8th Nov 2023

Frequently asked questions with a bunch of question marks

Every Friday we post a common legal questions and answer on our social media pages. They range from Estate Planning topics, to family law issues, to business law, and more! Read below to learn more about common legal questions.

What is Estate Planning?

Estate planning is the process of making known how you want your estate handled after you pass away. It is not just for the wealthy. Estate plans include all your property, assets, and belongings. An estate plan will lay out your wishes exactly how you want them and whom you want to be in charge of carrying out those wishes.

What is a landlord tenant checklist?

The State of Michigan requires the use of a Landlord-Tenant Checklist to detail the condition of a rental property when you move in and move out. It would be a good idea for the landlord and the tenant to go through the property and complete this checklist together. All items owned by the landlord should be included on the list. Inspecting the entire property before and after the lease agreement will help prevent disputes that may arise regarding the condition of the rental property.

What consumer fireworks are legal in Michigan?

What is a fiduciary?

A fiduciary is an individual or an organization who is responsible for managing money, property, and assets for another individual. They have an ethical and legal duty to act in the best interest of another person, not their own. Under Michigan Law, a fiduciary includes a personal representative, funeral representative, guardian, conservator, and trustee.

What is not permitted under Michigan law when it comes to marijuana use?

If you are 21 years or older, you are legally allowed to possess and consume marijuana. However, you may NOT:

  • Consume marijuana in public places.
  • Drive under the influence of marijuana.
  • Cross state lines with marijuana.

Michigan is a no fault divorce state…what does that mean?

A divorce will be granted between the parties regardless of who was allegedly at fault. Fault is a factor that may come into play when the specifics of the divorce are being negotiated such as division of property or debt or support considerations.

What is a Durable Power of Attorney?

It is a legal document that designates someone to make certain decisions for you in particular situations. If you no longer can make decisions due to an illness or injury, then a power of attorney has the authority to make financial, healthcare, and legal decisions for you. It is an important part of a comprehensive estate plan and the person you choose must be someone you completely trust.

What is a conservatorship?

A conservatorship is a court order that is put in place when an individual cannot manage his or her financial affairs. This would happen if:

  • An adult is incapacitated due to mental or physical illness or disability.
  • A minor child has assets that need to be managed.

What are Miranda Rights?

They are the rights a person has when they are being arrested and accused of a crime. They are:

  • The right to remain silent.
  • Anything they say can be used against them in court.
  • They have the right to an attorney.
  • If they cannot afford an attorney, one will be provided.

What is a Trust?

A trust is a legal arrangement by which assets are held for someone’s benefit. The person who creates the Trust is called the Grantor, Settlor, or Trustor. The person who holds legal title to the trust assets and carries out the terms of the legal arrangement is the Trustee. A person or entity for who’s benefit the trust assets are held is called a Beneficiary.

What is Michigan Lemon Law?

It is a law that was enacted to protect consumers who have purchased new vehicles that have serious issues that are not resolved or fixed by the manufacturer. The main purpose of the lemon law is to hold the manufacturer liable for selling a faulty vehicle.

What is the difference between a contested and an uncontested divorce?

A contested divorce is one that must be settled in court. This divorce occurs when one of the parties wants to challenge, or contest, one or more of the issues that need to be resolved in the divorce. An uncontested divorce is one in which both parties are in agreement as to how to resolve all of the marital issues. This is settled outside of court.

What is FLMA?

FMLA stands for the Family and Medical Leave Act. It is a federal labor law, generally applicable to employers with 50 or more employees, that allows eligible employees to take up to 12 weeks of unpaid leave a year for qualified family or medical related reasons.

What is an Advance Directive?

“Advance directive” is a term that encompasses a variety of documents that allow you to provide direction about how you want to be cared for, including a DNR order, living will, durable power of attorney for health care or a patient advocate designation.

What is Alimony?

Alimony is when the dependent spouse receives money from the supporting spouse. The dependent spouse typically is the one that makes substantially less money and relies on the supporting spouse financially, and therefore can be entitled to receive money from the supporting spouse. Alimony may be sought after if the dependent spouse chose to forgo a career and raise the children or to maintain the lifestyle and standard of living that was kept throughout the marriage.

What is the difference between a Will and a Trust?

A Will is a legal document that lays out your wishes when it comes to distributing your assets after your death. Its provisions take effect only after the Will is accepted by the probate court after your death. The Will disposes of assets titled in your sole name at your death.

A Trust is a legal arrangement by which assets are held for someone’s benefit. There are many types of Trusts, but the one that applies to most people is a Revocable Living Trust. This type of Trust provides a way to manage your assets while you are living and, like a Will, governs how those assets will be distributed at your death. A Revocable Living Trust does not require court involvement after your death.

