Summer 2015 Michigan Probate & Estate Planning Journal

Michigan PROBATE & ESTATE PLANNING JOURNAL TABLE OF CONTENTS Vol. 34 M Summer 2015 M No. 3

Featured Articles:

Binding Third Parties in Probate Court: “Proceedings” Verses “Civil Actions” Alan A. May and Tracy L. Feliksa ...... 2 Florida’s Elective Share for the Surviving Spouse and Its Impact on Non-Florida Beneficiaries Raymond A. Harris ...... 7 From the Probate Litigation Desk: Fifteen Years of MCL 700.2503 and “Writings Intended as Wills” David L.J.M. Skidmore ...... 10 Rebutting the Presumption of Natural Parentage in Michigan Nicholas Papasifakis ...... 18 Medical Malpractice Claims—Unrecog- nized Estate Assets Ronda Little ...... 22 The Search for the Lady Bird Deed Kary C. Frank ...... 25

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. 34 Summer 2015 No. 3 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 From the Desk of the Chairperson become members of the State Bar may subscribe to the Journal by paying an annual $25 subscription. The subscription year Amy N. Morrissey...... 1 begins on October 1 and is not prorated for partial years. Subscription information is available from the State Bar Feature Articles of Michigan, Journal Subscription Service, 306 Townsend Binding Third Parties in Probate Court: “Proceedings” Verses Street, Lansing, MI 48933-2012, (517) 372-9030. A limited “Civil Actions” number of copies of prior issues of the Journal are available beginning with Fall 1988, Volume 8, Number 1, for $6 each, Alan A. May and Tracy L. Feliksa...... 2 plus $2 for postage and handling. Copies of articles from back Florida’s Elective Share for the Surviving Spouse and Its Impact on issues cost $7 per article. Prior issues and copies of articles Non-Florida Beneficiaries from back issues may be obtained by contacting the Institute of Continuing Legal Education, 1020 Greene Street, Ann Raymond A. Harris...... 7 Arbor, MI, (734) 764-0533. Additionally, copies of the Journal From the Probate Litigation Desk: Fifteen Years of MCL 700.2503 and beginning with Fall 1995, Volume 15, Number 1, are available “Writings Intended as Wills” online at http://www.michbar.org/probate/journal.cfm. David L.J.M. Skidmore...... 10 Editorial Policy Rebutting the Presumption of Natural Parentage in Michigan The Michigan Probate and Estate Planning Journal is aimed Nicholas Papasifakis...... 18 primarily at lawyers who devote at least a portion of their practice to matters dealing with wills, trusts, and estates. The Medical Malpractice Claims—Unrecognized Estate Assets Journal endeavors to address current developments believed Ronda Little...... 22 to be of professional interest to members and other readers. The goal of the editorial board is to print relevant articles and The Search for the Lady Bird Deed columns that are written in a readable and informative style Kary C. Frank...... 25 that will aid lawyers in giving their clients accurate, prompt, and efficient counsel. Departments The editorial board of the Journal reserves the right to accept Recent Decisions in Michigan Probate, Trust, and Estate Planning Law or reject manuscripts and to condition acceptance on the revision of material to conform to its editorial policies and Hon. Phillip E. Harter...... 29 criteria. Manuscripts and letters should be sent to Nancy L. Legislative Report Little, Managing Editor, Michigan Probate and Estate Planning Journal, Bernick, Radner, Ouellette & Little, P.C., Harold G. Schuitmaker...... 32 2400 Lake Lansing Rd., Ste. F, Lansing, MI 48912, (517) 371- Ethics and Unauthorized Practice of Law 5361, fax (517) 371-1211, e-mail [email protected]. Fred Rolf, Josh Ard, and Victoria A. Vuletich...... 35 Opinions expressed in the Journal are those of the authors and do not necessarily reflect the views of the editorial board or of Miscellaneous the Probate and Estate Planning Council. It is the responsibility Section Council and Committees...... 38 of the individual lawyer to determine if advice or comments in 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 comments and opinions in the Journal. Citation Form Issues through Volume 4, Number 3 may be cited [Vol.] Mich Editorial Board Prob & Tr LJ [Page] [Year]. Subsequent issues may be cited Michigan Prob & Est Plan J, [Issue], at [Page]. Nancy L. Little, Managing Editor Section Web Site Bernick, Radner, Ouellette & Little, P.C., Lansing http://www.michbar.org/probate/ Melisa M. W. Mysliwiec, Assistant Editor Fraser Trebilcock Davis & Dunlap, PC, Grand Rapids Richard C. Mills, Assistant Editor Michigan Probate and Estate Planning Journal Law Offices of Richard C. Mills, PLC, Jackson Nancy L. Little, Managing Editor Christine Mathews, Copy and Production Editor Bernick, Radner, Ouellette & Little, P.C. The Institute of Continuing Legal Education, Ann Arbor 2400 Lake Lansing Rd., Ste. F, Lansing, MI 48912 (517) 371-5361, fax (517) 371-1211 E-mail [email protected] Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING

From the Desk of the Chairperson By Amy N. Morrissey

I’m writing this column, my as it relates to artificial reproductive technology. final as Chair of the Section, The Section also continues to work to further ed- on the heels of the 55th Annu- ucation of the public through the efforts of the al Probate & Estate Planning Section’s Citizen’s Outreach Committee. Institute in Acme. While each I’d like to thank all of the individuals with whom seminar that our Section co- I have had the opportunity to work over the past sponsors with ICLE is an ex- year—council members, committee members, ceptionally valuable learning section members, our partners in education and opportunity, my favorite is the advocacy, and every individual who works to fur- Institute. It is the culmination of a year’s activ- ther the mission and the efforts of the Section. ity, a reflection on the year’s legislation and case I’m confident that this good work will continue law, a discussion of current activities, and for- with the incoming leadership. ward-looking thoughts about changes we may I look forward to seeing you in the Fall as we anticipate in our profession. But more than that, hold our Section Annual Meeting and resume whether you attend in Plymouth or Acme, it is our regular Section meetings on Saturday, Sep- an opportunity to meet other practitioners from tember 12, 2015 at the University Club of Michi- around the state and to hear about their prac- gan State University in Lansing. tices and experiences. This year, a new Membership Committee was created for the Section. Its mission is to strength- en relations with Section members, encourage new membership, and promote awareness of and participation in Section activities. The Com- mittee has far exceeded my expectations for its first year. An event in furtherance of this mission was held in May at the offices of Smith, Haugh- ey, Rice & Roegge in Traverse City. This well- attended event is anticipated to be the precur- sor of more networking events. Through this outreach, and the Section’s “join a committee” link, the active participation of Section members in the work of the Section has increased. There are many opportunities for member involvement in the Section. While the work accomplished is significant, there is always much to be done. The Section continues to monitor legislation concerning fiduciary access to digital assets, probate appeals, and domestic asset protection trusts. We continue work on modernizing Michigan’s law in several areas, including increased planning opportunities for our clients and matters of succession

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Binding Third Parties in Probate Court: “Proceedings” Verses “Civil Actions” By Alan A. May and Tracy L. Feliksa

Can the fiduciary of an estate or trust under cern a guardianship, conservatorship, or protec- the jurisdiction and supervision of the probate tive proceeding.2 Exclusive jurisdiction extends court bind a non-party of interest using a “pro- also to proceedings to “require, hear, or settle ceeding” as distinguished from a “civil action” the accounts of a fiduciary... .”3 Additionally, the filed in the probate court? probate court is given concurrent jurisdiction to The authors have tried to bind insurance com- (among other things) “hear and decide a con- panies for personal protection insurance (“PIP”) tract proceeding or action by or against an es- benefits under the Michigan No-Fault Act using tate, trust, or ward.”4 The policy for granting con- a “Petition to Allow Account of Fiduciary.” Some current jurisdiction to the probate court is stated fiduciary fees incurred by the estate of protected right in the statute itself: “The underlying pur- individuals are considered allowable expenses pose and policy of this section is to simplify the under Michigan’s no-fault law.1 When settling an- disposition of an action or proceeding involving nual accounts of fiduciary with the probate court, a decedent’s, a protected individual’s, a ward’s, the authors have requested an order for payment or a trust estate by consolidating the probate and of such fees by the responsible insurance carri- other related actions or proceedings in the pro- er. In such cases, the insurer is listed as an inter- bate court.”5 (Emphasis added). ested party, is served a copy of the petition and Certain actions over which the probate court the account, and is given notice of the hearing has concurrent jurisdiction, if they are brought regarding the account. Using this form of plead- in the probate court, must be titled as civil ac- ing (“Petition to Allow Account of Fiduciary”), the tions and commenced by filing a Complaint. One author has successfully obtained orders against such action is “any action against another com- insurance companies for payment of certain fi- menced by a fiduciary or trustee.”6 A fiduciary’s duciary fees owed to the estate. action on behalf of a protected individual’s estate Recently, when one an insurer who was so for fiduciary fees claimed under Michigan’s No- served failed to object to the author’s account Fault Act fits this definition. This court rule requir- or to appear at the hearing on the matter, the ing such actions to be brought as a civil action judge allowed the account, but he cautioned that if brought in the probate court seems to restrict there might not be personal jurisdiction over the the statute’s stated goal of “simplifying disposi- third-party insurance company. Other judges tion” and “consolidating” the probate and other have adjourned the hearing and asked the au- related actions or proceedings in the probate thor to plead the claim against the insurer using court. While a Petition to allow an account of a a “Complaint” in probate court rather than a “Pe- fiduciary and a Complaint against a No-Fault in- tition”. Still other judges have allowed the claim surer can both be brought in the probate court, to be brought in a petition against the insurer, they certainly are not consolidated if one must separate from the fiduciary’s “Petition to Allow be brought as a “proceeding” using a Petition Account.” Which pleading practice is correct? and the other must be brought as a “civil action” using a Complaint. Probate Court Jurisdiction: Proceedings Indeed, the rule defining the parties who are Verses Civil Actions interested in a proceeding for the examination With few exceptions, the probate court has of a fiduciary’s account, seems to contemplate exclusive jurisdiction over proceedings that con- that third parties such as no-fault insurers will be

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parties to such proceedings. MCR 5.125(C)(6) to recover fiduciary’s fees owed to an estate but states in part, “The persons interested in a pro- a separate proceeding and a Petition to allow fi- ceeding for examination of an account of a fiduciary fees owed by an estate, then there is not duciary are the: … (h) in all matters described really consolidation. in this subsection (6), any person whose inter- Due Process and Civil Procedure ests would be adversely affected by the relief Considerations requested, including a claimant or an insurer or surety who might be subject to financial obliga- Despite the requirements of MCR 5.101(C), it tions as a result of the approval of the account.” is the authors’ experience and caselaw suggests (Emphasis added). that Petitions for fiduciary fees against no-fault Disharmony between statutory expansion of insurers are regularly entertained by the probate the probate court’s jurisdiction and a court rule court. However, a fiduciary bringing such a Peti- was at issue in Spears v NBD Bank, NA (In re tion should be cautious of due process consid- Gordon Estate), 222 Mich App 148, 564 NW2d erations. The rules applicable to civil actions in 497 (1997). A caretaker’s Petition against a de- circuit court are applicable to civil actions filed in cedent’s estate for allowance of a disputed claim the probate court.10 And unlike commencement was dismissed because the action was not of a proceeding, commencement of a civil action brought by use of a Complaint as mandated by requires proper service of a summons and Com- the court rule MCR 5.101(C). At the time, a stat- plaint (aka “service of process”).11 ute existed allowing such a claim to be brought Due Process considerations require that no- by either a Petition or a Complaint. To resolve tice be properly served upon a party before that the conflict, the court looked to whether the court party can be subject to personal jurisdiction.12 rule or the statue at issue violated any jurisdic- Thus, a fiduciary bringing an action against a tional issues or substantive legislative policy third party in probate court using a Petition rath- consideration. Because it found no such viola- er than a Complaint, runs the risk of dismissal tion, the court held that the court rule governed of their claim for lack of jurisdiction due to insuf- the procedure to be followed by a claimant upon ficient process and service of process.13 Cer- his claim being disallowed by a personal repre- tainly, however, if a no-fault insurer substantive- sentative.7 ly responds to a fiduciary’s petition for fees in At the time of the court’s decision, the pur- its first motion or responsive pleading, then dispose for the probate court’s current jurisdiction missal based on personal jurisdiction, insuffi- as stated in the applicable statue was “to sim- cient process, or insufficient service of process plify the probate of estates and the disposition is waived.14 of actions or proceedings involving estates of Notice to meet the demands of Due Process decedents, estates of wards, and trust estates also requires proper pleading. If a fiduciary is by having the probate and other related actions asking in the Petition for an Order against an in- or proceedings in the probate court,”8 (emphasis surer for payment of all or part of a fiduciary’s added). Contrast this to the current statute which fees, something more than just a demand for substitutes the words “by having” with “by con- judgment must be made to meet the general solidating.”9 Using today’s more clearly defined rules of pleading.15 “[T]he primary function of a policy for consolidation, the court might well find pleading in Michigan is to give notice of the na- that the requirement imposed by MCR 5.101(C) ture of the claim or defense sufficient to permit to use a Complaint undermines the legislative the opposite party to take a responsive position.” goal of simplifying the settlement of estates. If a Stanke v State Farm Mut Auto Ins Co, 200 Mich fiduciary must use a civil action and a Complaint App 307, 317, 503 NW2d 758 (1993), citing 1

