Estate Planning Mistake #8

Estate Planning Only Done for One Spouse

             One of the major questions people have when doing their estate planning is: “if we’re married why can’t we just do estate planning for one of us?” The answer to this question is simple: there is no way to know who will pass first when drafting these documents.

            What happens if you spend the money to draft all the document in one person’s name and the other spouse passes first? This could land you in probate court spending an abundance of money and time to resolve the issue when it could have been easily avoided by just drafting the documents for both spouses from the beginning.

           Additionally, this begs the question of “what happens to any separate property owned by one spouse in the event of his/her passing?” When there is no estate plan, the rules of contract apply. Bank account titles control. Beneficiary designations operate to pay benefits only to those named when the beneficiary designation was made – and they are not changed by marriages, deaths, divorce, or a new will. This essentially means any property laid out in a prenuptial agreement or exempt from the marital property rule can be taken into question without a clear will to lay out the desires of the deceased spouse.

            The main goal of estate planning is simply to avoid probate and make the process as swift and uncomplicated as possible for the surviving spouse and rest of the family.

Failing to plan is planning to fail.

          Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

For more information visit our website http://www.zeiglerlaw.com/Legal-Will.html

 

ESTATE PLANNING MISTAKE #7

Estate Planning Tax Mistakes Commonly Made – Assets Held in Decedent’s Name Alone

      There are many estate planning mistakes made that will ultimately land you in probate court. Here are some of the most common estate planning mistakes to avoid making:

  1. Cash assets must be probated. This means that they must go through probate court which is often very time-consuming and costly.
  2. Stocks and bonds held in the decedent’s name alone – can only be transferred with a probate court order.
  3. Real estate held in the decedent’s name alone – can only be transferred with a probate court order.
  4. Closely held corporation stock or LLC membership interests held in the decedent’s name alone – can only be transferred with a probate court order.
  5. Partnership interests, both General and Limited Partnership, and Real Estate Investment Trusts held in the decedent’s name alone – can only be transferred with a probate court order.
  6. Annual Gifts. The maximum annual gift tax exclusion amount for 2019 and 2020 is $15,000. This means that you can give up to $15,000 to as many people in a calendar year as you would like without needing to file a gift tax return or paying gift taxes on the amount of the gift. However, if you gift more than $15,000 in one year to any one person, individually, you will need to file a gift tax return.
  7. The Federal Estate Exemption credit amount was $11.40 million as of 2019 and has since been raised to $11.58 million for 2020 for individual decedents passing during the corresponding year. This means that you do not pay any federal estate taxes unless your estate exceeds this value at the time of passing. Additionally, it is important to remember that if your estate does exceed this amount you must only pay taxes on the amount that exceeds the $11.58 million and the rest will remain estate tax free.

What is the solution?  Consider trusts, jointly owned property, gifting, and an experienced estate planning attorney.

Estate planning can be extremely difficult and confusing in some cases and can often lead to long and costly fighting in probate court. To avoid having to deal with all these complexities and the chance at ending up in Probate court call (248) 643-9530 or email info@zeiglerlaw.com.

For more information on this as well as other mistakes to avoid in estate planning visit our website https://www.zeiglerlaw.com/how-to-avoid-probate.html.

 

 

 

 

ESTATE PLANNING MISTAKE #6

Property Held in Decedent’s name alone – Complications

When assets are owned in the decedent’s name alone complications can arise. For the purposes of this scenario “assets” means everything such as bank accounts. CDs, money market funds, houses, brokerage accounts, IRAs, 401ks, land contracts, safety deposit boxes, and savings bonds. When any assets are owned solely in the name of the decedent the following issues can arise:

1. Probate: In order for the asset to be transferred, the asset must go through probate.
2. Public: The process of going through probate court is a very public ordeal. While in probate, all financial records, death certificate, any assets – all become public and anyone can access them.
3. Costly: Probate court can be extremely confusing and more often than not people end up needing to hire an attorney to help them navigate. This, in turn, can become very costly as the attorney helps to file each motion, notice, etc. and appears with its clients in court. In addition, there are court costs that must be paid and appraisal fees (if necessary to determine the value of the assets).
4. Time-consuming: As you can imagine, all of this can quickly become very time-consuming. In most cases, probate takes upwards of 6 to 18 months to resolve – and can take much longer depending on the case.
5. Inventory fee: The is an inventory fee associated that is generally less than ½ 1%. This fee is incurred whether a will is in place or not.

