Michigan Wills and Other Estate and Asset Protecting Devices
The rich man said, A Soul, thou hast much goods laid up for many years; take thine
ease, eat, drink, and be merry. But God said unto him, Thou fool, this night thy
soul shall be required of thee: then whose shall those things be, which thou hast
provided? Luke 12:19-20
Most Americans are familiar with the concept of a Will. A Will helps them to be
in control of who receives what they have accumulated, at the time of their death.
While the majority of Americans understand the need for a Will, a large percentage
never make one or consult a Wills lawyer to draft one for them: (then whose shall
those things be, which thou hast provided?) They fail to admit the truth that all
men (one hundred percent) will die. The clock of life is wound by God, only once.
And no man knows the hour when his death will come. BUT all will die. Many at a good
old age, full of years, some at a younger age, some before they see children or grandchildren
graduate from high school. Some even younger than that. But you must be ready. It
is appointed unto man once to die, and after that the judgment.
Are You Ready For Death? FIRST Be Ready to Meet God. That is only accomplished if
you recognize that the ONE Who splits time into two parts: A.D. (year of the Lord)
and B.C. (Before Christ) [fn1] yet no matter how it is labeled, it marks the beginning
of the Earthly life of Christ Jesus. Jesus came to Earth as a baby, born of a virgin.
Jesus lived a sinless life. Then this sinless One, went to the cross and allowed
them to crucify Him. This innocent One, of Whom Governor Pilate said, I find no fault
in Him, died for you. The moment HE died, HE paid the eternal death penalty that
each one of us had earned for ourselves, by that first real sin. Now we have a choice
to make. Shall we receive and accept His death to pay our eternal death penalty and
go to heaven when we die (and all will die)? Or will we pay for our own sins in
a place of everlasting torment called hell and the lake of fire? Friend before you
prepare a Will or a Trust, I advise you to make Peace with God, through our Lord
Jesus Christ. Or another way to ask that is: Did your mama raise a stupid child?
Last Will and Testament. Next my friend, should you draft a Will or Trust? The Will,
although a necessary part of your Estate Plan is the only thing that most people
have drafted. Yet, with the changes in society and the laws, it is the least effective
of the documents you should have to protect your assets. A Will distributes what
you have left when you die, but what if you have nothing left? How important is the
Will at that time? A Will does NOT keep your assets from being used up for purposes
that you never intended when you were working and acquiring assets. Your Will does
assure you that the assets that are left after last illness, (which could include
a few years in a nursing home) will be given or left to those who you decide should
have what you have accumulated. You decide to whom, when and how much of what you
leave goes to each person, as you desire.
In addition to a Will, many should consider how to protect the assets they have until
the Will takes effect. If you have no assets left, your Will has no real effect.
You need to consider Long Term Care Insurance to pay for both Home Health Care and/or
Nursing Home Care. How about a Durable Power of Attorney that allows those to whom
you would entrust decisions, to continue to make the important decisions?
As the person who creates a Will you are generally known as the ATestator.@
Simple Wills are made for persons who never imagine that they will leave more than
One Million ($1,000,000.00) Dollars. A simple Will contains basic provisions related
to the disposition of a person=s estate upon their death. BUT remember it does not
protect your assets or things you have accumulated during your life. You will need
more than a Will to protect assets. The Simple Will also appoints someone named a
Personal Representative to handle for you, (the Testator) your final wishes (to take
place only after death). Although the simple Will does not address estate tax concerns,
or asset protection, it is the most appropriate option for someone whose estate does
not present estate tax concerns and who does not have a large Probate estate.
Wills with Tax Planning. Since in Michigan there is currently no Death tax (Inheritance
Tax) we only need worry about those people with an Estate in excess of Five Million
($5,000,000.00) Dollars. And in that case, your local attorney will undoubtedly contact
a more experienced Estate Tax Attorney. They together can make a plan of Asset Protection,
Trusts, and Wills that best shelters your assets. These types of cases require consideration
of various alternatives to avoid estate taxes at death and to protect assets at this
time. Typically those kinds of documents and preparation will cost normally between
Three Thousand Five Hundred to as much as Five Thousand Dollars, but the person or
couple should come out with a plan that shelters up to Ten Million Dollars. In these
cases, the use of a Will that incorporates tax-planning provisions is most appropriate,
but it is the weakest link in protecting your assets for yourself and your family.
So is it wise to spend Five Thousand to protect up to Ten Million? Or another way
to ask that is: Did your mama raise a stupid child? No? No.
Spouse: In Michigan you can disinherit any healthy person, except your spouse. That
spouse may always Atake against the Will.@ If this is a second marriage, then a prenuptial
agreement is not enough. That new spouse can elect to take a portion of assets against
the Will. The Court will not recognize a prenuptial agreement as an effective way
to transfer ownership of assets and take them out of your estate at death. To assure
that both you and your spouse retain all assets with which you came into a second
marriage, you need also a Trust document. Contact your attorney about that and ask
him or her to contact a Trust and Estate specialist, who should be happy to assist
him or her to help you protect your assets through a Trust. But only a professional
who is aware of the recent changes in the law should advise you or your attorney,
as to the type of Trust document or documents that you need to protect you. A Will
and/or a Trust document should be drafted as part of an overall estate plan for the
person or married couple considering the Will.
