So you died without a will, how much does your spouse get?

In Michigan, someone who dies without a will dies "intestate."  Without a will, the heirs are determined through the rules of "intestate succession." If the decedent died intestate, these rules determine who will ultimately receive the decedent’s intestate "probate" estate*.  There are several general rules of intestate succession, and I've highlighted just the couple that are probably  relevant to most of you.  First, there are statutory allowances for spouse and dependents that are taken off the top.

 Then, apply the following:

A spouse is given priority over the decedent’s other living relatives.  If there are no surviving descendants or parents of the decedent, the decedent’s spouse is the sole heir, even though the decedent may have left surviving brothers and sisters or other relatives.

A surviving spouse receives the following:

If a decedent leaves no descendants (children) but leaves a surviving parent, the surviving spouse is only entitled to the first $221,000 of the decedent’s intestate estate.  The surviving spouse then receives only three-quarters of the balance and the surviving parent(s) receives one-quarter of the balance.

If all of the decedent’s descendants are also the surviving spouse’s descendants (children), then the surviving spouse can receive the first $221,000 of the decedent’s intestate estate.  The surviving spouse then receives 1/2 of the remainder and shares the balance equally with the decedent’s descendants (children).  What this means in clear language is that if Dad dies, Mom inherits the first $221,000 plus 1/2 of the residue and has to give the rest to her kids.

Sound complicated?  It is.  Having a will can "override" the defaults of the law mentioned above.  If you want your surviving spouse to get everything -- You can do that, in a will (or trust).

* Probate Estate:  Those assets that do not pass by operation of law to someone designated to receive them (i.e. life insurance policy) and are titled in only the name of the decedent, thereby requiring a probate estate to be opened for the decedent.

 Do YOU need a will?  Call me.

Attorney Clay Wittman,   www.wittmanlegal.com

Probate and Estate Planning

Crime against nature

THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.158 Crime against nature or sodomy; penalty.

Sec. 158.
Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.

History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.158 ;-- Am. 1952, Act 73, Eff. Sept. 18, 1952
Former Law: See section 16 of Ch. 158 of R.S. 1846, being CL 1857, § 5871; CL 1871, § 7706; How., § 9292; CL 1897, § 11705; CL 1915, § 15479; CL 1929, § 16831; and Act 57 of 1923.

Just when State Marijuana laws were being eased . . .

With the trend throughout many states to loosen the penalties for personal Marijuana possession,  two teenagers in Washington State are being charged with Felony Marijuana possession.

Apparently, this past summer, the Washington State legislature made simple marijuana possession a FELONY for minors in their state.

Yet this is on the heels of that state legalizing adult recreational marijuana use and possession.

Who would have thought ?  ?  ?

Hopefully the legislature will address this gross disparity in the law.

Have you ever "Butt-Dialed" someone?

Do you know what that is?

Butt-dialing is when you put your cell phone in your pocket and the screen is not "locked", then when you move about, or sit down, you accidently hit the "redial" button, or a speed dial button.  Your phone then calls someone, who answers the phone and all they hear is silence, or a strange conversation.  The person who accidently dialed the phone normally has no knowledge that someone has been called.

But this article isn't really about the history of Butt-Dialing, but is about a recent 6th Circuit Appeals Court ruling that provides that a Butt-dialer has no expectation of privacy for any conversation being heard by the person being butt-dialed.  The 3rd party can even record the conversation.  The reason this case went to the Circuit Appeals court is that there are cases out there where the conversation overheard was used against those involved in the conversations in a criminal proceeding.

The 6th Circuit Appeals court opined that a butt-dialed conversation is the equivalent of leaving your blinds open, and it's not an invasion of your privacy for someone to look in the open window.

So if you want to ensure you don't butt-dial someone, make sure your phone is "locked" prior to putting in your pocket (or your purse).

If you are not a Michigan Resident and are stopped for speeding, kindly pay the officer $100

If you drive with a drivers license from out of state--ie non-resident (or you have friends visiting you with an out of state license) there is a little known law that requires the Michigan police officer, upon stopping you for a civil infraction (i.e. speeding) to TAKE YOUR LICENSE,  or TAKE YOUR $100, or TAKE YOUR GUARANTEED APPEARANCE CERTIFICATE.

