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Estate Planning FAQs « FAQs

We are teachers and advocates, and as a part of that process we frequently answer questions from our clients — so we started collecting our Frequently Asked Questions. We are collecting and sharing them with you by topic and hope these are helpful to you.

Please feel free to email Patti at pdudek@pekdadvocacy.com if you have a follow up question or comment. We'd also like you to let us know what you think of this new feature of our website.

KEEP IN MIND THESE ARE GENERAL QUESTIONS AND CANNOT BE CONSIDERED LEGAL ADVICE OR THE BEGINNING OF THE ATTORNEY-CLIENT RELATIONSHIP.

We have redacted names to protect the innocent! Sometimes they are posed in a give and take format because they were developed through an email exchange.

(Note: questions are not edited for spelling, grammar or content.)

Estate Planning and Probate Matters:

  • Question: A dies leaving estate fifty percent to brother B, the rest of the estate to brothers C, D, and E equally. Six months later, D dies. Now the estate is ready to be distributed. In A's will it states that if a brother predeceases A, the surviving brothers split the deceased brother's share. D has died after A. D was a resident of Arizona and has not talked to any of the remaining surviving brothers in many years. Does A's personal representative have to somehow notify D's "heirs" or "estate" that a distribution is being held? How would one go about finding out if an estate has been opened for D? Pursuant to MCL 700.2604(2) can the surviving brothers split D's share?

    Answer: Assuming that A's Will is silent with regard to defining survival, the 120 hour survival period prescribed in MCL 700.2702 has been met with regard to D. Therefore, since D survived A, D has a vested interest in A's estate. The personal representative of A's estate should notify the personal representative of D's estate that D was an interested person, in fact, a devisee, of A's estate. The personal representative of D's estate is now an interested person in A's estate. The panel would assume that since A's estate is now ready to be distributed, the personal representative of A's estate has given proper notice to D, as an interested person, while D was living. Since the personal representative of A's estate was aware of D's death and residency at time of death, the personal representative should contact the probate court for the county in which D was domiciled at the time of his death to determine whether a decedent's estate has been opened for D's estate.

    Under MCL 700.3614, the court may appoint a special personal representative of D's estate to receive distributions from A's estate if necessary to preserve D's estate. Also, MCL 700.3916 establishes a procedure by which the personal representative of A's estate could make a distribution of D's share to the county treasurer, if unclaimed. However, the personal representative of A's estate must make a diligent inquiry to determine the whereabouts of D's personal representative before using this procedure. MCL 700.2604(2) does not apply to this situation because D's residuary share did not fail. D survived A by the prescribed period to become a vested beneficiary of A's estate.

    From EPIC Questions and Answers

  • Question: Client's mother worked for GM. Mother dies, client finds out mother never claimed about 23 years worth of her pension. Can the heirs, after opening an Estate, take the unclaimed years of the pension? Is there a statute of limitations?

    Answer: A resource that might have some answers would be Elderlaw Of Michigan in Lansing which houses the statewide Legal Hotline for Michigan Seniors and the Mid-American Pension Rights Project which specializes in Pension issues. Toll free number for the Pension Rights Project is 1-866-735-7737. Link to Pension Information.

  • Question: How much would a "basic" estate plan cost?

    Answer: We do not provide standard prices for our estate planning documents, as each document and the needs of every client is different. Further, we do not provide free initial consultations, as our initial meetings address our prospective clients needs in depth and address areas not covered by standard estate planning practitioners.

    My hourly rate is $300, but I use paralegals with lower hourly rates for most of the work. We can usually do an estate plan consisting of a Will, General Durable Power of Attorney, Patient Advocate Designation and HIPAA authorization for $2,000 or less. If we prepare a Revocable Living Trust as well, the cost increases to over $3,000.

    The cost to probate an estate is usually over $3,000, so you can pay now or pay later! See the following documents for more info:

    Estate Planning Outline
    Notice of Fees – Estate Planning
    Retainer Agreement – Estate Planning

  • The following exchange is from one of the groups to which I belong regarding probate matters

    Question: Doing an estate admin. Deceased passed away on 12-31-2009. Last week the Trustee received a Social Security check in the mail. Check is dated for 12-31-2009 (date of death). Are those funds the property of the estate?

    Answer: I cut and pasted the following from http://ssa-custhelp.ssa.gov. (From their question and answer section).
    "My mother, a widow, died in late April. Social Security tells me that I must return her April benefit (paid in May) even though she was alive most of the month. Why is this? Social Security benefits are not pro-rated. To be entitled to a Social Security benefit check for a given month, the person must be alive the entire month. No benefit is payable for the month of death. This provision has been in the law since 1939 and can be changed only by an amendment to the Social Security Act. The legislative history of this provision does not show why benefits are not payable for the month of death. However, the provision complements the provision of the law that allows us to pay survivors benefits for the entire month of death. You can return the check to your local Social Security office. If the payment is made by direct depost, the U.S. Treasury will automatically debit the bank account."
    Hope it helps.

Question: Why do I need an estate plan?

Answer: A solid, effective estate plan ensures that your hard-earned wealth will pass intact to those you intend to be your beneficiaries.

Question: What’s the difference between having a will and a Living Trust?

Answer: A will is a legal document that describer how you want your assets distributed at death.  Upon your death, the will becomes a public document available for inspection by all comers.  And, once your will enters the probate process, it’s no longer controlled by your family, but by the court and probate attorneys.

A Living Trust avoids probate because your property is owned by the trust, so technically there’s nothing for the probate courts to administer.  Whomever you name as your “successor trustee” gains control of your assets and distributes them exactly according to your instructions.

There is one other crucial difference.  A will doesn't take effect until you die, and is therefore no help to you with lifetime planning.  A Living Trust can help you preserve and increase your estate while you’re alive, and offers protection should you become disabled. From American Academy of Estate Planning Attorneys

  • The following exchange is from one of the groups to which I belong regarding probate matters

Question: If the death certificate is not available, what else can I use to provide documentation of a death?

Answer: Take a look at MCL 700.1207 for alternatives available to prove the death.  In some cases, a funeral program may be used as proof of death.