BOSLER LAW OFFICE, PLLC

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  • Do I need an attorney to draft my estate plan?

    Legally, you do not need an attorney to draft your estate planning documents.  Wills and trusts do not have to be prepared or even reviewed by an attorney for them to be valid. However, they must comply with legal standards.

    You need to decide for yourself if you feel competent to create your own estate plan or if you would instead be better served by hiring an estate planning attorney.  Here are 8 questions to answer when deciding:

    1. Do you and your spouse agree on how to pass on your joint and individually-owned assets?  Owning a mix of marital assets and separate property can be a complicating factor.  Differing views on desired bequests to charities and others may also need to be reconciled.

    2. Do you have minor children?  You will need to name guardians, determine at what age the children inherit, and specify how the assets will be managed in the meantime.

    3. Do you have children from a prior marriage and a current spouse or partner?   Ensuring equal distribution to your offspring can be especially difficult with blended families.

    4. Do you have a child with special needs who will require long-term care?  If the child is receiving public assistance like SSI and Medicaid, a Special Needs Trust may be required to ensure continued qualification for that assistance.

    5. Do you have a substantial estate?  The more dollars to be transferred, the greater the value of professional guidance … both to ensure your wishes are fulfilled and to minimize taxes. 

    6. Are there any reasons your estate might be contested?  Maybe you want to disinherit a child or other heir.  An explanation and airtight estate plan will help.

    7. Do you want to leave a portion of your estate to charity?  Giving appreciated assets directly or through a trust can save taxes.  Retirement plans can also provide tax-saving opportunities when giving to charity.

    8. Do you own a small business or other business assets?  Transferring a business to the next generation requires preparation, tax planning, and documentation.  

    9. Do you need other estate planning documents?

    Powers of Attorney, Health Care directives, Trusts and other documents can be important components of a comprehensive estate plan that you owe it to yourself to become familiar with their purpose.

    If you answered “yes” to one or more of these 8 questions, you should at least initially consult a knowledgeable estate planning attorney so you fully understand the complexities of your situation.

    While form templates can work for organized individuals with small and simple estates, they are not designed to handle the situations listed.  If you have questions or need assistance, you can contact us at (248) 647-8180.

  • COLLECTION BASICS IN MICHIGAN

    Collectability

    Few business and consumer transactions would occur without the availability of credit to finance the purchase of goods and services.  This may take the form of a third party providing the funds needed to finance a purchase, such as a bank or financial institution, or the Seller providing the financing by allowing sale on credit or payment terms. Regardless of the arrangements, getting paid for goods delivered or services performed is the objective of every Seller, while every Buyer seeks the benefit of what was bargained for.  When a promise is broken by either party, legal rights and remedies need to be evaluated and pursued in order to obtain or salvage value from the transaction.  The services of an attorney may be paramount in identifying the terms and conditions favorable to produce the desired outcome.  This may begin with a review of the language used by the parties in setting forth the terms and conditions of their contract, a review and evaluation of the information that should be collected or obtained from or about the other party to determine their ability to perform, an evaluation of the collectability of the debtor as to whether it is productive to pursue a claim, and finally, to engage the services of an attorney to pursue a legal claim when and if it becomes necessary.  Performing those services professionally and competently is what should be expected from an attorney engaged to handle such matters.  

    Statutes of Limitation

    For the garden variety type of claims, the Statute of Limitations for a simple breach of contract claim in Michigan is six years, MCL 600.5807(8), while the status of limitations for breach of contract for the sale of goods is four years MCL 440.2725(1).  Depending on the nature and type of claim, other statutes of limitations may be applicable.  The Statute of Limitations may also be tolled or extended for specific reasons allowed by statute but the governing principle remains the same- the case must be timely filed or the creditor may lose the right to purse the claim.

    Court Venue and Jurisdiction

    In Michigan, District Courts have jurisdiction over cases where the amount in controversy is less than $25,000.00, while Circuit Courts have jurisdiction where the amount in controversy exceeds $25,000.00.  Generally, the appropriate venue or location of a court in which to bring a claim is the Court nearest to where the Defendant resides or its business is located. 

