
The estate planning process can seem complicated and intimidating. We remove the complications and offer each client a personalized estate planning solution that provides you with peace of mind in an easy to understand manner. We help you create a plan that maintains and protects your assets for the ones you care about most: your family.
Kirk, Huth, Lange & Badalamenti PLC’s probate and estate planning and administration practice includes a full range of probate and trust administration matters, representing fiduciaries, beneficiaries and other interested parties in Michigan probate courts.
Michigan probate attorneys Robert W. Kirk, Robert S. Huth, Jr., Maryanne J. Deneweth and Michael C. Taylor have more than 50 years of experience representing beneficiaries, interested parties and fiduciaries in Michigan probate law and litigation. In addition, our probate team has been appointed as fiduciary in thousands of Michigan probate cases.
Probate Administration
What is Probate?
The word “Probate” originally meant the judicial process of “proving” that a Will is valid. Now, Probate encompasses a wide range of legal processes that occur at a specialized court known as the Probate Court. The Probate Court has jurisdiction over Estates and Trusts, protection of minors and incapacitated individuals through Guardianships and Conservatorships, and protection for individuals with mental illness. The Probate Court’s unique rules and procedures can be difficult for most individuals and even unfamiliar attorneys to navigate.
OPENING AN ESTATE
The most common reason to invoke the jurisdiction of the Probate Court is to open an estate for a loved one. The Probate Court has jurisdiction over property owned by a deceased individual whether there is a Will or not. After a loved one dies, the first step in the probate process is file documents at the Probate Court in the county where the loved one resided at the time of his or her death. Upon the filing of the proper probate documents, the Probate Court will open the estate and appoint a Personal Representative. In Michigan, the executor is referred to as the Personal Representative.
The Personal Representative has the authority to take possession of assets and property belonging to the deceased individual at the time of death. The Personal Representative is required to file an Inventory describing the assets and property in the estate and provide notice to heirs, beneficiaries and other interested parties. The Personal Representative must always act as a fiduciary, ensuring that no estate property is wasted or dissipated improperly and ensure that the interests of the estate’s creditors and beneficiaries are always protected.
The Personal Representative has the both the authority and responsibility of paying the valid claims and debts of the estate, making distributions to beneficiaries of the estate, filing tax returns, and proceeding towards the orderly closing of the estate.
To contact an attorney for assistance in opening an estate in Michigan for a loved one, click here.
PETITIONING FOR GUARDIANSHIP OR CONSERVATORSHIP
Guardians and conservators are similar but have different roles. A guardian is responsible for making medical and placement decisions for someone in need; a conservator is responsible for making financial decisions for an individual. Michigan law gives the Probate Courts jurisdiction over the appointment of a guardian and conservator for a minor, an incapacitated individual or an individual with a developmental disability. An incapacitated individual is someone who is unable to make decisions regarding their medical care, treatment, or living arrangements due to mental illness, physical disability, chronic drug use, or other reason. If a loved one is in need of a guardian or conservator, our team can help.
In some cases, an emergency exists and the entire process can be handled in one day. Most other cases start with the filing of a Petition for Guardianship or Conservatorship at the appropriate county Probate Court. After the appropriate documents are filed, a hearing is set a few weeks in advance. The party petitioning for appointment as guardian or conservator is required to provide notice to specific interested parties and attend the hearing. Prior to the hearing, the Probate Court appoints an individual known as a Guardian ad Litem to meet with the individual and report back to the Court.
At the hearing, the Court will take testimony to determine whether the appointment is appropriate under the circumstances. If the Petition for Guardianship or Conservatorship is granted, the guardian will receive Letters of Authority providing him or her with the authority to act on behalf of the loved one. Guardians and Conservators are required to report back to the Probate Court at least once a year and provide an accounting of income and expenses of the estate. These rules and procedures can seem daunting but with the help of a Kirk Huth attorney you and your loved one will be covered.
To contact an attorney for assistance in starting a guardianship or conservatorship in Michigan for a loved one, click here.
