Tag Archive for: beneficiary

Note: Not Legal Advice!

Can I have sole legal claim over my father’s home? I will have to move to Oklahoma. I will be responsible for paying mortgage, bills, and other living expenses. Along with caring for his medical needs. My two siblings will not be helping. The significant sacrifices have hurt me financially.

No Good Deed Goes Unpunished

Everyone helps at Christmastime! But that was last week. What about the rest of the year? Your father is blessed to have you. Many people do not have anyone willing to step up. But you must protect yourself to protect Dad.

Undue Influence

Basic Rule: Everyone can leave anything to anyone. It is Dad’s stuff. Dad decides who gets it. But. It gets tricky when the favored beneficiary also helps the giver.
Dad changes his plan to increase benefits to you. Here is what happens next:

Case #1: You are just one of the kids. The other kids can complain all day long. It is up to them to prove that you used “undue influence” on Dad. And that is almost impossible. You win!


Case #2: Dad has special trust and confidence in you. Dad depends on you emotionally, medically, and financially. Dad gave you power of attorney. Dad made you his trustee.
Things are different. You are Dad’s “fiduciary.” Dad is dependent on you. Then dies. The other kids complain. Now the “burden of proof” shifts to you! You must prove that you did not use “undue influence on Dad. And that is almost impossible. You lose!


Your friendly neighborhood elder law attorney has seen this movie before. Frequently. To avoid the hassle after Dad dies, prepare now. Several techniques are commonly used to protect Dad’s wishes. And you! We can help you determine the best strategy.

But please. Get this fixed now! Family strife hurts everyone. Save your family. Save your sanity. Save your inheritance.

Do I have to watch my mother’s spending before entering a nursing home? My mother is 95 and living in her home. She withdrawals $2000.00 cash every month for her groceries, eating out, clothing, house cleaning, lawn work etc. She has done this for at least the past 10 years. My question is, if she goes into a care home, will the home consider these withdrawals of money a concern, and prevent her from entering home?

Old Habits Die Hard

Today we have COVID. In the 1930’s it was the Great Depression. Cataclysmic events change the survivors. Like your mother. Depression Era folks never trusted banks again. Cash is king!
Your mother’s cash habit is very common. Social Security checks used to be mailed. Many retirees would immediately cash the check. And go walking around with the cash money. Nowadays, Social Security is Direct Deposit. No paper checks in the mail.

Undaunted, folks like your mother go to the bank and withdraw the cash, just like before. This can be a problem.

Prove You Did Not Give It Away!

Nursing home expenses break most middle-class folks. When broke, Medicaid may pay. But not if you gave your money away. When your mother applies for Medicaid, she must prove that she spent her money correctly. For the last five (5) years.

How can mother prove she did not give her money away? No receipts. No cancelled checks. No paper trails. If mother’s caseworker is a stickler, mother can be in trouble.
Nursing homes want to get paid. Mother has no money. Medicaid will not pay. Now what? Now the nursing home sues mother. Mother has no money. But mother has a house! Not for long…

Solution! Save The Homestead

Record mother’s spending now. Collect receipts. Write checks. Set up Direct Pay for utilities. Develop a track record. When the time comes, you can demonstrate that $2000 a month is mother’s routine spending. Your friendly neighborhood elder law attorney can help.

And Beyond!

Applying for benefits does not mean Nursing Home Poverty or silly Spend Down. Learn how to preserve your loved one’s lifesavings, business, cottage, life insurance. Thousands of middle-class families have learned and use these techniques. Why not yours?

Got Questions? Get Answers!

COME TO A WORKSHOP… (800) 317-2812

by Bill Bereza, Associate Attorney

My dad was sure that he was going to live to 100. He was born the year after his parents bought the family farm, and he always talked about getting the farm into Michigan’s Centennial Farm Program. Planning for death or incapacity was never on his mind. When he was diagnosed with cancer, he kept on going as normal. He was still working on the farm the week before he went into hospice.

