WHAT IS THE DIFFERENCE BETWEEN A CORPORATE LAWYER AND A BUSINESS LAWYER?

The terms “corporate” and “business” seem to go hand in hand, but there’s a difference between corporate law and business law. These practice areas require specialty lawyers and specific experience. How do you know whether to hire a corporate lawyer or a business lawyer? Read on to find out!

CORPORATE LAWYERS

Sometimes, corporate lawyers work directly for specific companies. Other times, corporate law firms are hired by large companies for special purposes or to handle certain transactions. Corporate lawyers often work for larger companies and help write contracts, help with the behind the scenes corporate legal work, and help avoid litigation. Corporate lawyers also often specialize in compliance with local, state, national, and international laws that regulate businesses and transactions.

PCorporate lawyers also handle issues with the size and structure of companies, sometimes helping to set up new businesses, structure partnerships, and corporate mandates.

BUSINESS LAWYERS

Business lawyers, on the other hand, are generalists who provide legal advice on just about all aspects of a business. While the size of a company doesn’t necessarily determine if they need a corporate lawyer or a business lawyer, business lawyers are more commonly retained by small- to medium-sized businesses that need a wide range of services. A business lawyer might help your business navigate copyright or trademark concerns, handle tax issues or work with your CPA to mitigate tax burdens, and review your contracts and employee handbook all in a day’s work!

Business lawyers also help write business plans for potential investors and assist with employment laws.

WHEN TO HIRE A CORPORATE LAWYER

Corporate lawyers are sometimes called transactional lawyers – because they handle many issues surrounding the buying and selling of goods in the market and contract law. You might need a corporate lawyer when:

  • Your business is seeking to buy and sell goods internationally
  • Your business needs to negotiate contracts with other businesses or individuals
  • Your business is experiencing issues with a contractual relationship
  • Your business is looking to avoid litigation surrounding legal documents or processes
  • You want to start, buy, sell, or dissolve a corporate entity
  • You or your business needs an airtight contract or agreement drafted
  • You need to attract investors or partners to expand your business
  • You have questions about or need to change your business’s structure
  • You need advice on shareholder rights and obligations
  • You’re looking to mitigate risk in one or more areas of your business

WHEN TO HIRE A BUSINESS LAWYER

As opposed to corporate transactional lawyers, business lawyers provide general legal advice to businesses and represent businesses in legal proceedings and during litigation. That means a business lawyer will not only provide legal advice but also represent you and your business in a courtroom if negotiations or mediation fails. A business lawyer can also advise you and your business on contracts, but the best times to hire a business lawyer is when: ​

  • Your business needs advice or representation in employment disputes
  • Your business wants to avoid employment disputes with employee handbooks and contracts
  • Your business needs advice or representation in tax disputes
  • Your business needs advice on business tax law and tax burden mitigation
  • Your business is being audited or investigated by state or federal authorities
  • You’re planning your business or starting a new business
  • You need advice or representation on patents and other intellectual property
  • Your business is involved in a lawsuit or mediation procedure
  • Your business needs to file a lawsuit or enforce a contract

CALL HERBERT mACHNIK LAW FIRM FOR YOUR BUSINESS AND CORPORATE NEEDS

At Herbert Machnik Law Firm, we specialize in business law. Our experienced attorneys serve businesses of all sizes with expert advice and representation in banking, real estate, construction, small business, and employment law. We offer legal advice to drive your business forward and representation in the courtroom to protect the success you’ve worked so hard to achieve. Contact us today for a consultation and to see how we can meet all of your business law needs.​

Making the most of your time with your children

Going from seeing your children frequently to implementing a visitation schedule will take some adjustment. Considering the new time restraints, the opportunities you do have to spend time with your children may feel more important than ever before.

Abiding by the terms of your custody arrangement can provide stability for your children, as well as reinforce your love for them.

Be reliable

Adapting to a custody arrangement may only be a fraction of the changes happening in your life. Depending on the circumstances of your divorce, you may find yourself dealing with changes to your living situation, your career and your relationships. However, your custody arrangement is perhaps one of the most critical commitments you have currently.

