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James P. Frederick

James Frederick’s Answers

13,746 total


  • If a petion has been filed with the court re guardianship how much info am I to disclose beyond what they are asking

    I have guardianship of elderly parent. A sibling has partitioned court. The guardian ad litem has contacted another sibling who wants more info than asked for in the petion. Their name is not on. The petion am I obligated to give this info which i...

    James’s Answer

    Ultimately, you need to disclose whatever the judge orders you to disclose. The GAL is the eyes and ears of the court, prior to the hearing and will be making a report and recommendations to the judge. You want to cooperate to the extent possible with the GAL. You may share the information with the GAL in confidence and get their read on how to proceed, or you may wait to speak with the judge. Once you are in court, your parents' intentions may not be realized. You are in a public forum and it sounds like your sister may be accusing you of financial impropriety. If that is the case, your best bet is to retain a lawyer to help you decide what to disclose and to whom.

    Without knowing more about the nature of your hearing, that is about the best I can do.

    James Frederick

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  • Transferring assets from Estate to Trust... why is this necessary?

    The parent has died, there are two siblings. One is Trustee, the other Personal Rep. The Trustee found a bank asset that did not have beneficiary or joint noted. The bank is requiring Letters of Authority from the PR, even thou, the Tr...

    James’s Answer

    In this case, it seems as though the bank(s) are actually correct. If the account is not titled in the Trust, then the Trust does not own or control it. It must go through probate in order to properly be transferred to the trust. If this account is nominal, (less than $22k under Michigan law), then a small estate proceeding may be appropriate. If not, then the bank is concerned about their liability. They cannot legally transfer title of the asset without the Letters of Authority. The LOA give the PR legal authority to take possession and control of this asset, and to transfer it to the Trust, if that is what the Will provides.

    Once the asset is transferred to the Trust, then the terms of the Trust dictate who receives it and when. Oddly enough, as you indicated in the follow-up note to one of my colleagues, this potentially allows both the PR and the Trustee to charge a fee for their services, which diminishes the value of this asset for the ultimate beneficiary. Under current law, there is little that can be done about this. That is why proper estate planning and follow-up work is so very important. Probate could have and should have been avoided, in this case, but because the account was not properly transferred into the trust, the parent's intent could not fully be realized.

    James Frederick

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  • Is a Michigan Holographic Will sufficient to avoid probate?

    My sister unexpectedly died last week and chose me as the beneficiary of her home and all its contents, her bank account, and all proceeds from selling her paintings. She appointed our sister as Executor and granted her the land in Arizona. I had ...

    James’s Answer

    8 agree with my colleagues, and would add that with AN.Y. Will, the only way for it to become legally effective is by having it admitted to probate. Your misunderstanding is one of the most common estate planning myths that people believe. Given this highly technical nature of probate and the fact that most people have minimal exposure to those rules, using a attorney to help you through it would be a very wise decision.

    James Frederick

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  • Can I reopen an estate that has been administratively closed for a few years?

    The personal representative of my mother in law's will did not fulfill his duties as PR, and his rights were revoked. He has taken several items from the estate and not properly distributed the assets. A few years have passed and I'm wondering if ...

    James’s Answer

    Yes, this can certainly be done. You would file either an application or petition to re-open the estate. Depending on the facts, the court may require one form instead of the other. The main difference is that you can normally reopen the estate under an application, without the need for a hearing. A petition would require a hearing before a judge. Given the issues with the personal representative, you would almost certainly want to file a petition. Because it is almost certain that the PR will contest your actions, retaining an attorney to assist you would be a really good idea.

    The form that you need is PC607, which you can find, here: http://courts.mi.gov/Administration/SCAO/Forms/courtforms/estatestrusts/pc607.pdf

    James Frederick

    P.S. Since you were not the original PR, it is my guess that the court personnel will require you to file this as a petition, and they will set a hearing date. The filing fee will be $150.

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  • My sister has presented two claims against my Fathers Trust totaling over $47,000.00. Dad made me Trustee of the Trust.

    My sister went to probate court, told numerous lies to the Judge and got Guardianship/Conservator ship of Dad. Sister told me in November after Dad died that she would leave me alone if I gave her $5,000.00. I had planned to do so after the Trus...

    James’s Answer

    You are not going to be able to change judges. It sounds like paying her $5k, if she is still willing to accept that, makes good sense. You can force her to go to court, but it does not sound like that is a sure fire win for you. You do not say what the claims are for, so it is hard to say whether she has a good basis for payment or not.

    James Frederick

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  • The 1st thing you do when you find out days after your grandmother dies that, she has been a victim of theft and exploitation??

    Mother in law had a stroke 4yrs ago and was unable to walk talk or eat. My sister in law who hadn't worked in years trying to get disability at the time, jump at the opportunity to move into my mother in laws house and get power of attorney, limit...

