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Avoiding Probate In Michigan

Save your family time, money & headaches through careful preparation.

Learn How to Avoid Probate

Avoiding Probate May Also Help You Avoid Having To Hire A Lawyer

Avoiding Probate

Many if not most times, avoiding probate can be quite beneficial. Your property will transfer to your family upon your death, without the delay and cost of having to go through the probate process. You have just experienced the grief of losing your loved one, and now the assets that you know he or she wanted placed into the hands of surviving family members/friends, is tied up. The property is tied up, because the owner of the assets is no longer there, to tell the bank or brokerage firm, what to do with the account, and worse still, they will not listen to you anymore, even though you personally know the bank manager, the teller, or the broker.

Where real estate is involved, the decedent is not there to sign a listing agreement, to dispose of the real estate they own. The real estate agent needs someone authorized to sign a listing agreement, and that simply will not happen, until probate is set up, and the court has appointed a Personal Representative for the estate, who will then be authorized to sign for the Estate.

There are some simple low cost steps you can take to avoid the delay, intrusion and taxation (in the form of “inventory fees”) that come with the probate process. Please note, that I am not suggesting any method of avoiding debts or taxes; I am suggesting probate avoidance techniques, for those who want to avoid probate. These are not debt or tax-avoidance techniques, and if you are looking for a way to avoid obligations of this nature, you may want to continue looking and searching. I am not that guy.

Please note that there may be technical, nuanced reasons why the steps I am suggesting here may not work for you; for example, if your estate is potentially subject to estate and gift taxation, these steps may not work. If you are blessed to be in that category, my advice is to call Jon Frank, or another attorney who can help you navigate the nuances of the more detailed estate planning you may be looking for.

Additionally, there may occasionally be very good reasons to go through the probate process, that frankly do not come to mind right now. I recently handled yet another matter, in which the decedent mother’s primary asset was a fully paid-off house; she did not have a will, and unfortunately, the three children she left in this world had a mutually antagonistic relationship. At first blush, probating the mother’s home (as we had to do) might seem one way to protect everyone from a claim by someone else that there was something dishonest going on.

On further reflection, however, there was a step the mother could have undertaken, to have transferred her property, as she saw fit, and to have avoided the needless antagonism and litigation that resulted.

That is what this page is about.

Does It Make Sense To Avoid Probate?

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The Client Bill of Rights

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Client Bill of Rights

  1. 100% Client Satisfaction Guarantee
  2. 48-Hour Open Door Policy
  3. The Lawyer You Hire Is The Lawyer Who Works on Your Case
  4. Candid Explanations in Plain Simple English
  5. An Idea Where Your Case is Heading
  6. One-Day Returned Phone Call/E-Mail/Text Policy
  7. Cell Phone Access to Your Lawyer
  8. Constant Immediate Updating
  9. You Have A Right to A Lawyer Who Will Respect Nos. 1-8 Above

Being a client sucks. It is a terrible and anxious experience, and I know, because I am not only a lawyer, but I have been a client before, myself. It can be awful, and the lawyer you hire should not make it worse.

Because different lawyers do different work, the problems that bring you to a lawyer will vary. However, one thing is in common: you have to put yourself and a highly sensitive problem into the hands of another person.  It means that there is a loss of control. A cloud hanging over your head.

Just you hire me to protect your rights, you have rights THAT EVERY LAWYER SHOULD BE WILLING TO PROTECT.  

I AM.

CLIENT BILL OF RIGHTS

1. 100% Client Satisfaction Guarantee

You have a right to be satisfied, and soon, that I am hard at work on your matter, and that your case is not “just another case”, but it is my cause.  I cannot guarantee outcomes of personal injury, criminal, or other court matters.  

However, if you are not completely satisfied within the first 30 days, or before the first Court appearance, whichever is sooner, that I am working hard on your case, then you can come get your file, or I will send it to you, and you can go hire another lawyer. 

YOU HAVE A RIGHT TO BE COMPLETELY SATISFIED THAT I AM WORKING HARD ON YOUR MATTER, AND THAT YOUR CASE IS MY CAUSE.  

2. 48-Hour Open Door Policy

If you feel that you need to sit down with me face-to-face to discuss your case, I WILL CLEAR MY SCHEDULE, SETTING ASIDE TIME TO MEET WITH YOU IN MY OFFICE.  Even if I am in the middle of trial, I will meet with you within 48 hours. 

