Lexis Nexis LexisNexis Practice Guide: Michigan Estate Planning
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The LexisNexis Practice Guide: Michigan Estate Planning provides clear and concise explanations of the fundamentals of Michigan estate planning practice, checklists to ensure that practitioners address all of the salient points in any transaction, professional tips for both beginning and experienced practitioners, and alerts to traps for the unwary practitioner. To further enhance the usefulness of the practice guide to practitioners, the Practice Guide incorporates both official and unofficial forms needed to complete the estate planning process.
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Featured Authors
Dustin S. Foster
Dustin S. Foster is a Professor at the WMU—Thomas M. Cooley Law School, and is the Executive Director for the Sixty Plus, Inc., Elderlaw Clinic. He is a graduate of La Salle University, B.A. 1994, and of the Thomas M. Cooley Law School, J.D. 1997. Mr. Foster has lectured about estate planning matters. Prior to joining Thomas M. Cooley Law School, Mr. Foster was an associate with Bernick, Omer, Radner & Ouellette, P.C., practicing in the areas of estate planning, probate, elder law and family law. He is a member of the National Academy of Elder Law Attorneys, the American Bar Association, State Bar of Michigan, Oakland County Bar Association, and the Ingham County Bar Association. He is also a recipient of the Institute of Continuing Legal Education Probate and Estate Planning Certificate.
Table of contents
CHAPTER 1 ESTATE PLANNING BASICS
PART I: CHAPTER OVERVIEW
§ 1.01 Scope
§ 1.02 Overview of Estate Planning Basics
PART II: FUNDAMENTALS OF ESTATE PLANNING
§ 1.03 Introduction to Estate Planning
§ 1.04 Estate Planning Process
PART III: OBTAINING RELEVANT INFORMATION
§ 1.05 General Practice Considerations
PART IV: DRAFTING THE RELEVANT DOCUMENTS
§ 1.06 Will Drafting Overview
§ 1.07 Powers of Attorney and Health Directives
§ 1.08 Appointment of Funeral Representative
PART V: FOLLOW-UP CONFERENCE
§ 1.09 Matters to Be Discussed During Follow-Up Conference
CHAPTER 2 PROFESSIONAL RESPONSIBILITY IN ESTATE PLANNING
PART I: CHAPTER OVERVIEW
§ 2.01 Scope
§ 2.02 Overview of Professional Responsibility
PART II: ROLE OF THE ATTORNEY
§ 2.03 Fundamental Issues
§ 2.04 Rules of Professional Conduct
§ 2.05 A Lawyer’s Responsibilities
§ 2.06 The Lawyer as Advisor
§ 2.07 The Lawyer as Intermediary
PART III: SPECIAL CIRCUMSTANCES
§ 2.08 Conflicts of Interest
§ 2.09 The Disabled Client
PART IV: FUNDAMENTALS OF THE ATTORNEY-CLIENT RELATIONSHIP
§ 2.10 Elements of the Client-Lawyer Relationship
PART V: CHECKLISTS AND FORMS
§ 2.11 FORM: Form of Engagement Letter—Estate Planning
§ 2.12 FORM: Form of Engagement Letter—Probate
CHAPTER 3 ESTATE PLANNING—TAX BASICS
PART I: OVERVIEW OF ESTATE PLANNING—TAX BASICS
§ 3.01 Scope
§ 3.02 Overview of Tax Basics in Estate Planning
PART II: TAX BASICS
§ 3.03 Introduction to Tax Basics
§ 3.04 The Unified Transfer Tax
§ 3.05 The Federal Gift Tax Present-Interest Annual Exclusion
PART III: FIDUCIARY INCOME TAX
§ 3.06 Basic Fiduciary Income Tax Provisions
PART IV: ADDITIONAL FEDERAL TAX PROVISIONS
§ 3.07 Generation-Skipping Transfer Tax
PART V: CHECKLISTS AND FORMS
