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James P. Frederick

James Frederick’s Answers

13,769 total


  • Who has more rights over a house. A son/daughter or a aunt

    They deported a father. He is not in the United States. He send the power of attorney to his sister. And the wife with children has the home title

    James’s Answer

    Under POA, the agent steps into the shoes of the principal. The agent is required to act in the bets interests of the principal in most POAs, however. Who has what rights is determined by the title to the property. A wife has dower rights, as well, so the agent cannot generally do anything without the signature and consent of the wife. The son or daughter would probably have no rights, but it is impossible to say without knowing how title is held.

    James Frederick

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  • Commencement proceedings in Probate

    In a commencement proceeding, there is a hearing scheduled? Does all interested parties have to attended?

    James’s Answer

    Hello~
    There USED to be a form "Commencement of Proceedings." The court no longer uses this form. You initiate probate either by filing an Application or a Petition. With the Application, you are filing for Informal probate proceedings, and no hearing is necessary. In the vast majority of all probate cases, this is what you would want to file. With a Petition, the court WILL set a hearing date and all interested parties would need to be provided with a copy of the Petition and a Notice of Hearing. You would need to file a Proof of Service with the court to show that you mailed the Notice out at least two weeks before the hearing. You can personally serve it on the interested parties as late as one week before the hearing. It is not necessary for the interested parties to attend the hearing, if they have no objection to the appointment. It is generally not necessary to have a hearing in the first place, however.

    It would probably be a good idea to at least consult with a probate attorney to make sure that you are on the right track. Many probate attorneys do not charge for the initial consultation.

    James Frederick

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  • What kind of atty do I need?

    Asking for my 19 yo brother. Father passed in '09, brother died in '10, and mother died in '15. Stepfather prevented remaining brother from seeing her trust, will recently changed to say "go by the trust"- stepfather kept mom's money and taunted b...

    James’s Answer

    I agree that your brother needs a probate litigation attorney. At this point, it may be there is nothing he can do. It may also be that there was very little he could do, in the first place. Your do not automatically inherit anything from your parents. It all depends on what the documents provided. In all likelihood, when your father passed, everything would have gone to your mother. Upon her remarriage, it may be that she had everything titled jointly with her new husband. In that case, upon her death, there may have been nothing to inherit, either. As Mr. Conway said, have him take every scrap of paper that he has to a lawyer to review the entire situation.

    James Frederick

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  • 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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