YOU HAVE A RIGHT TO MEET WITH ME AT MY OFFICE, WITHIN 48 HOURS OF YOUR REQUEST, AND TO EXPECT ME TO CLEAR MY SCHEDULE, TO MAKE THAT HAPPEN.

3. The Lawyer You Hire Is The Lawyer Who Works on Your Case 

When you hire Jon Frank and The Frank Law Firm, PC, you hire Jon Frank.  You will not be shunted off to associates who are off-camera, and whose faces do not appear on websites, or TV advertising.  I am the lawyer who will answer your calls.

YOU HAVE A RIGHT TO EXPECT THAT THE LAWYER YOU THOUGHT YOU WERE GOING TO HIRE, IS THE ONE WHO IS ACTUALLY WORKING ON YOUR CASE.

4. Candid Explanations in Plain Simple English

Personal injury, no-fault, and criminal matters, while commonly settled “out of court”, are ultimately matters decided “in court”, and therefore, no guarantees can be made as to outcome.  Anyone who says otherwise, is not being truthful with you. 

So, too, where you hire me to deed a property into trust, handle a probate matter, or anything else that I might do as your lawyer, there is a process that we must follow, and as the “paying customer”, you are entitled to understand just what that process is.

These are often complex matters that need to be explained to you, by your lawyer.  Not only should your lawyer GLADLY explain the process to you, your lawyer should explain to you, in plain simple English – without formal, condescending “legalese”.

Not every lawyer is willing to give their client a full and candid explanation, for good or ill, and in plain simple English, of just what is going on with their case.

I AM.

THEREFORE, YOU HAVE A RIGHT TO UNDERSTAND WHAT IS GOING ON WITH YOUR CASE, AND TO KEEP ASKING ME TO EXPLAIN IT, UNTIL YOU DO UNDERSTAND. 

Lawyers are paid to provide a service, and should not complain, when their clients ask for the service they have paid for.

5. An Idea Where Your Case is Heading 

As I just mentioned, there is a process that your matter will follow, from start to finish.  One of the biggest causes of client stress, is not knowing just what that process is – ahead of time.  Knowing what road you will be taking, makes the trip easier, not just as a traveler on an Interstate, but also as a client in a legal matter. 

THEREFORE, YOU HAVE A RIGHT TO KNOW IN ADVANCE, WHERE YOUR CASE IS HEADING, AS TO:

6. One-Day Returned Phone Call/E-Mail/Text Policy 

If it is important enough for you to reach out to me, to call, e-mail, or text, it is important enough for me to return the communication, and to do so promptly. 

YOU HAVE A RIGHT TO EXPECT ME WITHIN ONE BUSINESS DAY, TO:

7. Cell Phone Access to Your Lawyer

You have just hired me to help you through one of the most sensitive, gut-wrenching episodes you will ever have in your life, as long as you live. 

One of the deepest expressions of trust, one human being can give another, is to be vulnerable enough to ask for help.  By hiring me as your lawyer, that is what you have done.  Therefore, I make a point of giving my clients my cell phone number, so that they can contact me, day or night, 24/7/365, by phone or text message

While you ARE WELCOME TO MY CELL PHONE NUMBER, I have enabled my land lines, (586) 727-1900 and (877) FRANK-LAW (372-6552) to receive text messages. While I may not always be available to talk, I want to make it easy for you to contact me; if I am not readily available, I will get back to you, often within minutes or hours, but always within one business day.

YOU HAVE A RIGHT TO MY CELL PHONE NUMBER, AND TO HAVE ACCESS TO ME 24/7/365 BY CELL PHONE AND TEXT MESSAGE.  

8. Constant Immediate Updating 

It is bad enough to have to put your life in someone else’s hands.  When you have to put your life into my hands, you have an absolute right to be kept updated as to the progress of your matter.  My policy is to send a copy to you, by email, of all correspondence I send to other people (lawyers, insurance companies, prosecutors, police agencies, etc.).  

Receiving copies by email, will enable you to see what I am doing on your case, as I am doing it.

I will send you email copies, usually by “blind copy”, to protect your email privacy; sometimes, I will forward to you, a previously sent email. If you do not have email, then I will send you copies of outgoing correspondence, by regular mail. 

