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Michigan Probate & Estate Planning Journal Winter 2016

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Michigan Probate & Estate Planning Journal Winter 2016 MICHIGAN PROBATE & ESTATE PLANNING JOURNAL TABLE OF CONTENTS Vol. 36 M Winter 2016 M No. 1 Featured Articles: From the Probate Litigation Desk: Obser- vations on Undue Influence David L.J.M. Skidmore .......................... 3 New Year’s Resolutions for Trustees and Beneficiaries: Ten Fiduciary Income Tax Planning Considerations Raj A. Malviya and Jonathan K. Beer .. 13 Two Matters Improperly Decided By the Michigan Court of Appeals: In Re Estate of Sabry Mohammad Attia and In Re Estate of James V Ward Alan A. May ......................................... 27 Conflicts of Interest in Estate Planning and Litigation (Or “How Many Hats Are Too Many?”) Robert S. Zawideh ............................... 31 Long-Awaited Probate Appeals Legisla- tion Brings Uniformity and Efficiency Liisa R. Speaker ................................... 36 Pets Put Their Trust in Us—Put Them in the Trust: Default Provisions That Protect Pets Rebecca Wrock .................................... 41 Why Would You Worry About Proposed Regulations to Section 2704? Lorraine F. New ................................... 45 STATE BAR OF MICHIGAN PROBATE AND ESTATE PLANNING SECTION Subscription Information The Michigan Probate and Estate Planning Journal is Michigan Probate and Estate Planning Journal published three times a year by the Probate and Estate M M Planning Section of the State Bar of Michigan, with the Vol. 36 Winter 2016 No. 1 cooperation of the Institute of Continuing Legal Education, and is sent electronically to all members of the Section. Lawyers newly admitted to the State Bar automatically become members of the Section for two years following their date of TABLE OF CONTENTS admission. Members of the State Bar, as well as law school students, may become members of the Section by paying annual dues of $35. Institutions and individuals not eligible to become members of the State Bar may subscribe to the Journal by paying an annual $25 subscription. The subscription year From the Desk of the Chairperson begins on October 1 and is not prorated for partial years. James B. Steward .........................................................................1 Subscription information is available from the State Bar of Michigan, Journal Subscription Service, 306 Townsend Feature Articles Street, Lansing, MI 48933-2012, (517) 372-9030. A limited number of copies of prior issues of the Journal are available From the Probate Litigation Desk: Observations on Undue Influence beginning with Fall 1988, Volume 8, Number 1, for $6 each, David L.J.M. Skidmore .............................................................................. 3 plus $2 for postage and handling. Copies of articles from back New Year’s Resolutions for Trustees and Beneficiaries: Ten Fiduciary issues cost $7 per article. Prior issues and copies of articles from back issues may be obtained by contacting the Institute Income Tax Planning Considerations of Continuing Legal Education, 1020 Greene Street, Ann Raj A. Malviya and Jonathan K. Beer ..................................................... 13 Arbor, MI, (734) 764-0533. Additionally, copies of the Journal Two Matters Improperly Decided By the Michigan Court of Appeals: beginning with Fall 1995, Volume 15, Number 1, are available online at http://www.michbar.org/probate/journal.cfm. In Re Estate of Sabry Mohammad Attia and In Re Estate of James V Ward Editorial Policy Alan A. May.............................................................................................. 27 The Michigan Probate and Estate Planning Journal is aimed Conflicts of Interest in Estate Planning and Litigation primarily at lawyers who devote at least a portion of their (Or “How Many Hats Are Too Many?”) practice to matters dealing with wills, trusts, and estates. The Robert S. Zawideh .................................................................................... 31 Journal endeavors to address current developments believed to be of professional interest to members and other readers. Long-Awaited Probate Appeals Legislation Brings Uniformity The goal of the editorial board is to print relevant articles and and Efficiency columns that are written in a readable and informative style Liisa R. Speaker ....................................................................................... 36 that will aid lawyers in giving their clients accurate, prompt, Pets Put Their Trust in Us—Put Them in the Trust: Default Provisions and efficient counsel. That Protect Pets The editorial board of the Journal reserves the right to accept or reject manuscripts and to condition acceptance on the Rebecca Wrock ......................................................................................... 