Showing up consistently and on time may require sacrifice on your part. As you negotiate a custody agreement, be realistic about your availability. If your schedule changes and impacts your availability, try to enforce an immediate and consistent change to your visitation schedule. Your dedication to showing up will demonstrate your commitment, love and concern for your children.

Care for yourself

Caring for yourself with so much going on may seem impossible or unnecessary. However, according to The Mayo Clinic, one way to adjust to single parenting is to prioritize self-care. Socialize, eat a balanced diet, get enough rest and stay active. Taking good care of your physical and mental health will enable you to be emotionally available and physically motivated to spend time with your children.

Equally as important, find someone to vent your frustrations to. This could even be a counselor or therapist. Processing your emotions effectively may reduce the chances that you say something negative about your divorce or your children’s other parent in the presence of your children. Feeling in control of your emotions will allow you to focus your energy and thoughts on caring for your children and not fuming about your former relationship.

Irrevocable Life Insurance Trust

All estate plans share one fundamental goal: create a secure plan that puts beneficiaries in the best possible position. Irrevocable life insurance trusts, known as ILITs, further this goal by protecting your life insurance from the hands of creditors during your lifetime, exempting it from your estate, and reducing your potential estate tax liability. ILITs have many benefits, and very few drawbacks, making them a frequently sought out and powerful estate planning solution. In this article we will discuss the key benefits and drawbacks of ILITs, trustee’s duties, and other key factors.

LIFE INSURANCE & YOUR ESTATE

 To understand ILITs, it is important to review exactly what life insurance is, and how life insurance is treated for estate tax purposes. At its core, life insurance is a tool for shifting the financial risk associated with the insured’s death from the family and loved ones onto an insurance company. The mechanics of life insurance are straight forward: the policy owner pays a certain amount to the insurance company called a premium. The premium is often paid monthly, but it can be paid quarterly, annually, or even as a lump sum. In exchange, the insurance company promises to pay a sum to a beneficiary of your choice upon the death of the insured person. While in most cases the insured life and the policy owner are the same person, this is not always the case.

Life insurance payouts received by beneficiaries are not taxed as income for the beneficiary. Rather, the policy is often taxed as part of the deceased’s estate as per I.R.C. § 2042, which states that life insurance is included in the deceased’s estate if the policy is paid to the probate estate, or if the deceased possessed an incident of ownership at death. What this means is that if the insured person was the policy owner, the life insurance payout is included in their taxable estate.

HOW ILITS WORK

Put simply, an ILIT is an irrevocable trust created for the sole purpose of holding a life insurance policy on the grantor. The trust is generally funded by annual gifts up to the annual gift exclusion ($15,000 in 2020), using the Crummey Letter Method. Once the grantor passes away, the trust collects the life insurance payout and distributes it to the beneficiaries of the trust. To put it within terms of the relevant section of the tax code, an ILIT removes the life insurance from the deceased’s estate because the deceased does not possess an incident of ownership at death.  Because the ILIT is irrevocable, the life insurance trust is exempt from your estate, is not accessible to creditors, and any money used to fund it is also removed from your estate, making it an incredibly attractive multi-pronged protective estate planning method.

Like with other irrevocable trusts, the grantor cannot be the trustee of an ILIT. The grantor may freely choose whom they want as their trustee, which can be anyone, including a bank, trust company, attorney, family member, or a trusted friend. One exception is that the grantor cannot choose their spouse as trustee if the life insurance is a survivorship policy, if the trust is funded by jointly held property, or if the gift is made jointly.

An ILIT can protect you and your beneficiaries from creditors or legal judgments against them while the policy is in the trust, since the trust itself is the owner. There can be more than one life insurance policy held in the trust and almost any type of life insurance policy can be held in the trust.

BENEFITS OF AN ILIT

estate tax letters with us money on the right side


ILITs are excellent estate planning solutions that can accomplish three major objectives for the grantor: Reducing your estate tax bill, protecting your life insurance proceeds from creditors, and protecting your beneficiaries’ inheritance from creditors. If these are goals you are considering as part of your estate plan, an ILIT may be the right solution for you.

