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James P. Frederick

James Frederick’s Answers

13,918 total


  • 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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  • Is there a way to get the beneficiary changed to my wife's name? Is it the law that they funeral costs will be deducted first?

    My wife's mother has passed away just recently. Her father is in the nursing home and she is Legal Guardian of him. Her father has a pension and life insurance policy through the UAW. The father has some outstanding debt in the 30to 40k range. Cur...

    James’s Answer

    I agree with my colleagues. I assume that you have already contacted the insurance company to make sure that your wife is not already named as contingent/secondary beneficiary on the policy. If you have not done so, you should do that before taking any further action. It is possible, if not likely, that the beneficiary designation is already okay.

    In terms of probate, if the insurance DOES become part of the estate, which is somewhat unlikely, then the administrative expenses of probate (which would include the funeral costs), come off the top of the estate, before any creditor claims.

    Either way, it sounds like your objectives would be met. If the insurance is not part of the estate, however, it is likely that the creditors would be out of luck.

    James Frederick

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  • If this is the case, and the insurance policy was never given to me, is there anything that can be done now?

    My father died in 1991. He owned a home and had an insurance policy through his employment. My grandmother was put in charge of his trust. In my parent's divorce decree in 1981, I believe, it was ordered that I would be the sole beneficiary of any...

    James’s Answer

    Very hard to say. It depends on what happened with the insurance. If it was never paid out and you can establish that you are the rightful beneficiary, then you should be able to make a claim. You may want to check with the Michigan unclaimed property division of the Department of Treasury to determine if they are holding the insurance funds.

    James Frederick

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  • Do I have to include "LLC" in my Art. of Org. & if not, what are the up/downsides of each option.

    I am looking into creating an LLC, as per the suggestion of many lawyers on here. When filing the Articles of Organization, Am I required to put "LLC" In the Company Name section? Could I put ABC Company, or do I have to put ABC Company, LLC. Also...

    James’s Answer

    Depending on the type of business it is, you may need to form a Professional Limited Liability Company. If you are not in that category, you can use LLC, L.L.C. or Limited Liability Company. You cannot use "Company." As others have stated, this is not simply a matter of filling out a form with the State. There are other critical elements, such as filings with the IRS. If you botch setting things up, it will have some very expensive ramifications for you, down the road. You are best advised to have an attorney set things up for you. It is relatively inexpensive to establish an LLC, if it is done properly.

    James Frederick

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  • So, if i want to stretch the distribution out do I name the trust as a beneficiary along with my child. Is the trust 1-2 benefic

    living trust and retirement accounts Previous question: Living trust, what do we do with retirement accts. Do we have to list them or add the living trust as a beneficiary. (2 IRA/401K) Lawyer answer: Retirement accounts usually have named b...

    James’s Answer

    If the trust is the beneficiary, then certain language must be used in the trust and/or the beneficiary designation in order to allow for stretch distributions. Yes, beneficiary designations avoid probate, (which is one reason why people set up trusts). On the other hand, if the trust provides for a staggered distribution of the estate, (as is typically done with younger beneficiaries), and you name the beneficiaries directly, you by-pass the staggering provisions of the trust, which may largely defeat one of the major advantages of using the trust, in the first place. You should review your objectives and all of the facts of your situation with your estate planning attorney and/or your CPA.

    If you are asking these questions here because you are considering setting up the trust on your own, or using a pre-printed form, then you are setting yourself and your beneficiaries up for all kinds of potential problems. The cost to set things right, if it can be done, is almost always more expensive than having the estate plan properly set up, in the first place.

    James Frederick

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