Because I don't even know what constitutes a guaranteed appearance certificate, I'm sure most of you don't know either, and probably don't have one in your car.

The Bottom Line is this:  If a non-resident is stopped, the police will take their license unless they post a $100 "bond" to ensure that the driver will show up in court in Michigan.

For those who follow the law, you can find it at MCL 257.749

What you can do to get stopped by the police

Ok, so nobody WANTS to get stopped by the police, but it is surprising to me how often I see three common infractions of the law. Any of these infractions could be a reason for you to be pulled over.

1. Tinted windows.  Tinted windows for either the driver or front passenger are Illegal in Michigan (unless you have a doctor's note saying you require the tint).

2. Obscuration of your license plate.  How many cars have brown or black smoked plastic coverings over their license plate?  Looks COOL, but it is a violation of law.

3. Seatbelts.  Yes they are REQUIRED for the front-seat occupants in Michigan.  Local Police have set up special enforcement zones recently to ticket drivers who don't wear their seatbelts.  Oddly, occupants in the back seats that are 16 years old or older don't have to wear them.

How you WONT get a ticket.  Unmanned Red light cameras and Speed Cameras -- they are currently not allowed in Michigan.  Unfortunately,  this is also a prime reason we have so many red-light runners.  Those small cameras you see at intersections are NOT red light cameras, they are safety cameras that monitor traffic.  BUT, stay tuned, there are legislators in Lansing that want to make them legal state wide.

Don't get me wrong, I'm a big supporter of our police officers, but I'm also a Criminal Defense Attorney who wants to help you to be in compliance with the law, before you meet our police on the street.


Clay Wittman is a Criminal Defense Attorney in Kentwood, MI.
www.wittmanlegal.com

Do you know the laws about what you MUST do even if you only had "a reason to believe" you may have just been involved in an automobile accident?

The answer may surprise you.  As with any other area of the law, ignorance is no excuse.

The Michigan Motor Vehicle code provides us the answers in Sections 257.617 through 257.622.

First, if you know, or have reason to believe, that you had been involved in an accident resulting in personal injury or ANY property damage you must stop at the scene, or face a misdemeanor criminal citation.

Furthermore you MUST provide the following at the scene:

(a) your name and address, and the registration number of the vehicle he or she is operating, including the name and address of the owner, to a police officer, the individual struck, or the driver or occupants of the vehicle with which he or she has collided.

(b) Render to any individual injured in the accident reasonable assistance in securing medical aid or arrange for or provide transportation to any injured individual.

Again, failure to provide the information or help mentioned in (a) and (b) above could also result in a (another) misdemeanor criminal citation against you.

Furthermore, The driver of a motor vehicle involved in an accident that injures or kills any person, or that damages property to an apparent extent totaling $1,000.00 or more, shall immediately report that accident at the nearest or most convenient police station, or to the nearest or most convenient police officer.  Again, failure to do so, could result in a (another) criminal citation.

The BOTTOM LINE is this:  Stop even if you just think you may have hit something, or something hit you.  Render assistance to any injured party, and call the police.  If the police don't respond, exchange your personal information with the other driver.  Then call the police again!

Selling your car to a stranger? Seller BEWARE.

If you sell your Michigan-titled vehicle to a stranger, make sure you keep your license plates.  Also, if any way possible, accompany the buyer to the DMV to ensure the title is transferred to the buyer.  The last option (the much less preferred option) is to fill out the seller's portion of the title, sign it, and keep a photocopy of that title!

All too often I hear of someone who is being sued for an accident involving a vehicle that they sold many months (or years) ago.  As to be expected, when that vehicle was subsequently in an accident, the plaintiff's attorney will sue both the owner(s) of record, as well as the driver.  When the buyer doesn't transfer the title (may not have the money to transfer it), you are still on the hook as the owner of record, unless you can prove you sold it (reason for keeping a copy of that title).

But BY FAR, the best solution is to accompany any buyer of your vehicle to the DMV to make absolutely sure your name is off the title!

Should We Limit Police Access To Body Camera Footage?

Legislators in Oakland, California are proposing laws that would, when there is a incidence of violence with the police, prohibit a police officer from reviewing his "body" camera footage before he writes his police report.

Obviously, this is a hotly contested proposal.

