Author: Michael

Tips On Keeping Your Michigan Estate Out Of Court

As a Michigan Wills, Trusts and Estate Lawyer, one of my main goals is to help my clients avoid or manage conflict, either now or after a tragedy (death or incapacity).  This goal is one that I feel “traditional” estate planning pays less attention to than is deserved.  It is an area where the “counselor” part of “attorney and counselor at law” becomes keenly important.

Why?  Because the alternative in many cases is a costly lawsuit and/or hurt feelings.  For example, I recently ran across this article, which hints at the results of poorly counseled estate planning and gives real examples of what can lead to problems mentioned above.  And notice that the article is written by an estate litigation attorney.  These are “real life” examples.

As the article points out, many seemingly “benign” decisions can potentially lead to disastrous results if they are not the result of proper counseling and planning.

Here are just a few of the examples the article author gives as leading to courthouse controversy over estates:

  • Do It Yourself (DIY) estate planning – you can read my previous blog post about DIY planning here.
  • Not having even a basic estate plan.  Without this, you are left with the State of Michigan’s plan for you.  A court will decide who gets what and who makes your healthcare decisions.
  • Picking the wrong person to be in charge.  Many families pick certain people out of a sense of obligation, not based on how well they would perform the task for which they were chosen.

I encourage you to read the rest of the examples given in the article.  And if you’re ready to take steps to make sure your legacy isn’t left to squabbling and undesired court involvement, call us at 616-827-7596.

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

 

Asset Protection with Discretionary Trusts

Many Grand Rapids families that I talk with have never considered anything other than giving their assets to their family outright – it could be immediately when they pass away or at some later age.  As a Grand Rapids, Michigan estate planning attorney I consider it my privilege to let them know the downside to that approach and what can be gained by putting some restrictions in their Michigan will or trust.

I came across an excellent example in a recent Michigan Court of Appeals case (read it here).  The basics of the case are this: the beneficiary of the trust had been jailed and the State of Michigan was seeking reimbursement for those costs from the trust.  Guess what?  They couldn’t get to the trust assets!  Why?  Because it was a “discretionary” trust.

What is a discretionary trust?  It is a trust that does not distribute the assets outright, but rather leaves the decisions on what is distributed and when it’s distributed to the discretion of the trustee.  You can find the Michigan Trust Code definition here (MCL 700.7103(d)).  You see, because the “inheritance” is not given outright to the beneficiary and the beneficiary does not have a right to demand that the trustee give him or her any of the trust assets, the trust assets are not considered the beneficiary’s assets.

The best part – even though the trust assets aren’t considered the beneficiary’s assets, the beneficiary can benefit from the trust in the trustee’s discretion as guided by the trust language itself.  Think of it this way . . . by setting up your trust this way you are benefiting your family and at the same time protecting them from creditors, predators, divorce and possibly their own poor spending habits.  Now THAT is truly creating a legacy.

Call us at 616-827-7596 to discover how you can provide these incredible benefits to your family!

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Michigan LLC Charging Order Asset Protection

So you’ve read my post about charging orders against Michigan LLCs and are thinking, “so what?!”   Well, the key is not so much what it is, but whether it is the only remedy a creditor may have or just one of many.

Much review and comment has been made about a 2010 Florida case, Olmstead v FTC, 44 So 3d 76, and the effect it may have on the level of asset protection provided by a Single-Member Limited Liability Company.  Why?  Because the court determined that, under Florida law, a creditor is not limited to a charging order as a means of collecting on the judgment.  That could mean the creditor could “step into the shoes” of the LLC Member, effectively taking all ownership in the company and directing it as the creditor sees fit.  I think all Michigan LLC owners can agree, that’s a bad thing.

Well, Michigan business attorneys and the Michigan legislature were listening to the scuttlebutt.  What came out of it was a change to Michigan law via a 2010 amendment to the Michigan Limited Liability Company Act (the MLLCA).  Section 507 (MCL 450.4507) of the MLLCA now makes it clear that the charging order is the “exclusive remedy” by which a judgment creditor of a Member may satisfy a judgment out of a Member’s membership interest.

