Estate Planning and Elder Law
Since our inception in 1965, skilled and experienced attorneys from Cummings, McClorey Davis & Acho, P.L.C. (CMDA) have offered a broad range of estate planning services to our clients. Each client is unique, and we take the time to understand their specific needs to create a plan that ensures assets accumulated during their lifetime are protected and distributed appropriately.
Wills and Trusts
Effective estate planning can eliminate uncertainties for individuals, families, and non-profit organizations. Attorneys at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) are skilled and experienced in developing estate plans that ensure the assets clients have accumulated during their lifetime are protected and distributed appropriately.
Our lawyers work with clients to review their estate plan objectives, outline the alternatives and help develop an estate plan that meets their needs using wills, trusts, powers of attorney, Lady Bird or enhanced life estate deeds, trust funding, beneficiary designation, medical designation and medical advocate forms to provide for an orderly transfer of assets utilizing a variety of strategies to minimize taxes and costs.
Our attorneys assist clients in defining the objectives of their estate plan, which include consideration of the following:
- Revocable Living Trusts
- Educational Trusts
- Bypass Trusts
- Special Needs Trusts
- Life Insurance Trusts
- General Powers of Attorney
- Medical Powers of Attorney
- Living Wills
- Family Assets
- Business Succession
- Medicaid Planning
- Probate Administration
- Will and Trust Disputes
- Asset Protection Planning
- Medical Directives
- Pre-nuptial and Post-nuptial Agreements
Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) is experienced in all areas of probate. Our team of attorneys provides assistance in the administration of an estate and the more complex issues of probate administration.
What is probate?
Probate is the court-supervised process of locating and determining the value of the assets owned by a deceased person, referred to as a “decedent,” paying the decedent’s final bills, estate taxes and expenses of administration, and distributing the decedent’s assets to his or her heirs and beneficiaries. If a person dies leaving a valid will, then their estate is distributed in accordance with the provisions in their will. If a person dies without a will, this is called dying “intestate,” and their property is distributed in accordance with Michigan’s law of intestate succession.
When is Probate Necessary?
Generally, probate is necessary when a person dies leaving property titled in his or her own name or having rights to receive property, such as a wrongful death claim or a debt owed to the decedent. Property that will pass to a new owner on death without going through probate includes: (1) property owned by the decedent and another person as joint tenants with right of survivorship; (2) beneficiary designated properties, such as life insurance, pension benefits, and IRAs; and (3) properties owned by a revocable trust.
What Are the Types of Probate Estates?
Administration of an estate may be conducted using informal or formal proceedings. In an informal proceeding, no court hearings are necessary; a personal representative is appointed by the court and given authority to probate the estate. Most of the activities involved in probating the estate are done without court involvement.
Probating a decedent’s estate using formal proceedings provides the security of a court order deciding issues within the estate. Formal proceedings are conducted by a judge, rather than the probate register, with notice given to interested parties. Formal proceedings are used when there are issues which are contested and often are used to begin the administration of an estate. Formal proceedings are used at any time during the administration of an informal estate to have issues within the estate decided by court order. Only a very small percentage of estates go through supervised proceedings.
Michigan law provides a streamlined process for distributing the assets in a decedent’s estate if the balance of the estate after the payment of funeral and burial expenses is $18,000 or less. The process is usually quick and no court hearings are necessary.
How Long Will Probate Take?
The time it takes to probate an estate depends on how complicated the estate is. For example, complicated tax situations, questions regarding the value of property, the need to sell assets, disputes over title to property or debts of the decedent, lawsuits against the estate or difficulty finding heirs can all cause delays. A lawsuit involving a challenge to the will may cause long delays. As a result, probate can take anywhere from six months to several years. However, a typical estate takes approximately one year to get through probate, unless you are able to use the procedure for small estates which is much faster.
Why is it Important to Have a Probate Attorney?
You are not required to hire an attorney to probate an estate, but probate can be complicated and you can be personally liable if you do something wrong. Probate law is an area that is very specialized and includes deadlines, documents and administrative requirements. A minor omission or missed deadline can have serious consequences. A probate attorney can be used to take a personal representative through the entire probate process from start to finish. A probate attorney can also be hired to advise the beneficiaries of an estate on legal and other matters that arise during the course of the probate process.
Issues are often presented as to the interpretation of the terms of a will or trust or whether someone has exercised undue influence or fraud on a decedent when they prepared their will or trust. Our attorneys are experienced in challenging the validity of a will or trust, and assisting family members who are facing being wrongfully disinherited through the fraud or undue influence of outsiders. Our probate litigators also assist our clients in preserving the value of the family’s inheritance, by challenging overstated claims filed by creditors such as hospitals, leasing companies and collection agencies.
Estate and Trusts Administration
Lawyers at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) are experienced in assisting in the administration of the estate. These services include filings with the probate court, accounting’s to the court and beneficiaries, notices to beneficiaries, compliance with the terms of the will or trust and preparing and filing of appropriate tax returns. There are often many opportunities to minimize or reduce taxes for the estates and the beneficiaries depending on knowledge of elections and filings.