Essentially, you want to avoid probate if at all possible and one of the ways to do so is to avoid leaving assets in the decedent’s name alone. For more information on this as well as other mistakes to avoid in estate planning visit our website https://www.zeiglerlaw.com/how-to-avoid-probate.html.

Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

PAID MEDICAL LEAVE ACT – Starts March 29, 2019 – Public Act 338 of 2018

Michigan has adopted a new Paid Medical Leave Act effective on March 29, 2019.

The Act requires that Employers pay up to 40 hours per year for medical leave.  It applies to Employers having 50 or more W-2 employees.

The Act requires the accrual of 1-hour of paid medical leave for each work week in which 35 or more hours are worked by eligible employees.

The law requires the mandatory posting of a notice to all employees explaining the rights of employees to paid medical leave under the Act.  However, the posting is not the policy.  As a courtesy, the posting can be found at the State of Michigan website at:

https://www.michigan.gov/documents/lara/Paid_Medical_Leave_Act_Poster_644565_7.pdf

There is one decision that Employers have to make.  Each Employer must decide how to implement the Policy:  two Options:

Option #1: Accrual and carry over. If the Employer wants to allow employees to take their leave time as it is accrued throughout the year, then the Employer must allow its employees to carry over a maximum of 40 hours of accrued but not taken leave hours to the next year.

Option #2: Immediate use and no carry over.  If the Employer allows employees to take their 40 hours of leave time at the beginning of each benefits year (i.e. before the leave time is accrued), then the Employer is not required to allow its employees to carry over the 40 hours of accrued but not taken leave hours from year to year.

Of course, there are numerous exceptions to which employees can earn the paid leave and how the Employer allows the leave to be taken, for example in 1-hour increments, or in accordance with the other written policy guidelines.

Please contact our office to arrange for the timely rollout of this new mandatory paid leave benefit covering your employees.

Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

For more information visit our website:  https://www.zeiglerlaw.com/Employment-Law.html

Estate Planing Mistake #5 – Continued

Hazards of Joint Ownership – jointly held real estate and other property.

         Jointly owned property means that each joint tenant only owns a part of the undivided whole. So, when one person creates joint property by adding another’s name to the title of the property, (for example adding a child’s name), the donor makes a legal gift of one-half of the fair market value of that property to that person.

          Gift Tax Issues. Unfortunately, the catch with making such a gift is that a US Gift Tax Return should be filed if the gift is worth more than annual gift tax exclusion in that year, which is $14,000 in 2017. The US Gift Tax Return should be filed with the IRS when any property, over the amount of $14,000 in 2017, is given to another person, for free or for a lesser value than its fair market value. Furthermore, if the donor does not file the US Gift Tax Return they could face a 5% interest fee each month the Return goes unfiled, up to a maximum of 25%.

         Estate Planning Issues. There is also an estate planning problem with jointly owned real estate and other jointly owned property, like bank accounts: it is difficult to balance the proportionate distributive shares in an estate plan when there are other beneficiaries who are NOT joint tenants in property. For example, when there are 2 or more children in a family and only one child is a joint owner on real estate or a bank account.

         Still another unexpected issue with jointly held real estate is that joint ownership makes it very difficult to change your mind once you have added another joint owner. This is difficult because, once the joint owner is added to the title to the property, especially real estate, the written consent of the donee – joint tenant – is required to order to return the gift of property to the donor. So, if the donee does not agree to give the gift back the property to the donor, that dispute, sometimes, ends up in court. That is not good estate planning. Planning to avoid these easily foreseen problems is routinely accomplished with our estate planning team.

                        Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

For more information visit our website http://www.zeiglerlaw.com/how-to-avoid-probate.html

 

Employer Wins: Non-Compete Enforced. No Geographic Limitation.

     Nice when employer wins. Here, the Michigan Court of Appeals determined that Employers may place reasonable restrictions on employee’s use of Employer’s customer information and relationships. The Court ruled that a former employee (office manager) must not contact customers of the Employer for 12 months regardless of geographical location.

The Employer won because the employee signed:

 1. Non-Competition and No Solicitation Agreement; and

2. Employer Handbook that contained these restrictions.

     Employers requiring employees to sign non-compete agreements and employee handbooks containing restrictions on competition and the using of Employer’s confidential and proprietary information permit valid enforcement when these restrictions are violated. Nice when our Employer wins! Case: Mid Mich Med. Billing Serv. v. Williams, _____ Mich. App. _____, (2/18/2016); unpublished; Docket #323890; Genesee County Circuit Court Case LC No. 13-101000 CK.