§ 3.08 CHECKLIST: Checklist for Estate Planning and Tax Basics
CHAPTER 4 NON-PROBATE ASSETS
PART I: OVERVIEW OF NON-PROBATE ASSETS
§ 4.01 Scope
§ 4.02 Overview of Non-Probate Assets
PART II: NON-PROBATE ASSETS
§ 4.03 Types of Property
§ 4.04 Joint Property
§ 4.05 Life Insurance
§ 4.06 Employee Benefits
§ 4.07 Property Subject to Power of Appointment
§ 4.08 Trust Assets
PART III: REAL PROPERTY CONSIDERATIONS
§ 4.09 Enhanced Life Estate Deeds (a/k/a “Lady Bird” Deeds)
§ 4.10 Reverse Mortgage
PART IV: MEDICAL SAVINGS ACCOUNTS
§ 4.11 Archer Medical Savings Accounts
§ 4.12 Health Savings Accounts
PART V: CHECKLISTS AND FORMS
§ 4.13 FORM: “Lady Bird” Deed
§ 4.14 Alternate “Lady Bird” Deed language for married couple
CHAPTER 5 POWERS OF ATTORNEY
PART I: OVERVIEW OF POWERS OF ATTORNEY
§ 5.01 Scope
§ 5.02 Overview of Powers of Attorney
PART II: INITIATION AND TERMINATION OF POWER
§ 5.03 Picking an Agent
§ 5.04 Termination
§ 5.05 Revocation of Financial Power of Attorney
§ 5.06 Revocation of Medical Power of Attorney
PART III: POWERS OF ATTORNEY—IN GENERAL
§ 5.07 Financial Powers of Attorney
§ 5.08 Acceptance by Attorney-in-Fact
§ 5.09 IRS Power of Attorney
PART IV: MEDICAL POWERS
§ 5.10 Medical Powers of Attorney
§ 5.11 Living Wills
§ 5.12 Michigan Do-Not-Resuscitate Procedure Act
PART V: SPECIAL SITUATIONS AND CONSIDERATIONS
§ 5.13 Special Considerations
§ 5.14 Delegation of Parent’s or Guardian’s Powers
PART VI: CHECKLISTS AND FORMS
§ 5.15 CHECKLIST: Questions for attorney to pose when counseling a client regarding the selection of an Attorney-in-Fact or Patient Advocate
§ 5.16 FORM: Reporting/Accounting (General)
§ 5.17 FORM: Reporting/Accounting (Specific)
§ 5.18 FORM: Acceptance of Designation as Attorney-in-Fact
§ 5.19 FORM: Limited Power of Attorney—Sale of Assets
§ 5.20 FORM: Limited Power of Attorney—Sale of Assets
§ 5.21 FORM: Limited Power of Attorney—Limited Duration
§ 5.22 FORM: Limited Power of Attorney—Limited Duration
§ 5.23 FORM: General Durable Powers of Attorney
§ 5.24 FORM: General Durable Power of Attorney (One Attorney-in-Fact or Two Attorneys-in-Fact Acting Separately; Immediately Effective)
§ 5.25 FORM: Durable Power of Attorney (Two Attorneys-in-Fact Acting Jointly; Immediately Effective)
§ 5.26 FORM: Durable Power of Attorney (One Attorney-in-Fact or Two Attorneys-in-Fact Acting Separately; Effective Upon Disability)
§ 5.27 FORM: Durable Power of Attorney (Two Attorneys-In-Fact Acting Jointly; Effective Upon Disability)
§ 5.28 FORM: Power to Make Gifts
§ 5.29 FORM: Power to Fund Irrevocable Insurance Trust
§ 5.30 FORM: Power to Fund Revocable Living Trust
§ 5.31 FORM: Power to Support Dependent
§ 5.32 FORM: Power to Fund Retirement Plans
§ 5.33 FORM: Revocation of Earlier Powers
§ 5.34 FORM: Nomination of Guardian and/or Conservator
§ 5.35 FORM: Common Law, “Non-Durable” Power
§ 5.36 FORM: Gift-Splitting
§ 5.37 FORM: Health Insurance Portability and Accountability Act (HIPAA)
§ 5.38 FORM: Education Savings Accounts
§ 5.39 FORM: Government Benefits
§ 5.40 FORM: Pets
§ 5.41 FORM: Power to Create a Trust
§ 5.42 FORM: Power to Create Joint Tenancy between Principal and Attorney-in-Fact
§ 5.43 FORM: HIPAA Release
§ 5.44 FORM: HIPAA Release
§ 5.45 FORM: Anatomical Gifts
§ 5.46 FORM: Medical Power of Attorney-Long Form
