Legal Developments

AVOID CRIMES INVOLVING YOUR DIGITAL ASSETS

Federal law and Michigan law prohibit unauthorized access to digital assets such as email, Facebook, LinkedIn, Ancestory.com or similar service providers for online storage of pictures, documents, online games and similar media.

In addition to Federal and Michigan law, the service agreement that you "Accept" when signing up for email, Facebook, LinkedIn, etc. typically limit access to the content and usually prohibit transfer of the digital content. Thus unlike other assets in your Estate that the Trustee or Personal Representative for the Estate may access, the access to digital assets is a crime and typically a violation of your agreement related to the digital assets unless you have a specifically authorized individual to access the digital assets.

In June 2016, Michigan passed the Michigan Fiduciary Access to Digital Assets Act. The Act allows you to permit or prohibit disclosure of your digital assets and designate a person with authority to access them in your Will, Trust, Power of Attorney, or other document. The document authorizing access should be duly executed witnessed, and notarized. The scope of an authorization may be as broad or as narrow as you wish but must specifically include access to content if you wish to grant a third party access to stored content such as documents, pictures, certain games and similar content.

If you wish to learn more about protecting your digital assets upon death, please call us for a free consultation (248-645-1210).

DESIGNATE A FUNERAL REPRESENTATIVE

Speak Now or the Michigan Legislature Will Speak for You Upon Death.

In June 2016, Michigan passed a law that allows you to designate a Funeral Representative. The designated Funeral Representative has exclusive authority to make decisions about funeral arrangements for you upon your death, including decisions about the handling, disposition, or disinterment of your body, including but not limited to decisions about cremation and the right to possess cremated remains.

If you do not designate a Funeral Representative, then your spouse, if any, will have power to make decisions about funeral arrangements and the handling, disposition or disinterment of your body, including but not limited to, decisions about cremation and the right to possess cremated remains. If you do not have a surviving spose, then your children, by majority consent, will make the decision. If you do not have a souse or children, then decisions will be made by your parents and if you also have no parents, the decisions are made by majority vote of your siblings.

Whenever two or more persons have decision making power, there is potential for a dispute. If a majority cannot be reached then Michigan law requires the dispute to be resolved by a probate court upon the filing of a Petition.

Disputes cause delay and can get emotional and costly. A Funeral Representative Designation eliminates the potential for disputes. It is particularly useful where you have more than one child or more than one sibling.

The other advantage to designating a Funeral Representative is that you may choose who is in charge, which may be someone different than the person appointed by law. You can tell the person you designate what your wishes are, and although they are not binding on that person, they are likely to be upheld if you designate a person you trust and respect.

If you wish to learn more about funeral representatives, please call us for a free consultation 248-645-1210.

LADY BIRD DEEDS

Give it Away But Keep It.

Over the last several years, "Lady Bird Deeds" have been gaining popularity as an estate planning tool for senior citizens who wish to plan for Medicaid benefits and/or avoid probate.

Generally, Lady Bird Deeds have many of the same benefits as transferring your house to a trust in order to avoid probate; yet a Lady Bird Deed avoids the adverse Medicaid consequences that may occur if your home is owned by a revocable trust. Specifically, if your home is owned by a trust then it is considered a "countable asset" for Medicaid qualification purposes, often precluding you from Medicaid benefits. If your home remains in your individual name, it is an excluded asset for Medicaid purposes under Medicaid rules.

With a Lady Bird Deed, you transfer your house to a third person or trust, while retaining a life estate in the property that includes the power to sell, mortgage, encumber and otherwise dispose of the property as you wish. As a result, the house remains in your individual name and is an excluded asset for Medicaid qualification purposes, under Medicaid rules.

Upon your death, the life estate ends and the property is transferred to the designated third party or trust by operation of law, without the need for probate. As a result, probate is avoided with a Lady Bird Deed, as it would have been if you transferred the property to your trust.

This unique deed is gaining popularity and can be a useful tool in many estate plans. Should you wish to discuss Lady Bird Deeds or consider whether such a Deed would benefit your estate plan, please contact us for a free consultation.