And THAT is a good thing for asset protection.  It limits the creditor to distributions from the LLC.  No distributions = nothing to the creditor.  And the creditor is not able to have any say in the LLC’s actions . . . it leaves the Member in control of the company.  And that is a great thing for Michigan business owners!

Important Note: there is still some belief that a court could find that a charging order is not the only remedy in certain circumstances involving a single-member LLC.   Make sure to meet with a Michigan business lawyer before making any decisions.

Michael Lichterman is a relationship-based business attorney who leverages his business, marketing and legal knowledge to help business owners and entrepreneurs create a Foundation for Business Success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

Michigan Legacy Planning . . . Not Your Regular Estate Plan

As a Grand Rapids, Michigan estate planning attorney I’ve heard a lot of “chicken little” comments among some of my colleagues as a result of the recent changes to estate tax law.  You see, many attorneys who draft estate plans relied on fear of the estate tax as a way of attracting new clients.  With the tax law changes far fewer families will be affected by the estate tax (at least temporarily).

And yet at the same time, as a Grand Rapids, Michigan wills and trusts attorney who focuses on helping families create a legacy through Whole Family Wealth™ Planning, I’m seeing an increase in families becoming part of the Lichterman Law family.

Which leads me to this USAA article I recently came across.  Besides being a good overview of the recent changes to the estate tax and a reminder of the importance of having your plan reviewed, it points out the importance of viewing “estate planning” as what it truly is . . . “legacy planning.”  As the article points out, “there’s far more to estate planning than just taxes.”

What “more” are they talking about?  As the article says, “the real point of an estate plan is to make it as easy as possible for your heirs to carry on and to ensure your assets go where you want them to.”  I agree with that, but think they left out one very important thing . . . the key behind Whole Family Wealth™ Planning.  That is to use estate planning to pass on who you are and what is most important to you – your values, insights, stories and experience.  To me, that is truly a lasting legacy.

Why would you want to leave your family guessing about what to do, where to go and how to handle your assets?  Do you want to leave them without your most valuable asset . . . who you are as a person?  Call us at 616-827-7596 right now to take the important step of starting your legacy plan.  Mention this blog post and we’ll waive the Peace of Mind Planning Session fee ($750 value!).

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.


What Is A Michigan Charging Order?

As a Michigan Business Attorney and Estate Planning Attorney I have worked with numerous business owners and individuals to help protect their business and/or their family assets.  In many cases that protection involves forming a Michigan Limited Liability Company (an LLC).  One of the main reasons for forming LLCs is right there in their name . . . limited liability.

Many Michigan business owners desire to limit their personal liability for their business activities.  The idea being, if the business is liable for some damage to a person, business or property, the business owner does not want his or her personal assets (home, financial accounts, cars, etc.) at risk for the business liability.  Simply forming the LLC is not enough, but it is a good first step.  I will discuss additional liability limiting steps in a future post.

It’s a fact of life for many businesses and business owners . . . the dreaded lawsuit.  And what happens if you lose?  Well, you become a “judgment debtor,” meaning you are a debtor to the individual(s) or business(es) that won the lawsuit against your business.  And they have all sorts of “remedies” – actions they can take to collect on the court judgment amount.  One of those is commonly referred to as a charging order.

A charging order is a court-authorized right granted to a judgment creditor to attach distributions made from a business entity (such as a LLC) to a debtor who is a Member in the entity.  In a way, it is similar to garnishment of wages or income.  It does not give the creditor ownership or management rights in the LLC.

Remember that a charging order was just one of the “remedies” available to a judgment creditor?  Well, many business owners and individuals who want to protect their assets would like it to be the only remedy.  Can you guess why?  Let me know what you think by commenting on this post.  I will let you in on the reason in my next post and uncover the Michigan law relating to the “charging order only” remedy.

