Legal Reference Blog by Renee C. Walsh, Attorney

15. February 2012: Siblings Inherit Home Encumbered by Life Lease

Inquiry:

My siblings and I inherited my grandparents home that a uncle has a life lease for. My father, his brother, bought out this uncle and another brother. Do we still have to uphold the life lease? If so, who is responsible for the taxes, maintenance, etc?

Response: ...More

14. February 2012: Michigan Statutes Addressing Disputes Regarding Funeral and Burial after Death

If a dispute cannot be settled, a petition in the probate court can be filed.

MCL 700.3206 Right and power to make decisions about funeral arrangements and handling, disposition, or disinterment of decedent's body; presumption; priority; shared rights and powers; personal representative or nominated personal representative; guardian; special personal representative; additional persons; reasonable attempt to locate person; "nominated personal representative" defined.

Sec. 3206.

(1) Subject to 1953 PA 181, MCL 52.201 to 52.216, and to part 28 and article 10 of the public health code, 1978 PA 368, MCL 333.2801 to 333.2899 and 333.10101 to 333.11101, a person with priority under subsections (2) to (4) or acting under subsection (5), (6), (7), or (8) is presumed to have the right and power to make decisions about funeral arrangements and the handling, disposition, or disinterment of a decedent's body, including, but not limited to, decisions about cremation, and the right to possess cremated remains of the decedent. The handling, disposition, or disinterment of a body shall be under the supervision of a person licensed to practice mortuary science in this state.

(2) The surviving spouse or, if there is no surviving spouse, the individual or individuals 18 years of age or older, in the highest order of priority under section 2103, and related to the decedent in the closest degree of consanguinity, have the rights and powers under subsection (1). ...More

14. February 2012: Probate Statutes - What Can You Do When Will or Trust is Not Being Followed

A frequent inquiry involves the death of a loved one who has a Will and/or trust which is not being followed. Typically this is a parent with children and one of the children takes assets of the estate against the Will's directive. ...More

14. February 2012: Impact of Divorce on Will in Michigan

The devise to the divorcee fails and becomes a part of the residue estate.

See MCL 700.2801 Effect of divorce, annulment, decree of separation, bigamy, and absence. This law proves that an individual who is divorced from the decedent is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death.

See also MCL 700.2807 Revocation upon divorce; revocation by other changes of circumstances. This law provides that divorce revokes a disposition of property made by a divorced individual to his former spouse or their relative in a governing instrument. It also revokes any fiduciary nomination of the former spouse.

20. July 2009: Moving a Body from One State to Another After Death

If you want to be buried in a state other than the state of your death, you should become educated about your options by finding out what the funeral home can do to assist you in the process. Consider discussing the issue separately with funeral homes at both ends of the journey. Find out if there are ways to keep costs down such as if it is possible for only the receiving funeral home to become involved. Ask whether the body has to be embalmed. Typically, a body will need to be embalmed before it can be transported across state lines. ...More

03. February 2009: What is a valid Michigan Last Will and Testament?

Michigan law regarding Wills is codified in the Estates and Protected Individuals Code, commonly referred to as EPC and found at MCL 700.1101 to 700.8102. ...More

29. May 2008: Laws Pertaining to Trust Administration - Michigan

ESTATES AND PROTECTED INDIVIDUALS CODE, Act 386 of 1998, Article VII TRUST ADMINISTRATION, MCL 700.7101 to MCL 700.7511. ...More

20. March 2008: 1972 Will Leaves Out Children and Gives All to Ex-Wife's Mother

Question:

My father passed away recently. His will was from 1972. It leaves out four children from a previous marriage. It also leaves everything to his mother-in-law at the time, however, he divorced the woman to whom he was married at the time of the execution of the will. My sister and I were born after the will was made. What happens in this scenario? ...More

12. March 2008: What happens to my estate if I die without a will?

This is a common question. If you die without a will, your estate will be probated according to your state's laws of intestate succession. In Michigan, these laws are codified at ...More

