Vincent F. Gauci - VFG Associates,LLC

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    29432 Joy Road, Livonia, MI 48150

  • FAQ

    Estate Planning


    What is Probate?

    The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.

    When is probate required?

    Probate administration may not be necessary upon the death of an individual. If the person owned no property titled in his or her name alone, then there is no property to administer and no need for probate. For example, if spouses own all of their property together as husband and wife, then upon the death of the first spouse the property passes automatically to the surviving spouse without the need for probate.

    What is a Personal Representative?

    The administration of a decedent’s estate is the task of the personal representative. “Personal representative” is the term used under Michigan law for the position which was formerly called the “executor” or “administrator”.

    What is a Living Trust?

    A living trust is a trust created during the lifetime of the grantor (the creator of the trust). Typically, the living trust takes the form of a revocable grantor trust, which is created by a transfer of the grantor’s property to himself or herself as the trustee of a trust under which he or she is the lifetime beneficiary. The trust usually provides that the income from trust property is to be paid to the grantor during his or her lifetime and that the grantor has the power to withdraw assets from the trust. The grantor typically retains the right to revoke the trust or modify the terms of the trust at any time until he or she dies or becomes legally incapacitated. After creating the trust, the grantor “funds” the trust by transferring all of his or her property to the trust. In this way, the grantor can avoid owning any property in his or her name at death, and thereby avoid probate.

    What are the advantages to a Living Trust?

    A Living Trust avoids probate because your property is owned by the trust, so technically there’s nothing for the probate courts to administer. Whomever you name as your “successor trustee” gains control of your assets and distributes them exactly according to your instructions.

    There is one other crucial difference. A will doesn’t take effect until you die, and is therefore no help to you with lifetime planning, an increasingly important consideration now that Americans are living longer. A Living Trust can help you preserve and increase your estate while you’re alive, and offers protection should you become mentally disabled

    What is the best approach to creating a Living Trust?

    Living trusts are complicated, legal arrangements that require considerable knowledge and expertise. Qualified, estate planning attorneys have the skill and the legal training to advise you along the path to a sound estate plan that may or may not include a living trust.

    Don’t be fooled into believing that any of the off-the-shelf documents sold by a door-to-door salesman or by an internet web site will be just as good. The final documents for your estate plan, including a Last Will and Testament, a revocable living trust instrument, and possibly other legal documents, must be the product of a thorough analysis of your goals and objectives, your personal and financial circumstances, and your personal tolerances for risks and rewards. Moreover, a successful estate plan will often include the valuable input of an accountant, a trust officer, a banker, an insurance advisor, and an investment manager. If required by your particular circumstances, these professionals can mean the difference between a very successful estate plan and one that is not.

    What is a Power of Attorney?

    Power of attorney” means an instrument in which a principal grants authority to an agent to act as attorney in fact for the principal.

    What is a Durable Power of Attorney?

    The durable power of attorney is an extremely valuable estate plan document. It allows one person to designate an agent to conduct all financial affairs. These documents are typically durable meaning that the power continues through the disability of the principal (the person naming an agent). Alternatively, there can be springing powers of attorney, which only come into effect when the principal is incapacitated. Springing powers of attorney can be attractive in many ways since the principal’s assets remain untouchable while they can still be used and enjoyed by the principal

    Do I  need a Durable Power of Attorney even if my spouse and I own everything jointly?

    If you are married, your spouse does have some authority over property you own together — for example, to pay bills from a joint bank account or sell stock in a joint brokerage account. There are significant limits, however, on your spouse’s right to sell property owned by both of you. For example, in most states, both spouses must agree to the sale of co-owned real estate or cars. Because an incapacitated spouse can’t consent to such a sale, the other spouse’s hands are tied.

    When it comes to property that belongs only to you, your spouse has no legal authority without a durable power of attorney.

    Can I revoke a Durable Power of Attorney?

    If for any reason, you become unhappy with the person you have appointed to make decisions for you under a durable power of attorney, you may revoke the power of attorney at any time. There are a few steps you should take to ensure the document is properly revoked.

    While any new power of attorney should state that old powers of attorney are revoked, you should also put the revocation in writing. The revocation should include your name, a statement that you are of sound mind, and your wish to revoke the power of attorney. You should also specify the date the original power of attorney was executed and the person selected as your agent. Sign the document and send it to your current agent as well as any institutions or agencies that have a copy of the power of attorney. Attach your new power of attorney if you have one.

    You will also need to get the old power of attorney back from your agent. If you can’t get it back, send the agent a certified letter, stating that the power of attorney has been revoked.

    Because a durable power of attorney is the most important estate planning instrument available, if you revoke a power of attorney, it is important to have a new one in place. An elder law attorney can assist you in revoking an old power of attorney or drafting a new one

    What are the advantages of a Durable Power of Attorney?

    Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer. In addition, under a guardianship or conservatorship, your representative may have to seek court permission to take planning steps that she could implement immediately under a simple durable power of attorney.

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