Probate Litigation
Sometimes Litigation Can’t be Avoided
Sometimes disputes among beneficiaries over Wills, Trusts, and other probate proceedings cannot be avoided. The most common types of dispute involve claims of breach of fiduciary duty, undue influence, lack of capacity to make a Will or Trust, or other fraud resulting in a beneficiary being disinherited or negatively impacted. If you are the beneficiary of an estate and you believe that the administrator has acted improperly or have been disinherited due to the fraudulent action of someone else, our team can help ensure that you are restored to your rightful place in a loved one’s will or trust.
BREACH OF FIDUCIARY DUTY
As a beneficiary of a Will or Trust, you have the right to ensure that the Personal Representative or Trustee is acting in your best interest. Oftentimes the individual in charge of an estate or trust does not understand what his or her responsibilities or improperly takes advantage of trust and estate assets. Under Michigan law, these individuals have a fiduciary duty to protect the creditors and beneficiaries of the estate or trust.
Beneficiaries should be vigilant to ensure that fiduciaries appointed over an estate or trust do not engage in unlawful breaches of their fiduciary duty. Examples of a breach of fiduciary duty can include:
- Self-dealing. This is when a personal representative, trustee, or other fiduciary uses money or property belonging to the estate or trust for their own self interest and not to the benefit of the estate or trust.
- Excessive compensation. Fiduciaries are entitled to reasonable compensation for their services. However, some personal representatives and trustees treat the estate as their own piggy bank. Paying an excessive rate or paying for services that aren’t necessary is a breach of fiduciary duty.
- Embezzlement. Improperly converting money from the estate to personal use is not only a breach of fiduciary duty but could also constitute a crime for which the fiduciary is required to reimburse the estate and pay treble (triple) damages. A fiduciary who improperly transfers money from an estate to his or herself without justification is in breach of their fiduciary duty.
If you believe that a personal representative, trustee, guardian, or conservator over an estate you are interested in has breached their fiduciary duty, it is your right to petition the probate court for redress. The team at Kirk Huth is experienced in litigating breach of fiduciary duty claims both in defense of fiduciaries and in defense of beneficiaries.
To contact an attorney for assistance in a breach of fiduciary duty claim, click here.
UNDUE INFLUENCE
The most common way in which a beneficiary is cheated out of an inheritance is when a loved one has been unduly influenced. Undue Influence claims have increased in recent years as communities grow older and people live longer. As senior populations become more dependent on assistance from loved ones, the incidents of undue influence increase. An undue influence claim is a challenge to the validity of a will, trust, or other testamentary device (i.e. life insurance policy, retirement account, etc.) Undue influence can also apply to gifts or transfers that occurred during an individual’s lifetime.
Under Michigan Law, undue influence is influence that is so severe that it causes a person to change a beneficiary designation in a manner that they would not have done but for the influence. Undue influence is difficult to prove because it happens in secret and almost always must be proven through circumstantial evidence. Although difficult to prove, a claim of undue influence is a powerful tool to be used to protect your rights as a beneficiary. Undue influence is established by proving a pattern of threats, misrepresentations, coercion, fraud, or other actions that overpower an individual’s agency and destroys their free will.
Simple flattery and acts of kindness are generally not enough to rise to the level of undue influence. And it is difficult to know exactly where the line is between benign influence and undue influence. Pursuing or defending against a claim of undue influence requires an attorney who has experience in this nuanced area of the law. The team at Kirk Huth has represented clients both pursuing and defending against undue influence claims for decades.
If you believe that your interest in an estate, trust, or life insurance policy was changed due to someone’s undue influence, the team at Kirk Huth is here to help.
To contact an attorney for assistance in a breach of fiduciary duty claim, click here.