§ 5.47 FORM: Medical Power of Attorney-Short Form
§ 5.48 FORM: Designation of Patient Advocate—Statutory Form
§ 5.49 FORM: General Living Will
§ 5.50 FORM: Living Will: Specific Directions
§ 5.51 FORM: Living Will Requesting Medication, Food, and Water
§ 5.52 FORM: Do-Not-Resuscitate Order (Adherent of a Church or Religious Denomination)
§ 5.53 FORM: Do-Not-Resuscitate Order (Physician)
§ 5.54 FORM: General Delegation of Parental Powers (One Parent, Two Attorneys-in-Fact)
§ 5.55 FORM: General Delegation of Parental Powers (Two Parents, One Attorney-in-Fact)
§ 5.56 FORM: General Delegation of Parental Powers (Two Parents, Two Attorneys-in-Fact)
§ 5.57 FORM: Delegation of Parental Powers Related to Medical Decisions
§ 5.58 FORM: General Delegation of Parental Powers (One parent in the Military)
CHAPTER 6 “SIMPLE” ESTATE PLANNING
PART I: CHAPTER OVERVIEW
§ 6.01 Scope
§ 6.02 Overview of Simple Estate Planning
PART II: FUNDAMENTALS OF ESTATE PLANNING PRACTICE
§ 6.03 Basic Wills and Trusts
§ 6.04 The Michigan Trust Code
§ 6.05 Appointment of Funeral Representative
§ 6.06 Additional Considerations
PART III: CHECKLISTS AND FORMS
§ 6.07 FORM: Michigan Statutory Will
§ 6.08 FORM: Gift of Entire Estate to Wife (with Alternate Provisions for Household Effects) and “Pour over” to Contingent Family Trust if Wife Does Not Survive
§ 6.09 FORM: Gift of Entire Estate to Husband (with Alternate Provisions for Household Effects) and “Pour over” to Contingent Family Trust if Husband Does Not Survive
§ 6.10 FORM: Contingent Family Trust for Benefit of Children in the Event Parents Both Die
§ 6.11 FORM: Gift of Entire Estate to Wife, with Outright Gift to Adult Children (and Descendants of Deceased Children in Testamentary Trust) If Wife Does Not Survive the Testator
§ 6.12 FORM: Gift of Entire Estate to Husband, with Outright Gift to Adult Children (and Descendants of Deceased Children in Testamentary Trust) If Husband Does Not Survive the Testatrix
§ 6.13 FORM: Gift of Entire Estate to Wife, with Testamentary “Pot” Trust for Children If Wife Does Not Survive the Testator by At Least Thirty Days
§ 6.14 FORM: Gift of Entire Estate to Husband, with Testamentary “Pot” Trust for Children If Husband Does Not Survive the Testatrix by At Least Thirty Days
§ 6.15 FORM: Simple Will for the Single Client
§ 6.16 FORM: “Simple” Letter Transmitting Documents
§ 6.17 FORM: Cover Letter Explaining “Simple” Estate Plan Including Two Wills, a Contingent Trust, and Durable Powers of Attorney
CHAPTER 7 COMPLEX PLANNING FOR THE MARITAL DEDUCTION, GENERATION-SKIPPING AND OTHER TAX, AND FAMILY CONCERNS
PART I: OVERVIEW OF COMPLEX PLANNING
§ 7.01 Scope
§ 7.02 Overview of Complex Planning
PART II: COMPLEX ESTATE PLANS
§ 7.03 Practice Considerations
§ 7.04 Variations on the Fundamental Forms: Alternate Paragraphs for “Complex” Estate Plans
§ 7.05 Tangible Personal Property
§ 7.06 Other Specific Gifts
§ 7.07 Residuary Estate
PART III: MARITAL DEDUCTION
§ 7.08 Marital Deduction Alternatives
§ 7.09 Alternate Tax Clauses
PART IV: TRUSTS
§ 7.10 Alternative Distribution of the Residuary Trust Principal
§ 7.11 Invasion of a Trust by a Beneficiary
§ 7.12 Discretionary Invasion by Trustee
§ 7.13 Planning for Changes in Administration: Trustee Removal and Replacement and Change of Situs