    Compliance

    Debt Collectors are required by law to conform to and comply with certain procedures and practices, particularly with regards to the collection of consumer debt.  The Fair Debt Collection Practices Act (FDCPA), 15 USC 1692 et. seq. was designed to prevent abuses by collection agencies and regulates such matters at the federal level, while Michigan has two public acts that roughly parallel the FDCPA, MCL 445.251 et. seq., and MCL 339.901 et. seq.  Other federal and state regulations may regulate other aspects of consumer, credit or commercial transaction, such as the Truth in Lending Act, Fair Credit Reporting Act, Michigan Consumer Protection Act, and other federal and state regulations.  Compliance with these regulations is the best course of conduct for all parties engaged in commerce. 

    Court authorized forms of debt collection in Michigan include the following:

    • Creditor’s Examinations
      Debtors may be served with a subpoena to testify as to their assets. They may be ordered to produce documents for examination such as their tax returns, pay stubs, documents to vehicles and real estate, businesses and anything else of value.
    • Wage Garnishments
      In Michigan, wages can be garnished up to 25% of one’s take home pay.
    • Tax Garnishments
      Creditors may seize one’s Michigan income tax refund (not federal).
    • Writs of Seizure
      Creditor attorneys may identify assets that a debtor may own including a business, cars, boat, or real estate, and may have these assets seized and sold at auction to get paid.
    • Receiverships
      If a debtor has a business that is a going concern, creditors may ask the court to appoint a receiver over the business and to have that receiver pay profits to pay the debt. The receiver is an “arm of the court” and thus has many privileges at law.

    While attorneys representing Creditors cannot promise or guarantee results in a particular case, the methods and procedures followed by that attorney or firm can enhance the prospects of collection. 

    Things to consider in engaging an attorney

    • Hire an Attorney, Not a Firm.  When you hire an attorney, is he or she actually working on the matter or is it being delegated to a clerk or staffer?  At small firms, there is less risk that the matter will be delegated.  Clients enjoy the peace of mind knowing that the attorney they selected will be doing the work.
    • Efficiency.  When multiple attorneys work on a file, they will all have to know and understand the matter.  At small firms, there is little to no redundancy.  Consider this hypothetical.  Suppose two students are reporting on a book.  One reads the CliffsNotes.  The other reads every page of the book and prepares a report.  Who will be better suited to answer the teacher’s questions?

    Bosler Law Office, PLLC handles both the pursuit and defense of debt collections cases. 

  • WHAT IS PROBATE ADMINISTRATION?

    Probate is a court-supervised legal process that may be required after someone dies. Probate gives a surviving family member authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them.

    Will Probate Be Necessary?

    Probate court proceedings are necessary only if the deceased person owned assets in his or her name alone at time of death and title to those assets does not pass by operation of law or contract. Other assets can probably be transferred to their new owners without any probate court involvement.

    Examples of common assets that do not need to go through probate include:
    assets the deceased person owned in joint tenancy form, which pass automatically to the surviving owner
    assets the deceased person owned with his or her spouse as “tenancy by the entirety” property, which pass to the surviving spouse without probate
    assets subject to a beneficiary designation (for example, retirement accounts for which the deceased person named a beneficiary, or payable-on-death bank accounts)
    life insurance proceeds that are payable to a named beneficiary
    assets held in trust (commonly, a revocable living trust designed to avoid probate) (more…)

  • WHY USE AN ATTORNEY FOR YOUR PURCHASE OR SALE OF REAL ESTATE?

    WHY USE AN ATTORNEY FOR YOUR PURCHASE OR SALE OF REAL ESTATE?