AVOIDING ESTATE TAX

Your net estate is the value of your assets minus the value of your debts. Under current federal law, if your net estate is valued at more than $11.58 million per person, you are subject to an estate tax that can be up to 40% of your estate. Even if your estate does not meet the federal limit, you may be subject to a state estate tax. The states that have a state estate tax include:

  • Connecticut
  • District of Columbia
  • Hawaii
  • Illinois
  • Maine
  • Maryland
  • Massachusetts
  • Minnesota
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

Each of these states sets their own limit of assets excluded from the estate tax, ranging from $1 million to $5.74 million at the time this article was written.

If estate tax is a concern for you, an ILIT takes your life insurance policy and the money used to fund the policy out of your estate valuation, which may be the difference between going over the assets excluded limit under federal or state law.

PROTECTING BENEFICIARIES FROM CREDITORS

ILITs also protect your life insurance proceeds from the hands of creditors and legal judgments. Since the trust is the policyholder, neither the beneficiaries nor you are considered owners of the trust. This means that any of the beneficiaries of the life insurance policy will be secure knowing debts they owe, judgments against them, or any other creditors will not be able to reach the amount they are entitled to from the policy.

ADDITIONAL ADVANTAGES OF AN ILIT

Aside from potentially avoiding estate tax and taking your life insurance policy out of the reach of creditors, ILIT also offers the following benefits:

  • Avoid gift taxes – using the Crummey letter method, gift taxes can be avoided if they are at or under $15,000 per person.
  • Government benefits – an ILIT can protect a beneficiary who receives government benefits such as security disability income or Medicaid by controlling the payout amount as to not exceed the government limit.
  • Avoid generational taxing – if gifting grandchildren, you may be subject to a 40% generational gift tax. Since an ILIT takes the policy out of your net estate it may not be considered a gift and the payout may be disbursed to grandchildren.
  • Income tax considerations – the cash value that accumulates in the trust from the policy and the payout are free from taxation during the grantor’s life. However, once the payout is distributed, if it remains in the trust it may be taxed.

WHEN IS AN ILIT NOT THE RIGHT ANSWER?

ILITs offer many benefits; however, they are not for everyone. If you are not concerned about going over the excluded estate tax limit or creditors reaching your life insurance policy, you may be better off with a different type of trust that achieves your specific goals.

Additionally, if you already own a life insurance policy and are concerned about your health, you should be aware of the IRS look back period. This period applies if you transfer an existing life insurance policy into your ILIT. In this case, the IRS will apply a 3 year look back period, meaning that if you die within 3 years of transferring, the policy is still considered part of your taxable estate.

THE ILIT TRUSTEE’S DUTIES

There are three different types of trustees that can be used to administer a trust: individual, bank, and independent trustees. An individual trustee is generally a family member or a friend. A bank trustee is part of a bank trust department and is a professional trustee. An independent trustee is a professional trustee who is not attached to a bank. Independent and bank trustees are professional trustees and charge fees for providing trustee services. However, they are also held to a higher standard of fiduciary duty.

The trustee of an ILIT has five main responsibilities while administering an ILIT:

  1. Administering the trust
  2. Sending annual Crummey Letters to beneficiaries
  3. Payment of life insurance premiums using annual gift
  4. Filing ILIT tax returns
  5. Distributing life insurance proceeds upon death of the insured
irrevocable life insuracne trust administration chart


Deciding on the right approach to protect your assets, secure your estate, and ensure the security of your family is an important decision; one you should discuss with a trusted professional in the field. At Herbert Machinik Law Firm, we’ve helped countless clients protect their financial interests. If you’re ready to learn more about this unique legal arrangement, we are the perfect resource for you and your loved ones.

FREQUENTLY ASKED QUESTIONS ABOUT ILITS 

WHAT IS AN IRREVOCABLE TRUST?

An irrevocable trust is trust that cannot be revoked or modified by the grantor once it is created. Irrevocable trusts constitute completed transfers in most cases, and any assets held in an irrevocable trust are not considered part of the grantor’s estate (with some exceptions).

WHAT IS THE CRUMMEY LETTER METHOD?

