Estate Planning Blog
Paw Paw Estate Planning Law Blog

Concerns about how your personal property will be distributed:

Posted December 4, 2018

MCL 700.3902 describes the order in which assets are appropriated or abate. This essentially gives the order in which assets may be used to satisfy charges against the estate. This become important in estates where the estate is insufficient to pay all charges and devisees. Except as provided in connection with the share of the surviving spouse who elects to take an elective share, distributees' shares abate, without a preference or priority between real and personal property, in the following order:

  • Property not disposed of by the will.
  • Residuary devises.
  • General devises.
  • Specific devises

For the purposes of abatement, a general devise charged on specific property is a specific devise to the extent of the value of that specific property and, upon the failure or insufficiency of the property on which the devise is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amount of property each beneficiary would have received if full distribution of the property had been made in accordance with the terms of the will. Abatement within each classification is in proportion to the amount of property each beneficiary would have received if full distribution of the property had been made in accordance with the terms of the will.

Pursuant to MCL 700.3902(3) if the will expresses a different order of abatement, the will controls. If the testamentary plan or the devise's express or implied purpose would be defeated by the order of abatement , the distributees' share abate as found necessary to give effect to the testator's intention. Thus, the court is authorized to direct a different scheme of abatement to avoid frustration of the decedent's intent.


Legal Action Against my Estate:

Posted November 16, 2018

If a wrongful death action is filed, it must be brought in the circuit court by the personal representative of the decedent’s estate. MCL 600.2922(2). If a personal representative has not already been appointed, it is necessary to get one appointed by the probate court before the circuit court action may be brought. Probate court involvement is also required if a guardian or conservator is needed for a minor or incapacitated individual who is a claimant for wrongful death proceeds in the circuit court action. If the action is settled, the approval of the settlement, as well as the determination of who is to share in the proceeds, is made in circuit court. MCL 600.2922(5). However, if the settlement provides for the creation of a trust for a minor or a legally incapacitated individual, the circuit court determines the amount to be paid to the trust, but the probate court must approve the terms of the trust. MCR 2.420(B)(5). If an interested person is a minor or legally incapacitated and has a guardian or conservator, no judgment or dismissal may be entered by the circuit court until it receives written verification from the probate court that it has passed on the sufficiency of the bond and any required bond has been filed with the probate court. MCR 2.420(B)(3)

A personal representative bringing a wrongful death action represents the interests of the estate; therefore, he or she must be represented by an attorney. A personal representative filing a wrongful death action without an attorney violates the unauthorized practice of law statute, MCL 600.916.

Shenkman v Bragman, 261 Mich App 412, 682 NW2d 516 (2004).


What is a Durable Power of Attorney?

Posted October 19, 2018

Unlike conventional estate planning documents that deal with transfer of property to beneficiaries at the death of the client the durable power of attorney (DPOA) operates during the client’s lifetime and allows individuals chosen by the client to act on behalf of the client. A general power of attorney, as developed by common law, allows a person to authorize another to act in his or her place. There are limitations. Powers that are considered personal to the principal and are outside the scope of agency law cannot be delegated to an agent. These powers are:

  • the power to make a will;
  • the power of agent to represent principal in court; and
  • the power to maintain an action for divorce.

The relationship resulting from DPOAs is recognized as a type of consensual relationship that falls outside the common-law definition of agency. However, those relationships carry the consequences that one person’s acts are ascribed to another, similar to the agency function. The Restatement provides a starting point for legal analyses of the relationship.