You have an estate plan, but how do you know when it’s time to update it?

  • Are the Personal Representatives and Trustees you have named in your Will and Trust still appropriate choices?
  • Are the provisions for your beneficiaries still appropriate?
  • Are the value and nature of your assets generally the same as they were when your estate plan was created?
  • Are your choices of decision-makers in. your Durable Powers of Attorney and Patient Advocate Designations still appropriate?
  • Do your Durable Powers and Patient Advocate Designations contain a waiver of your HIPAA right to privacy for medical purposes?
  • Do you have a separate HIPAA release that allows your loved ones to obtain information about your condition and treatment?
  • Are your life insurance, 401k, and IRA beneficiary designations up to date?

Can my spouse and I use one lawyer in a divorce?

In some very limited circumstances, a divorcing couple may use one attorney to facilitate their divorce, however, at no time can one attorney provide legal counsel to both parties of a divorce as it is a conflict of interest for the attorney. In some cases, due to the adversarial nature of a divorce, each party should be represented by their own counsel. To understand what is appropriate in any given situation, a person seeking divorce by using one attorney should consult with an experienced family attorney.

What is a patient advocate designation and why do I need one?

A patient advocate designation is a legal document that gives someone else the authority to make medical care decisions (also includes custody) for you if you cannot make them on your own. The decisions may include a choice to withhold or withdraw treatment. If you do not have one, but at some point in your life you do need one, then the probate court will appoint a guardian to make these medical care decisions for you. So it would be advisable to declare your own patient advocate designation so you can choose exactly who you would like to care for you.

What are the responsibilities of a Trustee?

The main responsibility is to administer the trust. This means they must:

  • Manage and distribute the assets and funds to beneficiaries in the manner called for in the Trust Agreement.
  • Keep adequate records of the administration of the trust and create an annual report of all assets held in the trust estate, income received, and distributions made.
  • Pay any bills that are due.
  • Pay off debts.
  • Resolve any claims or lawsuits that may arise.
  • Notify creditors.
  • Value the trust assets, including obtaining appraisals of personal items and real estate.
  • Sell trust assets if necessary.
  • Pay Federal and State taxes, including property and income tax.

What is a legal guardian?

If you are a court-appointed guardian of an individual, you will be responsible for providing the day to day care for a person, ensuring their personal needs are met, including housing and medical care. There are a few different types of guardianships. They are:

  • Full Guardian of a Minor
  • Limited Guardian of a Minor
  • Guardian of an Incapacitated Individual
  • Guardian of Someone who is Developmentally Disabled

What is the difference between an OWI, DUI, OWVI, and an OWPD?

OWI (Operating While Intoxicated)- You can be charged with an OWI if you are driving, and are over 21, with a blood alcohol level of .08 or greater.

DUI (Driving Under the Influence)- This is used interchangeably with an OWI.

OWVI (Operating While Visually Impaired)- You can be charged with an OWVI regardless of your blood alcohol level. If an officer determines you cannot operate your vehicle safely, you can be charged. An OWVI charge also applies when you have consumed too much of a legal prescribed medication.

OWPD (Operating With the Presence of Drugs)- You can be charged if you are under the influence of Schedule 1 drugs or cocaine while driving, regardless of the amount you have consumed.

What is the purpose of a witness when it comes to proper document execution?

The purpose of a witness is to verify the authenticity of a particular document that is being signed. A witness must be:

  • At least 18 years of age.
  • Not be under the influence of drugs or alcohol.
  • Be of sound mind.
  • Not have any financial interest in the document that is being signed.

What is a buy-sell agreement?

Buy-sell agreements are contracts between business owners to address various situations under which one or more owners have the option or the obligation to sell their ownership interest, and other owners (or the company) have the option or obligation to purchase that interest. Common triggers of these buy and sell rights include an owner’s death, disability, termination of employment, and receipt of a third party offer to purchase the interest. These are put in place to protect a company’s stability and longevity should a triggering event occur, and to limit disputes that can arise in those circumstances. The agreement would usually address price determination, payment terms, and timing, along with other matters. If one of the business partners dies and there is a buy-sell agreement in place, oftentimes life insurance policies are used to fund the buyout. Buy-sell agreements safeguard the company, stakeholders in the company, employees, and even clients and customers.

Can child support payments be put on pause if you’re spending more time with your kids during the holidays?