§ 7.14 Supplementary Fiduciary Powers and Restrictions on Those Powers
§ 7.15 Conveyance of Real Property Held in Trust
PART V: CHECKLISTS AND FORMS
§ 7.16 FORM: Husband’s Pourover Will
§ 7.17 FORM: Wife’s Pourover Will
§ 7.18 FORM: Revocable Living Trust Agreement
§ 7.19 FORM: Optional Testamentary Trust (Fractional Share Marital Trust and Residuary Trust Created under Will)
§ 7.20 FORM: Gift of Entire Estate to Spouse, with Provision to Distribute to the Residuary Trust under the Spouse’s Will If the Spouse Does Not Survive
§ 7.21 FORM: Burial Instructions and Donation of Organs
§ 7.22 FORM: Definition of Spouse
§ 7.23 FORM: Basic Designation of Personal Representative
§ 7.24 FORM: Designation of Two Personal Representatives and the Substitute Personal Representative
§ 7.25 FORM: Designation of One Personal Representative and “Generic” Substitute
§ 7.26 FORM: Designation of “Independent” Trustee
§ 7.27 FORM: Designation of Guardian and/or Conservator for Spouse or Child
§ 7.28 FORM: “Basic” Disposition of Tangible Personal Property to Spouse or among Children and Descendants
§ 7.29 FORM: Distribution of Personal Effects—Supervision by Designated Person and Personal Representative
§ 7.30 FORM: Distribution of Tangible Personal Property Contingent Trust for Minors
§ 7.31 FORM: Distribution of Tangible Personal Property Alternate Gift to Children; Division or Sale in Personal Representative’s Discretion
§ 7.32 FORM: Distribution of Tangible Personal Property Incorporation by Reference of an Existing List under MCL.700.2510
§ 7.33 FORM: Distribution of Tangible Personal Property Suggestion That Selection Be Made by Drawing Lots
§ 7.34 FORM: Distribution of Tangible Personal Property Precatory Instruction
§ 7.35 FORM: Distribution of Tangible Personal Property Payment of Shipping and Insurance Costs by the Estate
§ 7.36 FORM: Gift of Coin Collection
§ 7.37 FORM: Gift of Painting to Charity
§ 7.38 FORM: Inclusion of Descendants of Deceased Child
§ 7.39 FORM: Gift to Spouse
§ 7.40 FORM: Gift to Children
§ 7.41 FORM: Gift to Children—Another Form
§ 7.42 FORM: Gift to Church
§ 7.43 FORM: Gift to Charity—Percentage Gift
§ 7.44 FORM: Gift to Employee
§ 7.45 FORM: Shares of Stock
§ 7.46 FORM: Gift of Proprietorship Interest
§ 7.47 FORM: Gift of S Corporation Stock
§ 7.48 FORM: Abatement
§ 7.49 FORM: Abatement: Proportionate
§ 7.50 FORM: Ademption by Satisfaction
§ 7.51 FORM: Ademption by Satisfaction Lifetime Gifts Not to Be Considered as Advancements
§ 7.52 FORM: Basic Form Basic Testamentary Gift
§ 7.53 FORM: Testamentary Gift Exoneration
§ 7.54 FORM: Testamentary Gift Subject to Encumbrances
§ 7.55 FORM: Testamentary Gift of Farm
§ 7.56 FORM: Testamentary Direction to Sell Specific Real Property
§ 7.57 FORM: Trust for Residence (Rather Than Life Estate)
§ 7.58 FORM: Outright Marital or Residuary Gifts
§ 7.59 FORM: Trust Form
§ 7.60 FORM: Will Form
§ 7.61 FORM: Pecuniary Exemption Equivalent Bypass Trust Form
§ 7.62 FORM: Will Form
§ 7.63 FORM: Funding Pecuniary Marital Gift “True Worth” Provision (Alternative 1)
§ 7.64 FORM: Funding Pecuniary Marital Gift—Fair Share of Appreciation and Depreciation (Alternative 2)
§ 7.65 FORM: Funding Pecuniary Marital Gift—Lower of Fair Market Value or Income Tax Basis (Alternative 3)