When you fund your ILIT, you will do so by gifting a certain amount of cash to the trust each year to pay for the insurance premiums. Normally, such gifts would be subject to the gift tax. In order to avoid these gift taxes, your trustee can send out what is known as a “Crummey Letter.” This letter informs beneficiaries that they can ask for their share of the money put in for the premium payment within a certain amount of time. This letter must be sent to all beneficiaries each year letting them know they have immediate access to the money. This will avoid the premium payment being taxed as a gift up to the amount excluded by the federal government. At the time of this article, that is up to $15,000 per giftee.

Beneficiaries must be aware that they cannot actually take the money, otherwise there will not be sufficient funds to cover the premium and the policy will lapse. It is beneficial to let beneficiaries know this ahead of time, and be sure they are aware that the premium payment is minimal compared to what they will receive upon the policy’s payout.

WHAT REQUIREMENTS ARE NECESSARY TO KEEP THE ILIT IN FORCE?

Once your ILIT has been established and you have selected and purchased a life insurance policy, there are a few procedural steps that must be followed to maintain your ILIT. Each year, you will need to transfer cash to the ILIT. Your Trustee will need to notify the beneficiaries of your ILIT using the Crummey Letter method. After the Trustee has gone through the procedural steps necessary for the Crummey method, the Trustee will make the premium payment on the life insurance policy. It may be necessary for your trust to have a separate tax ID number and a separate bank account. It is also possible that your ILIT may require a tax return, though this is unlikely.

HOW DO YOU FUND AN ILIT?

An ILIT is different from many other irrevocable trusts in that it is funded on an ongoing basis. You fund an ILIT by making annual cash gifts using the Crummey Letter Method. The gifts are used to pay the premium on the insurance policy held by the trust.

CAN YOU CHANGE THE BENEFICIARY OF ILIT?

No. An ILIT is an irrevocable trust, and as such the beneficiary cannot be changed by the grantor.

CAN YOU TERMINATE AN ILIT?

An ILIT is an irrevocable trust and therefore it is not possible to terminate it outright. However, there is nothing that compels you to continue funding the ILIT. Thus if you wish to terminate your ILIT, stopping making contributions will achieve the same result, as the trust will be unable to make premium payments on the insurance policy, and the policies will lapse.

CAN YOU FUND AN ILIT WITH AN EXISTING LIFE INSURANCE POLICY?

Yes, although you should be wary of the IRS lookback rule. If you fund an ILIT with an existing policy, the IRS will look back three years, meaning that if you die within three years of funding the ILIT, the policy will be considered part of your estate rather than the ILIT.

WHAT TYPE OF INSURANCE POLICY SHOULD YOU HOLD IN YOUR ILIT?

The most commonly used type of insurance policy will be an individual life policy or a survivorship policy. An individual life policy is simply any policy that insures the life of only one individual. A survivorship policy (also referred to as a second-to-die policy) can only be used if both you and your spouse are still living. A survivorship policy will only pay out a death benefit after both spouses have passed away.

american dollar bills and vintage light box with inscription

Planning for Federal Estate Taxes

One important element of the estate planning process in Michigan involves recognizing those opportunities where one can limit the liabilities facing their estates. Most assume, however, that taxes are one expense they cannot avoid.

Yet that may not be the case. First and foremost, Michigan does impose a local estate tax on its residents. This means that there may be additional potential tax liabilities facing Michigan residents’ estates outside of the federal level. However, one might be able to limit that expense or even avoid those federal taxes entirely.

Understanding the federal estate tax exemption

A federal estate tax exemption exists that limits the tax liability estates may face. According to information shared by the website SmartAsset.com, the estate tax exemption threshold for 2021 is $11.7 million. This means that those estates whose total taxable value does not exceed that amount will not be subject to tax.

Leveraging estate tax portability

Married couples might be able to extend their exemption amounts even further. Tax portability allows eligible parties to share their tax benefits. In regards to estate taxes, one can claim the unused portion of their deceased spouse’s exemption.

