Frequently Asked Questions
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Probate
Estate Planning
Employment Law
Employer
Employee
Business Formation
Civil Litigation
Real Estate
Probate
My family member died without a Will. What do I do now?
Someone – perhaps you – needs to act in the same manner as the person who would have been appointed as the “personal representative” if the family member had a Will. Gather the assets and make the final arrangements. Notify friends and family. Prepare to pay the deceased’s bills and address any creditors’ claims.
The deceased family member left a legal estate which must be disposed of according to the intestate laws of the State of Michigan. The right of family members to the estate or property of the deceased depends upon who survived the deceased, how the property was owned, and how much property must be distributed. You will need to review the “intestate laws” of the State of Michigan to make these determinations.
It is tempting to handle these matters without going through probate. It is possible to avoid probate, but without proper professional counseling, you will probably discover that is was a mistake and you (or others) are stuck with real estate or other property that can’t be transferred or sold. In the vast majority of cases, the best advice is to stick to the legal script and get it done right. The qualified counsel at Lambert & Lambert PLC can be most useful in this undertaking.
My family member died with a Will. What do I do with the Will?
First you read it. Among other things, make sure it was signed. Determine who was appointed as the Personal Representative, and find out if that person is willing to serve in that role. The Personal Representative needs to get busy gathering assets, making final arrangements and notifying any person who may have a claim to the deceased’s estate. Open a bank account which can be used to administer the estate.
In most cases, the Personal Representative must file a probate case. The decedent may have engaged in proper lifetime planning to avoid probate; that determination should be made before the probate case if filed.
If probate is necessary, proceed with the case from start to finish as soon as possible. In most cases, you will need legal assistance from us to best accomplish this substantial task.
How much does probate cost?
There are two primary factors in determining the cost of a probate – the size of the deceased’s estate and the intensity of any contested claims. A larger estate will tend to cost more to probate than a smaller estate. Intense battles between family members and heirs will definitely increase the cost.
Think of it this way. You can’t expect just one answer when you ask how much it will cost to build a house, without specifying the size, location, design and other features. Same deal here. Once we know more about the decedent’s estate, we will be happy to provide a fair cost estimate.
How long does probate take?
On average – about 15 months in southeast Michigan. That’s been our experience. The time frame will be longer if the estate is larger or if heirs are contesting distribution of the Estate assets being probated. If there is an appeal, that could add another 18 months.
To our experience, it is difficult to complete a full probate proceeding in less than 8-9 months, even when the matter is uncontested. There are certain procedures that must be followed which will take that long.
Estate Planning
Do I need a Will?
Yes. If you’re old enough to be researching this question, the chances are excellent the answer is “yes.” It’s truly that simple. It doesn’t matter whether you are single, married, with children, without children, old or young. You need a Will. It’s pretty easy to do, and the cost is minimal compared to the benefits. Do it.
With no Will, your heirs and loved ones will be forced to fight over your assets in Probate Court. That fight can spill over into gatherings outside of the Probate Court. Your heirs will have no guidance from you as to your wishes, including how your body should be treated following your death.
Do I really need a Trust?
You are not legally required to have a Trust, but for many people it is an excellent idea. Most people prefer to enable their heirs to avoid Probate Court following their death, rather than putting them through that gauntlet.
There are many reasons for creating a Trust. Here are three of the most frequently cited reasons:
- Avoid Probate Court.
- Delaying distribution of all or part of your estate until your heirs are ready.
- Avoiding or minimizing Federal estate taxes.
If any one or more of these reasons apply to you, then you need a Trust. Re-titling your assets or just moving them around probably won’t do the trick, at least in the long term.
There are plenty of other reasons to form a Trust; that discussion is beyond the scope of this Q & A format. You can check some of our articles on this Web Site to explore a few of those other reasons.
How do I protect my assets for the benefit of my family following my death?
You sign up an estate plan, and you keep it updated. In Michigan, an estate plan usually consists of at least three documents:
- Last Will and Testament
- Durable Power of Attorney
- Designation of Patient Advocate Form
As is explained in the previous question, many people also like to include a Revocable Living Trust in their estate plan.
With proper use of these forms, you can protect your family from losing property and other rights that can be legally transferred to them in anticipation of your death or upon your death. Without an estate plan, frankly it’s a crap shoot and your loved ones and heirs are at the mercy of Michigan law and the probate courts. That may work out for them, but it probably won’t.
Formulating and signing up an estate plan is pretty easy to do, and it is not all that expensive. Unfortunately, it is also easy to put that task off for another day. It’s best to have a plan in place. You can always amend elements of your plan as your estate planning needs change from year to year.