4TH BIGGEST MISTAKE IN ESTATE PLANNING (Part 2) – HAZARDS OF JOINTLY OWNED REAL ESTATE

     It is much easier to add a child’s name, or your girlfriend (boyfriend’s) name on the title to real estate, than it is to remove that name on a real estate document.

Consent Required. If you need to remove a joint tenant’s name from title to real estate, you have to get that person to sign a quit claim deed that ends their ownership of that piece of real estate. For example, a joint tenant must sign the quit claim deed in front of a notary conveying the real estate back to the original owner. Children can be one set of problems, but ex-girlfriends and ex-boyfriends may hold grudges and may want money or something else to bargain for the release their interest in real estate.

Gift Tax and Income Tax Issues. Gift Tax Issues: Adding child’s name or a girl/boyfriend’s name on the title to real estate legally is a gift of 1/2 Fair Market Value of the property. If, for example, Mom owns a house worth $50,000 and adds daughter’s name on the deed. That is an immediate gift of $25,000 to the daughter. Since that $25,000 is greater than the $14,000 annual gift exclusion for the current year, a Gift Tax Return should be filed for the $11,000 that exceeds this annual gift tax exclusion amount. There is a legal obligation to file a US Gift Tax Return, but that discussion is beyond the scope of this short blog.

Donor’s Tax Basis: Making a gift of real or personal property, the law says that the donee – receiver of the gift – receives the same tax basis as the donor – the person who gives the gift. That means that – using the same example – Mom bought a house in 1970 for $50,000. In 2010, Mom adds the daughter’s name on the deed. Mom dies and daughter sells the house in 2020 for $125,000. The daughter will have to pay capital gains tax for amounts over the 1970 value of the home of $50,000 – Mom’s tax basis. So, the daughter owes tax on the capital gains of $75,000 ($125,000 – $50,000 = 75,000). Daughter did not plan for that – normally. Bad result.

Solution. A better result is to either go through the Probate process with a Will, or to title the home into the homeowner’s revocable living trust. In both cases capital gains taxes are completed and legally avoided, because the beneficiaries legally get a “step up” in tax basis as of the date of death of the other joint owner – so that no taxes are due at all when the property is sold at present date fair market value.

 

            Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

For more information visit our website http://www.zeiglerlaw.com/how-to-avoid-probate.html

4TH BIGGEST MISTAKE IN ESTATE PLANNING (Part 1) – HAZARDS OF JOINT OWNERSHIP OF BANK ACCOUNTS

 

  1. Each joint owner owns 100% of the entire account.

               One of the biggest hazards of joint ownership is the right of each owner to withdraw all of the money from the joint account. Joint ownership means each joint tenant possesses 100% ownership of the account. So you can open a bank account and deposit all of your own money into it, but as soon as you add another person’s name to the account the money becomes just as much theirs as it is yours. Unfortunately, withdrawal from jointly owned accounts is not dependent upon who the money truly belongs to – each joint tenant has the ability to withdraw what they please. Consequently, 100% of the assets of the joint account are liable for debts of the joint tenants. For example, suppose Mom has a bank account that has $5,000.00 in it. Suppose her son has a judgment against him for car repairs totaling $4,500.00. Mom adds son’s name to her account. Now, son’s creditor can withdraw $4,500.00 satisfy the debt – regardless of the fact that Mom is not the one in debt. Of course, these issues are difficult to sort out and can lead to litigation between joint tenants, which can be very costly for both parties involved.

               Call (248) 643-9530 or email info@zeiglerlaw.com for a consultation.

For more information visit our website http://www.zeiglerlaw.com/how-to- avoid-probate.html

Historic Real Estate Law Changed: Dower Abolished April 6, 2017

            Michigan Governor Rick Snyder just signed a law abolishing Dower, a provision that has been in effect since 1846. This provision gave a wife a legal right to claim a one-third interest in any real property owned by her husband, upon his death. The 2015 Supreme Court ruling in Obergefell v Hodges, allowing same-sex marriage, sparked controversy regarding a wife’s dower right. Dower right became an issue of inequality between widow’s of same sex marriage and those of opposite-sex marriage. As of April 6, 2017, however, there is no more dower right, ultimately affecting Estate Planning Law as well as Real Estate Law proceedings.