41 revision of material to conform to its editorial policies and Why Would You Worry About Proposed Regulations to Section 2704? criteria. Manuscripts and letters should be sent to Nancy L. Lorraine F. New ....................................................................................... 45 Little, Managing Editor, Michigan Probate and Estate Planning Journal, Buhl, Little, Lynwood & Harris, PLC, East Departments Lansing, MI 48823, (517) 859-6900, fax (517) 859-6902, e-mail [email protected]. Recent Decisions in Michigan Probate, Trust, and Estate Planning Law Opinions expressed in the Journal are those of the authors and Hon. Phillip E. Harter ............................................................................. 47 do not necessarily reflect the views of the editorial board or of the Probate and Estate Planning Council. It is the responsibility The Landscape in Lansing and Recent Legislation of the individual lawyer to determine if advice or comments in Harold G. Schuitmaker ............................................................................ 51 an article are appropriate or relevant in a given situation. The editorial board, the Probate and Estate Planning Council, and the State Bar of Michigan disclaim all liability resulting from Michael W. Irish Award ...................................................... 54 comments and opinions in the Journal. Miscellaneous Citation Form Section Council and Committees ............................................................. 56 Issues through Volume 4, Number 3 may be cited [Vol.] Mich Prob & Tr LJ [Page] [Year]. Subsequent issues may be cited Michigan Prob & Est Plan J, [Issue], at [Page]. Section Web Site Editorial Board http://www.michbar.org/probate/ Nancy L. Little, Managing Editor Buhl, Little, Lynwood & Harris, PLC, East Lansing Michigan Probate and Estate Planning Journal Melisa M. W. Mysliwiec, Associate Editor Fraser Trebilcock Davis & Dunlap, PC, Grand Rapids Nancy L. Little, Managing Editor Richard C. Mills, Assistant Editor Buhl, Little, Lynwood & Harris, PLC Law Offices of Richard C. Mills, PLC, Jackson 271 Woodland Pass, Ste. 115, East Lansing, MI 48823 (517) 859-6900, fax (517) 859-6902 Christine Mathews, Copy and Production Editor E-mail [email protected] The Institute of Continuing Legal Education, Ann Arbor Winter 2016 MICHIGAN PROBATE & ESTATE PLANNING From the Desk of the Chairperson By James B. Steward I am honored to serve as the product of open review and debate conducted Chair for the Probate & Estate during our monthly meetings, and our goal is for Planning Section, and I thank our legislature to adopt legislation that presents our Section members for their a step forward. confidence in electing me to This past legislative session, which ended on that position. December 31, 2016, includes several legislative As the current Chair of the proposals which this Council either drafted or as- Probate & Estate Planning sisted with revisions that were ultimately adopt- Section, I am tasked with the ed. Those proposals, which were passed, can job of overseeing the work of the Section Council be summarized as follows: the Probate Appeals and hope to serve our members as well as those statute (SB 632, PA 186 of 2016; HB 5503, PA who preceded me. Although I have previously 287 of 2016) [all appeals from probate court will served on the Section Council for ten years be- now go to the court of appeals]; Qualified Dis- fore becoming the Chair (two three-year terms tributions in Trust (SB 597, PA 330 of 2016; HB as a member and four years as an officer), I find 5504, PA 331 of 2016) [limits creditor claims that I am still learning the details of how best to against certain “qualified dispositions in trust”]; keep the Council work running smoothly, and Dower Repeal (SB 558, PA 489 of 2016; SB 560, staying on top of the issues that affect our mem- PA 490 of 2016; [eliminates right by a surviving bers. widow to claim dower]; Right to Appoint Funeral Although Michigan attorneys have been pre- Representative (SB 551; PA 57 of 2016) [permits paring wills and other estate planning docu- an individual to authorize (in writing) another per- ments for clients and handling decedent’s es- son to make decisions about the individual’s fu- tates for more than 100 years, as our society neral & burial (and/or cremation) arrangements]; has changed, so has our estate planning and Fiduciary Access to Digital Assets (HB 5034, PA probate practice. In addition, the probate, trust, 59 of 2016) [provides a structure to allow a fidu- and tax laws that affect living or deceased clients ciary to have access to certain “digital assets” of have changed dramatically over the years and a ward, trust grantor, decedent etc. – however, continue to evolve. These societal and statuto- the bill as passed is considerably different than ry changes
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