My dad refused to talk about death.

He never talked about what would or should happen with the farm if he became too ill to run it. He would never sign a will or a trust or a power of attorney, and he believed that insurance was a waste of money because “you’ll be dead” when the money comes in. As he came closer to the end, I learned that this was really because of his fear of death. He was still a young man when his father died. His father’s cancer wasn’t discussed until he was dying, so to my father, talking about the end of life meant death.

It’s hard to say that it is fortunate that my dad died quickly. He didn’t spend years in a nursing home. He died at home in the very same bedroom he was born in. We were all spared the guilt of placing him in a nursing home, knowing that he hated being away from his farm. We didn’t need to worry about how to pay for his care; the farm was my parents’ only asset. We knew that the farm was safe, that it didn’t have to be broken up and sold off in pieces to pay for the care that he assumed he’d already been paying for with every paycheck of his working life.

We had luck, a painful kind of luck.

Since then, my mom has made a plan. She has a power of attorney, a patient advocate, a will, and a trust to make sure the farm stays in the family and isn’t lost to the chances of fortune. She knows that what she and dad spent a lifetime working on will be protected for herself and her kids and grandkids. She has shared with us her thoughts, her fears, and her desires. She has given us the gift of relief, from doubt, uncertainty, and guilt.

It’s hard to talk with your kids about death. Some parents may use their own experiences with death in their own lives as an opportunity to discuss mortality with their kids, or as a reason to avoid bringing up a painful experience. The death of a parent is usually the first real painful experience most people will deal with. Your children will have to deal with it whether you want them to or not.

We all know that death is inevitable. Many people decide that because it will happen no matter what they do, they may as well do nothing. Only 4 in 10 American adults have a Will, according to a 2018 Caring.com survey. Furthermore, the survey found that only 1/3 of parents with children under 18 have a Will.

A basic, comprehensive estate plan will include, at minimum, a Will, a Durable Power of Attorney for Finances, a Patient Advocate Designation, Advance Directives, and one or more Living Trusts.

Whether you have a plan – or realize you need one – talking to your kids about it is essential.

Talk about life, before talking about death

The first thing to remember is that we don’t live life in perfect physical and mental health right up until the minute we die. Nearly 70 percent of Americans die in a hospital, nursing home, or long-term care facility. Chances are, you’ll need someone to make medical and financial decisions for you. After a spouse, the kids are most often named in a Durable Power of Attorney and Patient Advocate Designation.

What kind of life do you want, if you’re no longer able to communicate those decisions for yourself? The benefit of starting with incapacity when talking to the kids is that it lets you talk about the things you like. Your favorite foods, books, tv shows; these are positive things to share. The way to share your life wishes is to share with your kids what matters to you.

An Advance Directive is a way to put those life wishes in writing. It’s also a way to relieve some of the stress from your kids. Any child who has had to make care decisions for their parent has probably had to deal with guilt and wonder whether they really are doing the right thing for their parents. By having the conversation with the kids and giving them a written plan, you can ease their burden.

Ask your kids what is important to them, before you plan

Parents often worry about trying to be “fair” to all the kids, trying to plan to avoid what they perceive could be a problem. If you know that one child really cares about your medical care, or another child doesn’t want to deal with finances, or if the children agree on who should inherit what, you can make estate planning decisions confidently and comfortably.

Again, this should be a focus on what matters to your life, and the lives of your kids.

Manage expectations

The conversations we avoid often lead to bigger problems later. If a child is disappointed or surprised by one thing in your estate plan, they are more likely to dispute everything in the plan. A serious problem can occur if, after your death, a child believes that you were forced or coerced into making an estate plan or weren’t competent when you planned. If you tell the kids the plan now, they may be less likely to object later.

Managing the differences

In every family, there are differences between the kids: how well they manage money, how much they need money, and any inherent legal risks in their lifestyle or profession. You may even consider who is the most likely to care for you as you age – due to ability and/or geography – and what sacrifices they’ll need to make to do that.

