Purchasing Real Estate from Trustees (Michigan)

By Matthew A. Quick The greatest concern for a buyer of real estate is whether title to the property is good and marketable. Good and marketable title generally means that, beyond a reasonable doubt, the title to property is free from encumbrances (but not necessarily free from the possibility or suspicion of encumbrances). If title to real estate is anything other than good and marketable, then there is a high probability that, in the future, the buyer will experience adversity regarding ownership of the property (the buyer is said to have "purchased a lawsuit").

The issue of receiving good and marketable title is especially important when dealing with a trustee, specifically, whether the buyer can receive good and marketable title from a trustee. There are certain rules of recording and conveyance that apply to real estate transactions involving trustees, which, if not followed, could certainly lead to a buyer purchasing a lawsuit. Foremost, in the event there are two or more trustees, then all trustees must execute the deed, unless the trust instrument provides otherwise. Michigan Land Title Standard 8.4. Failure to include the signatures of all trustees on the deed will result in the buyer receiving title that is not good and marketable.

In the event a trustee is deeded property and has no power or authority under the trust to manage it, or the trust that gives the trustee power and authority fails, the property immediately vests in the beneficiaries, and not in the named trustee. Michigan Land Title Standard 8.1. Thus, if a buyer attempts to purchase property from a trustee that has no power to sell, the buyer would receive nothing, because the trustee had nothing to convey--the beneficiaries would own and control the property outright.

When inspecting the deed to property, the buyer may find the word "Trustee" following the name of the seller, but if the deed contains no other reference to a trust or trust powers, then a purchaser can purchase the property outright without regard to possible limitations of any trust that may be in existence (so long as the buyer has no knowledge of the existence of a trust). Michigan Land Title Standard 8.2. However, if the seller turns out to be a trustee of an existing trust, and pursuant to the terms of the trust he or she did not have the power or authority to sell the property to the buyer, the buyer can expect some adversity from other trustees or the beneficiaries, if not a lawsuit, even though the buyer is considered to have purchased the property outright.

In the event the trust terms and existence are sufficiently expressed to constitute notice of the existence of a trust to a buyer, then good and marketable title is only passed to the buyer if the instrument containing the trust terms, or a certificate of trust existence and authority, is of public record, establishes a valid trust and contains a valid authority for the conveyance. Michigan Land Title Standard 8.3. Without challenging every provision of the trust or power of the trustee, Michigan law allows a buyer to assume the existence and proper exercise of trust powers if the buyer does not have actual notice that the trustee has exceeded his or her powers or has improperly exercised them. MCL 700.7404. Michigan law, however, does not shield a buyer from a lawsuit in the event the trustee is acting outside of his or her powers--the buyer may still expect some adversity from other trustees or the beneficiaries if the sale was not allowed by the terms of the trust.

To address the issues above, the buyer may easily require any trust instrument (in the event the buyer is notified of the possibility that a trust exists) and a deed executed by all of the trustees, in addition to a deed executed by all of the beneficiaries. Simply, if everyone who could possibly take issue with the transfer of property has joined in the conveyance, the probability of any subsequent adversity is greatly reduced.

Child Born after Will (Illinois)

By Matthew A. Quick If a Will has been executed and a child is born thereafter, unless a provision is made in the Will for the child, or unless it appears by the Will that the child is to be disinherited, and the Will is not updated to include the child, the child is entitled to receive the portion of the estate to which he or she would be entitled if the person who executed the original Will (known as the “Testator” if male or “Testatrix” if female) died without a Will. In order to fulfill such a distribution, the gifts to all beneficiaries will proportionately reduce. 755 ILCS 5/4-10.

Alteration of a Will (Illinois)

By Matthew A. Quick An alteration of any part of a Will, which does not constitute a revocation, has no effect on the Will unless the person who executed the original Will (known as the “Testator” if male or “Testatrix” if female), or someone in the presence and at the direction of the Testator or Testatrix, re-executes the Will, abiding by all formalities. 755 ILCS 5/4-9.

Safekeeping Estate Planning Documents

By Matthew A. Quick Original estate planning documents are required, if not preferred, in every instance of use, which is why it is important the originals are kept safe, yet readily available. Since each estate planning document may be used at a different time and by different people, the recommended safekeeping of each document differs.