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Martin, Dean & Webster, Michigan Court Rules In re Estate of Shields Practice, p 186. In Shields v State Farm Mut Auto Ins Co (In If a fiduciary is going to bring claim against an re Estate of Shields), 254 Mich App 367, 656 insurer in the same petition as the fiduciary’sPe- NW2d 853 (2002), a conservator of a minor’s tition to Allow Account, all claims should be prop- estate filed a “Petition for Payment of Fees,” erly pled in the petition. after the conservator’s annual account had al- The rule to be deduced from the authorities is ready been heard and approved. The conserva- that an annual or a final account of an executor tor specifically cited Michigan no-fault caselaw or administrator is conclusive as to all matters to support his claim that State Farm Insurance which are before the court and are adjudicated in its allowance, but the order of allowance is not Company was responsible for the conservator’s final or conclusive and does not constitute an attorney fees incurred to file his first annual ac- adjudication in matters which were not before it count of conservatorship. State Farm argued upon the accounting and which were not consid- that (1) fees claimed were not covered PIP ben- ered by the court or passed upon in allowing the efits under Michigan no-fault law, (2) the probate account of the executor of the estate.16 court lacked jurisdiction, and (3) the venue was A Petition that includes a claim against an in- improper because the Conservator should have surer for payment of fiduciary fees should ref- filed a civil Complaint in circuit court instead of erence the No-Fault contract under which the filing a Petition in probate court. The lower court claim is made and reference the portion of the found that the conservator’s attorney fees relat- Michigan No-Fault Act under which payment of ed to the filing of the final account were a cov- the fiduciary fees are claimed. ered PIP benefit, and the fees were necessary 23 Besides personal jurisdiction and process is- and reasonable. sues, differences in the court rules applicable to The Michigan Court of Appeals reversed the civil actions in the probate court and probate pro- lower court and found that the fees were not al- ceedings can impact the parties’ rights. For ex- lowable expenses for the purposes of PIP ben- ample, discovery in probate court proceedings efits because the conservator in this case had is limited to “matters raised in any petitions or not been appointed for reasons related to the objections pending before the court.”17 Where- auto accident.24 (The conservator had been ap- as discovery for civil actions in probate court is pointed because the protected individual was a broader.18 There is also caselaw to support the minor, who had settlement proceeds in need of idea that necessary joinder rules of general civil protection). However, the court determined that actions for do not apply to proceedings by peti- the probate court clearly had subject matter ju- tion in probate court.19 risdiction to determine State Farm’s liability for Additionally limitations in the probate court as the conservator’s legal fees.25 Michigan grants to a right to a jury trial on certain issues is impor- exclusive jurisdiction to settle the accounts of a tant in the context of actions against no-fault in- fiduciary,26 and concurrent jurisdiction to “hear surance providers for payment of fiduciary fees. and decide a contract proceeding or action by or The determination of the reasonableness of at- against an estate, trust, or ward.”27 torney fees in probate court is generally a matter While the court agreed that the probate court solely within the discretion of the probate court, had subject matter jurisdiction over the claim, without right to jury trial on the matter.20 But the it also did not take issue with the fact that the question of whether fees are reasonable and claim against State Farm was brought by a filing necessary under the Michigan No-Fault Act21 is a petition in the probate court and not by filing generally one of fact for a jury.22 a complaint in the probate court.28 Presumably,

4 Summer 2015 MICHIGAN PROBATE & ESTATESummer PLANNING 2015 the court of appeals in Shields did not raise the sonably calculated” to apprise the insurance personal jurisdiction issue resulting from insuf- company of the action.30 At a minimum, the peti- ficient process because State Farm waived that tion should reference the protected individual’s argument by not raising it in their first responsive particular insurance contract and the Michigan pleading or motion.29 Clearly once State Farm No-fault Act section under which the fiduciary is filed their response, notice of the claim against claiming fiduciary fees. them was established. And State Farm’s argument that the action should have been filed as a Complaint in circuit court was too broad, ig- Notes noring the exclusive and concurrent jurisdiction given to the probate court under Michigan law. 1. May v Auto Club Ins Ass’n (In re Estate of Carroll (On Remand)), 300 Mich App 152, 174, 832 NW2d 276 Thus, in Shields, both the lower court and the (2013). court of appeals did not take issue with the form 2. MCL 700.1302(c). of the action (a Petition proceeding) brought by 3. MCL 700.1302(d). a fiduciary against another (State Farm), ignor- 4. MCL 700.1303(1)(i). ing (or at least not commenting on) the court rule 5. MCL 700.1303(3). 6. MCR 5.101(C)(1). requiring such an action to be brought by Com- 7. Spears v NBD Bank, NA (In re Gordon Estate), 222 plaint, if filed in the probate court. Mich App 148, 155, 564 NW2d 497 (1997). 8. MCL 700.22 (repealed by 1998 PA 386, Eff. Apr 1, Conclusion 2000, MCL 700.8102). The probate court clearly has subject matter 9. MLC 700.1303(3). jurisdiction to hear claims by a fiduciary against 10. MCR 5.101(C). 11. MCR 2.101 and 2.102-2.105. insurance companies for payment of fiducia- 12. “An elementary and fundamental requirement of ry fees owed to an estate. However, if such a due process in any proceeding which is to be accorded claim is brought in probate court, the fiduciary finality is notice reasonably calculated, under all thecir- should be mindful of the court rule requiring that cumstances, to apprise interested parties of the pendency it must be brought as a civil action using a Com- of the action and afford them an opportunity to present their objections.” Mullane v Central Hanover Bank & Trust plaint. The use of a Complaint rather than a Pe- Co, 339 US 306, 314 (1950). tition is in tension with the legislative policy of 13. MRC 2.116(C)(1), (2), and (3). See also Holliday v simplifying disposition of estates and consolida- Townley, 189 Mich App 424, 426, 473 NW2d 733 (1991). tion in the probate court of related proceedings 14. MCR 2.116(D)(1). and actions regarding estates. Unless the issue 15. MCR 2.111(B)(1). 16. Macenzie v Union Guardian Trust Co, 262 Mich of personal jurisdiction is raised by the respon- 563, 586, 247 NW 914 (1933). dent, the courts often will entertain these actions 17. MCR 5.131(B). brought through a petition proceeding in the pro- 18. MCR 2.302(B). bate court rather than through a civil action in 19. See Brown v Townsend (In re Brown), 229 Mich the probate court. However, until and unless the App 496, 501-502, 582 NW2d 530 (1998) and Jensen v Rusiecki (In re Estate of Rusiecki), No 266145, 2007 Mich court rule is changed to conform more closely to App LEXIS 1507 (June 12, 2007) (unpublished). the stated legislative policy, the safest course is 20. See In re Estate of Baird, 137 Mich App 634, 637, to bring the action according to the court rule— 357 NW2d 912 (1984); In re O’Neill Estate, 168 Mich App through a civil action in probate court. If howev- 540, 543, 425 NW2d 133 (1989); and In re Krueger Estate, er, the fiduciary proceeds by bringing the action 176 Mich App 241, 248, 438 NW2d 898 (1989). 21. MCL 500.3107(1)(a). through his Petition to Allow Account of Fiducia- 22. Kallabat v State Farm Mut Auto Ins Co, 256 Mich ry, the petition should be drafted to address the App 146, 151, 662 NW2d 97 (2003). due process concern of providing notice “rea- 23. In re Estate of Shields, Chippewa County Probate

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Court, File No. 00-24420-CV: “Petition for Payment of At- sion. He is a member of the State Bar of Michi- torney Fees and Costs,” “Response to Petition for Payment gan and the District of Columbia Bar. An avid au- of Attorney Fees and Costs,” Petitioner’s “Memorandum,” thor in the field of probate law, Mr. May also has “Brief in Support of State Farm Insurance Company’s Re- sponse to Petition for Payment of Fees and Costs,” and been a lecturer and instructor for ICLE, the Mich- “Order” dated October 5, 2001. Query: How far can the igan Trial Lawyers Association, Wayne State words “related to” be stretched? The author leaves this for University, and Oakland University. a future discussion). 24. Shields v State Farm Mut Auto Ins Co (In re Estate of Shields), 254 Mich App 367, 370, 656 NW2d 853 (2002) (“…the conservatorship here, and its related costs, did not ‘arise out of’ the accident for which respondent was obli- gated to provide PIP benefits.”) 25. Id. at *369. 26. MCL 700.1302 (d). Tracy L. Feliksa is an associ- 27. MCL 700.1303 (1)(i). ate with Kemp Klein Law Firm 28. In re Estate of Shields, Chippewa County Probate Court, File No. 00-24420-CV: “Petition for Payment of At- in Troy, Michigan practicing torney Fees and Costs.” probate law focusing on trusts, 29. MCR 2.116(C)(1), (2), and (3). decedents’ estates, guardian- 30. Consideration should be given to the idea that, a ships, conservatorships, and Respondent’s Due Process rights may be greater if served fiduciary issues. Tracy has a with a Petition rather than a Complaint. For example, there may be more time to respond to a Petition rather than a particular interest in elder fi- Complaint (“A written Response or objections may be nancial abuse issues, and she served at any time before the hearing or at a time set by enjoys working with and advocating for elderly the court.” MCR 5.108(E)). Emphasis added. clients. Tracy graduated from Western Michigan University Cooley Law School magna cum laude. While in law school Tracy served as an assistant editor on law review, advocated in court for clients of the Family Law Assistance Project, and provided pro-bono legal assistance in the “Ser- Alan A. May practices in the vice to Soldiers” and “Immigration Outreach” areas of probate litigation, pro- programs. Her interest in probate matters de- bate administration, and es- veloped before attending law school during her tate planning. Vice president years working as a senior paralegal in the areas of the firm, he specializes in of estate planning, elder planning, probate, real guardianships and conserva- property, and tax resolution. Tracy also has an torships. Until 2001, Mr. May undergraduate degree in engineering and seven practiced under the firm name years professional engineering experience. of May & May, PC. He serves as a court-appointed referee in Wayne and Oak- land County Probate Courts, a special assistant attorney general in Michigan, a Wayne Coun- ty public administrator, and a mediator in Oak- land County Circuit Court. Mr. May has chaired the Federal Judicial Evaluations Committee and the Michigan Civil Rights Commission and has served on the Michigan Civil Service Commis-

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Florida’s Elective Share for the Surviving Spouse and Its Impact on Non-Florida Beneficiaries By Raymond A. Harris Florida recently surpassed New York as the trusts. third most populous state in the country behind 3) The fractional interest in property held California and Texas.1 Everyone is familiar with in joint tenancy and tenancy by the en- the term “snowbird,” and many Michigan estate tireties (other than accounts and securi- planning attorneys have clients who live in Flor- ties). ida for at least part of the year. However, the in- 4) Revocable trusts and revocable trans- creasing number of people declaring Florida as fers.7 their permanent residence presents traps for the 5) Certain irrevocable transfers by the de- unwary due to Florida’s treatment of the elective cedent. share for the surviving spouse. 6) The net cash surrender value of life in- Compared to Michigan, Florida has a very surance policies immediately before the broad elective share scheme. Whereas Michi- decedent’s death. gan residents can disinherit their spouse by us- 7) Pensions and retirement plans. ing joint property, beneficiary designations, and 8) Transfers made within one year of the revocable trusts,2 it is much more difficult to dis- decedent’s death, including certain inherit a spouse in Florida. gifts. This article will briefly explore the history and 9) Irrevocable transfers to “elective share” operation of Florida’s elective share, and the im- trusts. pact that it can have on beneficiaries who reside Because the assets that comprise the Florida outside of Florida. elective estate are so broad, it is helpful to illustrate what is not included. Florida law excludes Background the following from the elective estate:8 In 1975, Florida abolished dower and curtesy 1) Irrevocable transfers of property made for surviving spouses. In their place, Florida law by the decedent before October 1, provides that the surviving spouse of a Florida 1999, and irrevocable transfers made resident has the right to a share of the estate on or after October 1, 1999 but before of the decedent, known as the “elective share.”3 the date when the decedent married the The elective share is expressly for the purpose surviving spouse. of caring for the surviving spouse. There is no 2) Transfers of property for which the de- distinction made between a surviving husband cedent received adequate compensa- and a surviving wife. The elective share is an tion. amount equal to 30 percent of the elective es- 3) Transfers of property made by the de- tate.4 The elective share is in addition to home- cedent with the spouse’s written con- stead, exempt property, and family allowances.5 sent. There are nine categories of assets that com- 4) Proceeds of an insurance policy on the pose the elective estate:6 decedent’s life, however payable, in ex- 1) The decedent’s probate estate. This in- cess of its net cash surrender value. cludes all property that is subject to es- 5) Life insurance on the decedent’s life tate administration in any state. maintained under a court order. 2) Joint bank accounts, pay on death and 6) The decedent’s half of community prop- transfer on death accounts, and Totten erty.

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7) Property that the decedent held in a mately six months prior to Grantor’s death, he qualifying special needs trust for the gifted $50,000 each to each of his two adult chil- surviving spouse on the date of the de- dren. Both children reside in Michigan and are cedent’s death. not descendants of spouse. 8) Property included in the decedent’s Following Grantor’s death, spouse sends gross estate for federal estate tax pur- proper notification to the personal representative poses solely because the decedent of her intent to take her elective share. The gifts possessed a general power of appoint- to the children would fall into category 8 of the ment. elective estate assets and Class 2 of the con- 9) Property that constitutes the protected tribution order. Under the Florida elective share homestead of a decedent whether held statutes, the children could be liable for contribu- by the decedent or by a trust at the de- tion if the elective estate is not sufficient. Though cedent’s death. practical problems exist for the personal repre- Additionally, each spouse can waive his or sentative to establish that the children have suffi- her right to the elective share through antenup- cient minimum contacts with Florida to grant per- tial and post-nuptial agreements.9 sonal jurisdiction over them under its long arm The decedent may specify in his or her will or statute,12 the personal representative would be trust how the elective share is paid to the surviv- able to file suit in Michigan against them. The ing spouse. Absent such a provision, the order spouse would also be able to pursue contribu- in which property is used to satisfy the share is tion if the personal representative decided that it provided by statute.10 First, property that pass- would be impractical to do so.13 es to the surviving spouse is used to satisfy the If the personal representative or spouse did elective share. If those assets are insufficient to file suit in Michigan, the children would most like- satisfy the elective share, then the balance is ly argue that Florida’s laws do not apply to non- apportioned among the recipients of remaining residents who received valid gifts from the dece- elective estate assets in the following classes:11 dent outside of Grantor’s probate estate. While Class 1: The decedent’s probate estate and an analysis of the conflict of laws between Michi- any revocable trusts created by the decedent. gan and Florida is beyond the scope of this arti- Class 2: Property held in joint back accounts; cle, the children could be mired in litigation even pay on death and transfer on death accounts; if they do ultimately prevail. joint tenancy and tenancy by the entireties; prop- This problem could have been avoided erty that passes by beneficiary designation; and had Grantor updated his documents after he previously transferred property. changed his domicile to Florida. His revised doc- Class 3: All other property interests in the uments could have specified how the elective elective estate other than protected charitable share would be paid to his spouse. Grantor also interests. could have created an elective share trust for his spouse or executed a postnuptial agreement. Fi- Example nally, Grantor could have simply made a joint gift Assume that a Michigan resident (“Grantor”) with his spouse to each of the children, which creates a valid estate plan consisting of a pou- then would have excluded the gifts pursuant to rover will and revocable living trust. Grantor and Fla. Stat. 732.2045(c). spouse, his second wife, then move to Florida Conclusion and declare Florida as their domicile. Grantor passes away after two years without ever up- Florida’s broad elective share for the surviv- dating his estate planning documents. Approxi- ing spouse can cause unintended consequenc-

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es, especially for practitioners familiar with Mich- Raymond A. Harris is an at- igan’s comparatively narrow elective share for a torney with Bernick, Radner, surviving spouse. Michigan attorneys whose cli- Ouellette & Little, P.C. in Lan- ents move to Florida should encourage those cli- sing, Michigan. He practices ents to update or revise their documents to meet in the areas of estate plan- their goals while minimizing the impact of Flori- ning, elder law, probate and da’s elective share on beneficiaries. This would trust administration and litiga- be especially crucial in second-marriage situation, guardianships and con- tions where the surviving spouse might be more servatorships, special needs likely to pursue out of state beneficiaries for con- planning, and Medicaid planning. Raymond is li- tribution. censed to practice in both Michigan and Florida. He is a member of the National Academy of El- der Law Attorneys (NAELA) and serves on the Notes board of directors for the Michigan NAELA chapter. Raymond is a frequent speaker and author 1. http://www.census.gov/newsroom/press-releas- es/2014/cb14-232.html. on topics relating to Medicaid planning, special 2. MCL 700.2202; Soltis v First of America Bank— needs planning, elder law, probate, and estate Muskegon, 203 Mich App 435; 513 Nw2d 148 (1994). planning. In 2014, he was the recipient of the 3. Fla. Stat. 732.201. Michigan Lawyers Weekly “Up & Coming Law- 4. Fla. Stat. 732.2065. yers” award. He is very active in his community, 5. Fla. Stat. 732.2105. 6. Fla. Stat. 732.2035(1)-(9). serving on the boards of multiple charitable or- 7. Property held in a revocable trust will not be in- ganizations. Raymond lives with his wife Mela- cluded in the surviving spouse’s elective estate if at the nie and their three dogs in Holt, Michigan. decedent’s death: (1) the property was held as a trust asset at all times between October 1, 1999 and date of decedent’s death; (2) the decedent was not married to surviving spouse when the property was transferred to the trust; and (3) the property was a non-marital asset immediately prior to decedent’s death. FS 732.2155(6). 8. Fla. Stat. 732.2045(1)(a)-(i). 9. Fla. Stat. 732.702. 10. Fla. Stat. 732.2075(1). 11. Fla. Stat. 732.2075(2). 12. The Florida Supreme Court case Venetian Salami Co v Parthenais, 554 So2d 499 (1989) is the primary authority for determining when a non-resident would be subject to Florida’s long arm statute. 13. Fla. Stat. 732.2145(4).