What does a Durable Power of Attorney do for me?
A Durable Power of Attorney works like a Will for a person while he or she is alive, but is unable to conduct day to day affairs. The person appointed to take care of those matters (the “Attorney”) can pay bills, conduct transactions and generally handle the day to day affairs of the person who signed the Durable Power of Attorney. The Attorney can do all this without the intervention of a Court in all but the most unusual circumstances.
The Attorney can be appointed as the Conservator of the person who is being protected, although that is not necessary for the Durable Power to have its intended effect.
Employment Law
Employer Questions
Do I need an Employment Agreement for my employees?
Here’s the thing: you already have one. The arrangement between you and each one of your employees is an employment agreement, whether it is in writing, oral, or a bit of each. The applicable law in Michigan will treat your relationship as being contractual: the only variable is in defining the terms.
If there is no specific signed employment agreement, your contract with your employees will be defined by how you pay them, how much you pay them, what they do from day to day, how the parties performed, some terms of the employee handbook (if you have one), and how the employer and employee performed their respective roles. There may also be e-mails, notes, or other written materials which may help define some of the terms of the employment agreement.
Fortunately for employers, in the absence of a written agreement, the employer can usually promote or fire employees at will, change the pay rate consistent with minimum wage laws, and control other aspects of the employment relationship. There are of course many legal restrictions which cannot be violated.
The best choice is to take control of all this and enter into a signed written employment agreement. These forms need not be complex and can avoid a host of misunderstandings and legal problems.
What good is an employee handbook?
An employee handbook is a useful guide to employees as to many of the terms of their relationship with their employer. The handbook sends a signal to the employees that some of their concerns have been considered and resolved in the manner stated in the handbook. The handbook confirms the employer’s commitment to comply with legal terms applicable to the business of hiring, and managing employees.
An employee handbook sends an important signal to government regulators and the courts (in case of litigation) that the employer is serious about complying with the many laws and regulations applicable to the employment relationship. Supervisory personnel can turn to the handbook for guidance on day to day matters.
The employee handbook does not cure all ills arising in employment relationships. It’s just a first step, and is no substitute for proper personnel management and following the law when making important decisions.
Do I need to update my employee handbook?
Perhaps. Here’s a rule of thumb: if your employee handbook has not been revised in the last three years, it probably needs to be updated. Legal requirements applicable to the employment relationship are constantly changing. It’s best to revisit old clauses and add the new ones that have become important in the past few years.
This need not be a major overhaul or big project. You may only need to add clauses topics which have arisen in the past few years or which need revision. Recent examples of this include privacy and e-mail use.
Can I fire my employee?
Yes. The State of Michigan will not require an employer and employee to stay together in an employment relationship if one of them does not want to continue. Exceptions to this rule are exceedingly rare, and usually occur only when the employee is also an owner of the company, or has a binding contractual commitment.
The question is better stated in this manner: what will it cost me to fire my employee? Most employees are employed “at will,” meaning they can be fired for any or no reason. An employee cannot, however, be fired for an illegal reason, such as race or age discrimination. Firing someone for an illegal reason can be expensive.
You are probably familiar with the customary costs of firing an employee: unemployment insurance, severance pay (usually not required), and any benefits which must be paid or compensated. If the employee has a contract requiring employment for a specific term of years or requiring severance pay, then those terms must be honored as written in the contract, subject to certain potential adjustments. In such cases, it is best to consult with our firm.
Employee Questions
I am applying for a job. Can they ask me . . .
How old I am? No, but they can ask if you are over 18. Asking the year you graduated from high school is a typical work-around.
What is my religious affiliation? No. In rare cases, you can legally be asked about any religious beliefs which would prohibit you from performing certain important employee duties.
What jobs I have previously held? Yes.
Am I pregnant? No.
If I have children? No. This question can, however, be posed after hire for insurance purposes.
Have I ever been arrested? No – by itself, an arrest isn’t proof of anything.
Do I have a criminal record? In many jobs, a security clearance is required, or the job requires that you have no criminal record. In those cases, the employer will usually ask for signed authorization to check your past.
What is my political affiliation? No.
What is my race, color or ethnicity? No.
Whether I am a US Citizen? Yes.
Whether I am disabled? No.
Whether I can carry out the necessary job assignments? Yes, as long as this isn’t a pretense for asking about disabilities unrelated to the job.
Whether I have a drivers’ License? Yes, particularly if the job requires driving.
Have I had a speeding ticket? Generally, no. This question can be posed when the job requires a clean driving record.
