Estate planning is a process to decide what should happen to you and your things in case of death or incapacity. Using this, legal documents can be put in place to make sure the decisions you make now will be carried out later.
Think of it this way: a estate plan is "people and decisions insurance" that you put in place up front, so when something happens later (death or incapacity), the people you've already chosen can jump into action to make the decisions you've told them in advance how to make.
Typical documents a Jackson estate planning lawyer might suggest are wills, trusts, power of attorneys, and health care power of attorneys. These documents work together to make sure your wishes are carried out, in case you are unable to act for yourself during your lifetime, or after you pass away.
If you don't have an estate plan, the people you are close to may not be prepared or able to help you if you become incapacitated or pass away. Sudden incapacity or death is hard on loved ones, and can result in needless uncertainty, conflict, stress, and expense while people figure out what needs to be done and how to help.
On the other hand, if you have an estate plan, you can provide directions in advance so the people around you know who does what and what is supposed to happen in case of your incapacity or death. For example:
These are some of the questions that can be answered using estate planning, saving the people closest to you from unnecessary uncertainty, conflict, stress, and expense. A Jackson estate planning lawyer can help you sort out what you need, and how you can do it on a budget that works for you.
Some common pieces of an estate plan include:
Regardless of the pieces used, a good estate plan brings together a number of documents that work together to try to ensure your wishes are followed during incapacity or death. A Jackson estate planning lawyer can help you decide which documents you need, and can help you decide on a plan that is also right for your budget.
There is no such thing as a one-size-fits-all "basic estate plan." An estate plan is drafted to meet the needs and wants of the client, and just as no two people are exactly alike, no two estate plans are either.
That said, an entry-level estate plan might consist of:
As discussed above, whether this entry-level estate plan is right for you depends on your specific circumstances. An estate plan that is right for you could be more than - or less than - what we've described here. Ask us: we can help you decide what kind of estate planning you need and what is right for you. Wills, power of attorneys, and patient advocate designations are usually the first step in making an estate plan. A Jackson estate planning lawyer can help you figure out which documents are right for you, and can work with you to draft a plan that fits your circumstances and budget.
Like we said before, there is no one-size-fits-all "basic estate plan." The cost for your estate plan will vary depending on your specific situation, needs, and wants, which your lawyer can discuss with you.
That said, our basic estate plan (package of Last Will and Testament with Nomination of Guardian for Minor Children included, Patient Advocate Designation, and Durable Power of Attorney) starts at $650 for one person. Estate plans for two people double the number of wills, and other documents needed, increase the complexity, and cost more. Individual documents can be purchased for a per-document flat fee. Ask us: we can help you decide what kind of estate planning you need within a budget that is right for you. We are located in Jackson, and our staff live and work in Jackson. We are a small law firm from your community, and we are here to help you.
There's no minimum age needed to have an estate plan. But generally, a person should be an adult to make an estate plan. When you turn 18, you become solely legally responsible for yourself, and no one else has the power to make legal decisions on your behalf unless (A): you have estate plan documents in place; or (B) a court has appointed a legal guardian or conservator for you. For this reason, we suggest that anyone who is an adult should have some sort of estate planning done. This helps to provide certainty for friends and loved ones in case something happens to you, and avoids the delay, expense, and possible conflict that might come with having to get the courts involved in making decisions for you.
Estate planning (wills, trusts, power of attorneys, etc.) is essentially the process where you make written plans to avoid the need for probate court proceedings later, in case something happens. Whatever age you are, Jackson estate planning lawyer can help you design an estate plan that is right for you, at whatever point of life you find your self, at a cost that works for you.
Yes. You can change your estate plan anytime, with a few exceptions.
Estate plans are drafted with flexibility in mind, because we don't have a crystal ball about the future. But sometimes life and circumstances change, and the choices made in a previous estate plan are no longer the choices you want going forward. This can happen, for example, because of the birth of a child; marriage; divorce; re-marriage; change in family relationships/dynamics; inheritance; significant change in financial status; change in law; or for other reasons. Also, because people and circumstances change throughout life, it's a good idea to review your estate plan with an attorney every couple years to make sure it is still up-to-date and reflects your wishes.