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From the Probate Litigation Desk: Fifteen Years of MCL 700.2503 and “Writings Intended as Wills” By David L.J.M. Skidmore Introduction whether documents reflected testamentary intentions, and whether such intentions were cer- Effective April 1, 2000, Michigan enacted MCL tain or final enough to be enforced. The case- 700.2503 (entitled “Writings intended as wills, law has considered whether non-will legal instru- etc.”). The statute provides as follows: ments (a trust amendment; a quitclaim deed) Although a document or writing added upon a could qualify as a document intended as a will or document was not executed in compliance with will-related document under the statute. And the section 2502, the document or writing is treated caselaw has considered whether various types as if it had been executed in compliance with that section if the proponent of the document or of defects in will formalities could be overlooked writing establishes by clear and convincing evi- under the saving power of the statute. This arti- dence that the decedent intended the document cle will review Michigan caselaw construing and or writing to constitute any of the following: applying MCL 700.2503 since April 1, 2000. (a) The decedent’s will. Korean New Hope Assembly of God v Haight (b) A partial or complete revocation of the dece- (In re Estate of Smith), 252 Mich App 120, dent’s will. 651 NW2d 153 (2002) (c) An addition to or an alteration of the decedent’s will. The Estate of Smith decision stands for the (d) A partial or complete revival of the decedent’s principle that the proponent of a defective instru- formerly revoked will or of a formerly revoked ment under MCL 700.2503 may offer extrinsic portion of the decedent’s will. evidence of testamentary intent. According to the Reporter’s Comment, MCL On April 19, 1999, Kilyon Lee Smith executed 700.2503 “represents a liberalization of the rules her last will. On April 20, 1999, Smith met with governing the recognition of a document as a her church pastor and his wife. At that meeting, will or as a writing having testamentary effect.”1 Smith wrote a document in her own handwriting The Michigan Court of Appeals has described and in the Korean language. The English trans- the statutory purpose as follows: “[T]he pur- lation of the handwritten document was: “I want pose of the statute is to permit a probate court to donate $150,000 to God in order to build a to overlook technical deficiencies in what clearly church. 1999/04/20 Lee, Kilyon (deacon).”3 The stands as a clear, accurate, written statement of pastor and his wife apparently did not sign the the decedent’s testamentary intent.”2 The Mich- document as witnesses. On May 1, 1999, Smith igan statute is based nearly verbatim on Sec- died. tion 2-503 of the Uniform Probate Code (entitled Smith’s church (standing in for devisee God) “Harmless error”). petitioned to have the handwritten document Over the past 15 years, the Michigan Court admitted to probate as a holographic codicil to of Appeals has construed and applied MCL Smith’s last will. The beneficiaries under Smith’s 700.2503 in eight decisions. This caselaw has will opposed the petition, arguing that the docu- considered whether the statute’s clear and con- ment was not testamentary in nature because it vincing evidence standard has been satisfied “made no reference to death, a prior will, its ef- in particular cases, and what types of evidence fective date, or the intent of Smith that it become may be offered by the proponent of a document effective upon her death, nor was it physically under the statute. The caselaw has considered attached to a will.”4 Instead, the beneficiaries

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argued that the document merely expressed a 700.2503. “[B]y failing to allow for the admission present intent to make a gift that Smith failed to of extrinsic evidence, the court deprived petition- complete during her lifetime.5 er of the opportunity to make such a showing.”8 The beneficiaries moved for summary dispo- In re Cameron Trust, No 257306 (Mich App sition on the ground that there was no genuine Nov 29, 2005) (unpublished) issue as to any material fact, because the handwritten document failed to express any testa- The Cameron Trust decision recognized that mentary intent. The church acknowledged “that, MCL 700.2503, by its terms, is limited to wills on its face, the document at issue fail[ed] to re- and will-related documents and does not extend flect an intent on the part of Smith that the docu- to trusts. ment constitute[d] a testamentary instrument[.]” During his lifetime, Bruce D. Cameron created However, the church argued that the probate his revocable trust by executing his trust agree- court should consider extrinsic evidence as to ment. Cameron subsequently executed his first Smith’s testamentary intent, asserting “that such amendment to the trust agreement. He later testamentary intent could be proved with regard made handwritten edits to the trust amendment, to Smith’s creation of the document at issue, in- changing both the designated successor trust- cluding information that Smith was well aware of ee and the distribution scheme for the named her imminent death at the time that she created remainder beneficiaries. The probate court en- the document.”6 forced the handwritten edits to the trust amend- The probate court ruled that the handwritten ment, and the adversely affected beneficiary ap- document was not testamentary in nature, and pealed. that extrinsic evidence was not admissible to es- The Michigan Court of Appeals rejected the tablish testamentary intent. “The probate court appellant’s argument that the “clear and convinc- concluded that, on its face, the document at is- ing evidence” standard of MCL 700.2503 applied sue was not a testamentary instrument;” that the to the handwritten edits to the trust amendment. document could not be admitted to probate; and “That statute applies only to wills. ... Because the “that extrinsic evidence [would be] relevant only Cameron Trust is not a will, MCL 700.2503 does if the document [were] admitted into probate.”7 not apply.”9 The Michigan Court of Appeals reversed, In re Estate of Berg, No 268584 (Mich App holding that extrinsic evidence was admissible to Aug 29, 2006) (unpublished) establish testamentary intent under either MCL 700.2502 (based on UPC 2-502) or 700.2503 In Estate of Berg, MCL 700.2503 preserved a (based on UPC 2-503). Under its holographic will that failed to comply with the attestation re- codicil theory, the church as proponent should quirements of MCL 700.2502(1). This decision have been allowed to offer extrinsic evidence also reflected the use of extrinsic evidence by of testamentary intent, based on the terms of the document proponent to satisfy the “clear and MCL 700.2502(3): “Intent that a document con- convincing evidence” standard of MCL 700.2503. stitutes a testator’s will can be established by At her death, Shirley Berg left a will dated extrinsic evidence, including, for a holographic June 13, 2003. Marilyn Silverstein, the beneficia- will, portions of the document that are not in the ry under Berg’s prior will but not under the 2003 testator’s handwriting.” Alternately, the church will, objected to the admission of the 2003 will to as proponent should have been allowed to of- probate on various grounds. The probate court fer clear and convincing evidence, including ex- granted summary disposition to the proponent of trinsic evidence, that the handwritten document the 2003 will, dismissing Silverstein’s objections. was intended to constitute a codicil under MCL On appeal, Silverstein argued in part that the

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probate court had erred by admitting the 2003 ing a signature to be the decedent’s will. will to probate, because the instrument had not Clark T. Smoke died on May 3, 2003, survived been properly witnessed. The Michigan Court of by his son Timothy, his brother Robert, and his Appeals agreed that one witness’s signature on sister Mary. Smoke left a 1977 will that devised the 2003 will was defective. “[Witness] Mr. Schul- his estate (comprised primarily of real property) te testified that he signed the will at a separate to his siblings, other than a $1,000 devise to son location [than Ms. Berg’s execution] and that he Timothy (who was a young child when the will never met or saw Ms. Berg.”10 However, the ap- was made). Brother Robert submitted the 1977 pellate court ruled that the 2003 will’s failure to will for probate. Son Timothy objected to admis- comply with MCL 700.2502(1) was not fatal to sion of the 1977 will to probate, on the grounds the will’s admission to probate, because the in- that Smoke sent letters to his siblings and (now strument qualified as a document intended as a adult) son shortly before his death, in which he will under MCL 700.2503. expressed a testamentary plan contrary to that The proponent’s evidence consisted entirely in the 1977 will. of extrinsic evidence—namely, the testimony of Timothy proffered two letters written by the scrivener of the 2003 will. Notably, according Smoke, both of which reflected a dispute be- to the opinion, the scrivener of the 2003 will— tween Smoke and his siblings over certain jointly one “Mr. Gracely”—was a non-lawyer engaged owned real property. The first letter was dated in the unauthorized practice of law. Mr. Gracely October 14, 2001 and addressed to Smoke’s testified siblings Robert and Mary. In this letter, which that Ms. Berg called Mr. Gracely [the scrivener] was unsigned, Smoke stated: “I am getting older in June 2003 and told him that she wanted to and I want to avoid any problems of being able to update her will or complete her estate planning devise my share of the 152 acres to my son, Tim documents. Ms. Berg further explained to Mr. Smoke, if I should expire unexpectedly.” The sec- Gracely that she wanted Sue Thomas to be her ond letter was dated May 8, 2002 and addressed personal representative and that she wanted to to Timothy. In this letter, which was signed only leave her 50 percent of her estate. Ms. Berg also “Dad,” Smoke stated, “So, if the land passes to specified that she wanted to leave 50 percent of you upon my death be smart, and don’t cave into her estate to the same charities as provided in pressure to unload the land for peanuts.”13 her previous will. Ms. Berg specifically told Mr. The probate court observed that the purpose Gracely that she did not want to execute a prior of MCL 700.2503 “is to permit a probate court will that included Ms. Silverstein because she to overlook technical deficiencies in what clear- had not heard from Ms. Silverstein in two years. ly stands as a clear, accurate, written statement Mr. Gracely made the requested changes, and of the decedent’s testamentary intent.14 Apply- Berg reviewed and approved them one or two ing this construction of the statute, the probate days before she executed the will.11 court found that the letters failed to constitute “Mr. Gracely’s testimony constitutes clear and “a clear, accurate, written statement of the de- convincing evidence that Ms. Berg intended for cedent’s testamentary intent.” In particular, the the June 13, 2003, will to be her last will and tes- probate court emphasized “the fact that the two tament.”12 letters with purported testamentary effect did not contain decedent’s signature, so it was high- In re Estate of Smoke, No 273114 (Mich App ly unlikely that either of them were intended to Dec 18, 2007) (unpublished) carry out the decedent’s testamentary wishes.”15 The decision in Estate of Smoke reflected re- The probate court “found that the lack of signa- luctance by the courts to deem a document lack- ture fatally undermined respondent’s reliance

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on them as testamentary instruments, because her estate to her son, Edward Floyd. She left the MCL 700.2503 was not intended to remedy such original of the will with her attorney and received a glaring void in a will’s formation.”16 a copy of the will. Subsequently, Windham made The Michigan Court of Appeals ruled that that handwritten changes on her copy of the will, by probate court had not erred by declining to ad- which she crossed out Edward Floyd as sole de- mit the letters to probate under MCL 700.2503, visee and wrote in her daughter, Teresa Carr, although it declined to rule that the statute could as sole devisee. Windham died on January 18, never save a will that lacked a signature. “Al- 2006. though we are not in a position to speculate that Daughter Teresa offered the marked-up copy every document must always bear a signature to of the will as a purported revocation of the will. be acceptable as a will, the probate court’s anal- The probate court declined to give testamenta- ysis and ultimate conclusion was amply support- ry effect to the handwritten changes to the will ed by an examination of the letters presented in copy, and Teresa appealed. Based on the re- this case.”17 cord, the Michigan Court of Appeals found that The appellate court simply found that the let- the evidence was insufficient to clearly and con- ters did not reflect certainty as to Smoke’s tes- vincingly show that Windham intended the hand- tamentary intentions. “Both letters speak of the written changes to be a revocation of the will. demise of the property to respondent from a fu- The handwritten changes included com- ture, sometimes conditional, perspective.”18 The ments apparently directed to the attorney-scriv- appellate court agreed that the letters seemed ener who Windham expected to implement the to reflect that Smoke was reconsidering the tes- changes. “These comments appear to relate tamentary scheme set forth in his 1977 will, but to Windham trying to organize her thoughts re- such vague reconsideration was insufficient for garding how she wanted the will to read and how the letters to constitute a will, without any cer- she was going to explain the family dynamic and tainty regarding Smoke’s new testamentary plan. her reasoning for her devise to the person who “[T]he proponent of the document must demon- was going to revise her will. Hence, these com- strate that the document itself represents a valid ments suggest that she lacked testamentary in- and more recent testamentary instrument. ... In tent when she marked up her copy of the original other words, it is not enough that a document January 17, 2003, will and was thinking of this reflects the decedent’s intent to someday make marked-up copy as a draft. Mere drafts of wills changes to his will, or that it hints that the dece- are inadmissible to probate.”20 dent has long abandoned the intent embodied In fact, Windham had historically revised her and formalized in the will, or even that it express- estate planning documents in just this way— es the decedent’s regret about ever making the by making notes on her copies, then giving the will in the first place.”19 notes to her attorney. Therefore, “the trial court did not clearly err by finding that there was not In re Estate of Windham, No 287937 (Mich clear and convincing evidence that the marked- App Jan 26, 2010) (unpublished) up copy of the January 17, 2003, will was a tes- The decision in Estate of Windham rested on tamentary document resulting in a revocation.”21 the key distinction between an intention to make In re Gentile Trust, No 289809 (Mich App Oct a will (enforceable under MCL 700.2503) and an 21, 2010) (unpublished) intention to make a draft of a will (not enforceable under MCL 700.2503). The Michigan Court of Appeals ruled in In re Esther Vera Windham executed her last will Cameron Trust, supra, that MCL 700.2503 only on January 17, 2003, under which she devised applied to wills or will-related documents, not