Those for the law would argue that it forces an officer to write more truthful reports, as the video footage will show if the officer distorted the facts.

Those against the law would argue that what happens in the heat of the moment can only best be recollected by reviewing the video footage.

What do you think?

You can see the full article here, Copyright NPR:

http://www.npr.org/2015/05/01/403316673/oakland-laws-could-limit-police-access-to-body-camera-footage?utm_medium=RSS&utm_campaign=law

Serving Legal Notice via Facebook message?

In a March case out of Brooklyn, New York (Superior Court), a judge allowed a woman to "serve" her elusive husband a divorce summons via Facebook.

So does this mean that the future of giving notice of a lawsuit to the opposing party can be done electronically without consent from the party being served?  The answer is "no."  Without consent of both parties, the initial papers in a lawsuit are still "required" to be delivered to the opposing party by a form of personal service.  Or at least that you attempt personal service, unless that would be futile.  Most states then allow alternate service if personal service is not possible.

If you read the actual case out of New York, instead of just the headlines on the news services, this particular approval was given as "alternate" service, not as a "new" primary means of serving notice of the lawsuit.

In this particular case, the Plaintiff did not know where the Defendant was located, so she couldn't give him "personal service" (in person delivery of the court papers) or send him registered mail.  So the court allowed her to give "substitute service", which in this case, was via Facebook. 

As long as the substitute or alternate service is reasonably calculated, under all the
circumstances, to apprise a defendant of the lawsuit, it fulfills the requirements provided to us under established case law.  In this particular case, the Judge stated that a Facebook message met this requirement, as an alternate form of service.

Uninsured Motorists and how Police can find them

It is being reported that since last fall, all Michigan police departments have online access to insurance information from all automotive insurers in Michigan (updated by the insurers twice a month).  Every police officer in a cruiser can access this information via the cruiser's laptop by logging into LEIN (Law Enforcement Information Network). 

Case law provides that a police officer does not need any reasonable suspicion or probable cause to randomly run license plates through the LEIN database.  So what does this mean to you?

A police officer could stop you just because he ran your license plate through LEIN and LEIN showed that you did not have current insurance on your vehicle.  This could be a good thing to keeping uninsured motorists off the road, but it is not without its peril.

What if you changed insurers or just got your insurance three days ago?  That may very well NOT show up in LEIN as current insurance. That alone could give the police officer reason to stop you, when you in fact are insured. 

Because he had reasonable suspicion to stop you in the first place, what about a subsequent search?  What if he viewed an open container in the back seat?  What if smelled an illegal substance?

As for now, it is reported that some police departments will not use the LEIN insurance information as the primary reason for a stop, but they also state that they COULD if they wanted to.

The Durable Power of Attorney is a POWERFUL THING

Recent case out of the Michigan Court of Appeals.

Summary:  A son who was given power of attorney by his mother (currently in effect) sold a house for apparently half the market value, and the court held that he didn't need to get his mom's permission, because mom had given him the durable power of attorney to manage her affairs (including disposition of real estate).  Holding:  It is well established that an attorney-in-fact can sell his principal's real property if the attorney-in-fact has been granted that power in clear and direct language.

The legal summary of the case follows:

Issues: Whether there was a valid and enforceable contract for the sale of real property; Effect of the durable power of attorney.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Vansickle v. Warczinsky


Holding that there was a valid and enforceable contract for the sale of the real property at issue.

Defendant-Sharon Warczinsky owned the property. She appointed her son, codefendant-Frederick Warczinsky, as her lawful agent and attorney-in-fact. They signed a listing agreement for the property with a real estate broker (H). Plaintiff made an offer to purchase the property for $20,000.

Defendant, plaintiff, Frederick, and H participated in a conference call in order to discuss the offer. According to plaintiff, Frederick, and H, "defendant specifically agreed to sell the property for the purchase price of $20,000," and authorized Frederick Warczinsky "to sign the purchase agreement on her behalf."

The trial court considered the . . . defendant's grant of a durable power of attorney to her son. Despite defendant's affidavit that she never agreed to sell the property for the price offered and never gave permission to her attorney-in-fact to accept the offer, she did not challenge the validity of the durable power of attorney in effect at the time of the contract.