§ 7.66 FORM: Accumulation of Income in Marital Estate Trust
§ 7.67 FORM: Trust Form
§ 7.68 FORM: Will Form
§ 7.69 FORM: Disclaimed Interest Held in Residuary Trust
§ 7.70 FORM: Disclaimed Interest Held Separately, but According to Residuary Trust Terms
§ 7.71 FORM: Separate Qualified Disclaimer Trust Established
§ 7.72 FORM: Simple Disclaimer by Spouse or Other Beneficiary
§ 7.73 FORM: Right of Withdrawal of QTIP Share 15 Months after Death as Part of Planning for Nearly Simultaneous Death
§ 7.74 FORM: Alternate Forms of QTIP Trust to Accommodate Certain Aspects of the Federal Generation-Skipping Transfer Tax
§ 7.75 FORM: Division of Single QTIP Trust into Elected and Non-Elected Shares
§ 7.76 FORM: Will Provision
§ 7.77 FORM: Coordinated Trust Provision
§ 7.78 FORM: Distribution to Client’s Brothers and Sisters or Their Issue
§ 7.79 FORM: Distribution to Brothers and Sisters of Client and of Client’s Spouse or Their Issue
§ 7.80 FORM: Distribution to Charity
§ 7.81 FORM: Distribution to Heirs
§ 7.82 FORM: Alternative Planning for $12.0611.4 Million Generation-Skipping Transfer Tax Exemption: Creation and Funding of a $12.0611.4 Million Family Trust
§ 7.83 FORM: Sprinkling of Residuary Trust Income
§ 7.84 FORM: Beneficiaries May Withdraw Trust Shares at Stated Ages
§ 7.85 FORM: Automatic Distribution to Beneficiaries at Stated Ages
§ 7.86 FORM: Trust for Disabled Beneficiary Intended to Preserve Beneficiary’s Receipt of Federal or State Aid
§ 7.87 FORM: Beneficiary’s Powers: Special and General Powers of Appointment
§ 7.88 FORM: Spouse’s General Power of Appointment over Marital Trust
§ 7.89 FORM: Child’s General Power of Appointment
§ 7.90 FORM: Special Power of Appointment
§ 7.91 FORM: Spouse’s “5 and 5” Power in Marital Trust
§ 7.92 FORM: Beneficiary’s “5 and 5” Power by Separate, Written Demands
§ 7.93 FORM: Annual Right of Withdrawal Subject to Ascertainable Standard
§ 7.94 FORM: Annual Right of Withdrawal by Beneficiary for Limited Purpose
§ 7.95 FORM: Invasions by Beneficiary Not Limited to Ascertainable Standard or $5,000 or 5 Percent
§ 7.96 FORM: Narrow Form of Discretionary Invasion by Trustee for Spouse; Liberal Exercise
§ 7.97 FORM: Broad Form of Discretionary Invasion by Trustee for Spouse; Liberal Exercise
§ 7.98 FORM: Narrow Form of Discretionary Invasion by Trustee for Spouse and Descendants; Spouse Preferred
§ 7.99 FORM: Broad Form of Discretionary Invasion by Trustee for Spouse and Descendants; No Preference for Spouse
§ 7.100 FORM: Narrow Form of Discretionary Invasion by Trustee for Benefit of One or More Children
§ 7.101 FORM: Broad Form of Discretionary Invasion by Trustee for Benefit of One or More Children
§ 7.102 FORM: Narrow Form of Discretionary Invasion by Trustee for Benefit of Named Individual
§ 7.103 FORM: Broad Form of Discretionary Invasion by Trustee for Benefit of Named Individual
§ 7.104 FORM: Resignation by Trustee—Notice to Other Trustees
§ 7.105 FORM: Resignation by Trustee—Notice to Income Beneficiaries Account Required
§ 7.106 FORM: Removal of Trustee by IncomeQualified Trust Beneficiaries Account Required—Savings Clause
§ 7.107 FORM: Removal of Corporate Trustee by Individual Trustees
§ 7.108 FORM: Removal of Individual Trustee by Majority of Individual Trustees