Michael Lichterman is a relationship-based business attorney who leverages his business, marketing and legal knowledge to help business owners and entrepreneurs create a Foundation for Business Success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

The Importance of a Flexible Estate Plan

I have been emphasizing the need for flexible estate plans since I first opened my practice.  It seems that most people believe that estate planning is either for the “hear and now” or for the “way down the road.”  If that is your view, your missing out on the “everything in between.”

I recently read this NY Times article, which sheds some light on the importance of a flexible estate plan.  As the article points out, the “certainty” that Congress brought to estate tax planning in late 2010 will only apply for 2011 and 2012.  After that it is anyone’s guess.

I can’t agree more with the part of the article that says “people…need to refocus their estate plans, … toward flexible plans for distribution, protection and management of their assets no matter how Congress tinkers with the tax laws.”  And that is just the estate tax law.  Don’t forget that each state, Michigan included, changes their estate planning laws from time to time too.

This is why I focus on planning for life, not death.  It’s really about who you are and what’s important to you.  How can estate planning pass on who you are?  By structuring your plan in a way that guides and directs your loved ones if something happens to you and that shares your Whole Family Wealth™ with them – not just what you have, but more importantly your values, insights, stories and experiences.

One last thing…note the many advantages of trusts that are stated in the article and how it is not just about tax planning.  My favorite advantage of trusts that they wisely state in the article is “protection against creditors, permitting the beneficiary to continue enjoying benefits from the trust even if bankruptcy were to occur.”

If you already have an estate plan in place, take this opportunity to have it reviewed and updated for flexibility by an attorney who focuses on estate planning.  And if you don’t have an estate plan…why not?  You are leaving your family’s future in the hands of the court system.  Is that what you want?

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Health Savings Accounts (HSAs) and Trusts

I’ve had several people ask me recently, “can I put my health savings account into my living trust, and if so, how?”  That’s a great question!

The answer is yes, but you are not actually putting it “in” the trust . . . you are naming the trust as a beneficiary.  Health Savings Accounts (commonly referred to as HSAs) are interesting “animals.”  We typically think of them like an ordinary bank account with a restriction that they can be used for only qualified medical expenses.  However, for trust “funding” purposes, they behave more like retirement accounts (e.g. IRAs).

This means that you designate the trust as the beneficiary of the account rather than changing ownership of the account to the trust (warning: changing ownership could have negative tax consequences).  If you are married, I generally suggest naming your spouse as the primary beneficiary of the account.  This is because it can then be treated as the spouse’s HSA if something happens to you.

You would then name your trust as the contingent beneficiary.  Naming the trust (or individuals other than a spouse) as the primary beneficiary will make the account taxable to those beneficiaries in the year of your death.  A spouse is the only one who gets the special HSA treatment stated above.  Single individuals should typically name the trust as the primary beneficiary.

Do you or someone you know have a question about estate planning or business planning?  If so, let me know and I try to answer it in a future blog post.  I’m sure you’re not the only one with the question, so you will be helping other readers by asking.

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

You Pay For What You Get

“You get what you pay for,” is a phrase that we’ve all heard so much it is has become almost a cliche.  What I’ve come to realize is that, although “you get what you pay for” may not be true in all cases, “you pay for what you get” seems to be true in all cases.  Whether the “cost” is money, like we typically think, or something intangible such as lost time, lost opportunity, worry, regret or pain.

You may have read my post about the Honda, the big screen and estate planning.  The idea being that we “pay” (money, time, emotions, etc.) for something based on the perceived value it has to us.  I was reminded of this when I talked recently with a nice gentleman.  At one point he said, “that’s more than I’m willing to pay.”  It doesn’t matter the context – estate planning or business planning – there’s a lot going on behind the scenes in that statement.

It could be a reflection of lack of concern, lack of understanding how things work (estate planning or business planning), not fully understanding the situation, or valuing other things higher than the estate planning or business planning being considered.  Ultimately, I think it is a combination of all of these (and more), although I see the value comparison being the deciding factor in most situations.

I’m not saying any decision is good, bad or indifferent.  I think it is good for us to understand how we make purchase decisions and to not forget all the non-monetary considerations that come into play and how they, ultimately, lead us to the decision we make.

