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James P. Frederick

James Frederick’s Answers

13,913 total


  • Where should I start?

    My brother is in a nursing home in Ohio and I live in Michigan. I would like to apply for guardianship. His girlfriend does not have his best interest at heart. Her lawyer told her he could marry them quickly but he is in a nursing home and is b...

    James’s Answer

    I agree with Ms. Bruch's suggestion that you contact an Ohio attorney. If your brother is an Ohio resident, you will need to proceed, there. A limited guardianship may be all that you need, but if your brother has legal capacity, then you will not be able to get appointed. If your brother is in agreement with your being his guardian, on the other hand, it may smooth your path. If he opposes you and wants to get married, you may not prevail. More information is needed, but you really need to meet with your brother, get information from his doctors regarding his capacity, and then decide how to proceed.

    James Frederick

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  • Do I need a lawyer to fill out the inventory sheet for Probate Court? Should I have even started a Probate?

    My husband passed away in June of 2015. He did not have a will. I am now faced with the Probate Court with his holdings and a woman from the courts is threatening me with a bench warrant for my arrest. I have spoken with her three times and exp...

    James’s Answer

    You do not say how your home is titled. If it was jointly held by you and your husband, then it would not belong to you. You do not say how the truck was titled. Normally, vehicles worth less than $60k can pass to next of kin outside of probate. Since you opened a probate estate, it would be included in the estate, if titled in your husband's name alone. If it was jointly held, it would not be part of the estate. You normally would not need to have a probate estate for an estate of less than $22k. Since you opened the estate, however, you are now obligated to see it through. I would suggest that you file the inventory, reflecting the $21K from the account. There will be an inventory fee of roughly $125. You would then file a sworn statement to close the estate with summary proceedings. That form is PC590, which you can find, here:
    http://courts.mi.gov/Administration/SCAO/Forms/courtforms/estatestrusts/pc590.pdf

    That should be all that you need to do. If the court is not willing to accept the PC590, then you may need to wait a month or two following the filing of the inventory in order to file a standard closing statement, PC591, which you can find, here:
    http://courts.mi.gov/Administration/SCAO/Forms/courtforms/estatestrusts/pc591.pdf

    If you have additional questions about filling out the inventory, feel free to post additional details.

    James Frederick

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  • Probate lawyer issues

    I hired a lawyer to help my family solve issues with my fathers estate. Over six weeks ago I provided the lawyer with all documentation the courts needed. After I did so I received a letter from the courts giving me 20 days to comply or they would...

    James’s Answer

    Because you have a lawyer, the court will want to speak with and deal with him and not you. What I WOULD do, if the documents are not filed in the next day or two, is to send a letter to the lawyer restating all of the facts. That will provide a written record of what has transpired. It is not uncommon in probate matters for there to be documents filed late. It is even more common around the holidays, when the court is closed and people are often away on vacation. I expect that there will be some leeway granted by the court, because of this. You might contact the probate register and let him/her know that the documents are in the possession of your lawyer and that your understanding is that they will be filed in the next day or two.

    I would follow up with your lawyer again, if the documents have not been filed in the next day or two. Keep in mind that it looks bad for the lawyer if documents are continuously filed late, so he will undoubtedly do his best to remedy the problem. If that does not happen, once you have documented the issue, then you may need to discuss whether or not he should continue to be your lawyer.

    You do not say where in the probate process you are at. If you are nearly finished, it makes little sense to change things, at this point.

    James Frederick

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  • In the state of michigan does a guardian ad litem have to be an attorney or can a lay person be appointed

    probate estate for a mentally incapable adult

    James’s Answer

    I do not have any kind of statute to refer you to, but I have never seen a non- attorney appointed as GAL. It is up to the judge to decide and it is almost always a public administrator that is appointed. (They are all attorneys).

    James Frederick

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  • Can a Succesor Trustee change a revocable trust to an irrevocable trust in advance in order to protect the asset from creditors?

    Hello: Here's the scenario: An parent placed her home into a revocable living trust 20 years ago. That parent is the Grantor/Settler of the trust with a preordained successor trustee named in the revocable trust. Now in 2015, however, the parent...