13 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015 trusts. In the Gentile Trust decision, the Court in favor of John Carlesimo.”23 Carlesimo ap- of Appeals ruled that a trust amendment could pealed. be given effect as a will revocation under MCL The Michigan Court of Appeals held that the 700.2503. probate court did not err in finding that Gentile During his lifetime, Samuel Gentile created intended to leave all of his property (trust and a revocable trust. Under his first trust amend- non-trust) to Graybill. “[T]he evidence clearly ment dated January 2007, Gentile named John showed that it was the decedent’s understand- Carlesimo as the sole trust beneficiary. Gen- ing and intent that when he died, all of his prop- tile also had a will that named Carlesimo as erty was to go to Graybill, whether held in trust or the beneficiary of his estate. Under his second not, and that Carlesimo was not to receive any- trust amendment dated January 1, 2008, Gentile thing.”24 The appellate court implicitly concluded named John Graybill as the sole trust beneficia- that Gentile’s intention to leave all of his property ry, revoking Carlesimo’s beneficial interest in the to Graybill was automatically tantamount to Gen- trust. However, Gentile took no separate action tile’s intention to revoke gifts to Carlesimo under to revoke his devise to Carlesimo under his will. his will. That conclusion seems problematic. Gentile died on January 4, 2008. First, the record reflected that Gentile may not The validity of the second trust amendment have even known that Carlesimo was named as was litigated by Carlesimo and Graybill. Fol- the beneficiary under his will. “[I]t appears that lowing trial, the jury determined that the second the decedent was unaware that Carlesimo was amendment was valid, and the probate court en- also the named beneficiary in his will, or did not tered judgment giving effect to the jury’s verdict. understand the difference between his trust and Subsequently, Graybill petitioned the probate his will.”25 If Gentile, when he signed the second court for a determination that the second trust amendment, did not know that Carlesimo was amendment operated to revoke Gentile’s will to named as beneficiary under his will, then it is the extent it named Carlesimo as the beneficia- difficult to imagine how Gentile could have spe- ry of Gentile’s probate estate. The second trust cifically intended that the second amendment amendment provided that, upon Gentile’s death, should revoke the gift to Carlesimo under his will. all the rest residue and remainder of Trust prop- Moreover, the record reflected that Gentile’s erty and estate, including any accumulations attorney, who drafted the second amendment, and any estate outright of Grantor Samuel Gen- did not intend for the second amendment to have tile, shall be awarded to John Graybel [sic] of any effect on Gentile’s will. The appellate court Alaska, and any right, claim or interest that John dismissed that fact by stating that only Gentile’s Carlesimo may have to any of the assets, es- intention mattered. “Carlesimo relies on testimo- tate, residue, Trust or accumulations of any kind ny by Nielson [attorney-scrivener] that the sec- attributable to Samuel Gentile, shall be termi- ond amendment to the trust was not intended to nated and held for naught, and all of said prop- amend or change the decedent’s will. However, erty right, title and interest shall be distributed to Nielsen was referring to his own understanding John Graybel [sic] of Alaska.22 of the purpose of the trust amendment, not the Following an evidentiary hearing, the probate decedent’s intent or understanding of the docu- court determined that there was clear and con- ment.”26 vincing evidence that Gentile intended to leave The difficult aspect about theGentile Trust de- all of his property (both trust and non-trust as- cision is that it seems to dispense with the ex- sets) to Graybill, and that the second amend- press statutory requirement that the decedent ment “was intended to effectuate that intent and specifically intended the document to constitute to revoke any bequests, gifts and appointments a will revocation, in favor of a general intention

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that a specific person not receive any gift upon convey the residence and acreage to [Russell]. death through any conceivable means. In accordance with that wish, a quitclaim deed was prepared conveying the subject property to In re Estate of Southworth, No 297460 (Mich [Russell], and the deed at issue was stored with App July 5, 2011) (unpublished) the decedent’s will.”30 In Estate of Southworth, the Michigan Court By way of commentary, Southworth Estate of Appeals ruled that a deed could be given ef- seems to have been wrongly decided by both fect as a will alteration under MCL 700.2503. the probate and appellate courts. Southworth Prior to 2005, Helen Kahle Southworth made told her attorney that she wanted to make a life- her last will, designating Adrian College as the time conveyance of real property to Russell, re- primary beneficiary. In February 2005, South- serving only a life estate in herself. According- worth consulted an attorney for estate planning ly, the attorney drafted a deed making a lifetime assistance. “The decedent advised that she had conveyance of real property to Russell and re- a will drafted, but wanted to make one change serving a life estate. An inter vivos conveyance regarding the disposition of her property. Spe- by deed (effective during lifetime) is fundamen- cifically, the decedent wanted [Charles] Russell tally different than a testamentary conveyance to receive her home and the accompanying 160 (effective upon death). acres, but retain a life estate for herself.”27 Rus- Based on the decision, there was little evi- sell was Southworth’s longtime friend and neigh- dence in the record that Southworth wanted to bor. make a testamentary gift to Russell. While South- Accordingly, the attorney prepared a quitclaim worth did say she wanted to make one change to deed “as requested by the decedent.”28 On Feb- her will, that statement coming from a layperson ruary 15, 2005, Southworth executed the deed at likely meant, “I want to make a lifetime convey- her attorney’s office, in the presence of the attor- ance of certain real property to Russell, which ney. Southworth took the original deed with her. will change how much Adrian College receives She did not deliver the deed to Russell or tell him under my will.” The decision is problematic. about the deed. Instead, she put it in her safe at In re Leach, No 304688 (Mich App Oct 16, her home, together with her will. The deed was 2012) (unpublished) not recorded during her lifetime. It was found in the safe after Southworth died on March 1, 2009. The Leach decision stands for the principle After Southworth’s death, Russell and Adri- that the probate court should hold an evidentiary an College litigated who owned the residence hearing when there are contested issues of ma- and 160 acres. “The probate court granted terial fact, as well as the interplay between testa- [Russell]’s motion for summary disposition, hold- mentary capacity and testamentary intent. ing that [Russell] presented clear and convinc- Marian T. Leach executed two documents on ing evidence that the decedent intended the un- her death bed, which purported to gift certain delivered deed to be an addition to or alteration real property to Keith M. Storm, effective upon of her will in accordance with MCL 700.2503.”29 Leach’s death. After Marian died, Keith peti- The college appealed. tioned to admit the documents to probate under The Michigan Court of Appeals affirmed the MCL 700.2503. Jeremy Storm and Derek Storm probate court’s judgment, based primarily on the opposed Keith’s petition. affidavit of Southworth’s attorney. “[The attorney] The parties filed competing summary disposi- was advised by the decedent that she had a will, tion motions. The probate court granted Keith’s but wished to make one change to the disposi- motion (finding that the documents had “testa- tion of her property. Specifically, she wanted to mentary intent”) and denied Jeremy and Der-

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ek’s motion (finding that the existence of factu- generally transition from paper-based to elec- al questions regarding their objection to Keith’s tronic and digital-based documents, it seems all petition precluded summary disposition). Jeremy but certain that future Michigan caselaw apply- and Derek appealed. ing MCL 700.2503 will confront the meaning and The Michigan Court of Appeals held that the boundaries of what constitutes a “document” for probate court erred by granting Keith’s summary purposes of the statute. disposition motion. First, the probate court had failed to apply MCL 700.2503’s “clear and con- Notes vincing evidence” standard to Keith’s petition. Second, the fact questions that the probate court 1. J. Martin and M. Harder, Estates and Protected Individuals Code with Reporters’ Commentary Section identified with regard to Jeremy and Derek’s ob- 700.2503, Reporter’s Comment (ICLE 2014). jection were equally germane to Keith’s petition. 2. In re Estate of Smoke, No 273114 (Mich App Dec “[T]here were no witnesses, decedent was suf- 18, 2007) (unpublished). fering from chronic congestive heart failure and 3. In re Estate of Smith, 252 Mich App at 121. mitral valve disease; the documents were exe- 4. Id. at 122. 5. Id. at 122. cuted on the eve of decedent’s death while she 6. Id. at 122. was in hospice care and they were drafted by 7. Id. [Keith], by beneficiary.”31 8. Id. at 125-126 (reversed and remanded). Alluding to the probate court’s distinction be- 9. In re Cameron Trust at *4-5 (affirming judgment of tween testamentary capacity and testamentary probate court). intention, the Court of Appeals noted that the 10. In re Estate of Berg at *4. 11. Id. at *5-6. decedent’s possession of capacity was relevant 12. Id. at *6 (affirming judgment of probate court). to the decedent’s possession of intention. “[R] 13. In re Estate of Smoke at *2. egardless of whether a finding as to capacity 14. Id. at *6. is distinct from a finding of intent, the questions 15. Id. at *7. raised by the probate court concerning dece- 16. Id. 17. Id. dent’s capacity were similarly relevant to wheth- 18. Id. at *8. 32 er decedent had testamentary intent.” 19. Id. at *6 (affirming judgment of probate court). The appellate court remanded the case for an 20. In re Estate of Windham at *3-4. evidentiary hearing. “[T]he probate court should 21. Id. at *3 (affirming judgment of probate court). have held an evidentiary hearing to address the 22. In re Gentile Trust at *17-18. 23. Id. at *3 (internal quotation omitted). unresolved questions of fact surrounding the ex- 24. Id. at *19. ecution of the documents, which in turn would 25. Id. at *18. have allowed the court to determine whether 26. Id. at *19. there was clear and convincing evidence that 27. In re Estate of Southworth at *2. Leach intended the documents to be her will.”33 28. Id. 29. Id. at *3. Conclusion 30. Id. at *8. 31. In re Leach at *3. The fundamental requirement for application 32. Id. at *4. of MCL 700.2503 is that the proponent put forth 33. Id. *4-5 (reversed and remanded). “a document or writing added upon a document.” 34. J. Martin and M. Harder, Estates and Protected Individuals Code with Reporters’ Commentary Section As noted by the Reporter’s Comment, the statute 700.2503, Reporter’s Comment (ICLE 2014). “does not apply to testamentary instructions in or on other media, such as an audiotape or video- cassette.”34 As the legal profession and society

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David L.J.M. Skidmore is a partner in Warner Norcross & Judd LLP. A member of the firm’s Litigation Practice Group, his practice is centered on trust, estate, fiduciary and real property disputes and litigation. He is a member of the governing council for the Probate & Estate Planning Section of the State Bar of Michigan and is the chair of the council’s amicus committee. He is a regular speaker at seminars on topics related to trust and estate law. He presents annual trust and estate case law updates to the Michigan Bankers As- sociation, the West Michigan Estate Planning Council, and other groups. In 2012, he spoke on evidentiary issues to the Probate Judges at the Michigan Supreme Court Judicial Confer- ence. He is a regular contributing author for the Michigan Probate and Estate Planning Journal, Michigan Real Property Review, and the Ameri- can Bar Association’s Probate and Property.

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Rebutting the Presumption of Natural Parentage in Michigan By Nicholas Papasifakis

Introduction (2) If a child is born or conceived during a marriage, both spouses are presumed to be the Many probate attorneys operate under the natural parents of the child for all purposes of mistaken belief that a child always has an op- intestate succession. portunity to prove that an individual is his or her * * * biological father if there is the means to do so. (3) Only the person presumed to be the natu- However, according to the Michigan Court of ral parent of a child under subsection (2) may Appeals, parents of children born during a mar- disprove any presumption that may be relevant riage are considered the presumptive parents, to the relationship, and this exclusive right to do and the children of that marriage do not have so terminates upon the death of the presumed standing to challenge the presumption of natural parentage. The Court of Appeals decision, parent. Estate of Casey v Keene, 306 Mich App 252, (4) If a child is born out of wedlock or if a child is 856 NW2d 556 (2014), effectively shut the door born or conceived during a marriage but is not on the ability of a child born during a marriage the issue of that marriage, a man is considered to rebut the presumption of natural parentage. to be the natural father of that child for all pur- The court held that the presumption can only be poses of intestate succession if any of the fol- overcome in a challenge made by the presump- lowing occurs: tive parent, and the ability to make such a chal- (a) The man joins with the mother of the child lenge perishes with the death of the presumptive and acknowledges that child as his child by com- parent. Thus, rebutting the presumption of natu- pleting an acknowledgment of parentage as pre- ral parentage under the Estates and Protected scribed in the acknowledgment of parentage act. Individuals Code (“EPIC”), MCL 700.2114, only (b) The man joins with the mother in a written lies with the presumptive parent, and the chil- request for a correction of certificate of birth per- dren of that marriage have no standing to chal- taining to the child that results in issuance of a lenge the presumption. Essentially, the Casey substituted certificate recording the birth of the decision served as confirmation that the rules for child. rebutting the presumption of parentage were the (c) The man and the child have borne a mutually same as those under the Revised Probate Code acknowledged relationship of parent and child (“RPC”). that began before the child became age 18 and continued until terminated by the death of either. Rebutting Natural Parentage Under the RPC (d) The man has been determined to be the fa- Under the RPC, which has been supersed- ther of the child and an order of filiation established by EPIC,1 former MCL 700.111 provided the ing that paternity has been entered as provided methods by which the parent and child relation- in the paternity act, [MCL 722.711 to 722.730]. ship was established, and it provided in relevant The Michigan Court of Appeals, in Fuglseth v part: Quintero (In re Quintero Estate), 224 Mich App (1) For all purposes of intestate succession, a 682, 569 NW2d 889 (1997), interpreted former child is the heir of each of his or her natural par- MCL 700.111 in relation to intervenors who as- ents notwithstanding the relationship between serted that they were the decedent’s children as the parents except as otherwise provided by the result of an extramarital affair between their [MCL 700.110]. mother and the decedent. The Quintero court af-