How do you make a decision between two or more “purchases”?  Maybe it’s getting an iPad versus purchasing more life insurance, maybe it’s leasing a new car versus purchasing a new one, or getting a “discount” haircut versus going to a salon.  When you stop and think about the monetary and non-monetary considerations, how do YOU make your choices?  I would love to hear what you think of this!

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Intangible Assets and Your Burning House

As a Grand Rapids, Mi estate planning lawyer who focuses on helping you plan for your Whole Family Wealth™, I consider it my calling to determine what my clients truly care about and then, and only then, move forward with helping them plan to make sure their wishes are followed if something happened to them.

The tragedy of several West Michigan homes burning down (or partially down) over the past month has provided a prime example of what this Whole Family Wealth™ is.  I think most would agree that having your home burn down is a horrible tragedy, only made better if nobody is injured.  So what does a home burning down without any human injury have to do with estate planning?

Ask yourself this question: if your home was on fire, would you reach for the money you may have hidden in a drawer  or would you try to save the photo album that has the only pictures of your children as babies?  If you answered the way I expect you did, ask yourself if “traditional” estate planning is right for you or if you need something more.  Traditional estate planning focuses on money and assets . . . who you are and what is important to you is not a consideration.

Give it some serious thought because your answer (and more importantly your action or inaction) is what will shape your legacy.  Don’t make the mistake of thinking a “legacy” is something you have to wait until the end of your life to create. Call us at 616-827-7596 to schedule a Peace of Mind Planning Session to discover how you can share your values, insights, stories and experiences . . . not just your “stuff.”  Mention this blog post and we’ll waive the planning session fee (a $750 value!).

Michael Lichterman is an estate planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on estate and asset protection planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

What Is A Michigan Operating Agreement?

As a Grand Rapids, MI business lawyer, I have helped many Michigan entrepreneur business owners start their businesses.  Many of them want to form their business as a Limited Liability Company (LLC).  This leads us to a conversation about the LLC Operating Agreement.  To my initial surprise, many of the business owners I meet with ask, “what is an operating agreement?”

A LLC operating agreement is like Bylaws for a corporation.  Don’t worry – if you don’t know what Bylaws are, I will cover them in a future post.  According to wikipedia, an operating agreement is “an agreement among [LLC] Members governing the LLC’s business, and Member’s financial and managerial rights and duties.”

LLCs are a “creature” of state law, so it is important to note that you can find Michigan’s Limited Liability Company Act here.  Michigan law defines an operating agreement as “a written agreement by the member of a limited liability company that has 1 member, or between all of the members of a limited liability company that has more than 1 member, pertaining to the affairs of the limited liability company and the conduct of its business.” (MCL 450.4102(2)(r)).  Pretty close to the wikipedia definition.

Although not required, an operating agreement is a very important tool for two key reasons: (1) it forces the Members (owners) to determine how they want the LLC internally governed, and (2) it puts those directions down on paper so it’s not left up to “he said, she said” if there is a disagreement among Members down the road.  If you don’t have one, you will be at the mercy of the LLC statute’s default provisions.  It’s your business, don’t YOU want to decide how it’s governed or do you want the State of Michigan to tell you?!

And in case you are thinking “I’m the only owner, an operating agreement isn’t even valid with only one owner,” think again.  Michigan law specifically authorizes operating agreements for single-member LLCs and having one is a great idea for the #1 reason mentioned above and as additional support for the “limited liability” provided by the LLC in the first place.

Thinking about starting a business and want to form an LLC?  Already have an LLC but not an operating agreement?  Or do you have an operating agreement and not understand why or what it means to your situation?  Call us today at 616-827-7596 to schedule a comprehensive Small Business Strategy Session.  And if you mention this blog post we’ll waive the session fee (a $1,250 value!)

Michael Lichterman is a relationship-based business attorney who leverages his business, marketing and legal knowledge to help business owners and entrepreneurs create a Foundation for Business Success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

What is a Michigan Limited Liability Company (LLC)?