That said, there are some exceptions to changing estate planning documents. The first general exception is if you have made a trust or other document which, by its terms, is irrevocable. The second general exception is if you have lost mental capacity since the time you made your last estate plan. The mental capacity needed for making an estate plan differs, depending on the type of estate plan document. Most documents require contract capacity, which means you cannot be legally incompetent to make a trust, power of attorney, patient advocate designation, and so on. On the other hand, a will requires testamentary capacity, which is a lower standard. Testamentary capacity means that persons making wills need to know the extent of their property, the object of their bounty (i.e. who their family and heirs are), that they are making a will, and that they intend to convey their property by will. The decision whether an estate plan can be changed is a case-by-case decision made by the client and attorney, depending on the client's specific circumstances. Sometimes a doctor's note regarding mental capacity can be used to establish capacity needed to change the estate plan. If you have questions about whether you can change or make a new estate plan, ask us: we can help you decide whether changes to your estate plan are appropriate. We are a Jackson small firm with a full-time local lawyer available to talk to you about your estate planning questions. Let us know how we can help you, whether you wish to change an existing estate plan, or to make a brand new one.
Strictly speaking: no. You can write your own estate plan, if you know the law, and your estate plan is signed with the proper formalities. But most people don't know the law, and don't know how to make sure wills, trusts, power of attorneys, deeds, and other documents they sign are properly made so they cannot be challenged later in court. For this reason, having a lawyer draft your estate plan is highly desirable, if not indispensable.
Why are lawyers lawyers? Because the law is complicated. Who makes the laws? Lawyers, mostly. The United States constitution says that anyone is entitled to represent him- or herself in court. But is that a good idea? Generally, no.
As the saying goes, "A man who is his own lawyer has a fool for his client". Ladies, I'm talking to you too. The bottom line is that legal rules are confusing, and the task can be challenging for one trained in the law, let alone one who has no formal legal education or experience. In this case, the phrase means "This is tough stuff. Pitfalls abound for the unwary. You would be foolish if you try to represent yourself."
So no. There's no law that says you have to have a lawyer write your estate plan. There are laws that say if you have someone else write your estate plan for you, that person has to be a lawyer. But the reality is that a trained, experienced estate planning lawyer can help you make sure that your estate plan accomplishes your wishes, and will stand up if it's ever challenged in court. If you are looking for an estate planning attorney nearby, our Jackson office is conveniently located two doors down from the County Courthouse. Let us know how we can help you, so that your estate plan can stand the test of time.
When you pass away, everything that you still own in your personal name becomes property of your probate estate. In order to keep your estate from going through probate court, you need own nothing (or very little) in your personal name when you die. Let's look at a couple ways to do this.
First, the traditional estate planning way of avoiding probate was to do a revocable living trust. A trust is a legal entity separate from your own personal identity, and a person can transfer any property they own (such as homes, cars, investments, etc.) to the trust. Because these things are titled in the name of the trust, they are no longer owned by the person when the person dies. Ideally, when that person dies there are no probate assets to administer - they are administered through the trust instead. The drawback with this is, trusts are complicated and expensive to set up. They also need to be funded, and continuing attention and maintenance is required to make sure all property is properly titled in the trust's name until death. Most ordinary people just aren't up to this task, so many trusts begun with good intentions never give their owners the results they were looking for, and their estates end up going through probate anyway for property that never made it into the trust.
Because of the complexity and expense of trusts, the modern trend is for states to pass laws that allow various types of property to pass at death without needing a probate proceeding. For example:
Real estate: An alternative to putting real estate in trust is to hold it under an Enhanced Life Estate Deed, commonly known as a Lady Bird Deed. Under one of these, the grantor conveys the property to him/herself in life estate with a continuing general power of appointment over the property, and at death the remainder interest in the property passes to the remainderperson in fee simple.
Automobiles: In Michigan an heir/family member can transfer title to an automobile from the deceased's name into their own, subject to certain value limitations, if there will be no probate estate.
Bank accounts: Many bank accounts today can be held in Transfer On Death (TOD) or Payable On Death (POD) form. This means the account owner maintains full ownership of the account until death, and upon death, ownership of the account passes to the named transferee.
