Robin William's heirs, widow at odds over personal effects and cash from his estate

The widow and three adult children of actor Robin Williams are still at odds over the ownership of some of his personal belongings and the money needed to maintain his widow’s home.

Article here (via aba journal). 

Same Gender couples: What happens when someone dies? (an estate planning Q & A Primer).

The issue: Michigan law currently does not recognize same gender couples. This is true regardless of how the relationship was formed, or whether the relationship was formed in Michigan or another state.

This means that decisions about to whom property should pass, or the person who can make health care decisions will become the "default" person under Michigan law. In other words, instead of letting a partner in a same gender couple make decisions, that power will then fall to next of kin.

 Q:  I am in a long-term same-sex relationship, what will happen to my property or assets when I die?
A: That depends. If you have a validly executed will, you can name the person to whom property will pass, otherwise, Michigan law appoints how it will pass through its laws of intestacy. This will be your blood relations, and will ignore any same-gender relationship, regardless of the length of the relationship, any verbally stated intentions, or whether that relationship is legally recognized in another state.

Q: My parents have always had a hard time recognizing that I have decided to live this way. What should I do to show that I want my partner to inherit when I am gone?

A: You should get your intentions written into a estate planning documents (a will, trust, or other document). At a bare minimum, a will needs to appoint an executor (also known as personal representative), and determine to whom property will pass at your death. A will can also make it so that other people in your family won't inherit property, if that is what you choose.

Q: I think it would be better if my personal matters remain private. Is there a way I can achieve this?

A: Yes. You can create a trust.  A trust can operate to distribute your property while you are alive, or after you die. The advantage of a trust (over a will) is that it will not be part of public record -- wills are "probated" which will then become public record. Trusts are not.

Q: I am concerned about whether my partner will be listened to if I am hospitalized. Can my family - who have never been comfortable with our relationship - exclude him from seeing me?
A: The family will have to recognize your wishes if you write them into a health care power of attorney (also called Living Will, or Patient Advocate designation). This document will outline how you wish to have your body treated, who can make that decision for you if you become incompetent, and any other health care decisions. Without this document, that duty will fall to immediate family members.

Q: Can my partner make financial decisions if I become incapacitated?
A: Yes, but only if a financial power of attorney (POA) is executed. You can write a POA to either become valid when you become incapacitated (also called "Springing") or for it to become effective on executiion (called "immediate.") Without a financial POA, again, Michigan will allow blood relations to make those decisions instead, in spite of any perviously stated intentions.

Q: What is your recommendation?
I think it's essential for same-gender couples to talk with an estate planning attorney to determine what documents are needed. At a minimum, a will, financial POA, and health care POA should be written to show what each person had planned.

 

Mother's Facebook message to father is not adequate notice about adopting child, court rules.

A pregnant unwed mother can’t use Facebook alone to notify the father about the baby before putting the child up for adoption, Oklahoma’s highest civil court has ruled.
The case was the latest to test the legal weight of communication through Facebook and other social media. Previously, for instance, courts have debated whether a plaintiff in a lawsuit could use Facebook to serve legal papers — such as summonses or hearing notices — on a defendant.

Article here (via Wall Street Journal law blog).

Family law update: Can a conservator or guardian file for divorce?

Q: Can a guardian or conservator file for divorce on behalf of an incapacitated individual?

A: Yes. 

The Michigan Court of Appeals has recently ruled on this issue. See In Re: Burnett Estate,

834 NW 2d 93 - Mich: Court of Appeals 2013.

If an individual becomes incapacitated, it's likely that he or she will then have a person acting for him or her. It could be a conservator -- who's in control of his or her finances, or a guardian -- who's in control of his or her personal decisions (like where to live, what doctors to see, etc.). 

That guardian or conservator -- whether appointed by a court or selected through another method-- is allowed under Michigan law to file suit, and be sued on the incapacitated individual's behalf. (See Michigan Court Rules 3.202 (A) and 2.201 (E)). Under the Burnett case, that includes a suit for divorce (and, presumably custody). 

In the Burnett case, a divorce was filed by the conservators of the Plaintiff. The Defendant later motioned the court for summary judgment, asking for the circuit court judge to dismiss the action, based on the case being filed by a conservator.

The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.

The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.

"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.

Have more questions about family law or estate planning (or the inter-twining of the two)? Ask me! Post your comments or questions on this blog. 

How is an estate handled when a couple dies at the same time?

Q: What happens to estates when a married couple dies at the same time?
A: It depends.

Most states, including Michigan, have adopted some form of the Uniform Simultaneous Death Act. (Michigan's version is in the Estates and Protected Individuals Code, aka EPIC, since Michigan loves to give acronyms to the things it writes in legislative code.)

