Frequently Asked Questions

A revocable living trust is established during your lifetime. A trust is managed a trustee, usually the person who creates the trust is also the initial trustee.  The initial trustee manages the trust assets until death or incapacity.   If one of these triggering events occurs, then the named successor trustee steps in. 

A properly drafted and fully funded trust will avoid the need for probate both during your lifetime and after your passing.

Probate court is a division of the circuit court charged with overseeing issues related to incapacitated individuals and estates.  This includes guardianships, conservatorships, and estate administration.

Generally, the probate court gets involved when an incapacitated individual is in need of a person to make decisions on their behalf, either in the form of a guardianship (protection of the person) or a conservatorship (protection of the assets).  There is also probate court involvement when a person dies owning any assets with or without a will. The probate court provides legal authority for the assets to be distributed. Whether or not the person has a will, the probate court will ultimately issue an order directing distribution.

The probate process can be costly and expensive. Additionally, once the probate court gets involved individuals lose control; in court, the judge always has the final say. Perhaps most important to some is the fact that the entire probate process and all the probate records are open to the public. In my experience, people want to maximize control, minimize the time and expense of administration, and most importantly keep private matters private.

A power of attorney is a document through which a person gives another the legal power to act on a person’s behalf, if that person becomes incapacitated.

A General Durable Power of Attorney is a document that allows you to designate an agent to manage your financial affairs if you become legally incapacitated.  The document goes into effect when needed and is “durable” which means it lasts as long as you are incapacitated.

A Durable Power of Attorney for Health Care, under Michigan law, allow you to appoint a representative to speak and make treatment decisions for you if you are unable to do so yourself, due to incapacity. Additionally, this document allows you to make your treatment preferences known, including your preferences for life-sustaining treatment and mental health decisions.

If a person is unable to make decisions regarding their person or is unable to manage their financial affairs and they did not execute power of attorney documents, then it is necessary to petition the probate court to obtain legal authority to make decisions for them. In this case, legal authority means a guardian and/or a conservator. A guardian is a person appointed by the probate court that is permitted to make medical, and placement decisions for an incapacitated individual.  A conservator is a person appointed by the probate court that is permitted to make financial decisions on behalf of an incapacitated individual.