These considerations can all contribute to how you decide to distribute your estate – equal is not always fair. You may want to leave less to your daughter, because she doesn’t need it, or you may want to leave money to your son in a restricted trust because he can’t handle it. By talking about this with your kids now, you can address your decisions and their questions together, instead of leaving them to make assumptions after you’re gone. The worst situations are when kids are left feeling as if they were “loved less” due to the decisions by their parents. Unfortunately, we do see that now and then, but most often, the reality is that decisions are made from the utmost love and foresight for each child.

Prepare an asset inventory

Most estate planning attorneys will have you prepare a financial information packet detailing your assets. Think of this as a tool for your kids as well. Dealing with the death of a parent can be the most difficult thing that happens to many people. The burden of hunting down what the parent owned, where bank accounts exist, are burdens you can prevent by keeping the inventory with your estate plan.

In any situation after your death, whether it’s in probate court or with trust administration, preparing an inventory is often the first step for your trustee, executor, or personal representative. You can help get that first step done for them.

Your final wishes

The simple things after your death can cause the biggest heartache for the children left behind. You may not care about your funeral plans, the casket decorations, the type of urn, the music or scripture readings. For your kids, this can be an important part of their grieving process. You can help them by discussing those plans with them and putting them in writing. Children often spend a lot of time and money on funeral arrangements because they think “that’s what mom would want” when in fact you may be happy with a simple gathering. They won’t know if they aren’t told.

The next step

Life is full of risk, and life is full of stress. Death is an inevitability, and not talking about it won’t make it go away. If there’s some risk and stress in talking to your kids about this now, there is sure to be risk and stress after you’re gone if things are left unsaid. An estate plan should be a plan for life, and by talking to your kids now, you can craft a plan that will fulfill the needs of your life and the lives of your kids.

by Molly Black, Director of Legal Services

If a Michigan resident dies without a will, otherwise known as dying intestate, the intestacy laws under the Estates and Protected Individuals Code (“EPIC”) dictate who will inherit the property of the decedent. This provides for an inflexible pattern of distribution which may not distribute your assets according to your wishes. The highest priority is given to their surviving spouse, followed by their descendants (children, grandchildren, great-grandchildren), parents, and siblings. The amount that a spouse will inherit depends on several factors, including whether or not it was a blended family.

Any jointly-owned property or accounts with named beneficiaries (commonly, life insurance policies and retirement accounts) will pass directly to the co-owner or beneficiary without going through the probate process.

There is also the question of who will administer the estate. A properly executed Will designates a Personal Representative to carry out your wishes after death. Without a Will, the probate court will appoint someone to administer the estate.

What problems could arise if you die without an estate plan?

The first problem your family could face after your death is determining who will make funeral arrangements. Without a legal document in place that appoints a funeral representative, a Michigan statute will dictate who has the authority to make decisions surrounding the funeral. This includes making decisions about burial vs. cremation, funeral location, and cemetery arrangements.

Secondly, without a Will, there is no guarantee that your property will pass to your intended recipients. Death doesn’t bring out the best in people and when money is involved, things can get ugly. This is especially true in blended families when your biological children and stepchildren don’t get along. You might have a better relationship with your stepchildren, but without a Will, they will not be treated as your own. This can also be devastating to unmarried couples. Intestacy laws only recognize your legal and blood relatives, so an unmarried partner will not inherit their deceased partner’s property if they die without a Will.

In addition to the disposition of property, parents also need to consider their minor children. If you pass away and leave a minor child behind who has no other legal parent or guardian, the court will select a guardian based on the best interests of the child. The court-appointed guardian may not be your first choice, so executing a Will allows you to appoint a guardian of your choosing.

What can you do now?