18 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING firmed the probate court’s decision to deny the lowing manners: intervenors an evidentiary hearing to establish (a) If a child is born or conceived during a mar- the decedent’s paternity through the procedures riage, both spouses are presumed to be the set forth in MCL 700.111(4). Id. at 686. The court natural parents of the child for purposes of intes- ruled that because the presumed father was not tate succession. A child conceived by a married present to disprove the presumptive paternity, woman with the consent of her husband follow- and the presumed mother was precluded from ing utilization of assisted reproductive technol- disproving the presumed father’s paternity be- ogy is considered as their child for purposes of cause she was bound by the divorce judgment intestate succession. Consent of the husband is that named the intervenors as her and the pre- presumed unless the contrary is shown by clear sumed father’s children, the intervenors lacked and convincing evidence. If a man and a woman standing to sue under MCL 700.111. Id. at 689, participated in a marriage ceremony in appar- 701. ent compliance with the law before the birth of a The court analyzed MCL 700.111 and found child, even though the attempted marriage may that subsections (1) through (4) were “arranged be void, the child is presumed to be their child for in a logical and methodical sequence.” Id. The purposes of intestate succession. Court explained that subsection (3) states who (b) If a child is born out of wedlock or if a child is can rebut the presumption of paternity set forth born or conceived during a marriage but is not in subsection (2), and subsection (4) provides the issue of that marriage, a man is considered avenues to establish who should be “consid- to be the child’s natural father for purposes of in- ered” a parent where no “natural” or “presumed” testate succession if any of the following occur: parent exists. Id. at 694. The court made it clear (i) The man joins with the child’s mother and ac- that subsection (4) only applies when the pre- knowledges that child as his child by completing sumption of paternity has been overcome, the an acknowledgment of parentage as prescribed intervenors had no independent standing to dis- in the acknowledgment of parentage act, 1996 prove the presumption of paternity, and thus, PA 305, MCL 722.1001 to 722.1013. they may not avail themselves of subsection (4). (ii) The man joins the mother in a written request Id. at 694, 700. Therefore, under the RPC’s ver- for a correction of certificate of birth pertaining to sion of the statute, children born during a mar- the child that results in issuance of a substituted riage did not have standing to challenge whether certificate recording the child’s birth. their presumptive father was, in fact, their bio- (iii) The man and child have established a mu- logical father. tually acknowledged relationship of parent and child that begins before the child becomes age Rebutting Natural Parentage Under EPIC 18 and continues until terminated by the death Under EPIC, MCL 700.2114 provides the of either. methods by which the parent and child relation- (iv) The man is determined to be the child’s fa- ship may be established for the purposes of in- ther and an order of filiation establishing that pa- testate succession, and it provides, in pertinent ternity is entered as provided in the paternity act, part: 1956 PA 205, MCL 722.711 to 722.730. (1) Except as provided in subsections (2), (3), (v) Regardless of the child’s age or whether or and (4), for purposes of intestate succession by, not the alleged father has died, the court with through, or from an individual, an individual is jurisdiction over probate proceedings relating to the child of his or her natural parents, regard- the decedent’s estate determines that the man is less of their marital status. The parent and child the child’s father, using the standards and proce- relationship may be established in any of the fol- dures established under the paternity act, 1956

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PA 205, MCL 722.711 to 722.730. The court emphasized that the Legislature’s (vi) The man is determined to be the father in an use of the word “if” at the start of subsection (1) action under the revocation of paternity act. (b) is critical and sets forth the alternative condi- * * * tions on which the rest of the subsection is pre- (5) Only the individual presumed to be the natu- mised, thus concluding that subsection (1)(b) ral parent of a child under subsection (1)(a) may does not apply if the presumption of parentage disprove a presumption that is relevant to that is not rebutted. Id. The court held that the plain parent and child relationship, and this exclusive language of MCL 700.2114(5) provides the ex- right to disprove the presumption terminates on clusive means by which the presumption of nat- the death of the presumed parent. ural parenthood set forth in MCL 700.2114(1)(a) The Court of Appeals, in Casey, interpreted may be overcome, “and it specifies that the only MCL 700.2114 in the context of rebutting the person holding the right to challenge the pre- presumption of natural parentage under EPIC. sumption is the presumptive natural parent, and In Casey, the decedent and his wife had two chil- the right to attempt to overcome the presumption dren during their marriage. Casey Estate, 306 ends when the presumed parent is deceased.” Mich App at 254-255. A petition for probate was Id. at 562. Thus, the court ruled that the chal- filed by these children, and it was subsequently lengers did not have standing to disprove the challenged by individuals who alleged that the presumption, and that their already deceased decedent was their biological father as a result of father listed on their birth certificates held the an extramarital affair between their mother and exclusive right to disprove the presumption that the decedent. Id. at 255. The challengers alleged they are his natural children. that the decedent and their mother had an extra- Effect of the Casey Decision Going Forward marital affair while their mother was married to their presumed father, the man listed as their fa- Given that the Casey decision was the first ther on their birth certificates. Id. The challeng- case in which the court addressed whether a ers’ presumptive father died in 1966, and they child born during a marriage has standing to did not seek to establish paternity until after the challenge presumptive parentage under EPIC, decedent’s death. Id. the decision has a resounding effect on probate The Casey court interpreted the language of litigation going forward. While it was widely rec- MCL 700.2114. In doing so, the court explained ognized under former MCL 700.111 that the chil- that under MCL 700.2114(1)(a), it is clear that dren born during a marriage did not have stand- the parents of children born during a marriage ing to challenge the presumption of parentage, are presumed to be the natural parents of those the Legislature changed the language of MCL children. Casey Estate, 306 Mich App at 560- 700.111, leaving many practitioners with the be- 561. The court further explained that subsection lief that the outcome could be different under (1)(b) then provides that, “[i]f a child is born out MCL 700.2114. of wedlock or if a child is born or conceived dur- The main difference between former MCL ing a marriage but is not the issue of that mar- 700.111 and current MCL 700.2114 is the ar- riage,” a man can still be considered the child’s rangement of the provisions regarding the pre- natural father for purposes of intestate succes- sumption of paternity. MCL 700.111 arranged the sion if any of the five methods under the statute presumption of parentage provision as subsec- are satisfied.Id. at 561. However, the court ruled tion (2), followed by subsection (3), limiting the that in order for subsection (1)(b) to come into pool of individuals who could challenge the pre- play, subsection (1)(a) (the presumption of par- sumption of parentage. Subsection (4) of MCL entage) must be overcome. Id. 700.111 then provided the methods of proving

20 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING paternity when no presumed father existed. Notes In contrast, MCL 700.2114 arranges the presumption of parentage provision under subsec- 1. In re Estate of Adolphson, 403 Mich 590, 593, 271 tion (1), which contains provisions (a) through NW2d 511 (1978) (“Determinations of heirs are to be governed by statutes in effect at the time of death, and an (c). Those who disagree with the outcome of the adoption statute in effect at the time of death is control- Casey decision point to the language of subsec- ling.”) (citation omitted). tion (1) providing, “[t]he parent and child relationship may be established in any of the following manners,” as the key indicator that children born during a marriage do have standing to challenge the presumption of paternity. Such language is absent in former MCL 700.111. The dissenters argue that subsection (1)(a) is but one meth- od under subsection (1) to establish the parent and child relationship, and that subsection (1) Nicholas Papasifakis is an as- (a) need not be rebutted in order for the court sociate attorney with the Dar- to use the methods set forth under subsection ren Findling Law Firm, PLC. (1)(b). As a policy argument, those who oppose Nick focuses his practice on the Casey analysis also argue that, in light of ad- probate and trust administra- vances in technology, particularly DNA testing tion, probate and trust litiga- (see MCL 700.2114(b)(v)), the Legislature pur- tion and appeals, real estate posely rearranged the presumptive parent pro- disputes, and estate planning. vision and placed it within subsection (1), which Prior to joining the Darren Fin- relaxed the requirement that the presumption of dling Law Firm, PLC, Nick worked as a prehear- natural parentage be rebutted before using the ing attorney at the Michigan Court of Appeals. methods of proving paternity under subsection Nick attended Western Michigan University (1)(b)(i)-(vi). where he graduated cum laude with a Bachelor As evidenced by the Casey decision, the of Business Administration, and a minor in His- Michigan Court of Appeals rejected any notion tory. Nick then attended the University of Detroit that the Legislature was allowing children born Mercy School of Law, where he was a member during a marriage to have standing to chal- of Law Review, and graduated in 2013, magna lenge the presumption of parentage. Instead, cum laude. In addition to working full-time as an the Casey decision served to clarify any conten- associate attorney, Nick also attends New York tion over whether the changes between former University School of Law, pursuing an LL.M. in MCL 700.111 and MCL 700.2114 had any effect Taxation. on challenging paternity when natural parentage is presumed. Going forward, the probate courts will continue to operate under the view that if a child is born during a marriage, those are his or her presumptive parents, and the child has no standing to challenge such a presumption.

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Medical Malpractice Claims—Unrecognized Estate Assets By Ronda Little

Studies report that 195,000 people die in the Heart Attacks: Most heart attacks can be United States every year due to preventable in- prevented with timely diagnosis and treatment hospital medical errors. This statistic does not in- of the underlying coronary artery disease. clude non-fatal injuries or errors that happen out- However, in some cases, warning signs are side of the hospital.1 Most medical malpractice ignored and a cardiac work-up is never pur- cases are never identified and pursued resulting sued. In other cardiac cases, proper testing is in the loss of a valuable estate asset. Probate performed but misinterpreted. In one case, a attorneys are in a unique position to identify po- 47-year-old man died of a heart attack several tential malpractice claims and advise clients re- months after undergoing a reportedly “normal garding their options. When meeting with a fam- cardiac thallium scan.” Expert review of the ily after a serious injury or death, consider the scan revealed it was not normal but grossly following: abnormal and indicative of multi-vessel dis- 1) Autopsy: If there are serious ques- ease. tions regarding the medical care in a Cancer: In cancer cases, opportunities for death case, have an autopsy performed. earlier diagnosis and treatment have been Sometimes this will require that the fam- missed due to a failure to perform needed ily privately pay, but a careful autopsy is testing, or due to abnormal test results being essential to understanding why a person lost or not acted on. A pending case involves died and whether it could, and should, the death of a 57-year-old woman due to a have been prevented. For example, physicians’ assistant dismissing her concerns consider a case involving the death of regarding a dark stripe on her thumbnail. He a previously healthy 84-year old. She assured her it was nail fungus, when it was went into the emergency room with hy- actually melanoma. Due to the delay in diag- poxia and severe shortness of breath. nosis, there was widespread metastasis and She was diagnosed with pneumonia and death. In another recent case, a primary care admitted. Approximately 24 hours later, physician failed to advise a man of his mark- she was found dead. The cause of death edly abnormal prostate-specific antigen (PSA) was listed as likely cardiac arrhythmia. levels resulting in a several-year delay in diag- The family decided to have a private au- nosis and treatment. topsy performed. The autopsy revealed Other cancer cases involve a misdiagnosis of that the patient had blood clots through- cancer when none exists. Consider the case out her lungs (pulmonary emboli). Based of a woman who was advised that the results on the microscopic analysis, it was clear of a breast biopsy were positive for cancer. that the clots had been present for some Due to her family history of breast cancer, she time and would have been detected with decided to undergo a bilateral mastectomy. appropriate lung imaging. When pathology from the mastectomy failed 2) Common Malpractice Scenarios: to reveal any evidence of cancer, she was While there are infinite possibilities, told the biopsy must have removed all of the some reoccurring cases involve the cancer. Exam of the breast biopsy tissue by most common causes of death, includ- a breast pathologist revealed that she never ing heart attack and cancer. had cancer.

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3) Certainty Not Required: The probate fully pursued, suit will be filed. Note that attorney does not have to decide wheth- only a court-appointed personal repre- er a case exists, rather he\she needs to sentative has standing to file and main- decide whether a potential case exists tain an action on behalf of an estate. Any and then arrange for appropriate further other individual—no matter how closely investigation. related to the decedent—has no stand- 4) Compensation for Families: The death ing to do so. of a spouse or a parent can be finan- If there is not a basis to proceed, the file will cially devastating. While there are caps be closed. In either setting, the family gener- in medical malpractice cases on the really does not pay an attorney fee unless there covery of non-economic losses, i.e., loss is recovery and most law firms advance the of society and companionship, there are costs of investigation. no caps on economic losses. Under the 8) Timing: Generally, for an adult, a medi- Wrongful Death Act, families can fully cal malpractice action must be brought recover the value of the decedent’s lost within two years of the date of malprac- wages, benefits, and services. Also, in tice or within six months of the date that a non-death case, family members who the plaintiff knew, or should have known, provide attendant care can recover fully of the potential claim. If the patient dies, for the value of the care provided. Such before the statute of limitations expires, recoveries can make a tremendous dif- the claim survives by law and may be ference in the lives of the survivors/in- brought by the personal representative jured parties. under the savings provision. While it is 5) Opportunity for Answers: Many fami- beyond the scope of this article to dis- lies have questions surrounding a death. cuss computation of the statute of limita- Investigation into the care, regardless of tions in the medical malpractice/wrongful the outcome, often provides needed an- death context, it is important to know that swers. appointment of a personal representa- 6) Opportunity to Improve Care: Pursuit tive will impact filing deadlines under the of malpractice cases often improves savings provision, and it may be desir- care for other patients. Health care pro- able in some cases to delay the appoint- viders who have to answer for their mis- ment so as to extend the time for filing takes are less likely to make those same suit. mistakes again. Policies and procedure Most families are not compensated for the in- change for the better. juries caused by substandard care. When meet- 7) Decision to Investigate/What Is Re- ing with clients after a death, don’t forget to eval- quired: If a decision is made to inves- uate potential medical malpractice claims as tigate a potential medical malpractice/ they may be the most valuable estate asset and wrongful death claim, the personal rep- the only way a family can financially survive a resentative will need to meet with the death. medical malpractice attorney. If warrant- ed, medical records of the decedent will Notes be obtained and reviewed by the attor- 1. “In Hospital Deaths from Medical Errors at 195,000 ney and/or medical experts. If qualified per Year USA.” Medical News Today. N.p., 9 Aug. 2004. experts support the case, and the attor- Web. ney believes the case can be success-

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Ronda Little is a partner in the Law Offices of Bereznoff & Lit- tle in Troy, Michigan. Over the past 22 years, she has han- dled medical malpractice cases involving death or serious injury throughout the state of Michigan. She is a sustaining member of the Michigan Asso- ciation for Justice. Ronda graduated from Michi- gan State University with high honors in 1989, and she graduated cum laude from Wayne State University Law School, where she served on the Wayne Law Review and was awarded the Order of the Coif.

