instead of having the power to revoke?” open=”no”]

Trusts are not only useful for probate and estate planning purposes but are extremely useful in tax avoidance and asset protection. One reason for using an irrevocable trust may be to protect certain assets from possible creditors. Due to the fact that the grantor loses all interest in the property transferred, that property cannot be reached by creditors of the grantor.

[/fusion_toggle][fusion_toggle title=”Does a beneficiary of my revocable trust receive any asset protection from their creditors?” open=”no”]

Asset protection can be provided to the beneficiaries of a revocable trust. The assets must remain in the trust to provide ongoing asset protection to a beneficiary. In other words, once assets transfer to a beneficiary, those assets are no longer protected. Trusts for the lifetime of the beneficiaries provide prolonged asset protection for the trust assets.

[/fusion_toggle][fusion_toggle title=”If I form a revocable family trust for my assets, who is responsible for maintaining those assets?” open=”no”]

The trustee of the trust is responsible for the maintenance of the assets. The trustee must use reasonable efforts to prevent the assets from decreasing or “wasting”. This does not mean the trustee must ensure the house titled in the name of the trust increases in value or that the stocks continue to grow if those things are outside his or her reasonable control.

[/fusion_toggle][fusion_toggle title=”Can I be the trustee of my own trust?” open=”no”]

Yes. Very often this is how trusts are drafted, with a successor trustee named in the event the trustee is incapable of administering the duties of the trust.

[/fusion_toggle][fusion_toggle title=” I do not trust any of my friends or family to act as a trustee of my trust, what can I do?” open=”no”]

A trustee can be anyone, including a corporate entity. Many law firms or banks and financial organizations operate as trustees for clients who wish to designate them as trustees of their trust. Generally, corporate trustees such as these will charge a fee for such service. Any trusted individual can be named as a trustee and they must follow the directions given within the trust, with limited exceptions.

[/fusion_toggle][fusion_toggle title=”Can a trustee ever violate the terms of a trust and distribute assets to a beneficiary before the trust instructs them to do so?” open=”no”]

There are limited instances where a trustee can ignore the terms of a trust and distribute to a beneficiary. Where failing to distribute would frustrated the ultimate purpose of the trust, the trustee may be authorized to distribute to a beneficiary to ensure that the ultimate goal the creator was hoping to achieve is not frustrated by an unforeseen change in circumstance.

[/fusion_toggle][fusion_toggle title=”Can I create a trust that will give the beneficiary the power to decide when a distribution should occur?” open=”no”]

Yes. A trust can provide a beneficiary with the right to dictate when distributions should be made. However, the more power the beneficiary has with respect to compelling trust distributions, the less asset protection the trust provides. A creditor of a beneficiary can sometimes exercise any rights a beneficiary may have. Thus, if a beneficiary has the right to demand a distribution from a trust, so too can a creditor compel a distribution from that trust. The more rights you give a beneficiary, the less protection that trust provides for that beneficiary.

[/fusion_toggle][fusion_toggle title=” Can I draft my estate, leaving everything to my kids and nothing to my wife?” open=”no”]

A properly drafted estate plan can provide for disinheritance of a spouse. As a general rule a surviving spouse is entitled to elect against his or her spouse’s will and take a statutory share. Michigan law may permit a spouse to disinherit his or her spouse by placing all of the deceased spouse’s assets in a grantor trust before death. The trust must be drafted correctly to allow for this to happen and even than there are some statutory exemptions.

[/fusion_toggle][fusion_toggle title=”If I place my home in trust, will I lose my homestead exemption?” open=”no”]

In a revocable trust the grantor is still considered the owner and can execute the Principal Residence Exemption (PRE) Affidavit, Form 2368, allowing him or her to maintain homestead in the primary residence.

[/fusion_toggle][fusion_toggle title=”I want to pass my home to my child. When I die can they obtain homestead status in the home?” open=”no”]

If your will or trust grants a beneficiary the right to occupy the property, and they do in fact occupy the property after your death, then they are eligible to file the Principal Residence Exemption (PRE) Affidavit for homestead exemption.

[/fusion_toggle][fusion_toggle title=”I have a life insurance policy, but I am afraid my beneficiaries will not be responsible with the proceeds. What can I do?” open=”no”]

You can designate a properly formed trust as the beneficiary of your life insurance. The proceeds of your life insurance would be distributed to the trust upon your death, and the trustee of the trust would then follow the trust instructions for distributions, preventing your beneficiaries of spending the proceeds in a way the conflicts with your wishes. This also provides an asset protection for your beneficiaries.

[/fusion_toggle][/fusion_accordion]

Call Our Team: 248-348-0496
After Hours: 248-733-5021
Email John

Headshot picture of a middle aged male attorney in a grey suit and blue tie

Estate Planning Lawyer John Kelly

To have one of our experienced attorneys contact you, please fill out our confidential form below.