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Constance L. Brigman

Constance Brigman’s Answers

19 total


  • Can I be garnished for child support payments, even though I am current with the payments?

    I was unemployed for 3 yrs, yet i was still making payments to California ( I live in Michigan) for child support because i recieved VA benefits. I began working 2 months ago and now I am being garnished for child support when I have ALWAYS been ...

    Constance’s Answer

    Generally, income withholding is automatic unless the parties opt out of it. The total amount collected from all sources should never be more than the total amount that is ordered, regardless.

    Look at Wayne County Friend of the Court's webpage regarding income withholding:

    Income withholding directs the payer’s employer or other source of income to withhold support and send it to the Friend of the Court.

    Support orders entered or changed after December 31, 1990 must include a provision for immediate income withholding.

    In some limited cases, an order of income withholding will not take effect immediately if the Court finds that “good cause” exists based upon at least ALL of the following:

    A written specific finding by the Court that income withholding would not be in the best interests of the child(ren).

    Proof of timely payment of previously ordered support, if applicable.

    An agreement that the payer will keep the Friend of the Court informed of the name, address, and telephone number of his/her current source of income and specific information on any health care coverage available to him/her through employment, or that is being maintained

    or

    The parties enter into a written agreement that is approved by the Court and provides that the order of income withholding will not take effect immediately, that an alternative payment arrangement has been made and the payer shall keep the Friend of the Court informed of the name, address, and telephone number of his/her current source of income as well as specific information on any health care coverage available through employment or that is being maintained.

    http://www.waynefoc.com/faq

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  • Will form PC 598 work for a Roth IRA?

    Will form PC 598 work for a Roth IRA? The amount in the account is $970. Previously, when I went to the bank about this (without a form) - they said an estate HAD to be opened to claim this money. If so, how would I fill out this form? ...

    Constance’s Answer

    I have used PC 598 when there actually was a beneficiary designation for an IRA but the bank could not find the original beneficiary designation in their files, so they refused to distribute the IRA without help from a probate lawyer. The bank is protecting itself from liability. If they distribute to you and it turns out that the distribution was in error, then they have to make it right at their own expense. That part about it being at their expense is what makes them careful to not make any mistakes.

    This is the link to the form that you are asking about. http://courts.michigan.gov/scao/courtforms/estatestrusts/pc598.pdf

    Here is the link to the form that applies when there is real estate involved.
    http://www.courts.michigan.gov/scao/courtforms/estatestrusts/pc556.pdf

    Was there property out there with your brother's name on the deed - as of the date of death? If so, then you cannot use PC 598. Even if he was in foreclosure when he died, if he had property with his name on the deed, then you better not use PC 598. There is very little room for error in probate matters.

    A false statement on PC 598 is perjury. Be aware that his creditors can still make a claim for the money that you get from the Roth IRA, if you lied on this form. They will say that you attempted to defraud your brother's creditors and might show up a year or so from now. You won't have a defense that the creditors period is over, if you lied on PC 598.

    If there is no real estate and you meet all the criteria for PC 598 then the first question is asking you to check the box for other and write on the blank that you are the decedent's sister.

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  • I am the sole surviving son to my late father. He left behind a small property. Do i need to hire a lawyer for probate?

    I am stationed in California. Do i have to be in Michigan to start the process? if so what forms do i need to file?

    Constance’s Answer

    This is real estate. One small estate proceeding applies to real estate. MCL 700.3982 applies.

    Here is the public informational link to it. http://www.accesskent.com/CourtsAndLawEnforcement/ProbateCourt/03_estate_distsmallest.htm

    And here is the link to the form you need to fill out and file in the county where the property is located.
    http://www.courts.michigan.gov/scao/courtforms/estatestrusts/pc556.pdf

    You can do this without being at the probate court but you will need to do a few things at the Register of Deeds in the county where the property is located, too. You will record the death certificate there. You will have a deed prepared conveying the property to you and you will file a property transfer affidavit with the local property assessor, too. The property taxes will uncap to the current fair market value so the property taxes will go up. I assume that this property is vacant land so there is no homestead exemption on it that needs to be lifted now. (Remember that you cannot get a homestead exemption unless the owner occupies the property as their primary residence.) The order assigning the property to you will need to be recorded at the Register of Deeds as well.