YOU HAVE AN ABSOLUTE RIGHT TO BE COPIED ON ALL OUTGOING CORRESPONDENCE ON YOUR MATTER, BY E-MAIL, OR BY REGULAR MAIL, WHEN THAT CORRESPONDENCE IS BEING SENT.

9. You Have A Right To A Lawyer Who Will Respect Nos. 1-8 Above 

If you are looking for a lawyer who can help guide you through your injury matter to a great recovery, at the earliest possible time, or someone who can help protect your rights in a drunk driving, or criminal matter, you have a right to a lawyer who will respect these rights you have as a client.

As a client, you should never have to worry or wonder if your lawyer cares about your rights as a client, or whether they respect you as a human being.  You deserve, and have a right to a lawyer, who will do both.

TEXT OR CALL ME, Jon Frank, at 877-FRANK-LAW, or at (586) 727-1900, if you want me to protect your rights as a citizen – and as a client.  You can email me as well, at jon@jonfranklaw.com.  I look forward to hearing from you.

Frequently Asked Avoiding Probate Questions. Michigan Based Legal Answers.

Mom Had A Will. Does That Mean We Can Avoid Probate?

No.

A will must be "probated", meaning processed and distributed according to Michigan probate procedure. That procedure may be informal, and may entail almost no supervision, or interference by a probate judge. Almost none that is. 

Avoiding probate requires intentional, thoughtful steps, taken in advance.  A will has its place, but by itself, a will, will not help you avoid probate, if that is the goal.

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Grandpa Died Without A Will. Does That Mean We Can Avoid Probate?

Sorry. The answer is still no... Load complete answer.

Sorry. The answer is still no.

Where someone dies without a will, they are said to "die intestate"; their property is distributed to family, according to the rules of "intestate succession".  Each state has its own rules of intestate succession, and they are more or less similar, although there is enough variation, that you need to make sure you are consulting with a lawyer in your state/province.

These "intestate succession" rules mirror what the various states' lawmakers have decided will usually track closely with what most decedents want to do with their property.  For example, the law presumes that the surviving spouse will take all or most of the property, and if there is no surviving spouse, the law presumes that the decedent's children will divide the property equally.

People should think carefully about having an estate plan, particularly if they do not want their property to be divided along these lines. For years, this was a source of some agony and angst for same-gender couples. It still remains a source of concern for any couple (same gender or otherwise), who live together outside the bounds of marriage.

However, to repeat, the mere existence or non-existence of a will, will not help you avoid probate. You need to do more.

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When do you have to go through probate?

Generally speaking, assets must be "probated", when those assets are owned in the decedent's sole name at the time of his/her death. Therefore, there are some general "non-probate" ways to transfer property, without a probate estate being opened; those are as follows:
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Generally speaking, assets must be "probated", when those assets are owned in the decedent's sole name at the time of his/her death. Therefore, there are some general "non-probate" ways to transfer property, without a probate estate being opened; those are as follows:

  1. "Pay on Death", or "Transfer on Death" accounts
  2. Insurance, retirement, and annuity plans; and
  3. Certain types of joint ownership;
  4. Property owned in trust;
  5. Property owned by married couples;

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How Does Being Married Avoid Probate?

This is the simplest and most common way to avoid probate... Load complete answer.

This is the simplest and most common way to avoid probate.

For the most part, property owned by married couples, owned AS married couples, will pass to the surviving spouse, without the necessity of probate.  Once the surviving spouse him/herself dies, or sells the property, it is usually necessary to document the death of the first spouse to die, but that is usually it.

Sometimes brothers & sisters may be joint owners, or other non-married persons, and it may become necessary to document that they own, not as husband & wife, but as "joint tenants (in common, or with right of survivorship).  See FAQ regarding "joint ownership".

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How Can Joint Ownership Avoid Probate?

Some jointly held property will pass to the survivor without probate; sometimes not.  This is one of those times, when there are what I call "magic words", i.e., where the specific words on a document will matter... Load complete answer.

Some jointly held property will pass to the survivor without probate; sometimes not.  This is one of those times, when there are what I call "magic words", i.e., where the specific words on a document will matter.

If a property is owned as "joint tenant with a right of survivorship", then that property will pass to the the survivor, without probate, upon the death of the first joint owner. The property is said to pass, "by operation of law".

However, if the property is owned as "tenants/tenancy in common", then the property owned by the deceased "joint tenant", or part owner, simply goes through the probate estate ofthat deceased person, unless owned in trust, or through some other probate-avoidant method.