To make the most of this benefit, one must plan to leave their entire estate to their spouse upon their death. This takes advantage of the unlimited marital deduction (which allows one to pass an unlimited amount to their spouse tax-free). This preserves their entire estate tax exemption, which (per the Internal Revenue Service) their ex-spouse can then claim by filing an estate tax return within nine months of their death electing portability.

One must remember to plan for this final step (as portability does not occur automatically). A failure to do so could inadvertently push the values of the surviving spouse’s estate above the threshold (making it subject to tax when it otherwise would not have been).

How Does LLC Ownership Work?

The limited liability company (LLC) is a popular business structure for new businesses, but what does it really mean to own an LLC? LLCs provide unique opportunities to customize business ownership to fit the particular needs and circumstances of the owners. Here is what you should know about LLC ownership.

The Basics

The owners of LLCs are often called members. If a single person or a single business entity owns an LLC, it is called a single-member LLC. If multiple people or entities own an LLC, it is called a multimember LLC. LLCs can have an unlimited number of members. When ownership is established, the membership interests are usually expressed in one of two ways: 

●     by membership units similar to corporate shares

●     by percentage

The terminology you choose to use for a membership interest should correspond to your vision for the company. For example, if the business is owned primarily by your family, identifying the membership interests by percentages may keep things clear and straightforward. However, if you intend to seek funding from individuals outside of the family, you may find that labeling the ownership interests as membership units facilitates the easy transfer of ownership rights. 

Establishing Ownership Rights

To be an LLC member, some form of contribution is required; however, the contribution need not be cash, which is called a capital contribution. LLC members can also contribute property or services. Additionally, unlike contributions to a corporation, when an LLC member makes a capital contribution, the concomitant ownership rights and distributions can be customized. For example, if one member were to contribute 40 percent of the capital in an LLC, that member and the other LLC members may still choose to split profits fifty-fifty.

Generally, LLC members are entitled to share in the company’s profits and losses, vote regarding key LLC matters, inspect and review the books, and enjoy a host of other rights.; however, they may be customized through contractual agreements. The contractual agreement that typically governs LLC ownership rights is commonly known as an “operating agreement.” Operating agreements may include the following common customizations:

●     distributing profits and losses in a way that does not match the members’ capital contributions

●     Who will manage Company Day-to-day Affairs

●     Voting

●     How additional members are added

●     Loans

●     Who is authorized to sign contracts

Management

LLC members can choose to be managed either by the LLC members (a member-managed LLC), or by nonowners or certain members designated as managers (a manager-managed LLC). When an LLC is managed, it is vital to identify and articulate the decisions for which the members bear responsibility and the decisions the managers must make. If the decision-making authority is not clear, the resulting uncertainty can hinder effective management of the LLC. 

Payment

LLC members can pay themselves in several ways, such as

●     receiving income in the form of distributions of profits at the end of the year, 

●     receiving draws, which are periodic payments based on the estimated profits for the year, or

●     receiving periodic payments as employees of the business.

These three methods are not mutually exclusive—a member can take advantage of more than one option. However, members must remember that each option has unique tax consequences. LLC members should account for Social Security and Medicare taxes. When LLC members pay themselves as employees, the LLC is expected to withhold taxes as it would for any other employee. Conversely, when members pay themselves based on their profits, they must pay self-employment taxes. Either way, LLC members must be mindful of the tax consequences of the payment methods they choose.

Next Steps

If you are considering creating an LLC, I can help you develop the right ownership structure for your business. Call Herbert Machnik to schedule an in person or virtual meeting soon.

the denver post office and federal court house

HOW TO PREPARE FOR AN ESTATE PLANNING MEETING

Setting up an appointment with an estate planner is a great first step to take when creating an estate plan, but what comes next? The legal industry can be confusing, and it’s hard to know how to prepare for your appointment. While your attorney should be available to answer any questions you have, it never hurts to prepare on your own. Utilize the following tips to ensure your first estate planning meeting goes smoothly.