20. February 2008: Trustee's Duty To Report - Court Oversight In Trust Administration

Question:

I am a beneficiary of my mother's estate which is being administered in Michigan. I would like to know if there is a law stipulating a time frame in which the personal representative, who is also the trustee must report to the other beneficiaries or heirs. ...More

19. February 2008: Should Decedent's Spouse Allow Voluntary Repossession Of Personal Property

My husband purchased a vehicle with financing and title in his name only. He has since passed away. The finance company told me that if I gave the vehicle back to them, it would be considered a voluntary repossession. I do not want the vehicle. What is my role in all this? ...More

18. February 2008: What is my recourse if debtor dies and I am owed money?

My father-in-law passed away, leaving a son and daughter. What needs to be done to take care of her home and mortgage? The father's brother seems to be acting as executor, while I am paying mortgage payments, utilities, taxes. ...More

11. January 2008: Medicaid Recovery Program and Estate Planning

In September 2007 the Michigan Legislature passed into law the Medicaid Estate Recovery law found at MCL 400.112g and MCL 700.3805. Recovery will not begin until the Federal government approves of the law. If approved, it could have a direct effect on Michigan seniors and their families without proper estate planning. ...More

20. December 2007: Accountability of Personal Representative / Executor

Persons to whom money or property are transferred via a will / trust often wonder how to hold the executor accountable. Sometimes it may be the case that a relative, who is the executor of a deceased family member's will / trust, withholds or delays distribution of money or property. The executor may also fail to reply to inquiries or provide written documentation as to the status of the estate. The beneficiaries may lose confidence in the executor and wonder what can be done.

In Michigan, according to ...More

17. November 2007: Voluntary Admission to Behavioral Unit a.k.a Psychiatric Ward

A woman in her 60s presents herself to an attorney advising that her daughter and her family want to put her away in a mental institution and take her assets. She tells the attorney that she is sane and ...More

18. July 2007: Anti-Lapse Statutes

Most states have anti-lapse statutes. Black's Law Dictionary Sixth Edition defines 'anti-lapse statute' as legislation enacted in most jurisdictions to provide for the testamentary passing of property to heirs and next of kin of the designated legatee or devisee if he dies before the testator, thus preventing ...More

10. July 2007: "Registration" of Wills

A will does not have to be "registered" for it to be valid. Filing it with the probate court in the county where the testator resides is for safeguarding purposes only. It is a good idea to ascertain whether there are wills that have been previously "registered" / filed, which should ideally be ...More

23. June 2007: A Valid Michigan Will

In order to make a valid will in Michigan, an individual has to be at least age 18 and of sound mind. The will has to be in writing and signed by the testator (will maker) or in their name by some other individual in the testator's conscious presence and by their direction. In other words, as to a person creating the will who cannot physically sign the document for example, he could direct another individual to sign for him in his presence. The will also has to be ...More

01. June 2007: Guardian / Conservator - Will you need one?

Guardianship / conservatorship lies in the realm of probate law, an area of law that each one of us who intends to grow old needs to look at because we could be in a situation where a guardian and conservator is appointed and we are placed in a nursing home with no hope of discharge. This happened to someone close to me and I took over as guardian and conservator to get her out of the home, but I met with roadblock after roadblock and ultimately did not prevail.

The person I am speaking of is a 90-year-old alcoholic. Her daughter, who resided across the state, wrote a letter to the probate judge where the 90-year-old lived and told the judge of her alcoholism. The letter was not notarized or official in any form. Based on that letter along with a non-specific petition completed by a local attorney and requesting a guardian / conservator for her protection, the judge ordered temporary guardianship / conservatorship. After 90 days, the temporary guardianship / conservatorship became permanent with additional proof in the form of a letter, though again without jurat (oath) or notarization, from the elderly woman's physician.

The elderly woman wanted to be released and to go home and so contacted me, an attorney friend. I assessed the situation, and made a plan of action and became her guardian / conservator. Next, I ...More