Planning ahead provides a road map for your family and provides reassurance that your property is passing to your desired beneficiaries. A properly executed estate plan will nominate a Personal Representative of your choosing to handle the administration process, provide clear distribution instructions and lessen the likelihood of family conflict. Everything from burial arrangements, to pet care, to guardianship for minors, to distribution instructions for your family heirlooms can be planned for by creating a comprehensive estate plan.

In addition to giving you peace of mind, having a plan in place can circumvent arguments among family members which will undoubtedly lead to wasted time, expense and family turmoil.

by Samantha Sprague, Attorney

CONGRATULATIONS! Becoming a parent is an amazing experience. One thing you should be accustomed to by now is asking questions. Sometimes you get a lot of ‘answers’ to questions you may not have even known to ask.

Whether you’re brand new to the parenting gig, or have several years under your belt, below are 3 common questions that every parent should consider.

1. What happens if I can’t make my own choices?

Self-care is important, to your sanity and to your health, and sets an important example for your little one. I meet with a number of parents who come in with the primary goal of taking care of their kids.

It doesn’t matter if the kids are 2, 22 or 55 – every good parent wants to make sure their kids are protected. However, the first thing any parenting book will preach is to make sure you take care of yourself.

Estate Planning is no different. Even before you bring your bundle of joy into the world, there are two documents you should have in place: (1) Healthcare Power of Attorney and (2) Financial Power of Attorney. This is the entry level of protection to make sure that if something awful occurs (e.g. car accident, stroke, medical procedure, etc.) you know who will be managing your assets and making medical decisions for you.

This is something that you should have in order before your little one arrives, but if they’re already here, there’s no time like the present to get started.

2. Who is going to take care of my child if I can’t?

No one person is invincible. You need a backup plan in case life goes drastically wrong and you are no longer able to care for your children.

What happens if you die?

Some people leave it up to chance and rely on the probate courts to pick someone to raise their kids. Generally, the courts will give preference to family members, but there are a lot of factors that are taken into account for something called “Judicial Discretion.”

Judicial Discretion means that where your kids end up is entirely in the hands of the probate judge, a person who has never met you, does not know your family, and is unaware of your wishes.

What can you do?

Every parent – regardless of how much money they have in the bank or what they own – should have a will. A will is where parents get to determine who is going to raise their kids if they cannot.

If a parent has guardianship and conservatorship language within their will, they get to choose who their child will live with and who will manage the stuff they leave behind for their child.

This does not eliminate parental rights if your child still has a surviving parent. However, if both parents should die or be incapacitated, the testamentary wishes (Will) outlined by the parents serve as guidance for the court.

There are other considerations that should be addressed with blended families, step-parent’s rights, and same-sex parents.

Each situation is unique and you should consult with an attorney on what your legal rights are and how you can make sure you are putting the right documents in place to provide surety that you decide who raises your kids.

3. How do I protect my kids with my Estate Planning?

As parents, we are hardwired to look out for our kids, to protect them, and to teach them to protect themselves when they are able to.

However, everyone approaches parenting a little differently.

There are helicopter parents trying to ‘bunk’ with their college-aged kiddo, and then there are those employing the sink-or-swim method my grandpa used to teach my mom how to swim in Lake Erie.

With your estate plan, you can put ‘safeguards’ in place for minor children, so the assets you leave are protected both FOR them and FROM them until they learn how to manage the money.

One way to ensure that anything you leave is protected is to create a Revocable Living Trust. This is a document that can be modified as your family grows and requires different types of protection.

A common practice within trusts is to put age restrictions in place. When you have multiple children of different ages you can ensure that minor children receive what they need while still allowing for a fair distribution.

If you are like many young parents, you may find that you are worth more dead than alive due to the low cost of life insurance. Making a trust the beneficiary of life insurance policies can ensure the money is protected for your kids.

There are numerous options for protecting assets for your kids. However, whatever you decide to put in place, it is important to remember that as your life changes and your kids grow, you should plan to update your documents. We recommend annual or semi-annual reviews to make sure your documents evolve along with your family.