Q. I have friends and family that use Spanish as their primary language. Do you have any attorneys that can help them with their legal problems?

A. Yes, Attorney Laura Reyes Kopack speaks fluent Spanish and can provide services for their legal issues.

Estate Planning

Q. I have a will written in the 1980's, my family members are the same, why should I have it updated?

A. Even though your family members are the same your assets are different. Michigan has a revised Estates and Protective Individual Code, (EPIC) effective in April of 2000. The tax law has had many changes and you may have some different personal considerations to include in your will. You may also wish to include a trust, durable power of attorney for health care and durable power of attorney for finance as part of your estate plan.

Q. I have made all of my assets jointly owned with my adult children, so everything avoids probate. Do I still need a will?

A.  This is a common procedure, often call a “poor man’s will”.  If everything goes right, it can transfer your property and avoid probate.  However, there are many ways for things to go wrong. First of all, if your accounts are joint with a child, they are exposed to any creditors of that child.  If the IRS makes an assessment against that child for taxes, they can file it against your account if that child is a co-owner.  If that child gets divorced, your account could be considered a marital asset, subject to division between the divorcing parties.  Even if nothing like that happens, when you pass away and the child receives the account (or the home, or whatever the asset is), if the child needs to give a part of that to his brothers or sister, that could trigger a gift tax consequence because the “share” that he/she gives to the siblings is, technically, a gift. The goal of a good estate plan is to give you peace of mind and the assurance that your assets will be transferred according to your wishes upon your death.  The “joint ownership” technique often results in uncertainty and unexpected consequences.  You should not rely on that as your only estate plan.

Q. What is a Durable Power of Attorney, and why would I need one? 

A.      A Durable Power of Attorney is a document that appoints someone else to act for you in a legal capacity.  Under a Durable Power of Attorney, you will name someone you trust as attorney-in-fact, and he or she will be able to take actions of all kinds on your behalf.  This can be necessary in the event of your disability, or even if you are out of town for an extended period.  The term “durable” means that it remains effective even if you are no longer competent to act for yourself.  An attorney-in-fact could use his/her power of attorney to take money out of accounts, buy or sell stock, distribute money to others, file your tax return, take distributions from your IRA, sell or mortgage your house, or do anything else that you can do.  Obviously, this should only be given to someone you trust completely.  You can delegate this power effective immediately, or you can provide that it is effective only if you should become incompetent.

            As with many aspects of a good estate plan, it may never become necessary to use a Durable Power of Attorney.  However, if you do become incompetent due to a stroke, an accident, dementia, or other circumstances, your family will be thankful that you have provided a mechanism for them to manage your assets with a minimum of red tape.  If you have not executed a Durable Power of Attorney, your family may have to petition the Probate Court to establish a Conservatorship in order to manage your assets.

 Q. What is the difference between a Living Will and a Health Care Power of Attorney?

A.  A Living Will is a document that states your wishes regarding life support systems. Do you want to be kept alive on life support? Under what conditions? A Health Care Power of Attorney (HCPOA) does not say what you want to happen in such situations, but who you want to make the decisions. There is no law in Michigan stating that a Living Will is valid and enforceable. That does not make them “illegal”, it only makes them unenforceable. A HCPOA, though, is specifically sanctioned by law. Under such a document you designate a Patient Advocate to make medical decisions for you if you are unable to make your own decisions. It applies to all medical decisions for you if you are unable to make your own decisions, not just those involving end-of-life situations. (Hospitals always want someone to sign consent forms. If you are unable to understand or unable to sign, who do you want to give or withhold consent, on your behalf?) It also authorizes the doctor or hospital to give that person information about your medical condition, something that a medical provider may not do without your consent. A HCPOA is very important, even for young and healthy individuals. We never know when disaster may strike, and when it does, you want to make it as easy as possible for your loved ones to do what is best for you. 

 Q. What is "Probate," and how can I avoid it?

A.  Probate Court is that branch of the court system that handles wills, guardianships, adoptions and similar matters. When people refer to "Probate," they are generally referring to the process of administering a Will after the death of a parent or other relative. That process involves filing the Will with the Probate Court along with a form that asks that a certain person (usually the person named in the Will as the Personal Representative) be given the authority to administer the estate. After the Court appoints the Personal Representative, that person finds the decedent's accounts, gathers the assets, pays all bills and claims against the deceased, allocates the money to the heirs, files an accounting with the Court and, if approved by the Court, distributes the assets according to the Will. If there is no Will, the process is similar except that the Court will select the Personal Representative (according to certain priorities established by law) and direct that the assets be distributed according to the laws of "intestate succession."