    James’s Answer

    The Trust may, by its own terms, become irrevocable, upon the incapacity of the grantor. The Trustee cannot do anything to make this happen. Whether the Trust is revocable or not should not have any bearing on the shorter term creditor rights. Trusts are subject to creditor claims just as the grantor would individually be, under Michigan law. There is no liability protection by having the assets titled in Trust.

    Other states have adopted asset protection trusts. Ohio is one of the more recent states to have done so. Michigan does not have this type of protection, currently.

    James Frederick

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  • Should we sue and revoke power of attorney? is this a crime for spending her money? will he have to pay it all back to her

    if a brother is power of attorney for our mother, who is in a private facility, can he spend or use her money for personal use? his grown daughter has also been living at the house and they have used her money for utilities, lot rent, cable etc. ...

    James’s Answer

    Your mother should hire an attorney to review this and to protect her. You have a lot of red flags here that bear further investigation. At the very least, your brother should be accounting to your mother for everything that he is doing. He does not need to account to you, for this. But hopefully, he has very careful records of everything he has done, in case this needs to be brought before a probate judge.

    James Frederick

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  • Does a MI will need to be on bonded paper and have a notary stamped/engraved pressed seal?

    An attorney who drafted a will and he notorized and had two people witness my signature but it's on normal paper and does not have the seal (in stamp or engraved/pressed form) . He said Mi does not require the engraved stamp, a notary signature a...

    James’s Answer

    • Selected as best answer

    The paper does not matter. You can have a valid Will on a napkin. I have seen a valid Will on a doctor's prescription pad. It is also not necessary to notarize a Will, although this is commonly done. You were very wise to have your Will prepared by an attorney. That is the best way to ensure that your wishes will be upheld, and that it will be less likely that anyone could successfully challenge your estate plan.

    James Frederick

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  • What are my rights what can he do been doing it this way for 10 years

    My ex husband and I reconciled been back together for 10 years we use his checking and savings I direct deposit my checks into his account I write checks off that account every time he gets mad at me he threatens to prosecute me for fraud if I don...

    James’s Answer

    If it is a joint account, then there is nothing fraudulent about it. If you have the right to write checks on the account, the same thing. Your ex cannot "prosecute you" for anything. He can go to the police and complain that you have been stealing from him or accessing his account. If you can show the money was yours, they are very unlikely to do anything. I do not think there would even be a civil action, unless he can show that you have been taking funds that were his. Since he allowed this and directed it, I do not think you have any problem. The larger question is if you know he is going to use this against you, (even if it is just a threat), why would you continue to allow this?

    It seems to me that you are allowing him to bully you and that you need to figure out a different arrangement that works better for you.

    James Frederick

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  • Will my beneficiaries have to use the money from my bank account to pay off any bills I have, such as credit card debt?

    I am going to make out my will. I have no house, but have life insurance and a checking account. I have made my life insurance payable to my beneficiaries, and my bank account a payable on death account to keep it out of probate. I have no debt ot...

    James’s Answer

    Your probate estate is responsible for your debts. The Will controls your probate estate and ONLY your probate estate. It sounds like you have set things up in a way to avoid probate. If that is true, a Will is largely irrelevant. Creditors are generally out of luck, when there is no probate estate. As Mr. Bowe indicated, the rest of us pay the price when people structure things in a way that creditors are cheated. For creditors like funeral homes and cemeteries, they will not provide services if they are not paid.

    James Frederick

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  • What can I do to insure she understands her rights and quite frankly I don't have much faith in her court appointed co- guardian

    I went to the probate court regarding guardianship over an adult. The court's decision was to give my friend co-guardianship between her mother and a court appointed attorney. Can the court prohibit me from knowing where she is and to provide me...

    James’s Answer

    Your friend has a court appointed attorney whose sole purpose is to make sure that your friend knows her rights and that she is protected from those who might otherwise take advantage of her. Your showing up in court told her that you cared enough to do that and to try to advocate for her and your friendship. That may be all that you can do. It is within the power of the court appointed guardian(s) to determine who can see your friend. All you can do is to try to cooperate with them to see if you can maintain contact and a relationship. You can also continue to monitor any future court proceedings and be present, if you are able to do so.

    James Frederick

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