If I am married, single, engaged or divorced? No. This can be asked after hiring for insurance purposes.
Whether I plan to become pregnant? No.
Do I have to sign the employee handbook form?
No – there is no law requiring you to sign any particular employer’s employee handbook or any of the forms contained in that handbook. You’re free to choose. For the same reasons, the employer doesn’t have to hire you if you refuse the request to do so. There is nothing illegal about an employer asking you to sign particular handbook forms, unless those forms require the disclosure of information the employer cannot request or you are otherwise being asked to do something illegal.
You should check the employee handbook – or the part you’re being asked to sign – to see if you are being asked to sign off on unacceptable terms. If not, sign the handbook if you want the job.
I just got blamed at work for something that wasn’t my fault. What can I do?
The first thing you should do is honestly assess whether being blamed will cause any adverse impact to your job status or security. The clearest indicators of adverse impact are being written up, being suspended or fired, or being docked pay. If none of those events occur, your best course of action may be to do nothing at all, or at most, have a brief cordial conversation explaining your position to whomever is blaming you.
If you believe you have or will suffer adverse impact, check your employer’s internal procedures (if any) for filing a grievance or otherwise complaining about an unfair job action. The employee handbook is a good place to start. There may also be postings or other releases the employer has issued in the past. Follow those procedures as closely as possible to determine if you can obtain a fair resolution.
Can I sue my employer for firing me?
Let’s get the literal answer out of the way – as long as you have some legal basis for filing a suit, you can do so. That does not mean you will prevail in court, or that you should file your case.
Most non-governmental employment (and some government employment) in Michigan is “at will.” This means your employer can fire you for any or no reason. By the same token, you can leave your job for any or no reason.
Your employer cannot, however, fire you for an illegal reason. There are a host of such illegal reasons – prohibited discrimination (race, sex, sexual preference, age, and pregnancy, among others); retaliation for exercising your legal rights under worker’s compensation, Family Medical Leave Act, and similar legislation; and retaliation for “whistle blowing” any legal violations by your employer.
If you believe your employer has fired you for an illegal reason, then you should review your case with us.
Do I have a legal right to medical leave from my job?
Perhaps. Sorry about the need to hedge, but your right to medical leave depends upon a number of variables. The right itself will come from either or both of applicable law (usually the Federal Family and Medical Leave Act) or your written contract with your employer. The Family and Medical Leave Act (FMLA) does not apply to all employers. Some entities are exempt, and the employer generally must have 50 or more employees for FMLA to apply. Plus, you must meet certain requirements in your job and tenure with the employer.
You must also have medical leave time available for the year or applicable period, and have a valid qualifying reason for leave. Most organizations which do or must offer medical leave have Human Resources personnel who can and should assist you in your inquiry. Check with them first. If you are unhappy with the response, or just don’t believe them, then you should probably talk to us.
Business Formation
What legal form of business entity should I choose?
You have three primary choices: the Limited Liability Company, corporation, or sole proprietorship. The sole proprietorship is the easiest form to choose, but it doesn’t afford you any legal protection. The Limited Liability Company and Corporations forms give you legal protection from the company debts, and allow for more than one owner.
There are other forms of business entities which are not covered in this Q & A. For more on these three primary forms, please review the next three questions below. While we cannot give you all the features of these entities in a brief Q & A, you will get the highlights, and you can start the process of choosing from there.
What is a sole proprietorship?
A sole proprietorship is, for all intents and purposes, you. The sole proprietorship has no separate legal existence for most purposes. If you are the only owner of your business, you can just pick a name and be a sole proprietorship, as long as that name doesn’t violate someone else’s rights. The advantage is that it’s cheaper and easier to form and run. You can register the company if you like, but that’s not generally required.
The simplicity of this entity form is really not much of an advantage these days, because the other legal entities are not very expensive. Plus, you are not protected from the debts and liabilities incurred by your business.
What are the features of a Limited Liability Company?
The Limited Liability Company (“LLC”) is a modern flexible instrument for conducting businesses or professions. The LLC can take many forms, can be owned by other companies in whole or part, and can even provide for unequal or different voting and distribution rights for its members. Members (LLC owners) can choose almost any form of management, through some or all of the Members. Best of all, the LLC affords members protection from the LLC’s debts, as long as the members don’t personally sign for those debts (or misuse company funds).
An LLC must be registered with the state, and is well advised to follow the legal formalities to best maintain the legal protections that come with the LLC form.
