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James P. Frederick

James Frederick’s Answers

13,765 total


  • Spousal property rights in Michigan

    My husband's mom passed away. There are two siblings, one is the Trustee. She put the home in her Trust, which upon death the Trustee (husband's brother) immediately transferred the home into both his and my husband's name. The home had no mor...

    James’s Answer

    I agree with my colleagues. Your answer depends on how the deed reads. You *may* have dower rights, at this point, but there is no dower in Michigan, if the property is owned as joint tenants with rights of survivorship. If that is how the title reads, then there is nothing you can do, unless your brother-in-law agrees to add your name. There are ways to set this up that might be agreeable to him. You should all visit an estate planning attorney to discuss this further.

    James Frederick

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  • I need a lawyer to look at a prenuptial agreement and go over it with me need to know how much it willl cost

    I need a lawyer to look at a prenuptial agreement and go over it with me need to know how much it willl cost

    James’s Answer

    Lawyers on this site are not supposed to directly solicit business. You can check the "find a lawyer" link above, however, and locate many lawyers who could help you with your matter, including my colleagues who have responded, already.

    James Frederick

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  • My cousin has been living with me since she was 14 and she is 16, how do I get guardianship?

    She moved with me in my mom when she was 14 because she didn't like her environment with her grandmother who is her legal guardian because she felt it wasn't safe. My aunt (Her grandmother) willingly let her leave she have been with me for 2 years...

    James’s Answer

    • Selected as best answer

    There is a form called "modification or termination of guardianship." You can file that with the probate court in your county. Your cousin is old enough to express her preference, at this point, as well. The potential problem I see, is that if you take that route, you may be seeing up a court battle with your aunt. Art this point, she is allowing your cousin to live with you, anyway . Why run the risk of that changing by filling documents to force the issue?

    I think I would just wait and keep things the way they are. If your aunt tries to change the status quo, THEN you could file to change things. In less that two years, your cousin will not need a guardian, anyway.

    James Frederick

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  • Do I need to go through probate even if I have a pour over will that buts all my mothers assets to the trust?

    My bother and I are trustees on my mother's trust. Not all assets were named to the trust and some accounts did not have beneficiaries. The pour over will names all these assets to go to the trust. Why does this still have to go through probate an...

    James’s Answer

    I agree with my colleagues. The "Why" probate is necessary is because that is the ONLY way that a Will can be given effect. It must be "Admitted" to probate by the court, and a Personal Representative is appointed by the court and given Letters of Authority, which provide the PR with legal authority to transfer title to the assets. Until that happens, no one has legal authority to do anything with the assets.

    Depending on the nature and size of the assets, it MAY be possible to avoid probate or to use small estate proceedings. That option is generally available for assets worth less than $23k, assuming your mother died in 2015. If the total value is less than that amount, you should consult with an attorney to determine which small estate procedure would be most beneficial to you.

    James Frederick

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  • A PERSON MARRIED TO HUSBAND # 3 FOR 15 + YEARS . FILES A PETITION TO PROBATE , USING HUSBAND # 2 LAST NAME IS THIS LEGAL .

    CAN THIS PETITION BE DISMISSED FOR THAT REASON , AND CAN IT BE REFILED AT A LATER DATE WITH HUSBAND # 3 LAST NAME, CAN YOU STATE A COURT CASE WHERE THIS HAPPENED.

    James’s Answer

    I am going to take a slightly different approach to this than my colleagues did. If the petition was filed, then the onus is on the beneficiaries of the estate to object. Keep in mind that it is the relationship of the person in question that matters and not their name. If the person is using the wrong name and is doing so to be misleading or to commit fraud, then I doubt the court would stand for it. But if your complaint is that you object to the surviving spouse serving as Personal Representative because they decided to go back to their old legal name, I do not think the court will care. What you are trying to accomplish is not exactly clear. Why does the name make a difference, as far as you are concerned?

    James Frederick

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  • Locating Will or Trust

    I have been appointed Personal Rep of mom's Estate. It's complicated so to spare details, is there a way to find Wills or Trusts. If the Will was never filed w/ the Court. the lawyer know longer practicing law, what are other options....