            Under current Michigan Law, a wife is still provided with options upon becoming a widow, depending on if her husband has left a will or not. The reason behind creating these options was to protect a wife from being completely disinherited by her husband and left without any means of support. Previously, the right to dower was one of these options. The other current options are as follows: (1) if the deceased spouse has left a will, the surviving spouse can claim what was left to him/her or take one-half of what would have been left to him/her had the decedent not left a will minus one-half of the value of the decedent’s remaining property. (2) If there is no will, however, the surviving spouse is entitled to the first $150,000.00 (COLA adjusted) of the deceased spouse’s estate plus one-half of the rest of the estate. This abolishment of Dower does not mean that widows will no longer be protected, but simply means that surviving spouses are treated equally.

            Before April 6, 2017, a wife’s signature was necessary on any legal document that transferred real property in her husband’s name to another person, therefore relinquishing her Dower right. However, since the enactment of this law, a wife is not required to sign all these documents. Regardless, there is still one real estate document that will require both a husband and wife’s signature, even if it is owned by only one of them. This document is a mortgage of residential property if said property is occupied as their joint homestead. The other exception to this law is if a wife became a widow before the effective date of this law, she, of course, still has a legal claim to her Dower right.

            The passing of this law may complicate simple Real Estate and Estate Planning Law proceedings. For help with these issues call our office at 248.643.9530 or email info@zeiglerlaw.com and schedule your consultation.

See https://www.legislature.mi.gov/documents/2015-2016/billanalysis/House/htm/2015-HLA-5520-718B58C9.htm

Can the Police Stop you for Any Reason?

The United States Constitution protects citizens against “unreasonable searches and seizures.” A law enforcement officer may effectuate a traffic stop upon “reasonable suspicion” the person stopped is breaking the law.

But how far can the law bend to determine what is “reasonable suspicion”? Pretty far, as it turns out.

Recently, the Michigan Court of Appeals (.pdf) ruled a police officer may perform a traffic stop, if the vehicle is in “such an unsafe condition as to endanger a person.”   The Court did not define what would be considered an “unsafe condition.” Would a cracked windshield or an air freshener hanging from the mirror be an “unsafe condition”? What about tires with a few miles on them, or a gas cap not closed, or a crumpled fender? Short of factory-fresh condition, we could envision a vehicle somehow, possibly existing in a condition that could possibly “endanger a person,” effectively allowing police to perform a stop for any reason whatsoever.

In the early morning hours of January 5, 2014, Officer Daniel Lobbezzo observed a vehicle, driven by Trevor Allen Vanderhart. The Officer initially believed he saw one tail light not operating, but upon closer observation, observed it was operating, although dimmer than the other tail light. Officer Lobbezzo did not indicate Vanderhart was speeding, or weaving, or failing to stop, or driving in any erratic fashion whatsoever. Indeed, the only reason Officer Lobbezzo proffered for making the traffic stop was this dim tail light.

Michigan Law requires a vehicle to have tail lights that (1) operate when the headlights or auxiliary lights are one (2) is red and (3) visible from a distance of 500 feet. The Court of Appeals ruled Vanderhart’s vehicle (according to the evidence) complied with the law regarding tail lights. However, the Court made the determination the different brightness of the tail lights constituted an “unsafe condition as to endanger a person” and therefore the traffic stop was reasonable. (The “unsafe condition” being that a person following this vehicle could be lead to believe the person driving was braking the entire time.)

To further demonstrate how fine the line is, this is a split decision. (Michigan Court of Appeals decisions are made by three judges—majority rules.) The lead opinion decided the traffic stop was valid, even though the tail lights were operating correctly because the vehicle was in an “unsafe condition.” Another judge concurred (agreed), but disagreed with the lead opinion’s reasoning, stating the tail lights were not operating correctly, and would not agree a dim tail light is an “unsafe condition.” A third judge dissented (disagreed) with both for the simple reason that the conflicting reasoning between the two other judges makes no sense.

Judge One: “Traffic stop not valid under MCL 257.686, but valid under MCL 257.683.”

Judge Two: “Traffic stop valid under MCL 257.686, but not valid under MCL 257.683.

Judge Three: “How can both those statements be true?”

Simply realize this—if a law enforcement officer intends to pull you over, they now have more excuses to do so.