A common method to avoid Probate (and to avoid Conservatorship in the event of a disability) is to establish a Revocable Living Trust while you are still living. If you establish a Trust and fund it properly, then upon your death, a Successor Trustee (whom you have selected) will step into the role of Trustee, and administer your estate without any Court supervision. The Trust Agreement, which you have established, will direct the Trustee what to do with your assets. It could provide for an immediate distribution to your heirs, or it could direct that the funds be held for the benefit of your heirs and distributed later. (For example, it is common for parents of minor children to direct that the inheritance be used for college expenses, and not be given to the children outright until they are older. This is often wiser than simply naming your children as your heirs in a Will, in which case they would inherit everything when they turn 18 years old, and may not be mature enough to handle large sums of money.) A Trust is also used to provide for a disabled child in a way that does not disqualify that child for other benefits. (This is often called a "Special Needs Trust.") A consultation with a qualified estate planning attorney can help you decide on what is best for your situation.

Estate Planning Attorneys:
Carl V. Creighton
Sharon L. Snodgrass
George S. Shea
William R. Brashear

Real Estate

Q. I recently purchased a home and discovered an underground storage tank that the previous owner did not mention. What can I do?

A. Since 1994, Michigan homeowners selling their homes must provide a Seller's Disclosure Statement regarding the condition of the structure, systems, and land being sold. Potential environmental hazards such as underground storage tanks must be disclosed on this statutorily approved form. A Seller's failure to disclose constitutes actionable fraud which may allow you to rescind the transaction or seek damages.

Q. When I bought my house I had to pay for Title Insurance. What is it and do I need it?

A. Title Insurance is an insurance policy that protects you in the event that there is any question about your title to the property, and yes, you really need it. It is rare that home buyers make a claim against their title policy because the title company makes sure you have good title at the closing. However, if the title company makes a mistake or if some problem with title is discovered in the future, you want to have an insurer who will step in and defend your title and pay any damages there might be. For example, suppose the person who sold you the house did not disclose that he had been married part of the time when he owned the house. His ex-wife could claim her dower rights in the property and you would have to pay her something to clear up the title. If you have title insurance, your insurance company will handle that for you. A dispute might arise over a prior lien or mortgage, or an easement for a utility. If there had been a minor child in the chain of title that would put a cloud on your ttle. In any of these situations, you could turn the matter over to your title company and they would have to handle it and pay any damages. Any of these situations would be very costly to defend and resolve. That is why you need title insurance.

Real Estate Litigation Attorneys:
Carl V. Creighton
George Shea

Collections

Q. Can my creditors file a garnishment against my wages?

A. Although a creditor may sometimes threaten to file a garnishment against your employer; the creditor is not allowed to garnish your wages unless the creditor first sues you and obtains a final Judgment against you. If a creditor does obtain a Judgment against you, and you wish to avoid having your wages garnished, you may file a petition with the court to allow you to make voluntary installment payments on the Judgment.

Q. How can I collect a debt in Small Claims Court?

A. Small claims court is a venue where an individual or business can settle disputes without lengthy court proceedings. The maximum judgment is $3,000 in Small Claims Court, and there are no lawyers involved and no right to a jury trial.
The procedure is fairly simple. You go to the District Court where the contract arose or where the defendant is located. Ask for a Small Claims Affidavit and fill in your name and address, the name/address of the defendant, and the basis of your claim. You pay a fee based on the amount of the damages, plus a fee to have the defendant “served” with the claim. The Court assigns a date to appear, and on that date you will have a chance to present your case to a judge or magistrate. You should bring any witnesses you have, and any documentary evidence (contracts, bills, photographs, etc.). It is generally a simple hearing, like “The People’s Court” or other TV court shows. The judge will ask questions of both of you, and will make a decision. If the judge rules in your favor, you should make arrangements for the defendant to pay you. Unfortunately, getting a judgment doesn’t necessarily mean you get your money. You may have to pursue the defendant to collect. You should discuss the matter of collection in front of the judge and perhaps he can put some pressure on the defendant to pay you promptly.

Collection Attorneys:
Carl V. Creighton
George Shea

Lien Foreclosures

Q. I am a contractor and if I timely file a construction lien on real estate that I provided an improvement to, when do I have to sue on my construction lien?

A. You must sue to enforce your construction lien within one year of the date the construction lien is filed. If you fail to do so then you lose your rights to enforce your construction lien. However, you could still sue the party that you contracted with for breach of contract. The breach of contract statute of limitations is six years from the date that you completed performance of the contract.

Construction Law Attorneys:
Carl V. Creighton
George Shea

Divorce

Q. My wife and I have agreed to a divorce. Can one attorney represent us both?

A. An attorney can represent you both, however the attorney has the ethical responsiblity of advocating for their client. In a divorce situation it is often difficult to represent both parties in the litigation. We recommend that you and your spouse have separate attorneys to represent your different interests.

Divorce Attorneys:
Laura Reyes Kopack

Custody

Q. I have three children and a specific visitation schedule in my divorce judgment. It is not working out, how can I change this schedule.

A. You should contact your divorce attorney and discuss the changes and present a motion to modify visitation.

Attorneys:
Laura Reyes Kopack

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