LACK OF TESTAMENTARY CAPACITY
It’s no secret that there is an unsettling rise in cases involving abuse of the elderly. With the baby-boomer generation increasing in age there is an increase in cases involving dementia, Alzheimer’s, and litigation over abuse of vulnerable seniors. Although the threshold for having sufficient testamentary capacity is low, challenges to a will, trust, or other device based on testamentary capacity are on the rise. Pursuing or defending against a claim of mental capacity is a fact-intensive inquiry that requires an attorney who is attentive to every detail.
In Michigan, an individual has sufficient capacity to execute a will if the individual:
- Understands that he or she is signing a will that provides for distribution of assets after death;
- Understands the basic nature and extent of the assets and property that he or she owns at the time of executing the will; and
- Knows the “natural objects of their bounty” – i.e. knows who his or her heirs are; and
Mental capacity is presumed in Michigan and the burden of proof rests on the party challenging the individual’s mental capacity. Mental capacity claims can be brought both during and after an individual’s life. If the challenger provides enough evidence to overwhelm the presumption the burden of proof shifts. A challenge to mental capacity can be brought to contest the validity of a will, trust, power of attorney, deed, life insurance beneficiary designation, retirement beneficiary designation, or other device.
If you believe that your interest in an estate, trust, or life insurance policy was changed due to someone’s lack of testamentary capacity, the team at Kirk Huth is here to help.
To contact an attorney for assistance in a lack of testamentary capacity claim, click here.
Estate Planning
Our attorneys listen to you and help you create an estate plan that is centered on the people most important to you: your family. We take the time to listen to your concerns, answer your questions, and develop a strategy to protect your assets and create a legacy. Your most important goals are to protect your assets, obtain peace of mind, avoid probate if possible, and minimize tax liability. Whether it is through wills, a revocable living trust, irrevocable trust, durable powers of attorney, patient advocates or health care documents, our attorneys have the technical knowledge and expertise to help you create a plan that meets and exceeds your goals.
Our attorneys listen to you and help you create an estate plan that is centered on the people most important to you: your family. We take the time to listen to your concerns, answer your questions, and develop a strategy to protect your assets and create a legacy. Your most important goals are to protect your assets, obtain peace of mind, avoid probate if possible, and minimize tax liability. Whether it is through wills, a revocable living trust, irrevocable trust, durable powers of attorney, patient advocates or health care documents, our attorneys have the technical knowledge and expertise to help you create a plan that meets and exceeds your goals.
We provide you with the personalized attention you desire, knowing that your project is unique and requires a unique solution. One of our attorneys that specialize in estate planning will meet with you personally and invest time in understanding you and your family, your objectives, and the people who you will rely on to help you carry out your plan. Your project will not be handed off to one of our staff members or law clerks. After meeting with you, our attorney that you met with will draft the estate plan and create the documents tailored to your specific concerns and objectives. We will walk you through the plan explaining how each document and provision helps secure your assets and protect your family.
Our firm will not bill you until you are comfortable and satisfied that the estate plan accomplishes your objectives. After completion, our estate planning attorneys will proactively follow up with you to ensure that the plan continues to work for you and complies with any changes in the law. Whether you are developing your first estate plan or need help reviewing and revising an existing plan, we pride themselves on helping families secure what they’ve worked hard to grow.
Estate Planning Process
Call our office to schedule a personal consultation with one of our estate planning attorneys. One of our attorneys will speak with you directly to schedule a convenient appointment to meet with them. We meet with clients every day of the week and can accommodate early mornings, late nights, or weekends if necessary, to make the meeting as convenient for you as possible.
Our initial estate planning consultation generally takes about one hour but we will meet with you until all of your questions are answered and you are comfortable with the process. Prior to our meeting we will send you an Estate Plan Questionnaire for you to begin considering who you would like to handle your affairs and how your assets should be managed. The estate planning questionnaire will be helpful to our attorneys to determine the best estate plan for you.
We understand that this can seem like a daunting process. We design it to make you feel comfortable and confident. At the initial meeting our attorney will review your questionnaire with you to make sure all of your information is correct. If you haven’t completed it before the consultation, we will work with you to complete it then. We will work with you to design a plan that is customized to your unique family and situation.