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The Search for the Lady Bird Deed By Kary C. Frank

A number of years ago a Florida friend and I “Lady Bird” Johnson on his death. Some lawyers were discussing his estate plan, and he told me call these ‘enhanced life estate’ deeds.”4 how his Florida attorney had used a Lady Bird Also see In re Tobias Estates, an unpublished deed as a component in his planning. Being un- Michigan Court of Appeals case decided May 10, familiar with the term, I did some research to de- 2012, which reviews the requirements of a Lady termine what exactly a Lady Bird deed is, and I Bird deed. In that case, the court states, “A ‘Lady found that the more formal term for a Lady Bird Bird’ deed is a nickname for an enhanced life es- deed was an enhanced life estate deed. For pur- tate deed. It is named after Lady Bird Johnson, poses of the article, the terms “enhanced life es- because allegedly President Johnson once used tate deed” or “Lady Bird deed” are loosely de- this type of deed to convey some land to Lady scribed as a conveyance of real property with Bird.”5 a reservation of a life estate and the power to Even before reading the preceding cases, I sell, mortgage, etc. See Michigan Title Standard thought it would be interesting to find the first 9.3 (6th ed), which is on point and sanctions the Lady Bird deed and have it published in the Lady Bird transfer. State Bar Journal or one of the appropriate sec- Ultimately, I created a few alternative models tion journals as a historical document. After all, for my personal formbank. I also sent one of the it was a somewhat clever real estate transaction first enhanced life estate/Lady Bird deeds to the document, purportedly created by a former Pres- Institute of Continuing Legal Education (ICLE) ident of the United States. for its formbank. Certainly there were a number I started the search by contacting the Lyn- of lawyers who were familiar with the Lady Bird don B. Johnson Library in Austin, Texas, where deed, but it was not commonly used in Michigan. I spoke with Claudia Anderson, the supervisory Since then there have been numerous articles archivist of the library. Ms. Anderson told me that and seminar presentations on Lady Bird deeds she had never heard of a Lady Bird deed. While and their usefulness. However, this is not a com- explaining to her the relationship of this type of mentary on the usefulness of the Lady Bird deed; deed to the former president, she searched for it is a search for the deed’s origin and history. the term on the Internet. She said the search It seems that, at least in everyday lawyer ter- approached 100,000 hits. Our discussion and minology, “Lady Bird deed” has been progres- the search results piqued her interest, and she sively replacing the nomenclature of enhanced volunteered to see what she could find and get life estate deed, or Life Estate with Power to back to me. Convey Fee.1 You have only to look at the title Ms. Anderson subsequently contacted me of past seminars on the subject.2 Even a couple and said that the deputy director of the library of Michigan court cases reinforce this point. See had talked to members of the family and with the the 2013 Michigan Tax Tribunal decision, Ander- financial administrators of Mrs. Johnson’s es- son v Township of Chocolay, in which the court tate. No one was aware of the term Lady Bird stated, “The 2009 instrument is commonly re- deed. She was unable to find any information on ferred to as a “Lady Bird” deed.”3 The statement Johnson-family land transfers that used a Lady was noted with the following footnote, “The name Bird deed, although she thought that there had comes from the mechanism that President Lyn- been life estate transfers from Lady Bird John- don Johnson used to pass property to his wife, son to the United States Park Service involving

25 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015 a portion of the Johnson Ranch. These transfers the first Lady Bird deed was drafted by Florida would have been in Gillespie and Blanco Coun- attorney Jerome Ira Solkoff around 1982, near- ties. ly ten years after the death of President John- I next contacted title companies in the coun- son. In his elder law book and lecture materials, ties where the Johnson Ranch is located looking Solkoff used a fictitious cast of characters with for title search help. The first examiner I worked the names Linton, Lady Bird, Lucie, and Lynda in with was Sharon Jung, Manager of Fredericks- examples explaining the usefulness of this new burg Titles, Fredericksburg, Texas. She seemed type of deed, and the names became associated quite interested in helping me find the first Lady with the deed. Jerome’s son, Scott Solkoff, jokes Bird deed. that the Lady Bird deed “could easily have be- After some searching she found a deed from come known as ‘the Genghis Khan deed.’”6 Claudia (Lady Bird) Johnson and her daughters Of course, I then contacted Professor Beyer, to the United States of America reserving a life who confirmed the article. Using WestlawNext, estate in the grantors. I was hopeful that this he also e-mailed me the following section from might be the deed I was looking for; however, the 2014-2015 edition of West’s Florida Practice Ms. Jung e-mailed me a copy of the deed, and, Series, Elder Law with Jerome Ira Solkoff, Esq. after review, I found that it was a typical life es- and Scott M. Solkoff, Esq., Chapter 9: Titling As- tate deed, which did not reserve the power to sell sets to Avoid Probate and Joint Ownership of (a key component of the Lady Bird deed). Realty. Next, I contacted Linda McMain at Guardian § 9:53. “Lady Bird” life estate deeds—Life Title with offices in Blanco and Johnson City ask- estate deed to convey future title to heirs ing for her assistance. She was familiar with the One could convey future title to the heirs by deed, life estate deeds that the former first lady had keeping control of the property. The remainder- signed. During the conversation, she said she men obtain title immediately upon the death of seemed to remember reading that the Lady Bird the life estate owner without surrogate court pro- deed had nothing to do with Lady Bird John- ceedings. This form of deed has been popularly son; and, if she could remember the source, she labeled the “Lady Bird” deed due to author Je- would let me know. rome Ira Solkoff’s writings and lectures using a Within a couple of weeks she e-mailed me an fictitious cast of characters to illustrate the facil- article from the Estate Planning Developments ity of the deed form. Author Jerome Ira Solkoff for Texas Professionals. The January 2011 ar- created the “Lady Bird” deed form in 1982 and it ticle, written by Gerry W. Beyer, Professor of is now in common use in Florida and throughout Law at Texas Tech University School of Law and the United States. Kerri M. Griffin, Comment Editor of the Estate Example: Planning and Community Property Law Journal Lyndon and Lady Bird, his wife, grantors, to of Texas Tech University School of Law, was an Lyndon and Lady Bird, his wife, grantees, a introductory article about the usefulness of Lady life estate, without any liability for waste, with Bird deeds. full power and authority in them to sell, convey, Before addressing the reasons for using Lady mortgage, lease and otherwise dispose of the Bird deeds, the authors gave the following back- property described below in fee simple, with ground information: or without consideration and without joinder by Many people think that the “Lady Bird” deed be- the remaindermen, and to keep absolutely any came known as such because President John- and all proceeds derived therefrom. Further, the son once used this type of deed to transfer prop- grantors reserve the right to change remainder- erty to his wife, Lady Bird Johnson. In reality, men at any time without consent of remainder-

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men. Upon death of the life tenants, title shall built a career on that reputation), tells a young be in Lucy and Lynda, joint tenants with rights of reporter the true story of who shot Liberty Va- survivorship.7 lance. At the end, the young reporter looked at Obviously, Professor Beyer was very helpful. the editor of the paper (who had also been listen- Without his article, who knows if I would have ing to the story) in anticipation. The editor took come across Jerome Solkoff? the transcript and ripped it into pieces saying, I then attempted to contact Jerome Solkoff, “When you have a choice of printing the truth or who is now retired and was unavailable. I did the legend—print the legend.” eventually talk with Scott Solkoff, who has a Flor- So, when a client is signing a “Lady Bird ida estate planning and elder law practice and is deed,” and he asks how the deed got the unusu- now co-author of the current edition of the Elder al name, you can say, “the legend is that Presi- Law portion of West’s Florida Practice Series. dent Johnson drafted the first Lady Bird deed.” Scott informed me that the term “Lady Bird deed” was essentially an unintended outgrowth of his father Jerome’s contributions to continuing legal education as an estate planning and elder law attorney in Florida. Around 1992, Jerome au- Notes thored the first edition of the Elder Law portion of West’s Florida Practice Series. In an effort to 1. Standard 9.3 of the Michigan Title Standards (6th keep the Florida practitioners somewhat entered). tained while presenting the concepts of the en- 2. Drafting Ladybird Deeds (State Bar of Michigan, hanced life estate deed, he used a cast of char- 9th Annual Solo & Small Firm Institute, September 20, acters including Lyndon Johnson and Lady Bird 2012) Contributor: Douglas G. Chalgian, and Drafting La- dybird Deeds (ICLE, Drafting Estate Planning Documents, Johnson as grantors, grantees. 17th Annual, 01/24/08) Contributor: Harley D. Manela. A few days after I talked to Scott, Jerome 3. Anderson v Township of Chocolay, No 433005 Solkoff did call me and reiterated the story. He at *6 (Mich Tax Tribunal Dec 18, 2013) (unpublished). also said that around 1982, he had contacted 4. Anderson, supra, page 6 n 3. three Florida title companies and presented the 5. In re Tobias Estates, No 304852 at *9-10, (Mich App May 10, 2012) (unpublished). enhanced life estate type of transfer for approv- 6. Gerry W. Beyer & Kerri M. Griffin,Lady Bird Deeds: al by the title companies. Later when asked by A Primer for the Texas Practitioner, Est. Plan. Devel. for West Publishing to provide examples of such a Tex. Prof. , Jan. 2011, at 1 available at http://papers.ssrn. transfer in the first edition of the Elder Law book, com/sol3/papers.cfm?abstract_id=1736862 he came up with the characters as illustrations. 7. 14 Fla. Prac., Elder Law § 9:53 (2014-2015 ed.) 8. Characters from The Adventures of Ozzie and Har- As he remembers, the Medicaid example he first riet, family sitcom 1952-1966. used was Ozzie and Harriet as grantors with Da- vid and Ricky as remaindermen.8 So from that publication the term “Lady Bird deed” began. And as far as Claudia T. Johnson, Luci Baines Johnson, and Lynda Bird Johnson Robb having used a life estate deed to transfer property to the United States Park Services, it is pure co- incidence. In the 1962 John Ford film, The Man Who Shot Liberty Valance, Ransom Stoddard (the man who everyone thought shot Liberty and who

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Kary C. Frank practices law in Rockford and Big Rapids, Michigan. He is a member of the real estate and probate sections of the State Bar. He is on the ICLE real property board of advisers. Mr. Frank is a contributor to the ICLE form bank and how to kits. He has served as a moderator for the State Bar con- vention and has been published in The Sport- ing News. A copy of this article was archived in the “Reference File” at the LBJ Presidential Li- brary, Austin, Texas, by the supervisory archivist (2015).

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Recent Decisions in Michigan tate recovery act applied only to Medicaid recipi- Probate, Trust, and Estate Planning ents who began receiving benefits after Septem- Law ber 30, 2007. It then cited the relevant portions of MCL 400.112g(3) as follows: By Hon. Phillip E. Harter (3) The department of community health shall seek appropriate changes to Michigan Medic- Medicaid—Estate Recovery—Notice— aid state plan and shall apply for any necessary Due Process waivers and approvals from the federal centers for medicare and medicaid services to imple- In re Estate of Keyes, No 320420, 2015 Mich ment the Michigan medicaid estate recovery App LEXIS 774 (Apr 16, 2015) program. The department of community mental In 2007 the legislature amended the Michigan health shall seek approval from the federal cen- Social Welfare Act. This amendment required ters for medicare and medicaid regarding all the the Department of Community Mental Health following: (Department) to establish a Medicaid estate re- (a) Which medical services are subject to estate covery program that would not be implemented recovery under section 1917(b)(1)(B)(i) and (ii) until approved by the federal government. The of title XIX. federal government did not approve Michigan’s (b) Which recipients of medical assistance are program until July 2011. Esther Keyes was ad- subject to estate recovery under section 1917(a) mitted to a nursing home in April 2010 and be- and (b) of title XIX. gan receiving Medicaid benefits. In May 2012, (c) Under what circumstances the program shall Robert Keyes filled out a Medicaid application pursue recovery from the estates of spouses of form and acknowledged that the estate was sub- recipients of medical assistance who are subject ject to Medicaid recovery. This form was filed to estate recovery under section 1917(b)(2) of as a part of the annual redetermination. Esther title XIX. Keyes died in January 2013, and the Depart- (d) What actions may be taken to obtain funds ment sought recovery against her estate. When from the estates of recipients subject to recovery the estate disallowed the expense, the Depart- under section 1917 of title XIX, including notice ment filed suit against the estate, seeking to re- and hearing procedures that may be pursued to cover about $110,000. The amount represented contest actions taken under the Michigan medic- all Medicaid benefits paid from the time of the aid estate recovery program. initial enrollment in 2010. (e) Under what circumstances the estates of The estate moved for summary disposition medical assistance recipients will be exempt pursuant to MCR 2.116(C)(10), contending that from the Michigan medicaid estate recovery the Department could not recover because the program because of a hardship. At the time an Department did not notify Esther Keyes of the individual enrolls in medicaid for long-term care possibility of estate recovery when she enrolled services, the department of community health in Medicaid. The trial court determined that the shall provide to the individual written materials Department had failed to notify recipients “at the explaining the process for applying for a waiver time of enrollment,” as the act required. It also from estate recovery due to hardship. The de- determined that this failure violated the estate’s partment of community health shall develop a due process rights. It therefore granted summa- definition of hardship …. ry disposition in favor of the estate. …. The Department appealed. The court of ap- (f) The circumstances under which the depart- peals began its opinion by observing that the es- ment of community health may review requests

29 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

for exemptions and provide exemptions from the gibility for long-term care services describing the Michigan medicaid estate recovery program for provisions of the Michigan medicaid estate re- cases that do not meet definition of hardship de- covery program.” When the legislature includes veloped by the department of community health. language in one part of a statute that it omits (g) Implementing the provisions of section in another, the court of appeals presumes that 1396p(b)(3) of title XIX to ensure that the heirs such an omission was intentional. The court of of persons subject to the Michigan medicaid es- appeals therefore found that subsection (7) ap- tate recovery program will not be unreasonably plies to the estate’s case because the estate al- harmed by the provisions of this program. leged that Esther Keyes did not receive sufficient …. notice of estate recovery. Subsection (7)’s lan- (7) The department of community health shall guage is similar to that of subsection (3)(e), but provide written information to individuals seek- there is one major difference—timing. Subsec- ing medicaid eligibility for long-term care ser- tion (3)(e) states “at the time an individual enrolls vices describing the provisions of the Michigan in Medicaid,” while subsection (7) states that the medicaid estate recovery program, including, Department must provide a notice when an indi- but not limited to, a statement that some or all of vidual “seek[s] Medicaid eligibility.” The court of their estate may be recovered. appeals believed that the distinction in enrolling (Emphasis added.) Medicaid and seeking Medicaid eligibility was The estate contended that MCL 400.112g(3) determinative. Esther Keyes enrolled in Medic- (e) requires the Department to provide an es- aid in April 2010, which is after September 30, tate recovery notice to individuals when they 2007. She did not receive notice of estate recov- enroll in Medicaid for long-term care. The De- ery because the federal government had not ap- partment contended that this language is part proved a notice pursuant to subsection (3)(e). In of a subsection that requires it to seek guidance May 2012, Robert Keyes filed a “Medicaid Appli- from the federal government and, because MCL cation Patient of Nursing Facility” form on Esther 400.112g(7) does not mirror this language, the Keyes’ behalf. This form included a notice about act did not require it to notify Esther Keyes about estate recovery. Her previous enrollment did not estate recovery when she enrolled in Medicaid. change the fact that Robert Keyes sought Med- The court of appeals found that the timing provi- icaid eligibility on her behalf by filling out an ap- sion of MCL 400.112g(3)(e) did not apply in this plication in 2012. And, as part of that application, case. The court stated that subsection (3)(e) is the Department did provide written materials part of the larger subsection (3), which requires explaining and describing estate recovery and the Department to seek approval from the fed- warning that some of Esther’s estate could be eral government regarding the items listed in the subject to estate recovery. The court of appeals subdivisions. In this case, the estate did not as- then found that the trial court erred because the sert that the Department failed to seek approv- Department sufficiently notified Esther that her al from the federal government concerning the estate would be subject to estate recovery. MCL estate recovery notice. Rather, the estate as- 400.112g(7) allows the Department to engage in serted that it did not personally receive a timely estate recovery when the individual sought Med- notice. The court of appeals observed that the icaid benefits after being provided with a notice act contains a second provision concerning no- regarding estate recovery. In this case, Robert tice, and this provision has different language. Keyes sought Medicaid benefits on Esther’s be- MCL 400.112g(7) provides that “[t]he depart- half in 2012, after the Department had provided ment of community health shall provide written him with proper notice regarding estate recovery. information to individuals seeking medicaid eli- The trial court also determined that applying