The durable power of attorney gave Warczinsky the unfettered power to sell defendant's interests in real property. It is well established that an attorney-in-fact can sell his principal's real property if the attorney-in-fact has been granted that power in clear and direct language." Thus, "the valid power of attorney and the purchase agreement signed by defendant's attorney-in-fact establish a valid contract as a matter of law." 

PROGRESS IN YOUR DIGITAL AFTERLIFE

As any savvy Estate Planning Attorney will tell you, one of the ongoing, but relatively new aspects to estate planning is what to do with your "digital life" after you pass away.  Until there is a federal law that provides relief on a National level, it is up to individual companies to provide an opportunity for your trustee or personal representative to access your accounts after you pass on.

Today, the Wall Street Journal announced that Facebook is now allowing you to name someone who can access your accounts after you pass on.

You can read the article at:

http://www.wsj.com/articles/facebook-heir-time-to-choose-who-manages-your-account-when-you-die-1423738802

Changes to Michigan's Criminal Expungement Statute

Changes to Michigan's Criminal Expungement Statute

Effective January 14, 2015. Public Act 463.

 

For those wishing to expunge (set aside) a Michigan criminal conviction in their past, some major changes occurred on January 14, 2015.

With the passing of Public Act 463, Individuals with a certain felony in their past (or misdemeanor) may be able to petition the court where the individual was originally sentenced.  If the conviction is expunged, there should be no public record of it ever happening.

Significant January changes included:

- Crimes that were deferred under one of Michigan's deferral statutes (i.e. 7411, HYTA) are now countable as a misdemeanor on your record for the purposes of Expungement.

- Up to two 93-day or 1-year misdemeanors (not just 90-day misdemeanors as in the prior law), may be on your record and still get one felony expunged.

 
- If you have only two misdemeanors on your record (no felonies) you may petition to get one or BOTH of them expunged.

- If your petition is denied by the convicting court, a person may file another petition concerning the same conviction or convictions with the convicting court 3 years after the date the convicting court denies the previous petition, unless the court specifies an earlier date for filing another petition in the order denying the petition.

With the passage of the current law, Expungement may be available to a wider group of individuals.

However, there are still significant details & restrictions involved, and not all felonies (or misdemeanors) will qualify to be expunged. 

 

Call Wittman Legal Services for more information.

Clay Wittman

616.965.2114

Voluntary Statements to the Police

As any experienced criminal defense attorney will tell you, never give the police a "statement", whether written or verbal, without the advice and consultation of an attorney.  Furthermore, most people know about "Miranda Rights" (you have the right to be silent, etc.), but some people misapply the "right" to be given Miranda Rights.

The Miranda warning (aka Miranda rights or Miranda rule), is the "warning" given by police to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.  If you are truly in custody, and the police don't give you your Miranda rights, then any statements given by you while in custody should not be admissible against you in court.

However, as recent as last week, in the Michigan Court of Appeals (Unpublished) case People v. Livingston, the court again reiterated that you are not required to be given the Miranda warnings unless you are in custody (or in custodial interrogation).  There are numerous factors to look at whether you were in custody, but a big factor is whether you are free to leave, free to terminate your discussions with police and leave their presence.

Here is a summary of the case:

 Detectives approached defendant in the middle of the day, informed him that he was not under arrest, and asked him if he would be willing to accompany them to the police station for questioning. He voluntarily agreed to accompany them and the detectives thanked him several times for his willing cooperation. Once at the station, he accompanied the detectives inside through the public parking lot and entrance. The record did not indicate that "he was ever handcuffed or otherwise restrained during the interview." Although defendant was "occasionally asked to sit down for security reasons, he was also permitted to stand, stretch, and reenact events related to the incident - including placing one of the detectives in a headlock." He was also offered several bathroom breaks, and, at the start of the interview, was told that detectives would drive him home after the interview was completed. Also, "when defendant asked the detectives what was 'holding' him there, they replied, 'Nothing.'"

The court held that the circumstances "did not rise to the level of creating an environment where a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave,'" and so "did not create the deprivation of freedom necessary to find that defendant was in 'custody' for Miranda purposes."

Therefore, those statements he made to Police can be used against him! 

Seek the advice of a criminal defense attorney BEFORE you voluntarily act on a police request for your statement.