    Notice that this is a proceeding to get property to next of kin without regard to probating a will. I am assuming that there is no surviving spouse and that you are the next of kin.

    If you were claiming the property because it was left to you in a will, then you could not do this simplified proceeding. So do not call the probate court and confuse them by talking about a will and you being the only beneficiary to it. They will assume that you are trying to get property through a will without probating it, and they will tell you that you cannot do this. Read the last sentence in the note on this website.
    http://www.accesskent.com/CourtsAndLawEnforcement/ProbateCourt/03_probate_except.htm

    Good luck to you in California. I have a son serving in Iraq and he is pulling his hair out trying to take care of legal matters from afar, too. It is difficult. My advice is to do what you can without taking leave, but sometimes it is just plain easier to take leave. Clerks are more patient with your questions when you are across the counter from them and they can see you.

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  • How do I get my sons personal belongings?

    I am next of kin to my son that recently passed away. His girlfriend at his time of passing who was living with him in the house that he owned took everything and forged checks from his account to her. When I tried contacting her to get the things...

    Constance’s Answer

    First, you say that she was living in a house "that he owned." Did you open probate? If you did then the personal representative of the estate can petition the court for an order specifically addressed to her compelling her to turn over specific items belonging tot he estate.

    Second, you say that she took property from the house because she was living with him at the time of his death. I assume that you evicted her from the home and during the thirty days that she had to move out, she took it upon herself to move more than just herself out of the house. If you have affidavits that she came back into the house AFTER she was evicted then ask the police to treat this as a criminal trespass and burglary.

    Third, if she signed his name to checks and the amount in controversy is significant, then it may be worthwhile to open probate just to obtain letters of authority which would give you the right to go to his bank and file a complaint for recovery of the stolen money. It will involve the police coming to the bank to take a police report. The bank will not be complainant. The personal representative of the estate will be.

    Fourth, if you have no legal need to open probate and you paid for your son's funeral and burial, then you can get a court order for $20,000 of his personal property as his next of kin. This only works when the party who has possession of the personal property respects the law enough to abide by it. Here is the link to the small estate proceeding page at the Kent County Probate Court website. http://www.accesskent.com/CourtsAndLawEnforcement/ProbateCourt/03_estate_distsmallest.htm

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  • Is it legal for my mother to use my deceased father's name for utility bills and email address?

    My father and I share the same name. He passed away a few years back and my mother refuses to take his name off of utility bills and her email address. Is this legal since I am still living and it feels like she is using "my" name? Please advise. ...

    Constance’s Answer

    The utility bills are probably just the tip of the iceberg. Let me guess, she probably has all the property tax notices coming to her address in the name of your deceased father as well? Did she ever record your father's death certificate at the Register of Deeds?

    It is true that so long as the bills are paid on time, then the utility companies will not get their tails in a twist. But, your mom is not thinking about what happens when someone has to solve a problem with the utility bill and the utility company refuses to speak to anyone other than the person named on the bill - think privacy law issues. It is hard for mom to accept the change, I know, but there is more to gain than to lose by putting the bill in her name.

    I am in the Grand Rapids area. If you can get your mom to make an appointment to talk to me, then I usually have good luck getting widows to accept my help. I do not work for free, but my rates are reasonable.

    Connie Brigman

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  • Wills and power of attorney documents

    My wife and I have one child that is 20. We do not own a business nor do we own real estate other than our personal residence. Michigan has a statutory will document and a statutory durable power of attorney for health care document. Would the...

    Constance’s Answer

    The statutory forms are very bare bones documents. Trying to provide your own legal care is about the same as trying to provide your own medical care. You might be trying to cure cancer with a Vitamin C supplement because you don't know how to diagnose your own illness.

    I hear what you are saying about "all I have is a house." But you have a bank account, I am sure. And you probably have life insurance through your work. what about qualified plans? Do you have a 401(k) or do you have a traditional pension? You only have one child, so you do not anticipate any disputes over who is going to get what. I am guessing that this is your one and only marriage, too, so there are no stepchildren or divorce decrees from prior marriages that tell you to provide for alimony or child support in your estate plan.