Insurance and Retirement Accounts: These accounts commonly have beneficiary designations. A beneficiary is a person to whom the account will pass at the account owner's death. It's very similar to a TOD or POD, discussed above. However, it's very important to name primary and secondary beneficiaries, and to keep these updated so that when the account owner dies, there is a living beneficiary to whom the account can pass. If there is no living beneficiary, then the account will become part of the account owner's probate estate.
Business interests: A well-planned business will have an LLC Operating Agreement or Corporate Bylaws that address the issues surrounding death of an owner, and management succession. If the organizational documents of the business address it, the business's ownership interest passes to named or readily identifiable persons by operation of contract law, not probate. This is sometimes referred to as a Buy-Sell Agreement and Management Succession Plan.
Whatever your situation, it helps to have the advice of an estate planning lawyer so you can make good decisions about your estate plan needs, and to make sure your wills, trusts, or other documents are properly drafted and signed. If you are from Jackson and would like to explore avoiding probate through any of the ways discussed above, we can help - call us anytime.
Prospective clients often ask about using deeds to leave property to someone else if the property owner dies. Usually, the question is whether simply "adding someone" to a deed will do what the owner needs, to ensure the owner doesn't need a probate proceeding after death to transfer the property. I almost always recommend against this, for several reasons.
One, making someone a co-owner now means that person has equal (full) rights to your property, including the right to use and occupy the whole. What happens if you have a falling out with that person, and the two of you can't agree how to share the property? If the deed has not been drafted properly (i.e., with the consequences of joint tenancy versus tenants in common in mind), you may be stuck with this person and will have no legal remedy to get them out of the property.
Two, another consequence of equal (full) ownership by another person means that person's consent is necessary to make any decisions about whether to sell, lease, mortgage, or otherwise deal with the property. What happens if that person does not agree about what should be done, or if the person is legally incapacitated or cannot be found? If the deed has not been drafted properly (i.e., with the consequences of joint tenancy versus tenants in common in mind), you may again be stuck with this person and will have no legal remedy to re-take control and sell the property.
Three, making another person a co-owner of the property exposes the property to the other person's creditors. What happens if that person owes debts they cannot pay, is sued, and a judgment lien is recorded? You will not be able to do anything with your property until the judgment lien either expires or is satisfied. What happens if the other person gets a divorce, and their spouse tries to take or sell the property to satisfy the other owner's marital property settlement obligation? It can happen. What happens if the other person files bankruptcy? The property could be sold by the other person's bankruptcy trustee to pay the other person's debts. What happens if the other person doesn't pay their federal income taxes? The IRS can put a tax lien on the property and the property can be sold out from under you.
These are just some of the adverse consequences that can arise from putting another person on the deed as a "co-owner" of real estate for estate planning reasons. These are also some (but not all) of the reasons I recommend against this practice.
Fortunately, there are good and valid estate planning techniques that can be used to provide for transfer of real estate upon someone's death. The traditional way to do this was to leave it to the other person in a will. Nowadays, a more common way to do this is to use a lady bird deed, also known as an enhanced life estate deed, which doesn't make the other person a co-owner now, but waits until the current property owner dies to transfer title. For situations where a lady bird deed might not be advisable (for example, if the transferee is a minor, has a substance abuse problem, has a mental health problem, has financial or marital/relationship problems, or other reasons), a revocable living trust for the current property owner that becomes irrevocable upon death is also a good option.
Suffice to say, there is a lot more that goes into the decision to put someone on a real estate deed than a non-lawyer might think. There are many variables that need to be considered, so the right type of document is used for the situation, and to make sure the document is drafted properly. Fill-in-the-blank legal forms available at big box stores are cheap, but if they are used by someone who does not have the legal knowledge and training to know the effect of that particular document's language, problems can arise that will cost thousands to fix later.
It pays to have an attorney help you decide the right technique and document to use for estate planning, so it is done right the first time. If we can help you with this, let us know your questions, comments, and concerns.
[Disclaimer: This post provides general information only and should not be relied upon as legal advice. No attorney-client relationship is created or should be inferred by this post. Legal advice applicable to your specific situation requires analysis of all the relevant facts and circumstances about you and your situation, and requires a real-time telephone call, videoconference, or in-person meeting. You should not make legal decisions or take legal action based on the information found here or anywhere else on the internet without first consulting with an attorney. This is advertising material for a law firm, and Thomas Trent Harris (P73799) is the attorney responsible for the content of this ad.]