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Over the 6 episodes beginning January 23 Tom discusses how to avoid the six most common estate planning mistakes. In this episode Tom discusses why a Will does not avoid probate.

If you haven’t heard, new legislation took effect in June last year regarding funeral arrangements. Any legally competent individual may appoint a funeral representative to make decisions about what happens to that individual’s remains after he or she dies.  The funeral representative has the authority to make decisions about funeral arrangements as well as the handling and disposition of the decedent’s body. This means that the funeral representative has the power to make decisions regarding things like cremation and the decedent’s ultimate resting place.

The legislation may be particularly helpful for longtime life partners or unmarried couples, blended families, individuals with long-distance families, or any individuals who wish to bypass the order of priority provided by Michigan law.

Absent a properly appointed funeral representative, Michigan law controls who has the authority to make these types of decisions after a person’s death. The law vests that authority with the next of kin (usually spouses, children, or other immediate relatives). Sometimes that isn’t a problem. Maybe that means a spouse or a child would have the authority to make those decisions for you, and that’s the order you would prefer.  Other times the order created by the law causes a problem. For example, an elderly widow passes away. At the time of her death she had been estranged from her only child for some time. Years ago, the woman met with a local funeral home and preplanned all of her funeral arrangements based on her specific wishes. When she passed away her estranged child, being her next of kin, ultimately had authority over all of the funeral decisions. That included the power to change arrangements previously put in place by the woman.  And, unfortunately, the child did just that. Here, it would’ve been very helpful for the woman to appoint someone other than her child. It could’ve been a trusted friend or a different family member that the woman knew would do everything possible to follow the woman’s wishes.

It’s important to recognize that the new law lets you designate who will make decisions about your remains. A gap in the law still remains in that your funeral representative isn’t required to follow your wishes.  So if you have certain funeral and burial wishes it’s imperative to nominate an individual whom you trust will carry out your wishes.

A nominated funeral representative isn’t obligated to accept their appointment. A prudent planner might nominate several individuals in a row in case a nominee is unwilling or unable to serve. Before being allowed to act, a funeral representative must sign an acknowledgment of their duties. One of the responsibilities is to ensure payment for funeral and burial costs or otherwise be liable for such costs. When designating a funeral representative, it may also be important for you to consider how your final expenses will be paid.

Lastly, the law identifies people who are not able to serve as a funeral representative. That list includes: a licensed health professional, an employee or volunteer of a health or veteran’s facility that provided care during a person’s final illness, and an officer or employee of a funeral establishment, cemetery or crematory that will ultimately provide final services. If, however, one of the above-named individuals is also your spouse or close relative an exception is made.

Properly designating a funeral representative may be an important piece of your estate plan that you currently don’t have. If you have questions or believe it is right for you, please do not hesitate to contact our office.

Episode Video

Episode Podcast

Tom explains why if there is a conflict between a beneficiary designation on your bank account (naming one child) and what you say in your Will (divide your estate between all 5 children), the beneficiary designation wins, and your bank account goes to the one child, not to all 5. This also applies to other assets such as life insurance, annuities, retirement accounts and jointly owned real estate.