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James P. Frederick

James Frederick’s Answers

14,058 total


  • Can I sell my house and give gift money without a nursing home coming back to get that money back.

    I want my grandsons to have my house to sell when I pass away and split the money, but I have been told that even in a trust to them the nursing home will take it back withing 7 years of giving. I'm thinking maybe I should sell now and give them e...

    James’s Answer

    You have already received some good answers. I just want to highlight the fact that the nursing home does not ever take your house. If you set up your estate planning properly, you can shelter the home and hang onto it, for as long as you like. What you may not be able to do is to artificially impoverish yourself so that you can qualify for government assistance. Medicaid is a welfare program. If you do not qualify for that program, you cannot make yourself qualify by giving away assets; at least, not within 5 years of giving away the assets.

    Your house is an exempt asset for Medicaid qualification purposes. That means that you can keep the house and still get government assistance. What you cannot do is give away the house or sell it and give away the proceeds, within 5 years of needing Medicaid.

    Your first step should be to meet with an estate planning attorney who can sift through what you have been told, and give you the correct information. Once you have all the facts, you can decide for yourself what makes the most sense, in terms of how you should proceed.

    James Frederick

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  • Paid off, Home w/ 1 Acre.Both Parents Passed. But Mom has her name & Son & Daughter on Quick Claim Deed.Need Mom's name off.

    Dad Death 1990 & Mom's 2003. Left is a Quick Claim Deed,(Has NO Tenants in common on it) But has Mom's, their Son & Daughters names signed it many years ago. How do we get Mom's name off? The Place is Free and Clear. Daughter has paid, Mom's Fun...

    James’s Answer

    I agree with the comments that you have received so far. There is no way to advise you properly without reviewing the actual deed(s) in question. Whether the deed says "tenants in common" or not, there is a presumption under Michigan law that that is what you have, unless it says something ELSE. If it does not say "joint tenants with rights of survivorship" or at least "joint tenants and not tenants in common," then there is a good chance that probate will be needed to remove your mom's name from the deed.

    You should have the deed reviewed by a probate attorney and determine how to proceed.

    James Frederick

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  • How can the lawyer of the estate probate court be removed and how do they become the attorney of the estate?

    There is this lawyer who is the attorney of an estate of the deceased in probate court. I have discovered that the wife of the deceased has not used or opened a bunch of investments that are still left from the deceased. Meaning the deceased lef...

    James’s Answer

    There are too many unanswered questions and unstated facts to give you more than general information. As has been stated, the title of the assets is the most important factor. There is no way for the attorney to know this, unless the PR tells him or her. You cannot ask the court to remove the attorney for the estate, because the attorney does not represent you. The attorney represents the personal representative and is hired by the PR to protect her. The only exception to this would be if the attorney was appointed by the Court to BE the PR. In that case, the beneficiaries of the estate could request that the attorney be changed, if he/she was not doing the job properly. There is no way in your case to tell if this is the case or not. Your connection to the estate is unclear. If you believe that something inappropriate is going on, you should contact an attorney to investigate further, on your behalf. You can ask the attorney for the estate about what is going on, but keep in mind that the attorney does not represent you.

    James Frederick

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  • What is a certified letter of appointment?

    The company that I am trying to receive stock from wants a certified letter of appointment. My aunt and uncle passed away in 2011 and 2010. It was their stock. I want to get the dividends and transfer this stock to me their niece. They did not...

    James’s Answer

    In Michigan, we call them "Letters of Authority." Whether or not you actually need them depends on the value of the stock. If it is less than $22k, then there is a cheaper and easier process you can use, that does not involve the probate court at all. It sounds like this would be a California probate issue, however. Small estate proceedings in California are even more generous than they are in Michigan. You may want to re-post this question using a California location, so CA lawyers will be more likely to see it and respond.

    James Frederick

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  • When someone dies and has credit card debt is the spouse responsible for that debt if the credit cards are just in his name.

    My stepfather passed away and had debt is my mother responsible for repayment

    James’s Answer

    In addition to what my colleagues have said, even if there IS an estate, there are offsets and allowances that might essentially wipe out the debt. That is one of the reasons why it is important to involve a probate attorney, if an estate is necessary.