The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance.

The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others.

More information here (Wikipedia article) and here (Michigan legislative service).

For example, John and Mary are a retired couple who take a bus trip, and die an untimely death en route to their destination. Who will inherit the estate of Mary, Mary's family? or John's? What if John dies on the bus, but Mary lives in the hospital, and dies from complications one day later? Because if Mary died first, her estate would become John's, who then has the larger estate, (see the problem?) And: would an heir then "take" twice, once from the first to die, and a second time from the second to die?

The law, in the form of the Simultaneous Death Act, takes care of both problems. It determines for all those wondering who died first that they both died first. In this way, both sides of the family will take from their decedent's estate only one time.

Estate Planning law in Michigan - what you need to know

Wills

A will is a document that disposes of your property when you die. It can be as detailed or as simple as you would like it to be. At a bare minimum, the will should appoint an executor (also called a personal representative) who pays the debts of the estate, and helps dispose of the will maker’s real property, personal property, and assets.

Trusts

Trusts are a method of controlling your money and property while you are still alive, and which continue to operate when you are dead. Trusts can also be simple or complicated, depending on your instructions and intentions. A trust must at a bare minimum have a trustee, identify a beneficiary (who can receive things while you are alive, or at your death), and identify assets of the trust. Trusts have the advantage over wills in that property belonging to the trust does not have to pass through probate, and so remain private.

Probate
Probate is a process that happens at your death, if there are estate assets that are titled to you alone. Probate can be an expensive and lengthy process, but it can be avoided completely if if no assets are titled to you alone at the time you die, by using a trust. Probate is also an open process – it becomes part of public records. Avoiding probate will make sure your personal matters remain private.

Having no will
Having no will is also an option for you, but is is not recommended.
If you die without a will, Michigan will write a will for you, through "laws of intestacy." Currently, Michigan is not very generous to your heirs should you die with no will. At a minimum, a will should be clearly written to show how you’d like your property distributed at your death. Otherwise, the law of Michigan steps in and distributes your property as it outlined in the laws of intestacy.


Living Will
A living will is a document that discusses how you want your body to be treated before and after your death. This includes whether to use heroic means to sustain life, whether to donate your organs, and the method of disposing of your body when you die. The living will is also used if you become incompetent, to show that you had already decided certain matters while you were competent.


Power of Attorney
A durable power of attorney contains your instructions to someone – your agent--  to  act on your behalf when you’re not able in certain situations. This is distinct from a health care power of attorney, or a living will.

Taxes
Certain transfers of your property could be subject to taxes when you die. This is known as the “death tax.” With proper planning you can arrange your estate so that only the minimum amount of tax will be paid.

Spendthrift Trusts in Michigan

Q: What's the legality of spendthrift trusts in Michigan?

            A spendthrift trust is a way to protect assets from creditors. Generally, a trust is established by someone – the settlor - for the benefit of someone else – a beneficiary. The trustee is the person who oversees the trust assets for the beneficiary according to the instructions in the trust by the settlor when it was made.

The “spendthrift” provision of the trust means that the beneficiary has no control over distribution, and trustee can’t make a distribution to a beneficiary unless certain conditions are met. When spendthrift trusts first began to be used, they were looked on as being necessary only for a beneficiary who had some disadvantage – like incompetence, or incapacity. However courts quickly expanded that original definition to allow the settlor’s intent to be carried out whenever possible.(See Norton Annual Survey of Bankruptcy Law, 2011, p. 2. Available at: http://furrcohen.com/wp-content/uploads/2011/10/Norton-Annual-Survey-2011.pdf.

Spendthrift Trusts and Bankruptcy

The Bankruptcy code has been drafted as broadly as possible to include as much of the debtor’s assets as is possible in the bankruptcy estate. However, if the debtor is the beneficiary of a spendthrift trust, that changes the creditor’s ability to collect. Being a debtor who is also a beneficiary of a spendthrift trust, the assets and income of the trust are an exception from the bankruptcy estate. Id. See also Restatement of Trusts, § 58 (2).

If the beneficiary has creditors who are waiting to seize/ attach assets once a distribution is made, the trustee can wait to make a distribution. So the assets, once distributed, will all go to the beneficiary.

Spendthrift Trusts and Michigan Law.

            Currently Michigan only allows a spendthrift trust provision when the beneficiary is someone other than the settlor. This means that if a settlor wanted to create a spendthrift trust that was used to keep the settlor’s assets shielded from creditors for the settlor’s own benefit, it would not be recognized under current Michigan law as a valid trust. So the creditors of the settlor could “pierce” a self-settled trust in a court action.