Safekeeping original Wills is exceptionally important. If an original Will is not produced for probate, a copy may be admitted. However, if a copy of a Will is contested during the probate proceeding, the proponent of the copy must prove the contents of the document are accurate and authentic. MCL 700.3407 (Illinois formal proof of Will statute: 755 ILCS 5/6-21. Also see In Re Estate of Koziol, 366 Ill App3d 171 (2006)). If the proponent of the copy is unable to do so, the copy will not be relied upon and probate will proceed as though the contents of the copy of the Will was revoked. Additionally, if the original Will is burned, torn or canceled, regardless of whether the burn, tear or cancellation touches any of the words on the Will, the Will is considered revoked. MCL 700.2507 (Illinois revocation statute: 755 ILCS 5/4-7). To address these issues, the original Will should be kept in a place safe from fire, water and all other elements, to avoid any unintended revocation. Once stored, the location of the original Will, and anything needed to access the location, should be provided to the personal representative and successor personal representative(s).

A few locations are suggested to store an original Will. A safe deposit box or home safe are common options; and Michigan provides the option of depositing the original Will with the Probate Court in the county in which the person who executed the original Will (known as the "Testator" if male or "Testatrix" if female) resides. MCL 700.2515. The process for a Michigan Testator or Testatrix to deposit an original Will involves taking the Will to the respective Probate Court (this can either be done by the Testator or Testatrix, or someone else at their direction) with a Twenty-Five ($25.00) Dollar filing fee. The original Will will be placed in an envelope that is dated and containing the name, address and social security number or driver's license number of the Testator or Testatrix. Upon deposit, a receipt will be given indicating the identifying information of the stored Will. During the lifetime of the Testator or Testatrix, the Will may be retrieved at any time with the receipt, but each time that Will, or another Will, is deposited, the Court will charge an additional Twenty-Five ($25.00) Dollar filing fee. A Will on file with the Court will remain with the Court until the death of the Testator or Testatrix, and will be released to the appropriate Court upon proof of death. Unfortunately, Illinois does not currently provide a Will depository service.

Original Trust Declarations, Powers of Attorney, HIPAA Waivers and any other estate planning documents that may need to be used immediately or require acceptance of their terms by the person nominated, should be kept by those appointed in each document, in the absence of certain, narrow circumstances. A copy of these documents should be provided to the entities that are to rely on them (i.e. Powers of Attorney for Health Care and HIPAA Waivers should be filed with health care providers; Powers of Attorney for Property should be on record with financial institutions). An additional copy of these documents should be kept by the Principal (the person who executed them) in a place that is confidential, yet readily available for quick reference and review.

The Estate, Issue Two

By Matthew A. Quick -Powers of Attorney-

Powers of Attorney are legally binding documents that designate and appoint a person (referred to as an “attorney-in-fact”) to act on behalf of the individual planning his or her estate (referred to as the “principal”). These documents may give instructions on everything from religious requests to comfort care; payment of bills to access to safe deposit boxes (referred to as “directives”).

Powers of Attorney come in two basic forms. A Power of Attorney for Health Care nominates an attorney-in-fact (referred to as a “Patient Advocate” in Michigan and an “Agent” in Illinois), to make health care decisions for the principal. An attorney-in-fact under a Power of Attorney for Health Care must accept his or her role as such after reviewing the principal’s directives. This acceptance assures the willingness of an attorney-in-fact to act on behalf of the principal, and pursuant to his or her wishes, prior to the attorney-in-fact being required to do so. The ability of the attorney-in-fact to act under a Power of Attorney for Health Care commences upon disability or incapacity of the principal. Generally speaking, a principal is deemed disabled or incapacitated if he or she is incapable of making informed decisions regarding his or her health care.

A Power of Attorney for Property appoints an attorney-in-fact (referred to as an “Agent” in both Illinois and Michigan), to direct the principal’s affairs concerning property and finances. Unlike a Power of Attorney for Health Care, an attorney-in-fact under a Power of Attorney for Property can be given the ability to act for the principal even if the principal is not disabled or incapacitated. Although not required, an attorney-in-fact should be asked to accept their role under a Power of Attorney for Property to ensure their willingness to act as directed.

Powers of Attorney do not come in any one standard form, thus are an excellent way for each of us to assure our values and wishes are honored when we are unable to communicate the same. These instruments prevent the need for a guardianship imposed through the probate court, which is a process that is time-consuming, costly and completely devoid of a principal’s appointments, values and wishes.

In sum, Powers of Attorney allow a seamless transition from principals caring for themselves, to principals receiving care.

-Life Insurance-

For most, life insurance is a necessary component of a sound financial and estate plan. Life insurance is simply a contract between a policy owner and the insurer. Under a life insurance contract, the obligation of the policy owner is to either pay the insurer a premium lump-sum payment or premium payments on a regular basis. The obligation of the insurer is to pay out a lump sum death benefit to the policy owner’s beneficiaries upon the demise of the policy owner.