If property held as "tenancy in common" does not avoid the probate court, why do people own property titled in this way? Because there is no relationship of love, friendship or marriage.  Most commonly, it relates to property held by business partners (again, assuming no other probate avoiding technique being used).

There is also a method of transferring real estate, referred to as a "Lady Bird Deed", where the owner transfers his/her property to someone else, but retains a life estate, i.e, control during their lifetime.  This life estate is said to be "enhanced", because the owner can still sell the property. This type of transfer may also avoid some of the difficulties that go along with establishing Medicaid eligibility for financing of long-term care.  A detailed discussion of Medicaid planning is beyond the scope of this general information post/website.  This will be an area in which you will need legal advice.

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How Does A Trust Avoid Probate?

Trusts are based on the division of "equitable" and "legal ownership", which is usually united in one person, married couple, or one set of joint tenants. "Equitable" or "beneficial" ownership arises out of having paid for the property, or having received it by gift, bequest, devise, or inheritance. "Legal" ownership refers to the rights an owner has to mortgage, sell, or give away the property. .. Load complete answer.

Trusts are based on the division of "equitable" and "legal ownership", which is usually united in one person, married couple, or one set of joint tenants. "Equitable" or "beneficial" ownership arises out of having paid for the property, or having received it by gift, bequest, devise, or inheritance. "Legal" ownership refers to the rights an owner has to mortgage, sell, or give away the property. 

The theory of a trust, is that someone else is the legal owner of the property, other than the beneficial, or equitable owner. The legal owner of a property in trust, is sometimes referred to as "the trustee".  The person(s) transferring the property into a trust, are sometimes referred to as "grantors", or "trustors".

Because that beneficial owner (the grantor) no longer has legal title to the property, and because he/she has named a successor trustee to assume legal ownership in the event of the grantor's death, that property will not be part of the grantor's probate estate.

For most people, their residence is the single biggest asset they have, and keeping it out of probate, can really simplify the process of passing that property on to successors, or simply selling it out of what would otherwise be a probate estate. Trusts can be helpful in this regard, and also in the process of eliminating disputes between surviving family members, who may succeed to ownership of the property.

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How Do Insurance or Retirement Plans Avoid Probate?

Insurance and retirement plans typically have a designated beneficiary, who is to take over ownership of the policy proceeds, or the account value, in the event of the death of the insured/retiree.  Because ownership of these assets transfers, "by operation of law", they do not show up in the probate estate of the decedent... Load complete answer.

Insurance and retirement plans typically have a designated beneficiary, who is to take over ownership of the policy proceeds, or the account value, in the event of the death of the insured/retiree.  Because ownership of these assets transfers, "by operation of law", they do not show up in the probate estate of the decedent.

One great piece of advice here, is to make sure your beneficiaries are in line with the current reality of your life.  For example, do you still have your ex-spouse on as a life insurance beneficiary? If you want to, that is one thing, but many (if not most) people do not.  Are all children and other beneficiaries reflected? Were children born after the insurance was set up?

Another great piece of advice is to have contingent beneficiaries set up, so that if a beneficiary dies, before the insured/retiree, that the portion which would have gone to the beneficiary does not go through the beneficiary's probate estate.

Obviously, there are exceptions to everything.  These are just general information concepts, on a general information website.

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What Are "Pay On Death" Accounts & How Do They Help Avoid Probate?

Just like it sounds, a "pay on death" (POD) account is one where you instruct your bank to pay the proceeds of the account to a named beneficiary, upon your death.  The assets transfer, "by operation of law" (there is that phrase again)... Load complete answer.

Just like it sounds, a "pay on death" (POD) account is one where you instruct your bank to pay the proceeds of the account to a named beneficiary, upon your death.  The assets transfer, "by operation of law" (there is that phrase again).

This is set up directly between you and the bank, and not only is there no need for probate, there is no need for you to retain a lawyer to do this.  Perhaps the only thing you need to be careful about, is that the named beneficiary is still alive, normally not a consideration, when naming one's child as the "pay on death" payee.

These POD, or TOD for "transfer on death" accounts have the benefit of not being jointly held accounts. This could be quite significant, if there are trust issues with the other joint account holder, or if the other joint account holder has credit or lien issues, that may expose the account to attachment, or legal process from one of his/her creditors.

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