    Are you considering the sale or purchase of real estate, whether it be residential or commercial? There are many reasons why you should use an attorney to assist you through the process. Let us take a look at some of these reasons.
    The purchase of residential real estate may be well the largest purchase, and investment in property, that you will make during your lifetime. Likewise, the purchase of commercial property on which to locate an operate your business may well be the most significant decision that you will make which could determine the success or failure of your business. Entering into such transactions involves financial and legal commitments and obligations which can be unfamiliar because of the infrequency with which they occur yet have deep and long-lasting impact because of the length and expense of the commitment. It should be obvious that using an attorney or other expert having familiarity with aspects of the transaction is justified to produce the best possible outcome!
    The Listing and Purchase Agreements
    The real estate transaction typically starts out with a listing agreement between the seller of property and a realtor or broker who will list and market the property for sale, or an agency agreement between a buyer of property and an agent selected to assist the buyer with location and purchase of the property. Because there are many forms and variations of the contract or engagement between the parties involved, it is usually best to study or consult with an attorney to have at least a basic understanding of the rights and obligations of the parties to such agreements. For example, in the case of a listing agreement, consider the following:
    Who is the broker representing in the transaction?
    What is their role or duties?
    Is it an exclusive listing/agency?
    What is the length or term of the agreement?
    Are there any performance requirements which might allow for rescission of the agreement if they are not met?
    Understanding the listing agreement and how it may affect the course of the transaction is an important part of producing a satisfactory result.
    The purchase agreement is the single most important document in the transaction. It sets forth the rights and responsibilities of the parties for the entire transaction through closing. It is a contract and may be enforced in a court of law if material terms and conditions are not met by one or both of the parties. Most purchase agreements for the sale and purchase of residential property will be prepared using standard forms with some modifications to fit the circumstances. In the case of commercial property, customized or more specific agreements may be needed because of the unique circumstances of the property and the parties. In either case, using an experienced attorney to recognize, anticipate and address various aspects of the transaction can help to avoid or minimize serious problems which could arise, whether expected or unexpected. For example, what happens if there is a delay in closing, or a delay in obtaining loan approval? What happens if a lien has been filed against the property by a creditor? Many of these contingencies and how to deal with them may be addressed in the Purchase Agreement. Other issues to consider might include:
    If the property has been altered or there has been an addition to the property, was it done lawfully?
    If the buyer has plans to change the property, may it be done lawfully and in accordance with regulations and ordinances?
    What happens if an inspector retained by the buyer discovers defects in the property, such as termite or insect infestation, black mold, or lead-based paint?
    What are the legal consequences if the closing does not take place as planned, or does not take place at all- is the deposit returned or refundable?
    These and other issues may arise during the transaction and, depending on the wording or language used in the purchase agreement, the rights of any party to the agreement may be affected.
    Title Search and Commitment
    After the purchase agreement is signed it is necessary to establish the state of the seller’s title to the property to the satisfaction of the buyer, and to the financial institution that may lend money to the buyer to complete the purchase. To accomplish this, the purchase agreement will typically provide that seller will provide a title commitment to the buyer following a title search, which is a search of the public records to determine the condition of title to the property. The title commitment is a promise that a title insurance policy will be issued which provides the buyer with some guaranties and warranties that the buyer will receive good and marketable title to the property following closing. In some areas, title insurance is not available and an attorney should be engaged to review the status of title and issue an opinion concerning its condition. In either case, an attorney should be used to review the title search and help understand the coverages and exceptions to coverage afforded by a title insurance policy. Just some of the issues that could arise and may be addressed in such a review include whether there are issues or disputes involving boundary lines, whether there are easements, restrictions or agreements which affect the use of the property, and whether there are liens or other encumbrances on the property. More-so in the case of commercial property, it may be necessary to review zoning ordinances and regulations as they pertain to the expected use of the property.

    The Closing
    The real estate closing brings all interested parties together to consummate the transaction. It involves the execution and delivery of all necessary documents simultaneously with payment of the purchase price and settlement of all closing costs for the transaction. But the closing also includes the final review and settlement of all phases of the transaction: financing terms and conditions between lender and buyer, examination of title and resolution of any title difficulties or disputes, completion and explanation of legal documents, and arrangements for exchange of physical possession of the property. The role which a closing attorney may fulfill at this stage of the transaction may vary depending on the party whom the attorney represents, as follows:
    For buyers, attorneys:
    Review and negotiate the specific terms of contracts;
    Help assess financing options and explain loan terms;
    Review and Evaluate all legal documents, such as deed, title policy, mortgage, survey, closing statements and seller disclosure documents;
    Attend the closing, if necessary and make sure tile is transferred;
    Scrutinize charges to make sure that they are consistent with estimates and agreements; and
    Provide advice and consult if any problems or disputes arise.
    For sellers, attorneys:

    Review and negotiate the specific terms of contracts;
    Request title searches, surveys, mortgage payoff letters, condominium documents and all other documents necessary for the closing;
    May prepare the deed and other closing documents (if not done by the realtor or title insurance company)
    Confirm closing arrangements;
    Attend the closing and ensure that funds and title are transferred;
    Review charges for consistency with estimates and documents;
    Provide advice and consult if any problems or disputes arise.