There are two major types of life insurance: temporary (referred to as “term”) and permanent. Term life insurance pays out a death benefit to the beneficiaries upon the demise of the policy owner, so long as the policy owner has paid a premium lump-sum payment, or has made regular payments, pursuant to the life insurance contract and the demise of the policy owner occurs within a limited term. At the end of the initial term of a term life insurance contract, the policy owner may attempt to secure insurance for an additional term; however, the insurer is not required to renew coverage based upon the original contract.

Permanent life insurance, on the other hand, pays out a death benefit upon the demise of the policy owner, regardless of any term, so long as the policy owner has paid a premium lump-sum payment, or has made regular payments, pursuant to the life insurance contract. If the policy owner has met the payment obligations, the insurer cannot usually cancel the policy owner’s permanent policy unless fraud occurred during application for the policy. These policies build cash value for both investment purposes and for paying the premium. Typical types of permanent insurance include whole life, universal life, and variable life policies.

Life insurance typically makes a poor investment; so, unless your situation dictates more complicated strategies, stick to term policies. They are cheaper and focus solely on what you want: life insurance. Common uses of life insurance include guarding a household’s income against the death of a breadwinner, payment of funeral and final expenses, the division of an estate into desired allocation among heirs, executing sophisticated tax strategies, performing business succession planning, implementing buy/sell agreements, etc. Please note that if your estate, including any proceeds from life insurance, is predicted to be above or close to the lifetime tax exemption (currently $3.5M), a more sophisticated analysis of your life insurance is needed than given in this article.

While death is not the most uplifting topic, a sound financial and estate plan can certainly make life feel more secure. In the next issue there will be a review of the process used to determine the amount of life insurance one should consider, probable beneficiaries, the practical length of a term life insurance policy and the most beneficial means to acquire a policy.

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Clint Edgington invites any questions or comments via email at C.Edgington@bhadvisory.com or via phone at 888.614.4625. Clint is the principal and co-founder of Beacon Hill Investment Advisory and is engaged in the practice of investment management and financial planning. Feel free to visit Beacon Hill’s web site at www.beaconhilladvisory.com.

-Update-

Recent increase in Federal Deposit Insurance Coverage (FDIC) is only temporary. Recently, the base insurance limit was raised from $100,000.00 to $250,000.00, but will return to the original $100,000.00 base insurance limit on January 1, 2010, unless the increase is extended past this date.

The Real Estate Settlement Procedures Act (RESPA) has been updated. RESPA, for the most part, directs the requirements of real estate closings. The new provisions mainly affect the disclosures required at a real estate closing, thus helping buyers make better decisions when borrowing for residential real estate purposes.

New homeowner notice required in Illinois foreclosure actions. Plaintiffs in a residential foreclosure action are required to attach a “Homeowner Notice” with a copy of the summons. The contents of the notice include rights of the homeowner, warnings of fraudulent practices and foreclosure workout options.

In Illinois, a mechanics lien complaint must be timely delivered. The Illinois Appellate Court ruled that failure to deliver a copy of a complaint within 90 days of giving notice of the lien is fatal to a lien action.

-Conclusion-

I hope this issue of The Estate has been helpful. In the event you have any questions or concerns, or would like to schedule a complimentary consultation, I am available by phone at 773.790.8058 or by e-mail at matthew@attorneymatthewquick.com. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, informational sessions regarding estate planning are provided free to groups of any size. Please let me know if there is any way I can help and feel free to contact me at any time.

The Estate, Issue One

By Matthew A. Quick Introduction to Estate Planning

-Estate Planning-

Estate planning is a process that involves the construction of a strategy to direct one’s health care and property when he or she is not able to do so. The goal of an estate plan is to provide clear and detailed instructions to those who are appointed to help. These instructions are simply the wishes of the person whose estate is being planned (referred to as the “principal”). Some wishes are assumed, such as minimizing federal and state taxes and maximizing flexibility, but all directions of the estate plan are at the discretion of the principal.

Because the process of estate planning has fallen victim to the ill-fame of complexity, many people try to avoid an estate plan. However, complexity is not the burden of the principal. To the principal, the process of estate planning is as straightforward as creating a manual for the care of his or her health and property.

There are several mechanisms available to accomplish the wishes of the principal. Those that will be introduced in this article are Powers of Attorney, Living Wills, Medical Orders, Wills and Trusts.