Many people do not prefer LLCs because they don’t offer owners the opportunity to obtain “dividend treatment” (lower tax rates) for some distributions to owners. Frankly, this consideration is frequently overrated by budding entrepreneurs, but it is an important consideration for many. Fortunately, LLCs can now elect Subchapter S treatment and take advantage of dividend treatment if (and that’s a big “if”) they qualify.
What about Corporations?
Corporations are of course one of the most traditional and long-standing forms of business entities. Corporations offer many of the same benefits as LLCs, but are a bit stricter in requiring adherence to the legal formalities.
Corporations come in many forms and sizes, but the most popular forms are Subchapter C and Subchapter S. Subchapter C corporations are suitable for larger entities who wish to have their stock freely traded, or accumulate large sums of money without the need for annual distributions or taxation on the reserves. Subchapter S corporations operate a lot like partnerships and LLCs, but have specific legal limitations applicable to their operation and ownership.
What are the advantages of a Limited Liability Company?
In a word – flexibility. The Limited Liability Company (LLC) was specifically designed to dispense with some of the rigid requirements which had attached to the corporate form of entity. In almost all cases, there is no maximum number of owners (Members), and no requirement that the Members each be treated equally or proportionately to their investment. Members can decide whether they will make their major business decisions democratically among Members or whether such matters will be left to a Manager or Managers. They can even provide for the LLC to continue its existence after some or all of the original Members sell their ownership.
Civil Litigation
I didn’t get what I contracted for. Can I sue?
Perhaps. The first thing you need to do is determine whether the other party claims (or can claim) you breached the contract first. Generally speaking, the first party to breach the contract is liable for that breach. That’s not always true, but you can treat it as a useful rule of thumb.
Once you make that determination, then you have to assess whether the other party committed an honest-to–gosh breach of the contract. The breach may seem obvious to you, but it may not be so to a court. Review the contract to determine how the other party breached the contract. Better yet, contact a lawyer to make that determination.
If you are still confident that you have a case, you must then assess how you have been financially or physically harmed by the breach of contract. That’s usually pretty obvious, but you can overlook some legally recoverable losses or assume you can collect losses which are not actually legally recoverable.
If your losses are significant enough to warrant a lawsuit, then you should consider filing a lawsuit.
My construction contractor left me with a mess. Can I sue?
Probably. If the contractor left a mess, he didn’t finish the job. If the contractor didn’t finish the job, then the contractor did not perform as the contract requires. In those cases, you can probably file a lawsuit.
Or not. If you are in the fix described above, the next thing you need to determine is whether you have suffered any damages (monetary losses). You probably had to pay the contractor a payment to get started, so you may be able to recover that sum. You also probably have to pay another contractor to repair or finish the work; some or all of that payment may be recoverable from the original contractor.
If you have a signed contract with the contractor, then you should read that contract to see if it has an arbitration clause. Many of these contracts do. If there is an arbitration clause, then you probably have to file an arbitration case against the contractor rather than a court case.
In most cases, you are well advised to hire a lawyer to help you through the process. Our firm has plenty of knowledge and experience on such matters, and is prepared to help.
Real Estate
Do I need an attorney to buy a house?
No, but it’s a good idea. We have helped hundreds of clients wade through the many documents presented in house sales. Our legal services start with the Purchase Agreement and reviewing any disclosures made by the Sellers, including most importantly the Seller Disclosure Statement. Many issues which can become problems at closing or after you buy the house can be avoided through proper legal review of these documents, and making the critical adjustments at this important time.
A few days after the Purchase Agreement is signed, you will receive a Title commitment. We can review that commitment and inform you as to whether you will be receiving the “clean title” you are entitled to under the PA. After that, we can review the Closing Documents just prior to closing, since most Title companies prepare and produce those documents in time for such a review. As before, this review can provide valuable insight into avoiding problems which would otherwise only be discovered after closing, and would be much more expensive to resolve at that time.
I paid off my mortgage, but the mortgagee won’t issue a mortgage discharge. What do I do?
We’ve seen this happen too often. The first thing you do is make sure you send a written demand for the discharge to the mortgagee. Attach a copy of any documents showing that the mortgage loan is paid off – the mortgagee frequently returns the Note stamped paid or gives other notice, so you that.
Sometimes the mortgagee will respond that your account was assigned to another lender. In that case, rinse and repeat – send the same notice to the other lender.
Once you’ve exhausted your pleas with the mortgagee or its assigns, you sue. It’s called a quiet title action, in which you seek to have the mortgage lien discharged by an order of the court. Michigan law enables you to collect $1,000 statutory damages, actual damages, and double costs (in the court’s discretion). That at least removes a bit of the sting from having to pursue this remedy due to the mortgagee’s irresponsibility.