30 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING the Medicaid recovery act would violate Esther Hon. Phillip E. Harter, former- Keyes’ right to due process because she did ly a judge with the Calhoun not receive notice of estate recovery at the time County Probate Court, Battle that she enrolled, as required by MCL 400.112g. Creek, joined Chalgian & Tripp Again, the court of appeals indicated that MCL Law Offi ces, Battle Creek as 400.112g does not require notice at the time of “of counsel” in January 2011. enrollment. Further, the court believed the trial He was chairperson of the court decision improperly confused statutory no- Michigan Supreme Court Task tice issues with the notice issues involved in due Force on Guardianships and process. In this case, the court found that the Conservatorships and a member of the Michi- estate was personally appraised of the Depart- gan Supreme Court bar examination staff (1976- ment’s action seeking estate recovery, and it had 1991). He is currently a member of the Calhoun the opportunity to contest the possible depriva- County Bar Association, a fellow of the Michi- tion of its property in the circuit court. It received gan Bar Foundation, and a member of the Bar of both notice and a hearing, which is what due the U.S. Supreme Court. Judge Harter is a past process requires. The court of appeals reversed chairperson of the State Bar of Michigan Probate and remanded to the trial court for further pro- and Estate Planning Section, a former chairper- ceedings consistent with its opinion. son of the Probate Law Committee, and a former What may we take from this case? First, the chairperson of the Probate Rules Committee of fact that the estate was not given a notice when the Michigan Probate Judges Association. He an initial Medicaid application is made is no de- reviews cases for the Michigan Probate and Es- fense to estate recovery if notice is given during tate Planning Journal and has lectured at ICLE’s a subsequent redetermination. Second, it is un- Annual Probate and Estate Planning Institute for clear as to whether the court is specifi cally hold- many years. ing that in such a case all Medicaid benefi ts received are subject to recovery. I believe that the best interpretation of this case is that they are not and the recovery should be limited to Med- icaid benefi ts received after notice. Hopefully, on remand, the trial court will so limit the recovery and the court of appeals will affi rm that decision. If all Medicaid benefi ts are, in fact, subject to recovery, the lack of the initial notice would seem to violate what I believe most would consider principles of fundamental fairness and due process.

31 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

Legislative Report 3715a, 3723, 5423, 5501a, and 7912a (for a more exhaustive description, see the last issue By Harold G. Schuitmaker of the Michigan Probate & Estate Planning Jour- Public Acts of Interest nal). Legislation that affects real property and exceptions to uncapping are often overlooked by Probate and Estate Planning practitioners. Exceptions to Uncapping Taxable Value 2014 PA 310 amends MCL 211.27(a)(7) add- ing sections (t) and (u). MCL 211.27a(7)(t)—“Beginning December 31, 2014, a transfer of residential real property if the transferee is the transferor’s or the transferor’s spouse’s mother, father, brother, sister, son, daughter, adopted son, adopted daughter, grandson, or granddaughter and the residential real property is not used for any commercial purpose following the conveyance.” MCL 211.27a(7)(u)—“Beginning December 31, 2014, for residential real property, a conveyance from a trust if the person to whom the residential real property is conveyed is the settlor’s or settlor’s spouse’s mother, father, brother, sister, son, daughter, adopted son, adopted daughter, grandson, or granddaughter and the residential real property is not used for any commercial purpose following the conveyance.” House Bill 4075, 2015 PA 39 The fee for tax certification on warranty seeds, land contracts, and condominium master deeds increases from $1.00 to $5.00, effective July 1, 2015. Proposed Legislation Senate Bill 270 clarifies that Probate Court has jurisdiction over guardianship and conservatorship protective orders—MCL 700.1101 et seq would be amended to include new sections 5301 and 5402a. House Bill 4072 would adopt the uniform fiduciary access to digital assets act. MCL 700.1103 et seq. would be amended to add sections

32 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING 2015 Cost of Living Adjustments

Year Decedent has no All of the One or more of the None of the descendants, but decedent’s decedent’s descendants does have a descendants are descendants are descendants are surviving spouse the spouse’s not the spouse’s the spouse’s descendants descendants descendants

2000 $150,000 + 3/4 $150,000 + ½ $150,000 + ½ $100,000 + ½ intestate estate intestate estate intestate estate intestate estate

2001 $161,000 + 3/4 $161,000 + ½ $161,000 + ½ $107,000 + ½ intestate estate intestate estate intestate estate intestate estate

2002 $165,000 + 3/4 $165,000 + ½ $165,000 + ½ $110,000 + ½ intestate estate intestate estate intestate estate intestate estate

2003 $168,000 + 3/4 $168,000 + ½ $168,000 + ½ $112,000 + ½ intestate estate intestate estate intestate estate intestate estate

2004 $172,000 + 3/4 $172,000 + ½ $172,000 + ½ $115,000 + ½ intestate estate intestate estate intestate estate intestate estate

2005 $177,000 + 3/4 $177,000 + ½ $177,000 + ½ $118,000 + ½ intestate estate intestate estate intestate estate intestate estate

2006 $183,000 + 3/4 $183,000 + ½ $183,000 + ½ $122,000 + ½ intestate estate intestate estate intestate estate intestate estate

2007 $188,000 + 3/4 $188,000 + ½ $188,000 + ½ $126,000 + ½ intestate estate intestate estate intestate estate intestate estate

2008 $194,000 + 3/4 $194,000 + ½ $194,000 + ½ $129,000 + ½ intestate estate intestate estate intestate estate intestate estate

2009 $201,000 + 3/4 $201,000 + ½ 201,000 + ½ $134,000 + ½ intestate estate intestate estate intestate estate intestate estate

2010 $201,000 + 3/4 $201,000 + ½ $201,000 + ½ $134,000 + ½ intestate estate intestate estate intestate estate intestate estate

2011 $204,000 + 3/4 $204,000 + ½ $204,000 + ½ $136,000 + ½ intestate estate intestate estate intestate estate intestate estate

2012 $210,000 + 3/4 $210,000 + ½ $210,000 + ½ $140,000 + ½ intestate estate intestate estate intestate estate intestate estate

2013 $215,000 + 3/4 $215,000 + ½ $215,000 + ½ $143,000 + ½ intestate estate intestate estate intestate estate intestate estate

2014 $218,000 + ¾ $218,000 + ½ $218,000 + ½ $145,000 + 1/2 intestate estate intestate estate intestate estate intestate estate

2015 $221,000 + ¾ $221,000 + ½ $221,000 + ½ $145,000 + 1/2 intestate estate intestate estate intestate estate intestate estate

Year MCL 700.2402 MCL 700.2404 MCL 700.2405 MCL Homestead Exempt Family 700.3982, Allowance property allowance 3983 (maximum Maximum lump sum value of estate without court to qualify as a order) small estate Year Termination of Uneconomic Trust 2000 $15,000 $10,000 $18,000 $15,000 (MCL 700.7414(1)) 2001 $16,000 $11,000 $19,000 $16,000 2002 $17,000 $11,000 $20,000 $17,000 2003 $17,000 $11,000 $20,000 $17,000 2011 $68,000 2004 $17,000 $11,000 $21,000 $17.000 2012 $70,000 2005 $18,000 $12,000 $21,000 $18,000 2013 $72,000 2006 $18,000 $12,000 $22,000 $18,000 2007 $19,000 $13,000 $23,000 $19,000 2014 $72,000 2008 $19,000 $13,000 $23,000 $19,000 2015 $74,000 2009 $20,000 $13,000 $24,000 $20,000 2010 $20,000 $13,000 $24,000 $20,000 2011 $20,000 $14,000 $24,000 $20,000 2012 $21,000 $14,000 $25,000 $21,000 2013 $21,000 $14,000 $26,000 $21,000 2014 $22,000 $14,000 $26,000 $22,000 2015 $22,000 $15,000 $27,000 $22,000 33 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

Harold G. Schuitmaker, of Schuitmaker, Cooper, Schuit- maker, Cypher, & Knotek, P.C., Paw Paw, is admitted to the Michigan and Florida bars, practices in the areas of estate planning and probate, munic- ipal law, corporations, and real estate. Mr. Schuitmaker is a Fellow of the Michigan State Bar Founda- tion, and has a Martindale-Hubbell AV Peer Rat- ing and an ICLE Certificate of Completion in the Probate and Estate Planning Program. He is a past-president of the Probate and Estate Plan- ning Section of the State Bar of Michigan. He is a “Michigan Super Lawyer,” named “Best Law- yers in America” by U.S. News and World Report and “Best Lawyers in Michigan.” He was also named a “Leader in the Law” by Lawyers Week- ly. Mr. Schuitmaker is a member of the Kalama- zoo County Bar Association and the Van Buren County Bar Association. He is a past-president of the Rotary District Foundation. Mr. Schuitmak- er is a regular contributor to the Michigan Pro- bate and Estate Planning Journal.

34 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING

Ethics and Unauthorized Practice of have a reasonable basis to file a contest. What Law is “reasonable” in a particular family dispute can be difficult to define. In our collective experienc- By Fred Rolf, Josh Ard, and es courts often seem to go out of their way to Victoria A. Vuletich find reasonable cause for contesting the estate plan. Consider providing a mandatory media- Best of... tion clause in your will or trust where appropri- We have written the Journal’s ethics column ate. Also, consider a conditional specific gift to a for a number of years and are now riding off into disgruntled beneficiary.The specific gift would be the sunset. A team of “young” lawyers will begin conditional on the beneficiary signing a receipt writing the column for the next issue. We have agreeing to arbitration or mediation. been honored to write this column. What follows are a compilation of columns Preventing Malpractice Claims on topics that are still timely and a piece on law Brian Frueling wrote an article for the New practice succession planning by Victoria. Jersey Law Journal (April 2009) titled, “Strate- gies to Avoid Attorney Ethics Complaints and Investment Advice Survive a Probe.” A continuing problem is the sale of inappro- Without fail the largest and most avoidable area priate investment products to the elderly. Be es- of complaint is an attorney’s failure to com- pecially careful when your client was referred municate with his client. We are in a service to you by an investment advisor and the very business and results are definitely important. same advisor has recommended a specific in- But communicating with the client is often times vestment product. This product may or may not more important than the result especially in the be an appropriate investment for your client. Al- context of ethics complaints. I would estimate ternatively, when asked by a client for the name that 75 percent of the disgruntled clients were of a CPA or investment advisor, provide the cli- upset because they couldn’t get in touch with ent with two or more names. their attorney. Preventing Will and Trust Controversies Ethical Issues with Elderly Clients Our clients come to us for estate planning, As estate planners we have all witnessed wills, trusts, powers of attorney, etc. When they the changing demographics in America. The die, they expect their estate plans to be fol- U.S. population is becoming older and this old- lowed. Not infrequently, you may be asked to er population faces a wide range of distinct le- create an· estate plan that provides for more or gal issues. Our older clients face issues such as less to family members of the same generation. understanding and qualifying for various gov- Failure to receive an equal gift, outright in- ernmental benefits, implications of a second heritance, disinheritance or not being named marriage, planning for unique health and living as a fiduciary can create hurt feelings and of- concerns and diminished capacity. Lawyers are ten anger among family members. These feel- also asked to review tax planning, client’s medi- ings and money issues create a fertile ground cal treatment and become involved after the fact for litigation. Most clients desire to avoid litiga- with financial abuse. tion among their family members. The Michigan When meeting with older clients it is not un- Trust Code has codified Michigan law regard- usual to discover the entire family in the confer- ing interrorem clauses. Michigan law enforces ence room. We must carefully evaluate the situ- interrorem clauses only if the contestant did not ation and be conscious of the underlying prin-

35 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

ciple that we are representing the older client. preclude other employment by a law- Much common sense and good listening skills yer; are required when working in this multi-genera- 3) The fee customarily charged in the lo- tional setting. Attorneys, when working with older cality for similar legal services; clients must be attuned to whether the client’s 4) The amount involved and the results decision-making capacity is impaired. Several obtained; years ago at the 39th Annual Probate Institute, 5) The time limitations imposed by the cli- Lauren M. Underwood presented an excellent ent or by the circumstances; article on client competency/capacity. In the arti- 6) The nature and length of the profes- cle, the following factors were listed when evalu- sional relationship with the client; ating capacity of our clients: 7) The experience. reputation arid ability • The client’s ability to articulate the rea- of a lawyer or lawyers performing ser- soning behind his or her decision. vices; and • The client’s knowledge of what assets 8) Whether the fee is fixed or contin- they own in the approximate value of gent. those assets. Fee disputes can often be avoided by using • The client’s ability to appreciate the a fee agreement! consequences of his or her decision. • The irreversibility of any decision. Succession Planning • The fairness of any decision. (Is some- one in the family being benefited tothe How many lawyers have made concrete detriment of others?) preparations for their law practices in the event • The consistency of any decision with of a disability or death? When Victoria Vuletich other lifetime commitments made pre- was the State Bar of Michigan’s Ethics Coun- viously by the client. sel, she regularly received calls from alarmed law office staff confronted with a well-inten- Legal Fees tioned spouse, asking if funds could be with- Estate planning fees and Medicaid planning drawn from the client’s trust account. Consider- fees are governed by the Michigan Rules of ation should be given to designating an attor- Professional Conduct and State Bar of Mich- ney who can assist in transitioning the law prac- igan ethics opinions. MRPC 1.5 (a) governs tice. A good law practice transition plan could fees and states: “A lawyer shall not enter into include files for the following tasks: an agreement for, charge or collect an illegal • Passwords to email, banking and client or clearly excessive fee. A fee is clearly exces- management accounts. sive when after viewing all facts a lawyer of or- • Location of passwords to internal ac- dinary prudence would be left with the definite counting programs, for example voice- and firm conviction that the fee is in excess of mail. a reasonable fee.’’ Factors to be considered in • Passwords to location of calendar- determining the reasonableness of the fee in- ing programs along with the tickling cludes the following: features alerting due dates and court 1) The time and labor required, the nov- dates. elty and difficulty of the questions in- • Office lease, office equipment and fur- volved, the skill required to perform the nishings details. legal service properly; • Bank account files. 2) The likelihood that taking the client will • Malpractice carrier policy and contact

36 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING

information. Ramon F. (Fred) Rolf, Jr., of • Account files for telephone utilities, Chalgian & Tripp Law Offices website social media computer pro- PLLC in Midland, Michigan, grams, etc. practices in the area of pro- Creating a transition plan checklist can be bate, estate planning and el- accomplished without a large expenditure of der law. Mr. Rolf also was a time or money. A law practice succession plan past president of the North- can save angst for your family, staff, and other eastern Michigan Estate Plan- attorneys. ning Council and a Fellow of the American College of Trust and Estate Coun- sel.