LOCATE IMPORTANT DOCUMENTS

Bringing important documents to your first appointment helps your estate planner structure the financial and personal aspects of your estate plan. Documents and information you should bring with you include:

  • Financial documents, including retirement accounts, life insurance policies, and a list of assets
  • The legal names and addresses of all heirs or institutions you plan to name in your documents
  • A list of items, such as family heirlooms, you plan to leave to specific individuals

MAKE SOME DECISIONS IN ADVANCE

Making decisions before you meet with your estate planner can speed up the process of creating your documents. A large component of estate planning involves naming individuals to fill different roles in your estate plan. Deciding who you’d like those people to be in advance means you’ll be ready to go when your attorney asks who you have in mind for certain tasks, such as:

  • A legal guardian for any children who are minors
  • A personal representative to shepherd your estate through the probate process when you die
  • Medical and durable powers of attorney to make medical and financial decisions on your behalf in the event of a medical emergency or incapacitatation

TALK TO LOVED ONES AND THOSE LISTED IN YOUR ESTATE PLAN

Talking to the individuals listed in your documents is an important pre-meeting task to complete for several reasons. One, sharing that you’re working on your estate plan gives you the chance to explain the reasoning behind the decisions you’ve made. This can prevent family conflicts from occurring. Two, talking to the individuals you plan to have fill roles in your plan prevents those individuals from being blindsided when you need them. Being a legal guardian or personal representative requires taking on a lot of responsibility. It’s important to make sure the person you plan to name is up to the task.

HOW CAN Herbert machnik law FIRM HELP YOU?

Herbert Machnik Law Firm can help you with your estate planning, Medicaid planning and probate law needs. To contact Herbert Machnik Law, click here.

golden gate bridge san francisco california

Types of Divorce in Michigan

There are three basic divorce options available in Michigan. These are:

Simplified Dissolution of Marriage – Also called simplified divorce. It is available to couples who have lived in Michigan for at least 6 months, agree on the same terms, have no minor children and are not expecting one, and are not seeking alimony. Both parties must attend the final divorce hearing.

Uncontested Divorce – If the parties agree on all issues such as the division of property, debt, alimony, child support, and parenting plans, leaving nothing for the judge to decide, they can file for an uncontested divorce. In this case your attorney will draw up a Marital Settlement Agreement, and then either one or both parties will go to court for a final hearing.

Contested Divorce – If terms cannot be worked out amicably by both parties, then decisions must be made by a judge. Contested divorces take the longest because the case goes to trial and a judge has to go through every document to settle all disputes between the spouses. Both parties have to attend mediation required by almost every court in the State of Michigan.

How long does it take to get a divorce in Michigan?

How long it takes to get a divorce in Michigan will depend on the type of divorce you are filing for. The process of a simplified divorce usually takes 30 days to complete as long as there is a complete agreement on the terms of the divorce and it is uncontested.

In an uncontested divorce case, often parties will enter into a written settlement agreement, with the help of their attorney, prior to filing for their uncontested divorce. From the time of filing until entry of a final judgment of dissolution of marriage, an uncontested divorce could generally take around 4-6 months.

If the matter is contested, however, parties are looking into a much longer process, particularly if minor children are involved. In some Michigan counties, parties with minor children will be required to attend mediation. A contested divorce can take anywhere from 9 months to 3 years or longer to be completed, depending on the facts and circumstances.

Do you get your inheritance if your parents don’t have a will?

Most people don’t like to think about their own mortality or the idea that their parents will eventually die. However, having a friend or neighbor lose a parent can serve as a major wake-up call. You may start to wonder what the future will hold for you as you listen to them explain how stressful and frustrating going through probate court has been for their family.

You might find yourself worrying about whether you will have to endure the same kind of stress when your parents die someday in the future. How difficult handling their estate will be for you depends in large part on how carefully they plan ahead of time.

What happens if your parents die without a last will or estate plan?

If someone passes away without an estate plan on record, intestate succession laws apply to their property and debts. In Michigan, parents, spouses and children have the most significant inheritance rights when someone doesn’t leave a last will. There are rules that apply for both nuclear families and blended families where the parents don’t necessarily share parentage of the children.

In an intestate succession scenario, family members will need to put together information about the assets and debts held by the deceased party and submit that information to the Michigan probate courts. The courts will then oversee the administration of the estate to ensure that all debts receive proper repayment and all assets get distributed in accordance with state law.