For many principals, Powers of Attorney are the most important estate planning instrument available. Powers of Attorney come in two basic forms: Powers of Attorney for Health Care and Powers of Attorney for Property. A Power of Attorney for Health Care nominates a person, an attorney-in-fact (referred to as a “Patient Advocate” in Michigan and an “Agent” in Illinois), to make health care decisions for the principal. It also gives the attorney-in-fact directions as to what should be done in the event the principal cannot direct his or her own medical treatment. The ability of the attorney-in-fact to act under a Power of Attorney for Health Care usually commences upon the disability or incapacity of the principal. Generally speaking, a principal is deemed disabled or incapacitated if he or she is incapable of making informed decisions regarding his or her health care.

If the attorney-in-fact needs to act for the principal, he or she must act pursuant to the directions of the Power of Attorney. These directions (referred to as “directives”) should be very detailed and thorough, and may give instructions on everything from religious requests to comfort care.

Alternatively, a Power of Attorney for Property appoints a person, an attorney-in-fact (referred to as an “Agent”), to direct the principal’s affairs concerning property and finances. Unlike a Power of Attorney for Health Care, an attorney-in-fact under a Power of Attorney for Property could be given the ability to act for the principal even if the principal is not disabled or incapacitated. Much like a Power of Attorney for Health Care, however, if the attorney-in-fact needs to act for the principal, he or she must act pursuant to the principal’s directives. Again, these directives should be very detailed and thorough, and may give limited or general power to the attorney-in-fact to conduct the principal’s property and finances.

A Living Will is another means by which a principal can direct his or her health care. A Living Will does not grant decision making power to an attorney-in-fact, instead it is a list of directions for the attending medical practitioners. A Living Will allows the principal to specify the kind of treatment he or she would want in specific situations.

Medical Orders are reserved for patients that are terminally ill. Although there are several variations of Medical Orders, the most widely used is a Do Not Resuscitate Order (referred to as a “DNR”), which specifies that if the principal’s heart stops, or if the principal stops breathing, he or she is not to be given CPR. It is standard procedure for medical care facilities to attempt to resuscitate all patients if they experience heart failure or stop breathing; a DNR would relieve the medical care facility from this duty.

A Will is a legally-binding instrument that directs the principal’s property in the event of his or her death and appoints a legal representative to perform the principal’s wishes (referred to as a “Personal Representative” or “Executor”). A Will applies only to property that passes through the probate process. There are many interests in property that pass outside of the probate process, thus are not directed by a Will. Some examples of this type of property include, but are not limited to, jointly-owned property, property that is held in a trust and property with a named beneficiary, such as life insurance proceeds, individual retirement accounts or 401(k) plans. Regardless of how complex or simple the estate, a Will should always be included in an estate plan.

Finally, a Trust is a legal arrangement in which the principal gives legal title of property to a person or entity (referred to as the “trustee”) to hold for the benefit of another person (referred to as a “beneficiary”). A Trust contains instructions that the trustee is bound to follow in safekeeping the trust property. There are three main reasons to employ the use of a trust arrangement: first, a trust, for the most part, keeps the principal’s estate from having to endure the probate process; second, a trust can be used to shelter property from people or entities such as creditors, children who are too young to handle large amounts of money, and even the government; last, a trust can have significant tax-saving advantages by reducing the taxable portion of the principal’s estate.

Each of the estate planning mechanisms noted possesses great benefits to assist all of us in the estate planning process. The combined use of some, or all, of these tools provides for a dignified means to carry out the principal’s wishes.

-Update-

Beware of a recent real estate deed copying scheme. Companies such as National Deed Service, Inc., Illinois Deed Provider, Need A Deed, LLC., and California Record Retrieval are sending unsolicited letters that are alarming people and compelling them to order a copy of the deed to their home for up to $89.95 per copy. The letter does not tell people that the same copy of their deed costs no more than $5.00 if purchased from the county clerk’s office. Be apprehensive if you receive one of these letters; and instruct others to do the same. Save some money and, if you need a copy of your deed, consult your county clerk’s office.

The Illinois Appellate Court held that a living trust (referred to as a “revocable trust”) that is amended by a non-lawyer is invalid. Practically speaking, regardless of the wishes of the principal, a court will not accept as valid a trust tailored by a non-lawyer. In the wake of this decision, please contact an estate planning professional if your estate plan needs to be changed.

-Conclusion-

I hope this issue of The Estate has given you some insight into real estate and estate planning. In the event you have any questions or concerns, or would like to schedule a complimentary consultation, I am available by phone at 773.790.8058 or by e-mail at matthew@attorneymatthewquick.com. As a service to all current and prospective clients, I travel at no charge to all meetings and consultations throughout Michigan and Illinois. In addition, estate planning seminars are provided free to groups of any size. Please let me know if there is any way I can help.