W. Josh Ard of the Law Of- fice of Josh Ard PLLC in Wil- liamston, Michigan, practices in the areas of elder law, probate law, consumer law and administrative law. Mr. Ard specializes in special needs planning and planning and dealing with incapacity.

Victoria A. Vuletich has a private practice counseling lawyers on legal ethics and practice development matters, and is also a professor at Cooley Law School. Her co- columnists, Josh Ard and Fred Rolf, are esteemed Michigan estate planning attorneys and she is grateful for their legal knowledge and client centered approach to practice.

37 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

State Bar of Michigan Members of Section Council 2014–2015

Officers

Chairperson: ViCe-Chairperson: Treasurer: amy n. morrisey James B. sTeward margueriTe munson lenTz 345 S. Division St. 205 S. Main St. 1901 St. Antoine Ann Arbor, MI 48104 Ishpeming, MI 49849 6th Fl. Detroit, MI 48226 Chairperson-eleCT: seCreTary: shaheen i. imami marlaine C. Teahan 800 W. Long Lake Rd., 124 W. Allegan St. Ste 200 Ste. 1000 Bloomfield Hills, MI 48302 Lansing, MI 48933

Council Members

Term expires 2015: Term expires 2016: Term expires 2017: W. Josh Ard Susan M. Allan Christopher A. Ballard 1340 Trotters Ln. 39400 Woodward Ave. 130 S. First St., Fl. 4. Williamston, MI 48895 Bloomfield Hills, MI 48304 Ann Arbor, MI 48104 Rhonda M. Clark-Kreuer Constance L. Brigman George F. Bearup 111 N. Mill St. 1428 44th St., SW, Ste. B 101 N. Park St., Ste. 100 St. Louis, MI 48880 Wyoming, MI 49509 Traverse City, MI 49684 David P. Lucas Michele C. Marquardt Hon. Michael L. Jaconette 70 W. Michigan Ave., Ste. 450 211 E. Water St., Ste. 401 161 E. Michigan Ave. Battle Creek, MI 49017 Kalamazoo, MI 49007 Battle Creek, MI 49014 Patricia M. Ouellette Richard C. Mills Mark E. Kellogg 2400 Lake Lansing Rd., Ste. F 180 W. Michigan Ave., 124 W. Allegan, Ste. 1000 Lansing, MI 48912 Ste.504 Lansing, MI 48933 David L.J.M. Skidmore Jackson, MI 49201 Raj A. Malviya 111 Lyon St., NW, Ste. 900 Lorraine F. New 250 Monroe Ave., NW, Grand Rapids, MI 49503 2855 Coolidge Hwy., Ste. 103 Ste. 800 James P. Spica Troy, MI 48084 Grand Rapids, MI 49503 660 Woodward, Ste. 2290 Geoffrey R. Vernon Nancy A. Welber Detroit, MI 48226 200 Maple Park Blvd., 30445 Northwestern Hwy., Ste. 201 Ste. 310 Saint Clair Shores, MI 48081 Farmington Hills, MI 48334

38 Winter 2011 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING

Ex Officio

Raymond T. Huetteman, Jr. Robert B. Joslyn Henry M. Grix 1298 Pepperidge Way 200 Maple Park Blvd., Ste. 201 38525 Woodward Ave., Ann Arbor, MI 48105 St. Clair Shores, MI 48081 Ste. 2000 Joe C. Foster Jr. (deceased) Robert D. Brower, Jr. Bloomfield Hills, MI 48304 Russell M. Paquette (deceased) 250 Monroe Ave NW, Ste 800 Phillip E. Harter James A. Kendall Grand Rapids, MI 49503 395 S. Shore Dr., Ste. 205 6024 Eastman Ave., John D. Mabley Battle Creek, MI 49015 Midland, MI 48640 31313 Northwestern Hwy., Michael J. McClory 2 Woodward Ave., James H. LoPrete Ste. 215 1307 CAYMC 40950 Woodward Ave., Farmington Hills, MI 48334 Detroit, MI 48226-5423 Ste. 306 Raymond H. Dresser, Jr. (deceased) Douglas A. Mielock Bloomfield Hills, MI 48304 John H. Martin 313 S. Washington Sq. 400 Terrace St., P.O. Box 900 Everett R. Zack Lansing, MI 48933-2144 Muskegon, MI 49443 261 Ruby Way Lauren M. Underwood Patricia Gormely Prince Williamston, MI 48895 32100 Telegraph, Ste. 200 31300 Northwestern Hwy. Douglas J. Rasmussen Bingham Farms, MI 48025 Farmington Hills, MI 48334 500 Woodward Ave., Ste. 3500 Nancy L. Little Detroit, MI 48226 Brian V. Howe 2400 Lake Lansing Rd., Susan S. Westerman 8253 New Haven Way, Ste. F 345 S. Division St. Ste. 102 Lansing, MI 48912 Ann Arbor, MI 48104 Canton, MI 48187 Harold G. Schuitmaker Fredric A. Sytsma Richard C. Lowe 181 W. Michigan Ave., 333 Bridge St., NW, 2375 Woodlake Dr., Ste. 1 P.O. Box 352 Ste. 380 Paw Paw, MI 49079 Grand Rapids, MI 49501 Okemos, MI 48864 Douglas G. Chalgian Kenneth E. Konop Stephen W. Jones 1019 Trowbridge Rd. 840 W. Long Lake Rd., 200 E. Long Lake Rd., Ste. 110 East Lansing, MI 48823 Ste. 200 Bloomfield Hills, MI 48304 George W. Gregory Troy, MI 48098 2855 Coolidge Hwy., John E. Bos John A. Scott Ste. 103 1019 Trowbridge Rd. 1000 S. Garfield, Ste. 3 Troy, MI 48084 East Lansing, MI 48823 Traverse City, MI 49686 Mark K. Harder W. Michael Van Haren Dirk C. Hoffius 85 E. 8th St., Ste. 310 111 Lyon St. NW, Ste. 900 333 Bridge St. NW, Holland, MI 49423 Grand Rapids, MI 49503 P.O. Box 352 Thomas F. Sweeney Grand Rapids, MI 49501 151 S. Old Woodward, Ste. 200 Birmingham, MI 48009

Commissioner Liaison Richard J. Siriani 840 W. Long Lake Rd., Ste. 200 Troy, MI 48098

39 MICHIGAN PROBATE & ESTATE PLANNING Summer 2015

Probate and Estate Planning Section 2014-2015 Committee Assignments

Editor’s note: The Probate and Estate Planning Council welcomes your participation on committees. If you are interested in serving on any of the committees listed below, please contact the chair of the committee on which you would like to serve.

Budget Amicus Curiae Unauthorized Practice of Law Marlaine C. Teahan, Chair David L. Skidmore, Chair & Multidisciplinary Practice Marguerite Munson Lentz Kurt A. Olson Patricia M. Ouellette, Chair James B. Steward Patricia M. Ouellette William J. Ard Nazneen H. Syed Raymond A. Harris Bylaws Nancy H. Welber J. David Kerr Nancy H. Welber, Chair Robert M. Taylor Probate Institute Christopher A. Ballard Amy Rombyer Tripp David P. Lucas James B. Steward, Chair Court Rules, Procedures, and lanning State Bar & Section Journal P Forms Shaheen I. Imami, Chair Richard C. Mills, Chair Michele C. Marquardt, Chair Nancy L. Little, Editor Nominating James F. Anderton Melisa M. W. Mysliwiec Constance L. Brigman George W. Gregory, Chair Citizens Outfreach Rhonda M. Clark-Kreuer Mark K. Harder Constance L, Brigman, Chair Hon. Phillip E. Harter Thomas F. Sweeney Kathleen M. Goetsch Michael D. Holmes Annual Meeting Michael J. McClory Shaheen I. Imami Shaheen I. Imami, Chair Melisa M. W. Mysliwiec Hon. Michael L. Jaconette Neal Nusholtz Hon. David M. Murkowski Awards Michael L. Rutkowski Rebecca A. Schnelz David L. Skidmore Doug Mielock, Chair Rebecca A. Schnelz Robert D. Brower, Jr. Nancy H. Welber Updating Michigan Law George W. Gregory Geoffrey R. Vernon, Chair Electronic CommunicationS Hon. Phillip E. Harter Robert P. Tiplady, Vice-Chair Nancy L. Little William J. Ard, Chair Susan M. Allan Amy N. Morrissey Stephen J. Dunn Howard H. Collens Hon. Phillip E. Harter Committee on Special Projects Mark K. Harder Nancy L. Little Christopher A. Ballard, Chair Shaheen I. Imami Amy N. Morrissey Henry P. Lee Legislation Jeanne Murphy Marguerite Munson Lentz William J. Ard, Chair Neal Nusholtz Michael G. Lichterman Christopher A. Ballard Michael L. Rutkowski James P. Spica Georgette E. David Serene K. Zeni Insurance Ad Hoc Committee Mark E. Kellogg Ethics Geoffrey R. Vernon, Chair Sharri L. Rolland Phillips David P. Lucas, Chair Stephen L. Elkins Harold G. Schuitmaker William J. Ard Mark K. Harder J. David Kerr James P. Spica Robert M. Taylor Joseph D. Weiler, Jr.

40 Summer 2015 MICHIGAN PROBATE & ESTATE PLANNING

Membership Guardianships, Conservatorships, Liaisons Raj A. Malviya, Chair and End of Life Alternative Dispute Resolution Christopher J. Caldwell Rhonda Clark-Kreuer, Chair Section Liaison Nicholas R. Dekker Katie Lynwood, Vice Chair Vacant Daniel A. Kosmowski William J. Ard Katie Lynwood Michael W. Bartnik Business Law Section Liaison Julie A. Paquette Raymond A. Harris John R. Dresser Nicholas A. Reister Hon. Phillip E. Harter Elder Law and Disability Rights Marlaine C. Teahan Michael J. McClory Section Liaison Joseph J. Viviano Richard C. Mills Amy Rombyer Tripp Artificial Reproductive Kurt A. Olson Family Law Section Liaison Techology Ad Hoc Committee James B. Steward Patricia M. Ouellette Nancy H. Welber, Chair Specialization and Certification Christopher A. Ballard Ad Hoc Committee ICLE Liaison Keven DuComb James B. Steward, Chair Jeanne Murphy Robert M. O’Reilly William J. Ard Law Schools Liaison Lawrence W. Waggoner Wendy Parr Holtvluwer William J. Ard Real Estate Patricia Ouellette Michigan Bankers Association George F. Bearup, Chair Sharri L. Rolland Phillips Liaison Jeffrey S. Ammon Daniel D. Simjanovski Susan M. Allan William J. Ard Richard J. Siriani Stephen J. Dunn Serene K. Zeni Probate Judges Association Liaisons David S. Fry Charitable and Exempt Mark E. Kellogg Organizations Hon. David Murkowski J. David Kerr Hon. Michael L. Jaconette Lorraine F. New, Chair Michael G. Lichterman Probate Registers Liaison David P. Lucas Christopher A. Ballard Rebecca A. Schnelz Katie Lynwood Michael W. Bartnik William R. Bloomfield Douglas A. Mielock SCAO Liaisons Robin D. Ferriby Melisa M.W. Mysliwiec Contance L. Brigman Richard C. Mills James T. Ramer Michele C. Marquardt James B. Steward Fiduciary Exception to Attorney Rebecca A. Schnelz Client Privilege Ad Hoc Transfer Tax Committee Solutions on Self-Help Task Committee Lorraine F. New, Chair Force Liaison George F. Bearup, Chair Robert B. Labe Rebecca A. Schnelz Marguerite Munson Lentz Kalman G. Goren State Bar Liaison Geoffrey R. Vernon Shaheen I. Imami Nancy H. Welber David G. Kovac Richard J. Siriani Michael J. McClory Tax Section Liaison David L. Skidmore George W. Gregory Serene K. Zeni

41 ICLE Products of Interest to Probate Practitioners

Books

Michigan Probate Litigation: A Guide to Contested Matters, Second Edition Edited by Hon. Gerald J. Supina and Elaine M. Cohen Whether you are hashing out a determination of heirs, a will contest, a challenge to joint property, or creditor’s claims, Michigan Probate Litigation has the tools you need to win in court.

Firm Size *Prices: 0-4 Attorneys 5-29 Attorneys Print Book $145.00 Online Book $135.00 $225.00 Product #: 2000556521

Michigan Real Property Law, Third Edition By John G. Cameron, Jr.

There is a reason why this book is cited in more than 170 federal and state court opinions. It is the most au- thoritative, practical, and comprehensive source for real property law in Michigan. Includes in-depth discussion of property cases and statutes from the earliest law to the latest developments.

*Price: Print Book $195.00 Product #: 2004557120

Upcoming ICLE Seminars

1st Annual Elder Law Institute

Gain the tools you need to become successful in this growing practice area. Get grounded in both core and evolving issues in elder law like protective orders, caregiver agreements, long-term care insurance, government benefits, housing options, tax issues, and special needs trusts. Michigan’s most respected experts provide answers to the most complex issues to make it easy and profitable to meet the demand from this growing client base. Probate judges, long-term care specialists, gerontologists, service providers, mediators, and experienced elder law and special needs lawyers offer strategies for working with senior clients.

Dates: September 10-11, 2015 Locations: The Inn at St. John’s, Plymouth Seminar #: 2015CI2632 General fee: $395.00 4+ Lawyers from Same Firm: $295.00 per attendee ICLE Premium Partners: $345.00 New Lawyers: $195.00 ICLE Basic Partners: $345.00 Sitting State Court Judges: $0.00

1ST ANNUAL

Elder Law institute SEPTEMBER 10 11, 2015 | PLYMOUTH

Serve the Expanding Needs of Your Clients Conﬁdently

6GD

5GU SCHEDULE OF MEETINGS OF THE PROBATE AND ESTATE PLANNING SECTION

Date Place September 12, 2015* University Club, Lansing

*Annual Meeting

Meeting of the Committee on Special Projects (CSP) begins at 9:00 a.m. with the Council meeting to follow. All members of the Section are welcome to attend meetings of the CSP and the Council.