Our attorney will explain each document involved in your estate plan and how it will be used to meet your goals and objectives. Once you’re satisfied that our firm is a good fit and the plan makes sense to you, our attorneys will quote you with a flat fee for the entire process, so there are no surprises and no confusion. A basic comprehensive estate plan for a couple is generally begin the work of customizing your trust, will, powers of attorney, deeds, or other necessary documents. After the documents are drafted you will receive them for your review. Depending on the complexity of your planning or if you choose, a second meeting may be necessary to review the documents and answer any questions.
Only after all of your questions have been answered and you fully understand the documents, we will meet at our office to execute the estate plan. This important step ensures that the documents are executed according to Michigan law. From there, our firm will prepare copies of the documents and arrange a convenient Estate Planning Notebook with further instructions. We will also make an electronic copy of every document you sign to ensure easy access to every document, even if it is lost or destroyed.
And while most law firms will end the relationship there, we view this as just the beginning of our representation. We will continue to monitor changes in tax and estate laws and keep you updated. As your family grows older, your assets and property change, and your objectives change, we will be there to make sure you stay protected.
Wills
A will is the most commonly used form of estate planning. Most people understand that a will’s basic purpose is to ensure that property and assets are transferred to the right beneficiaries after death. In its most basic form, a will provides direction regarding how you want owned individually, without a death beneficiary, to be disbursed after death. However, a will can do much more than just that.
- Nomination of Personal Representative: A will allows you to name a Personal Representative – commonly referred to as an “executor”. This person should be a trusted friend or family member who will be responsible for handling your estate, following the instructions you leave, and ensuring that your wishes are followed.
- Nomination of Guardian / Conservator for minor children: If you have minor children, your will is where you will nominate a guardian or conservator for your minor children. This is one of the most important decisions parents can make regarding the care and custody of their minor children after an unexpected death. A guardian will be responsible for the custody of a minor child while a conservator – usually the same person – is responsible for managing the minor child’s finances.
- Testamentary Trusts: Most people have heard of a trust but aren’t sure if it’s necessary for them. In some cases, a testamentary trust is the best option. A testamentary trust is a trust which isn’t formed until after death. A trust is a way of managing property and assets for your beneficiaries, particularly minors, beneficiaries with specialized needs, or young adults not quite ready to manage substantial assets on their own. A testamentary trust may also benefit you for estate tax purposes, securing assets in second marriages, or protecting assets for beneficiaries.
- Pour-over wills: A pour-over will is used in circumstances when an individual or couple create a trust during their lifetime and would like their assets funded into the trust after death. The pour-over will “pours” assets from the individual’s estate into his or her trust, to allow the trust to own and manage the property for his or her beneficiaries. A pour-over will is a valuable tool in ensuring your estate is managed according to your direction.
A will is an indispensable part of any effective estate plan. However, there are very specific rules and formalities that must be followed in order for the will to be valid. We will help ensure that it is properly drafted and executed to protect your family and property.
Trusts
A common misconception about trusts is that only people with millions of dollars in assets or property need a trust. In fact, trusts are a valuable estate planning tool for any individual or couple with assets or property that they want to protect and provide for their beneficiaries. Individuals who are single with no children, married couples with minor children, empty nesters whose children are now having grandchildren, to elderly couples well into retirement can all benefit from a trust. And there are many different types of trusts to help with your specialized situation.
At its most basic, a trust is a form of property ownership that allows a fiduciary to hold title to property on behalf of another. For most individuals or couples, you will retain ownership and management of your assets as long as you are alive. The individual(s) who create the trust are known as the “Settlor(s)”. The individual who manages the trust assets is known as the “Trustee”. For most individuals and couples, you will be both the Settlor and Trustee during your lifetime. After your death, you will nominate a successor trustee who will manage your assets for the benefit of your beneficiaries.
For most people, a trust is the best way to provide an inheritance to your beneficiaries, avoid the cost, expense and hassle of the probate court, and avoid estate tax liability.