    If you die today, then I suppose you want everything to go to your spouse. If you both die today (think fatal car accident with both of you in the car) then your child will get everything outright. How much cash would this young whipper snapper get? And if he gets all that cash and somehow manages to not blow it all, but he marries then divorces five years later, then what is to prevent his wife from taking half of what you left him? Hmmm, right?

    My best advice for you is to keep it simple where it matters to you to save money. But you can save yourself money without shortchanging yourself by being ultra-prepared for your appointment with your attorney (to save attorney time). Try not to cut corners on things that really, really matter to you.

    I am in Grand Rapids area, so if you need an appointment then you can call me for an estate planning appointment at 616.538.7970.

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  • How do I file a notice of hearing before a probate judge to get permission to sell my mother's house?

    I am my mothers guardian. she has alzheimers and is not competent to answer for herself. I want to get permission to sell her house without going though the whole conservartorship process.

    Constance’s Answer

    You are in Kent County. So I assume you have met Judge Murkowski, our excellent probate judge in Kent County, Michigan. You have probably been thinking about what to do to provide for the care of a person who has Alzheimer's, because your mom has Alzheimer's and she should not live alone any longer. It's probably not safe to leave her home alone.

    People with Alzheimer's need 24 hour a day care for many years. It is really difficult to deal with and you are probably at your wit's end. There are assisted living centers that specialize in memory care and I could recommend some to you. However, you should consider that assisted living costs less than nursing home care, but it is not a Medicaid covered service. At least, not the room and board portion of assisted living costs. On the other hand, Medicaid does cover medically necessary nursing home care.

    Regarding the home, it is generally an exempt asset for Medicaid purposes. However, it is also a drain on finances - especially when the Alzheimer's patient is no longer living in the home so she really doesn't need the home. Property taxes, insurance, upkeep of the yard, snow removal and the like are all expenses that somebody has to pay and generally the Alzheimer's patient's income is insufficient to keep up the costs of the home and also their care costs. If your mom is single, then Medicaid will only allow her to keep $60 per month for her personal care expenses. That is not enough to keep up the home while she is in the nursing home. So what do you do? If you rent out the home, then that may solve some issues but it will create other ones.

    I can talk to you further about these issues. In order to sell the home, you will need legal authority (durable power of attorney for finances that authorizes you to sell her home) to sign a deed for your mother. The realtor will ask to see those papers before listing it - usually they will ask but there likely are some that will not. Your mother is not competent to sign a deed. So she is not currently competent to sign a power of attorney authorizing you to sign a deed on her behalf either.

    If there is no durable power of attorney for finances, then you need conservatorship. And even after you get the conservatorship, there will be a need to get court approval of the sale of your mother's home. Your conservatorship letters of authority will specifically say that you cannot sell the home without prior court approval of the transaction.

    Why do you need court approval? The court wants to know that her home is not being whipped out from under her without any thought to protecting her interests. There aren't many people who would boot mom from her home and onto the streets, but it is the court's concern to prevent it from happening even once.

    So, long story short. First figure out if you need to be appointed conservator. Second, get the property listed, if that is what needs to be done. Third, if you get an offer that you will accept, then you need to petition for approval of the sale price and be prepared to tell the judge what you will do with the proceeds of the sale + where mom will go after the home is sold.

    Sounds complicated? Well that is because it is and that is why you really do need to get a good elder law attorney involved. My office number is 616.538.7970. I am working out of the office all day today, March 11th, but I will be at my desk tomorrow. Best time to call me and actually get me live and in person is between 10 AM and 6 PM. I do not work for free, however, so be prepared to make an appointment and pay me for my time.

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  • Can i sit in the court room when my fathers will is probated

    The personal representative is doing a bad job keeping me informed of court dates..i call the clerk and ask myself when dates are set up Can i just go to court and watch the attorney and the personal rep do the probate.??

