Probate & Real Estate

Dying intestate means the person has died without a will or the court has determined the will invalid. The estate’s assets are distributed to the decedent’s heirs according to the state’s intestacy laws. Intestacy laws vary state to state, but typically the estate will be distributed between the surviving spouse and surviving children.  

For example, in Michigan if you die with no surviving spouse but surviving children, then the children inherit everything. If you die with a surviving spouse but no descendants or parents, then the spouse inherits everything. For each situation there are specific intestacy rules that will tell you to who and how much to distribute from the estate. 

Many people establish a Durable Power of Attorney (DPOA) when they get older and start experiencing difficulty managing finances. By appointing a DPOA, the DPOA agent can handle paying bills, managing bank accounts, overseeing investments, and preparing and filing tax returns on your behalf, which becomes increasingly important as you age and are no longer able to handle these duties.

A DPOA can be limited or general. A limited DPOA gives an agent the right to perform specific actions on your behalf. Whereas a general DPOA is comprehensive and gives the agent all the rights you have yourself.

A DPOA goes into effect the moment the paperwork is signed and stays in effect even if you’re deemed mentally incompetent. However, as long as you’re deemed competent you can change it at any time. 

If a DPOA is not named, a potential agent may apply to the court to be named your guardian or conservator. Compared to naming a DPOA, guardianship proceedings can be time consuming, expensive, and stressful. In addition, there is the risk that the court may appoint someone as a guardian or conservator who you might not have chosen or preferred. 

A conservator takes care of an incapacitated adult’s property. Whereas a guardian takes care of an incapacitated adult’s personal needs. One person can be both the guardian and the conservator for an incapacitated adult. Each of these responsibilities limits an incapacitated adult’s legal right to manage their own assets and can cost the incapacitated adult time and money.  

A conservator’s responsibility to manage the incapacitated adult’s assets includes the collection, preservation, and investment of the individual’s property. Furthermore, the conservator must use the property for the support, care, and benefit of the individual and his or her dependents. The duty of loyalty prevents the conservator from using any of the incapacitated adult’s assets for personal use. 

For example, say Susie was named the conservator for John who just became incapacitated after being in a serious car accident. John is now living in an assisted living home. Susie would manage John’s home, investment portfolio, and other assets. However, Susie would not be able to gift John’s boat to herself to use that summer. 

Only if the estate owns the home and you personally have been appointed as the personal representative of the estate, and the Letters of Authority from the Probate Court giving you the power to rent the home, then you may have the power to rent out the home. Consult with a real estate or probate attorney before proceeding further with a lease in order to avoid legal problems later on.

A power of attorney is a legal authorization that gives a designated personsuch as a parent, sibling, or child, the legal authority to act on another person’s (the “principal”) behalf. This designated person is known as the agent or attorney-in-fact.  The authority to act can be immediate, or it can ‘spring’ into effect upon the occurance of an specified event, such as an illness or incapacity.   Most “principals” choose to create a springing power of attorney, and not an immediate power of attorney,  because at the time that they create the legal document, they are still in control of their own affairs.