An estate plan helps even if your parents want you to inherit everything

Maybe you don’t have siblings, and your parents just intend for you to inherit everything. Perhaps you do have siblings, and they anticipate that you will split everything evenly among yourselves when they die. Your parents might think that intestate succession laws offer enough protection for your family when they die.

Talking with your parents about the complications of going through probate without a last will could help. If they understand that the estate could lose significant value due to probate costs and that you and other beneficiaries will have major delays while waiting for access to those assets, that could motivate your parents to create a last will now to protect their wishes and your inheritance.

cars parked near mansions in city residential district in sunlight

Do I need a Death Certificate to Open an Estate in Michigan?

Given the unprecedented number of COVID- related deaths in Michigan, families are having to wait weeks for a loved one’s death certificate to be executed and returned. Even in ordinary times, death certificates are often delayed when an autopsy is planned or when there is a death investigation. Not only is the death of a loved one tragic, but family members may have the added concern about the delay in opening an estate. Often a family member may need to open an estate quickly in order to access funds in a bank account, pay a mortgage or other bills related to the decedent or to obtain insurance benefits.

Fortunately, in Michigan, you do not have to have a death certificate to open an estate. If no death certificate is available, the Probate Court will allow you to provide alternative documentation of the decedent’s death. This following documentation can be used as an alternative notice of death:

  • Obituary
  • Funeral notice
  • Memorial information
  • Probate notice or legal notice of publication in a newspaper
  • Newspaper or printed online article about accident or crime related death
  • Medical records
  • Letter from a funeral home or medical examiner’s office

The Probate Court needs to make a finding that venue is appropriate. In other words, the Probate Court needs information showing that the person was domiciled in the county in which you are opening an estate. Accordingly, try to make sure that the alternative documentation shows both the date of death and the place of residence of the deceased person. Alternatively, you could provide a copy of the person’s driver’s license or a utility bill to show the home address.

You should attach the alternative document to the Application or Petition for Probate. A short letter indicating why the death certificate is unavailable is also helpful to explain why the alternative documentation is necessary. Once you have filed to open the estate, you can file the death certificate with the Court at a later date.

Please do not hesitate to contact our office at (269) 459-1432 if you have any other questions about opening a probate estate in Michigan. Our office is able to conduct meetings remotely and accommodate the filing of documents during the Covid-19 lockdowns and uncertainty surrounding availability.

bare feet boy child couch

What to do if Children don’t want to go to Visitation with the Other Parent?

Once the Michigan family court has issued custody and parenting plan orders, you should do everything in your power to comply with these orders. Sometimes, the issue in executing a court ordered parenting plan isn’t an uncooperative parent, but a child who refuses to do visitation. It is usually in the child’s best interests to have a relationship with both parents, but there comes a point when you can’t force your child to attend visitation with their other parent. What are some options that are available to you to assist?

Reasons Children May Not Want Visitation with a Parent:

  • The child doesn’t get along with their other parent’s new partner or other children from separate relationships 
  • The other parent has strict household rules that the child doesn’t want to obey
  • The other parent lives far away from the child’s school, friends, and extracurricular activities 
  • Your child simply has never gotten along with the other parent
  • The child has resentment towards the other parent and blames them for the divorce. This can be an issue if you are the reason your child feels this way. Badmouthing your ex in front of your child is known as parental alienation, and evidence of this can be used against you in future custody proceedings. 
  • The child has an event they want to attend that is only possible at one parent’s household

Legal Reasons to Refuse Visitation with the other parent:

  • Parental incarceration
  • Substance abuse
  • Physical or emotional abuse
  • Sexual misconduct, including exposing the child to extreme sexual behavior
  • Parental kidnapping

Is withholding visitation against the law?

Unless there is an emergency situation, you should follow your court ordered parenting plan to the letter. Many parents assume they can withhold visitation if the other parent is behind on child support. There are plenty of methods to get a parent in arrears to catch up, such as wage garnishments, interception of tax returns and lottery winnings, suspension of driver’s and professional licenses, and property liens. Withholding child visitation isn’t on this list. 