Asset Protection: We are living 31.4 years longer than our great-grandparents and
significantly longer than our grandparents on average. A Will, although it is all
that some people need, is NOT the strongest weapon to have in your Estate Planning
arsenal. For those with any amount of assets, you will need also, at least a Durable
Power of Attorney and at least one Trust document.
Power of Attorney. Anytime that someone is looking at their estate plan, they should
consider the creation of powers of attorney to appoint someone to act for them in
the event of their incapacity. In Michigan, powers of attorney are created for both
medical and financial concerns, and they are very important should something happen
requiring that someone step in and make decisions for you.
Do Doctors Always Know Best? You also may need a Living Will to tell health care
professionals, what are your desires. Health Care Designation takes the decision
away from doctors who may not even have ever met you before [fn2] and puts those
life and death decisions in the hands of a loved one. Is that a good idea? Another
way to ask that is... .
Living Will or Physician=s Directive. Many remember the case of Mrs. Theresa (Terry)
Schiavo [fn3] who had no Living Will. The Terry Schiavo controversy, made the concept
of Living Wills (more appropriately called a Physician=s Directive) very important
to many people. The Living Will addresses your desires regarding life-support treatment
in the event that you are not able to communicate these decisions to a doctor. In
the Living Will-Physician=s Directive, we traditionally make it clear that we want
the decision to be made as if the person were a healthy Thirty-five (35) year old
person. And that the mere inability to speak or feed them self or similar matters,
is not enough to trigger a death wish on the part of the patient. That if the patient
appears to be able to live without life support that they should be on Afull code@
protection. Also there should be carefully sought out methods to help them recover.
We have found that the single most effective measure is sincere prayer to our Creator-God.
Handwritten Wills. Many people have questions about whether or not a handwritten
Will is valid. Although they can be, handwritten Wills require very specific elements.
Without them, the handwritten Will is not considered effective and will not be used
to dispose of your assets at death. IF you write it all out in your own handwriting
and it is witnessed, some judges have held them valid, but be careful. Read the material
online under the Michigan Statutes to make certain that you have done all that is
required. If finances make this your only option, read the statute and may God direct
you, is my prayer.
People have found that they have questions and misconceptions about Wills, Trusts,
Asset Protection, Powers of Attorney and the disposition of their estates. If you
have questions, please Contact Us and we will be glad to answer them.
Thank you for reading this material and remember God loves you and has a wonderful
plan for your life.
J. Russell Hughes, Jr.
Bible Believing Attorney
E mail: JRussellHughes@Biblebelievingattorney.com
Phone: (989) 473-3333
1 -or as some (who do not want to acknowledge God) have named it BCE (Before common
FN2 -A man who had been a Judge, a Prosecutor and then after 60 became an Episcopal
priest was a highly valued man in his local home area. But he was in a hospital miles
away where they did not know him. They were allowing the “old man” to die by drowning
him in his own fluids. He was very weak. His son came to visit, realized what was
happening, called a local doctor, who at least knew of the man. That doctor came
in, examined the man, got a large needle-like instrument and drew off the fluid from
his lung and heart area. Within 24 hours the man was alert and within 72 hours he
was released from the hospital. But without intervention, the hospital staff and
the emergency room admitting doctors had decided to allow “the old man” to die. >back<
FN3 -Mrs. Theresa (Terry) Schiavo, at the age of 27, collapsed in her St. Petersburg
Florida, home in full cardiac arrest (heart stopped beating) on February 25, 1990.
She suffered massive brain damage due to lack of oxygen She was hospitalized. Her
husband became her legal guardian; and later filed a malpractice case and obtained
2 million dollars in 1992. Seven Hundred Fifty Thousand was placed in trust for Terry’s
medical treatment. Although she could not talk, Terri's organs were fully functional.
She did not require any medical equipment beyond a feeding tube to survive. Terry's
mother and some staff saw her react to her mother. Also Terry moaned when she was
subjected to or experienced deep pain.Terry was not on any other life support systems.
In 1998 her husband asked to have her feeding tube removed. Husband Michael Schiavo
was then in a relationship with Jodi Centonze, and had fathered their first child.
Michael Schiavo's decisions not to divorce and marry the mother of his child may
have been influenced by the potential to inherit what remained of Terry Schiavo's
estate. As long as he remained married to her and she died, he would inherit more
than Seven Hundred Thousand Dollars which was left. Due to a lack of credibility
of Michael. Terry’s guardian recommended denying his petition to remove her feeding
tube. BUT if the petition to remove the feeding tube was denied, Michael would, most
likely divorce, Terry. Then her parents, the Schindlers, might inherit the money
IF shortly after the divorce, Terry died. The Judge held a hearing and ruled that
her feeding tube be removed. There were several appeals. Finally the tube was removed.
About fifteen days later, Terry Schiavo died and Michael Schiavo became a rich young
FN4 -A doctor who had recently become a Christian believer, had over the course
of about three months forty patients who were considered to be on their death beds.
The doctor told each one that they were in bad shape and offered prayer. More than
one half accepted the sincere prayer. Slightly less than half refused prayer. Of
all those for whom prayer was offered, approximately seventy five percent recovered
from that illness and went home. EVERYONE who refused prayer died. >back<