    Constance’s Answer

    • Selected as best answer

    What exactly do you mean by court dates? Do you mean hearing dates or do you mean dates when certain estate papers must be filed? In Michigan, we have formal probate and we have informal probate. In a formal probate, the will is admitted to probate through a hearing procedure. In an informal probate, there is no hearing required to admit the will to probate. So if the probate procedure is the latter, then there are no hearings but there is a lot of paper to submit to the court with copies to the "interested persons." Now here is the kicker. You could be an interested person entitled to a copy of the will and a notice that probate was opened and a personal representative was appointed. But you may not be an interested person entitled to any more notices after that, if you are not a beneficiary of the estate. I have seen that one a few times. So. Here is what you should think about. What notices are you entitled to? What kind of probate proceeding was filed? Are you getting those notices that you are legally required to be given? This is your father you are talking about, so I assume you are an heir and that you were at least entitled to a copy of the will. Take the will and the papers that you have been given to a local probate attorney and pay them for an hour of their time. It's worth it, isn't it?

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  • How do you complete an informal settlement in probate when there is no will & no assets but claims have been filed?

    I am the administrator of an estate where the decedent died with only a car valued at approx. $500 and this was used toward his burial. I need to finalize this in probate court but there are claims filed and I'm not sure what to do. Can you help...

    Constance’s Answer

    You refer to yourself as the administrator of an estate and you say that claims have been filed. This makes me think that probate was opened and you published notice to creditors which informed the creditors there was a probate estate in X county with Y probate file number. The creditors' notice invites them to make their claims before a published date - or they are forever barred. Sounds familiar?

    If there is only $500 in the estate, then it is highly likely that you can amend your petition for a probate proceeding to reflect that there is a "small estate" and thus you do not need to keep the probate open for the full creditors notice period. Small estate is a legal term for estates under a statutory amount.

    Most probate courts have a website that explains the different ways that that a probate estate can be administered. One of the methods will be for small estates - meaning estates where there is just enough money to pay for the funeral and for the statutory allowances with nothing left over for the creditors.

    Before you jump for that hoop, check your records and make sure there really isn't anything subject to creditors' claims. To close the estate under a small estate procedure, you have to sign statements under penalty of perjury that there are no more assets that are subject to probate and thus nothing more is supposed to be disclosed to the court.

    Before you sign that statement, consult with a local attorney, my friend. Think about it. One hour of an attorney's time could give you the reassurance that you need for many nights of peaceful sleep.

    If the creditors are not happy with you, then they probably can open probate themselves. In Michigan, a creditor can open an estate. They generally do not unless their claim is large enough for it to make sense for them to pay the probate court fees and their own legal costs in order to conduct an asset discovery through probate. They want to discover if there are assets subject to probate. If they find what they are looking for, then they will liquidate those assets and pay the creditors' claims.

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  • Should I authorize a quit claim to remove my ex-fiance from our condo deed/loan? How does this benefit me? Hurt me later?

    My ex-fiance and I parted ways July09. We are both on the deed & mortgage loan for a condo, his auto loan and we have amassed quite a bit of credit card debt. He's promised to pay half the CC debt and sign a quit claim (his offer). He says that wo...

    Constance’s Answer

    The mortgage company has rights in the property that are normally triggered when someone tries to change the ownership on the property. It's called a due-on-sale clause in Michigan.

    Does he really think that he can stick you with the mortgage, if he deeds his share of the property to you? Say it with me, "NOT!!!"

    Regarding the promise to pay half of the credit card debt: A "promise" is as empty as a gas tank with holes in it. It just will not get you anywhere.

    Remember that your mortgage company and credit card companies have contracts with you guys. Those contracts were signed first. Your later verbal agreements will not change the contracts.

    If you don't believe me, then observe who the bill collectors call when all payments stop. They will call whomever is on the credit card agreement or on the mortgage. They will not ask about or care about who has NOW promised to pay the bill.

    The only solution that makes sense is for one or both of you to get re-financing in your sole name for whatever debts you can or will take on. That's the only way to get the contract wiped clean and in just your name or his and not both names.

    This is no win-win for you in my humble opinion. I think your ex is setting you up for a big fall. Think before you make any more payments. Wouldn't it make more sense to hire a really good family law attorney (even though you were not married) to help you get out of this financial mess for once and for all?

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