There are plenty of other reasons that parents withhold visitation under the mistaken belief that they have legal cause to do so. You can’t deny visitation because the other parent doesn’t have a bedroom for your child at their house. You also shouldn’t withhold visitation just because the other parent is late or otherwise violates the court orders in minor ways. Don’t schedule a vacation with your child during your ex’s parenting time, as this isn’t a valid excuse to deny visitation. Illness also isn’t a reason to deny visitation, and you should alert the other parent if your child is hospitalized so they can attend visitation in the hospital. 

What Happens with Visitation if there is no court order?

Some parents choose to establish an informal parenting plan agreement without going through the courts. This works best when the parents are amicable and likely to follow the agreement. The drawback is that when the court hasn’t ordered the parenting agreement, the court can’t do anything to enforce it. Either parent can technically pick up the child at any time and go wherever they want. However, failure to follow an informal agreement can be used as evidence in a formal custody hearing that the parent is uncooperative in parenting plans.   

Do I Have to Force my Child to visit his Mother if he doesn’t want to go?

If your child confesses that the other parent is beating, molesting, or otherwise abusing them, obviously no one can tell you to send your child back into the arms of their abuser. Along with refusing visitation, you should also petition the court for supervised or no visitation at all. 

At some point, you probably won’t be able to physically force your child to do anything they don’t want to do. If you have teenagers, you already know this to be true. Courts will likely understand if you are able to show that you have attempted to comply with court orders, but based on your child’s age and maturity, you can’t force them to spend time with their other parent. The law doesn’t require you to tie up your child or drag them to force them to attend visitation. Saying your child refuses to visit the other parent works better when the child is 16, but doesn’t sound as believable if the child is 6. 

Strategies for Dealing with a Child who refuses Visitation with the Other Parent.

  • Find out why your child doesn’t want to visit with the other parent. Your child likely doesn’t understand the consequences of disobeying a court order. Asking why they don’t want to go, instead of simply ordering them to go, will give you insight into how you should best handle the refusal. Showing that you care and understand their situation could help convince your child to go to visitation. 
  • Document each time your child refuses visitation. Ask them the reason each time so you can list it. The other parent may bring you to court and accuse you of noncompliance with the court order, so you need to have evidence to defend yourself and your child’s wishes. The other parent may try to prove noncompliance on your part in future custody proceedings, which will hurt your position. 
  • Call the other parent when your child refuses, and try to have the child speak with the parent and explain why they are refusing visitation. The other parent may be more effective at convincing the child to cooperate, and that way the other parent can’t accuse you of intentionally disobeying court orders. Phone records and text messages are more difficult to dispute in court than word of mouth. 
  • Make pick ups and drop offs as stress-free as possible. Maybe part of the reason that your child doesn’t want to attend visitation is because you and your ex frequently argue during transitions. Do your best to hold your tongue and be the bigger person if your ex tries to incite you during custody transitions. If your child is leaving for an extended visitation, make sure their bags are packed and all other preparations are handled well in advance. Rushing all over the house and forgetting beloved items are avoidable things that can cause anxiety. 
  • Continue encouraging visitation. Don’t throw in the towel after one refusal. You should discuss your child’s cooperation with the parenting plan at times besides immediately before pick ups or drop offs.  
  • Remember that you are the parent. You are the one in charge, not your child. You know your child better than anyone, and maybe the soft, gentle approach doesn’t work for them. You may feel guilty for making your child do something that they don’t want to do, especially after the stress of a custody battle and/or divorce. 

herbert machnik Law firm may be the solution to your child refusing visitation.

After the stress of a custody battle, hopefully you won’t also have to deal with the recurring problem of a child who refuses to spend time with the other parent. If you do, it’s your duty as a parent to handle it in a fair way, not based on resentment and bitter feelings towards your ex. If you still have concerns about what to do with your visitation refusal situation, call Herbert Machnik Law Firm at 269-459-1432, or Contact Us Here, for your free consultation with one of our family law attorneys. Our attorneys have dealt with hundreds of cases where one parent or the other struggles with a child and the set visitation schedules.