    James’s Answer

    In addition to what my colleagues have suggested, if you know the lawyer who prepared the documents, you may be able to track them down. It is very common for lawyers leaving practice to make provision for their clients' files. You might also check with the lawyer involved with the conservatorship/guardianship. He may either have copies or know how you can get your hands on them.

    Your post illustrates a very important point for people who actually DO their estate planning; a number that is reportedly in the low 30th percentile. It is not enough just to sign documents. You need to let the people you place in charge know where the documents are and provide a means for accessing them. Otherwise, your intent may be frustrated by the very situation you now find yourself in. I wish you the best of luck and hope that you can piece things together.

    James Frederick

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  • Should I make a spousal survivor election of my dower rights or share if I am on the deed with a life estate?

    An attorney told me not to make a selection on the Notice to Spouse of their legal rights since I am listed on the quit claim deed as having a life estate with rights of survivorship. He said it depends on which is greater, the value of the life ...

    James’s Answer

    It is impossible to answer your questions without seeing the documents in question. You want the option that is best for you, which depends on the facts of your situation. If you elect to take against the Will, you would be entitled to half of the amount you would receive under the intestate laws, reduced by whatever you have received as a result of your husband's death. Depending on the year of your husband's death, the amount might change, as the figures are indexed for inflation, each year.

    To further complicate matters, there are additional exemptions and allowances that you may be entitled to, which could total an additional $60k or so.

    How much is the probate estate worth? How much did you receive from other sources, such as life insurance, IRAs, 401K's, etc? Is it important to you to try to remain in the house? All of these are questions that would need to be answered before anyone could advise you on how to proceed.

    Have you actually MET with a probate lawyer or did you just get some information here on AVVO? In my opinion, you need to sit down with a lawyer that specializes in probate matters, in order to get the answers you need.

    James Frederick

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  • Can I get assets if I'm named in will without the executor? How do I find out what assets are left?

    My grandmother passed away recently. We were not close so hadn't talked in years. We found her will that named my uncle who left the state and hasn't returned in over 20 years as the executor. All assets were to be left to myself and my 2 brothers...

    James’s Answer

    I agree with my colleagues. Your best bet may be to contact the uncle and see if he will sign off on having you act as Personal Representative. There is no legal reason why he cannot be the PR, serving from out of state. Practically, he may not be interested; particularly, if he is not receiving anything under the Will. If you cannot locate your uncle, a lawyer may be able to track him using a database program that many of us have. If you know where he is, but simply want to work around him, you cannot do this without at least giving him notice. There is a process where you give written notice to someone who has higher priority to serve than you do. You serve this notice on them and then wait for two weeks before filing to open the estate. As some of the others have noted, whether it makes sense to do this depends on the assets in the estate. Normally, such assets would NOT include insurance, because insurance policies typically pass to named beneficiaries.

    There are costs associated with probate and they may be more than you are willing to pay, if the probate assets are limited. Depending on the assets in the estate, there may also be small estate procedures available to you. A lawyer can help you investigate the assets, to a certain extent. More importantly, depending on the facts, the lawyer can help you to determine how to access the probate assets as cheaply and efficiently as possible.

    James Frederick

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  • Dad passed, mom lives in home. Should we execute lady bird deed adding us 3 kids to house title? House in Michigan.

    Home is free and clear. mom is 82. has total assets under $300,000 including the house.

    James’s Answer

    I agree with my colleagues. It sounds like your goal is to avoid probate and this will achieve that goal for the home. There are other issues to consider as well, however. Your mother also needs a Durable Power of Attorney, if she does not have one. A consultation with an estate planning attorney would be a very good idea.

    James Frederick

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  • Before parent passes they sign a title for a vehicle then that parent passes the vehicle is transferred into my name

    My brothers and sisters agreed now the state is going into probate wouldI have to pay for or surrender the vehicle

    James’s Answer

    I do not believe the car should be part of the probate estate, since it was arguably transferred to you, during your parent's lifetime. There may be an argument that there was no delivery during lifetime and that this was therefore not a completed gift. Since it appears that everyone is in agreement that you should have the vehicle, it may not be a problem. I would go to the Secretary of State and apply for a new title. If you are challenged by the personal representative of the estate, then you will need to consult with a lawyer to determine how best to proceed.

    James Frederick

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