Additionally, our attorneys help with estate and trust administration, including:
- Estate tax and gift tax returns
- Individual and fiduciary income tax returns
- Post-mortem tax advice to fiduciaries and beneficiaries
If needed, we can represent clients and their interests in litigation, audits and tax court proceedings.
Elder law is a growing area of the law that focuses on the legal issues that come with aging. Attorneys at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) assist clients and their relatives in decisions regarding planning to move to assisted living or a nursing home, guardianships and conservatorships. Our elder law attorneys assist clients and their families with:
- Accessing nursing home care should either parent need it
- Care for a parent when health declines
- How to remain in your own home with assistance or go to a nursing home, and
- When and how to apply for Medicaid benefits
Medicaid Nursing Home Planning
One of the most difficult decisions many families face is whether to put a loved one in a nursing home. Family members try to avoid this option because they would prefer to care for their loved one at home and are concerned with the high costs associated with nursing home care. Nursing homes may be the best option in some cases as they provide a level of care that many families cannot provide. Our lawyers assist clients with obtaining affordable nursing care and preserving as much of their estate as possible.
Medicaid is a federal program administered by each state which pays for health care, including nursing home care, for low income individuals. Most people who need nursing home care will eventually need Medicaid. To preserve as many assets as possible, it is critical to have a clear understanding of Medicaid’s complicated rules before applying for Medicaid benefits. If your assets exceed the asset limitation for eligibility of government benefits, the application will be denied. Prior to submitting the application there may be an opportunity to “spend-down” or reduce your assets to a certain amount.
With the assistance of an elder law attorney, strategic moves can be made to protect as many resources for the family as legally possible. When a spouse still lives at home, proper planning can make the difference between financial security and financial devastation. Trying to navigate the complicated and changing Medicaid process without the knowledge and experience of an elder law attorney can end up unnecessarily spending all of your assets to pay for nursing home bills.
Our Firm’s goal is to make Medicaid planning as easy to understand as possible. We can assist clients with the lengthy and complex application process. Additionally, we can help clients plan for Medicaid’s estate recovery program to prevent the loss of a home or estate.
GUARDIANSHIP and Conservatorships
Proper planning for an estate can include designating a family member or friend as your agent with a financial power of attorney and a medical advocate for you to assist in financial and medical decisions should you become unable to handle these affairs on your own. If a family member is unable to make financial or health care decisions due to medical conditions, a seriously illness, Alzheimer’s disease or something similar, a friend, family member, or even a neighbor can be appointed as a guardian and or conservator to help.
Our attorneys are experienced in assisting families in the process of having a guardian and conservator appointed to help the family member (also referred to as a “ward”). A guardian makes important decisions regarding the health and maintenance, while a conservator manages the finances of the ward. After a guardian and conservator have been appointed, our attorneys will assist the guardian and conservator to ensure they fulfill their legal obligations to the ward.
Succession Planning for Business Owners
Lawyers at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) counsel clients on the most effective and beneficial way to conduct their business. We identify and understand each owner’s goals and objectives and work to develop a business plan during their lifetime and planning for their retirement. Our attorneys counsel and consult with our business owners in all manners which may impact their investment in their business, their retirement from their business and the transition of control of the business to the next generation of the family. We consult, advise, negotiate and draft the following for our clients:
- Buy/sell agreements
- Family gifting programs of an interest in a business
- Sale of a business to family members, employees or third Parties
- Tax-free distributions
- Qualified/non-qualified compensation plans
- Deferred compensation agreements
- Payments to founders as a founder’s premium
Additionally, we advise clients on how to provide liquidity to family members following their death. If family members do not wish to participate in the family business, we can help clients plan for that appropriately. Should it be determine that a business should be sold, our attorneys can assist with all aspects of that process.
Wealth Transfer Planning
The estate planning services at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) include wealth transfer planning. We consider a number of wealth transfer planning tools and concepts when counseling and advising our high net worth clients. Our attorneys examine the needs of each individual client or family circumstance in determining how to best accomplish their intended purpose. We can assist with the following:
- Charitable trusts
- Family generation skipping transfers
- Family Limited Liability Companies (LLCs) and partnerships
- Grantor retained annuity trusts
- Irrevocable trusts,
- Intentionally defective trusts
- Promissory notes, and
- Qualified personal residence trusts
Non-Profit and Tax-Exempt Organizations
Attorneys at Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) are involved in the creation of non-profit and tax exempt organizations to assist in non-profit activities and charitable giving for public and private purposes. Our attorneys are experienced in corporate, tax, compliance, regulatory and governmental requirements and relations.
CMDA is devoted to assisting our business clients and supporting the owners’ philanthropy and desire to establish and operate non-profit and charitable organizations. Our Firm is intimately involved in the creation of public and private associations, trade groups, community groups and community development groups, municipal organizations, educational organizations and charitable organizations. Our attorneys assist in the preparation and filing of the tax-exempt application with the IRS, Form 1023 and 1024 and establishing the corporate and internal control documents to create and operate a non-profit organization.
Many tax-exempt and non-profit organizations are created by our business owners and institutions to promote the welfare of others and generous donations of time and money to help others. Our business attorneys work with institutions, colleges, trade associations, civic leagues, business leagues, boards, chambers and other clubs.