§ 7.109 FORM: Change of Situs of Administration
§ 7.110 FORM: Advances on Personal Representative’s Fees and Expenses
§ 7.111 FORM: Patients’ Records of Doctor Who Was Not a Sole Practitioner
§ 7.112 FORM: Patients’ Records of Doctor Who Was a Sole Practitioner
§ 7.113 FORM: Disposition of Professional Corporation
§ 7.114 FORM: Action by Majority of Trustees
§ 7.115 FORM: Control of Investments by Corporate Trustee
§ 7.116 FORM: Investment Decisions—Control by Majority of Individual Trustees
§ 7.117 FORM: Trustee’s Delegation
§ 7.118 FORM: Limitation on Appointment of Additional or Successor Trustee
§ 7.119 FORM: Limitation on Exercise of Discretion
§ 7.120 FORM: Broad Form of Restriction on Exercise of Powers by Fiduciary Who Is Beneficially Interested
§ 7.121 FORM: Incorporation by Reference of Statutory Trustee’s Powers
§ 7.122 FORM: Power of Individual Trustee to Retain Investment Advice and Custodian
§ 7.123 FORM: Alternate Provision for Retaining Custodianship Services and Investment Advice, Including Exoneration
§ 7.124 FORM: Early Termination Because Administration Uneconomical and/or Contrary to Settlor’s Interest
§ 7.125 FORM: Power to Combine Trusts—Short Form
§ 7.126 FORM: Power to Combine Trusts—Long Form
§ 7.127 FORM: Power to Divide Trust for GST Purposes
§ 7.128 FORM: GST Savings Clause: Power to Withhold Generation-Skipping Transfers and/or to Confer General Power of Appointment on a Beneficiary
§ 7.129 FORM: Perpetuities Savings Clause
§ 7.130 FORM: Simultaneous Death
§ 7.131 FORM: Near-Simultaneous Death—Equalization of Estates
§ 7.132 FORM: “Reverse Pourover” of Will to Settlor’s Probate Estate
§ 7.133 FORM: Sample Letter Transmitting and Explaining Complex Estate Plan
§ 7.134 FORM: Letter Confirming Client’s Decision to Reject Possible Tax Savings
§ 7.135 CHECKLIST: Checklist Regarding “Loose Ends”
§ 7.136 FORM: Sample Letter Including Executed Documents and Invoice
§ 7.137 FORM: Letter Advising Client of Changes in the Law
§ 7.138 FORM: Certificate of Trust Existence and Authority
CHAPTER 8 THE MARITAL DEDUCTION
PART I: OVERVIEW OF MARITAL DEDUCTION
§ 8.01 Scope
§ 8.02 Overview of Marital Deduction
PART II: BASICS OF MARITAL DEDUCTION
§ 8.03 Practice Considerations
§ 8.04 How Should Property That Is to Qualify for the Marital Deduction Pass to the Surviving Spouse?
PART III: TAKING ADVANTAGE OF THE DEDUCTION
§ 8.05 How Much Advantage Should Be Taken of the Marital Deduction?
PART IV: FORMULA MARITAL DEDUCTION PROVISIONS
§ 8.06 Formula Marital Deduction Provisions: Assuming a Formula Marital Deduction Provision Is Appropriate, What Type of Formula Bequest Is Preferable?
PART V: ADDITIONAL CONSIDERATIONS
§ 8.07 Simultaneous or “Almost Simultaneous” Death
§ 8.08 Use of an Equalization Clause
§ 8.09 Developments Affecting the Marital Deduction
PART VI: CHECKLISTS AND FORMS
§ 8.10 FORM: Changes to Pourover Will Forms Where a Qualified Domestic Trust Is Part of the Estate Plan
§ 8.11 FORM: Changes to Revocable Living Trust Agreement Form Where a Qualified Domestic Trust Is Part of the Estate Plan
§ 8.12 FORM: Trust Designation
§ 8.13 FORM: Marital Trust Language
§ 8.14 FORM: Credit Shelter Trust Language
§ 8.15 FORM: Marital Deduction Equalization Clause
Table of Cases
Table of Statutes
Index