    James Frederick

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  • Guardianship and conservatorship

    My question is. I have guardianship and conservatorship of my husband, can I switch from this to a durable power of attorney? If so, what is the process? My current attorney is very unhelpful.

    James’s Answer

    The answer cannot be stated with any degree of certainty, without a lot more information. In all likelihood, however, the answer is probably "no." The time to get a Durable Power of Attorney was before your husband was determined to be incapacitated. Now that the Court has determined that he lacks capacity, he probably does not have sufficient legal capacity to sign the form. There is no need to have a guardianship and conservatorship, if you have a POA in place. But getting a POA in place after guardianship and conservatorship may not be possible.

    Has your husband's mental condition improved, since the court proceedings? Has he recovered to the point where he no longer needs you to act on his behalf? If so, then it may be possible to terminate the probate proceedings. This does happen. You will likely need the help of two licensed physicians and a probate attorney, in order to have any reasonable chance of terminating the guardianship and conservatorship. You should consult with a new attorney if your current attorney is not helping. What is it about the attorney's services that is not helping? It may be that he/she simply cannot accomplish what you would like to have done.

    James Frederick

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  • What can I do if I'm being sued for selling stuff that other people claimed to be theres on my late fathers estate?

    I just found out that I'm being sued for potentially selling other peoples things from my fathers estate. After my fathers death, my sister and I sold some of the stuff on the property via yardsale. The plaintiff claimed that my father had allow...

    James’s Answer

    No doubt, they are alleging there was conversion of the items in question. Under Michigan law, if you are found liable for conversion, there can be double or treble damages. I would probably retain an attorney, especially if the plaintiffs have hired one. You do not want to start out in court at a huge disadvantage.

    James Frederick

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  • My brothers daughters mom, sold his things online without permission? What can I do?

    My brothers ex, and the mother of his child, is upset that he's trying to move on. So as her way to get back at him, she sold his things online. I have several pictures of proof. That she sold them, what can we do? She was in my parents house whil...

    James’s Answer

    I do not think there is anything that YOU can do. Your brother may have a claim against his ex for conversion. That can pose both civil and criminal penalties. If the value of the items sold was less than $5k, then your brother could file a small claims action against her. That would likely be the least expensive way to go. As for the entry into your parents' home, that is a separate matter, entirely. Depending on the evidence, your parents could file a police report against her, if they are inclined to do so.

    James Frederick

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  • Have a living trust am I protected as a spouse?

    I live in Michigan.We have had a living trust for 5 years of marriage. I am retired age 58. My husband is 56. He recently drives after drinking. He has 2 prior convictions in his 20's with work release each time. If he injuries himself or another ...

    James’s Answer

    There is a lot more to your questions than meet the eye. The answers all depend on facts which are not included in your summary, which is usually how it works.

    As has already been stated, most trusts in Michigan are not set up for asset protection. For that reason, you should have ample insurance coverage. How are your assets titled? Are they in joint names? Your name? The Trust? Are there one or two trusts? Assets titled in your name alone are probably not at risk. The same is true with assets held as tenants by the entireties. That would likely include your home.

    What happens, however, if you allow your husband to drive YOUR car, and then he wipes out a school bus? What if you knew he had been drinking? There are many different factors that go into these kinds of situations.

    MOST of the time, when there is an unfortunate claim, plaintiffs will sue everyone in sight, but will often settle for the policy limits of whatever insurance is in place. That is not always true, but is often the case. You can take steps to limit your liability and shelter yourself as much as possible. With so much at stake, however, your best way to do this is by consulting with an estate planning attorney.

    James Frederick

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  • I want to sell some property for cash. Do I need to have a realtor or lawyer involved or can I do my own transaction?

    My father passed away last fall. His property and trailer are in my name. Can I sell the property and trailer for cash without having to get a realtor or lawyer involved? Can I just draw up my own purchase agreement, selling everything "as-is", or...

    James’s Answer

    It will probably cost you less than you think to have a lawyer assist you with this. But you can certainly do it on your own, if you are inclined to do so. You might start by getting a "for sale by owner package," from a local title company. A title company can also assist you with preparing necessary documents, (such as the deed). They will usually do this for a relatively nominal charge.

    James Frederick

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