    James’s Answer

    LOTS of issues and potential issues, here. Your grandmother's capacity is obviously the main issue in controversy. Obtaining medical records will be critical to the success of your case or lack thereof. The only way to obtain medical records in Michigan after a person has died is through appointment of a Personal Representative. Since your sister-in-law will certainly oppose your efforts to fight her, you will need to retain a highly skilled probate litigator. There is no other likely way you can prevail in a complicated matter like this.

    If you do not know a good probate litigation attorney in your area, Avvo's find a lawyer function will give you a good starting place.

    James Frederick

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  • Removing a person from my mother home, she passed on a couple months ago

    My mother passed away 5 months ago. I am the executor of her estate. I am preparing her house to be sold, at thus point the house has nothing in it but a couple pieces of furniture. My moms ex boyfriend broke into the house and changed all the loc...

    James’s Answer

    You can call the cops, and they MAY help you. My guess is that they will tell you this is a civil matter and you will need to go through eviction proceedings. This requires compliance with specific notice requirements and it may be best done with the help of an attorney. It could take up to 6 weeks for the entire process, depending on how determined the boyfriend is to push things. You may have claims against him in the event there are any damages. You also want to make sure that you continue to insure the property. Ideally, the insurance company is already aware of your mother's passing. There is a chance that they would deny a claim, if there are damages, but maintaining the insurance is still the best you can do.

    I would immediately contact a landlord tenant attorney and start the eviction process, in order to keep the delays to a minimum.

    When you talk with the police, it will help for you to go there in person and to take a copy of your Letters of Authority. That gives you the best chance that they will intervene on your behalf.

    If the boyfriend takes any of your mom's belongings from the house, he can be guilty of and liable for "conversion." That carries potential treble damages, as well as possible criminal sanctions. Whether he is collectible or not would certainly be an issue, however.

    James Frederick

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  • Is there anything I can do to get my share of dads estate?

    Dad died 3 years ago and had no will. His wife was still alive but she died in February of this year and her daughter took everything .wife had dementia and daughter was power of attorney over her.

    James’s Answer

    I agree with Mr Cottrell, but in my experience, it is most common for married people to hold title to their assets jointly. If that was the case here, then your stepmother would not have had to rely on the intestacy laws to get the entire estate. It would automatically have passed to her. That would be true even if there had been a Will leaving everything to you and zero to your stepmother.

    How the assets were held is critically important, along with any estate planning that might have been done. If your stepsister acted improperly under a POA, then you could have some recourse. In all likelihood, you are out of luck.

    I am sorry for your loss, and the position you now find yourself in. Your father could have set things up differently, had he planned his estate to benefit anyone other than his wife, ( and if the assets had been titled differently.)

    James Frederick

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  • Can I legally view my dad's will?

    My dad passed last February and my brother claims he is the only one of my dads 8 kids in his will and was left everything. I believe he may have manipulated my father if he is in fact the only one in it. Can my sisters and I view the will and fig...

    James’s Answer

    I agree with Attorney Wejroch, but I am concerned that you may not have the whole story, here. The only way a Will can be given effect is by having it admitted to probate. If and when that is done, you would be provided a copy. If it was not done, and your brother has been able to use and access the assets, it suggests that all of the assets were jointly owned by your father and brother, and/or your brother received them as your father's designated beneficiary. If that is the case, it still may be possible to challenge, but it would be much more difficult to do so. You are not going to be able to do this without a good probate litigator, so I would meet with a lawyer as soon as possible, to determine how to proceed.

    You can do a very preliminary check on things yourself, by checking online to determine how your father's assets were titled. Most register of deeds sites allow online searches. I suspect you will find that there was a quit claim deed adding your brother to the title of the real estate, at some point.

    That may give you some insight on what you are up against.

    James Frederick

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  • Michigan estate attorneys: On what grounds can we challenge a will or the appointment of a personal representative?

    My wealthy uncle died recently in MI. He left his entire estate to charity. He left nothing to his nieces, who are his closest living relatives. He appointed his attorney as his personal representative. The attorney is willing for us to have perso...

    James’s Answer

    I am very sorry for the death of your uncle and the situation you find yourself in. In all likelihood, you ARE out of luck. Facts are critically important, in cases like this, however. So if you think you may have a claim, you should visit with an attorney and have the Will reviewed.

    You cannot contest a Will because you do not like what it said. Your grandmother's comments aside, once your uncle inherited her estate, he was free to do with it whatever he wanted. As long as he had capacity to sign his Will, it is very unlikely you would be successful in challenging it. It is also very likely that once you DO contest the Will, you will no longer have any access to the personal items that you mention. I do not know if that makes a difference or not.

    Personal representatives in Michigan are entitled to "reasonable compensation" for their services. If the estate is large and complex, then the PR will be entitled to a higher fee. There is no percentage rate that is charged. It is based either on a flat fee or more commonly on an hourly basis.

    I am sorry not to be able to give you more encouraging news.

    James Frederick

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