As a Grand Rapids business lawyer, great folks routinely call our office and say “I need to form an LLC.”  When I ask them why, the answers range from “because I want to start a business,” to “my buddy started one and said it was the best way,” to “my CPA suggested I form one.”  This lets me know that there is some confusion among business owners and entrepreneurs about what, exactly, a LLC is.

As you can tell by the title of this post, LLC is the abbreviation for Limited Liability Company.  The law on Michigan LLC’s can be found here.  In short, a LLC is a form of legal business structure under which you can operate your business.  Some other well-known forms of business structure are corporations and partnerships.

Michigan LLCs are typically more flexible in their formation and operation than corporations and typically provide a greater level of liability protection than a partnership.  The “owners” of a LLC are called “Members.”  There can be as little as one Member (referred to as a single-member LLC or SMLLC) and up to as many Members as you want (collectively referred to as multi-member LLCs or MMLLCs).

LLCs, like corporations, offer a certain level of liability protection for the owner’s personal assets if certain legal and practical steps are taken.  This, combined with the flexibility mentioned above, is why many business owners choose to formally operate as a LLC.

This brief explanation would not be complete without mentioning everyone’s favorite topic…taxes.  By default, LLCs are taxed as a “pass through entity.”  That means that the profits and losses “pass through” the entity down to the owner(s) personal tax return…the LLC does not pay the taxes, the owner(s) does.  Although that is the default, there are elections that can be made to be treated differently for tax purposes.

It is important to keep in mind that a LLC is not always the best way to form your Michigan business.  The considerations mentioned above are just the “tip of the iceberg.”  Starting a Michigan business without talking with a relationship-based Michigan business attorney could cost you (and your business) dearly down the road.

Looking to start a business or want to make sure your business has the correct foundation for continued success?  Call us at 616-827-7596 for a comprehensive Small Business Strategy Session.  Mention this blog post and we’ll waive the strategy session fee (a $1,250 value!).

Michael Lichterman is a relationship-based business attorney who leverages his business and legal knowledge to help business owners and entrepreneurs create a foundation for success™.  This goes beyond merely drafting a set of documents – it’s about  proactively preparing the business and the business owner for continued growth while remembering the “human side” of running a business.  He best serves small business owners (less than 50 employees) and entrepreneurs.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients  and their businesses – many of which have become great friends and trusted confidants.

Inheritance Protection and Why Your Family Will Thank You

Inheritance Protection . . . what does that mean?  Well, some recent conversations I’ve had and reading this article have brought to light how unknown this very important estate planning strategy is.  What if you could ensure that your beneficiaries (children, grandchildren, or other friends and family) would receive your the inheritance you provide for them in a way that could benefit them, yet not be open to creditors, predators, divorce, financial immaturity and lawsuits.  Would you do it?

Unless your “estate” is quite small (including life insurance), I generally recommend that you do just that.  Why?  Read the article linked above.  Although there is no sure thing, I think it is quite likely that Mr. Martin’s story would be very different had he received his inheritance in an inheritance protection trust.  The trust could have provided for his general needs (in the Trustee’s discretion) and still not be accessible by creditors, financial predators, divorce or lawsuits.

I’ll leave you with one last example.  I met with a couple some time back and when I mentioned inheritance protection, the husband said, “that must have been what my grandma did for my aunt.”  Obviously, I wanted to know more and he was kind enough to share the story.  It turns out that his grandma had set up inheritance protection trusts for her children.  His aunt had approximately $500,000 in the trust for her benefit.  And guess what?  She went bankrupt!

I know you are probably thinking, “great, what a waste of $500,000!”  Not at all.  Because Grandma had set them up as inheritance protection trusts, the trust assets were not part of the bankruptcy.  Now if Grandma had set it up like the vast majority of people and attorneys do, that money would have gone outright to the aunt and she would have lost it!  Is that what you want for your family?

Michael Lichterman is an estate planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™.  This goes beyond merely planning for finances – it’s about who your are and what’s important to you.  He focuses on planning for  the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned business succession and pet planning – and he is privileged to do so from a Christian perspective.  He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.