You might think that because you are spending more time with your children during the holiday season, or spending more money on them because they are with you, that you would be able to suspend your child support payments. However, that is not the case. The holiday time spent with each parent is already factored into the number of overnights to each parent that provides the basis for calculating the child support. Child support payments are court ordered, so you should continue to make those scheduled payments to avoid contempt of court proceedings.

What happens if you die without a will?

In the event that you die without a will in Michigan, your assets will be distributed to your relatives under Michigan Intestate Succession. This set of laws serves as a default will that instructs how and to whom your assets are distributed.

Do grandparents and other family members have visitation rights over the holidays?

It is common for grandparents and other family members to want to spend time with all their family during the holidays. However, it is ultimately up to the parents’ discretion and the custody agreement that they set with the court. In Michigan, grandparents do not have automatic rights to visit with their grandchildren over the holidays.

What types of penalties could you see if you are charged with a first offense OWI?

In Michigan, you could see the following penalties for a first offense OWI charge if your blood alcohol level is .08 to .17:

  • Up to a $500 fine;
  • Up to 93 days in jail;
  • Up to 360 hours of community service;
  • Up to 180 days of license suspension; and/or;
  • 6 points on your driver’s license

You could see more severe penalties if your blood alcohol level is over .17, if you have multiple OWI charges, if there are children in the car, or if someone is injured or dies because of your intoxication.

What is a Warranty Deed?

With a warranty deed the seller, also called the grantor, guarantees the property has a clear title and that the grantor has the right to transfer the property. The grantor generally will have a title company conduct a search of the title to find any problems with the title, and will purchase title insurance that guarantees clean title at the time the warranty deed is given. This type of deed protects the buyer or grantee because the buyer will not have to worry about any third-party claims against the property.

How does a Lady Bird Deed work?

In a Lady Bird Deed, an individual (also known as the Grantor) retains ownership of the property for the Grantor’s lifetime, and immediately upon the Grantor’s death, the property is transferred to the designated beneficiaries, known as the Grantees. It is a simplified way to transfer real property. An important benefit to this type of deed is that it will avoid probate. The Grantor of the Lady Bird Deed has the authority to retain full control of the property while living, including the right to use, transfer, and profit from the property. The deed can also be terminated or revoked by the Grantor at any point.

What is a Sole Proprietorship business structure?

This is the most common and straight forward business structure where one person is the owner. This business is not incorporated, which means less government involvement but also less government protection. Generally speaking, the owner pays personal income tax and self-employment tax on the business profits earned. The owner is solely financially liable for the business. Which also means that if the business needs to settle a debt or a legal claim, your personal assets may be at risk. This type of business structure offers simplicity and more control for the individual owner.

What is Nesting?

Nesting is a living arrangement in a divorce that keeps children in their family home while the parents take turns living there with them. It is not something that a court would order but rather something the parents would decide, typically in an uncontested divorce. This type of living arrangement may help spare children the burden of moving between homes.

What is a Quitclaim Deed?

With a quitclaim deed, a seller or grantor is transferring a piece of property to a buyer, but is not guaranteeing that the property has a clean title. Because a title search does not need to be conducted, a quitclaim deed is usually the easiest and least expensive way to transfer property, but it can also be very risky if you do not know the seller or grantor. Quitclaim deeds are common when the two parties have complete trust in each other which in return would mean the buyer does not have a need for a warranty on the property. A property is transferred “as is” through a quitclaim deed. This means that if there are any liens on the property, the buyer or grantee will be responsible for them. Also, if the grantor only owns a portion of the property being transferred, then the quitclaim deed only covers the portion the grantor owns.

What is a Limited Liability Company (LLC) business structure?

An LLC is structured in a way that offers owners the chance to limit their personal liability which protects their personal assets. It offers flexibility like a partnership does, but it provides protection of assets like a corporation does. LLCs are common in Michigan. They are inexpensive to start and easy to set up. You are required to file original articles of organization which should contain all the information required to form your LLC. They offer flexible management structures and do not put a limit on the number of members or owners the business may have. Typically, LLCs pay lower taxes than corporations. The profits that an LLC makes are treated as the business owners’ personal income, they are not subject to corporate taxation.

What is a Gift Tax?

While Michigan does not impose a gift tax, the Federal government does. A gift tax is a federal tax that the IRS imposes on individuals who transfer (gift) property to someone without receiving anything in return. A gift includes cash, property, real estate, etc. In 2024, an individual can gift up to $18,000 recipient without being taxed and a married couple who files jointly can gift up to $36,000 per recipient without being taxed. The gift tax amount depends on the value of the gift, but can range from 18%-40%.

Check back to see more common legal questions added every Friday!

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