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.

Reverse Mortgages and your Heirs

 

A Reverse mortgage is a financial vehicle that gives older homeowners income by leveraging the equity in their home.  I do not usually like reverse mortgages, for many reasons including the fact that they are burdened with high fees and charges and they allow the elderly homeowner to avoid paying both interest and principal on the loan (which add up quickly, some say exponentially, when it comes time to repay the loan). Because of these reasons, a reverse mortgage should only be used as a last resort so that the elderly homeowner can stay in the home.

 

Another reason I don't like Reverse Mortgages is the impact on your heirs or beneficiaries after the last mortgage holder dies.  Typically, these reverse mortgages have strict repayment rules after the holder's death.  Companies (under FHA rules) make the loan due on the last mortgage holder's death.  Some may give you time to either pay the mortgage from the estate (if there is money in the estate to pay it), or sell the house.  If you ignore the demand to pay, or can't pay off the loan, the reverse mortgage company may initiate foreclosure proceedings against the home.  Is this really something the personal representative or trustee signed up for?

 

For all these reasons, including the headaches that follow the death of the elderly homeowner, one should really look twice into whether a reverse mortgage is appropriate for them.

Adult Children on parent's Auto Insurance may not be Good

For Lots of reasons

Besides the legal liability that may extend to the parents from an adult child's negligence in an automobile, there are concerns also about the Michigan No Fault coverage for that child who is involved in a car accident.

The Michigan Court of Appeals last week re-affirmed a long standing application of the law.  It stems from parents who add children to their auto insurance policies, when those children no longer live with the parents.  Because they no longer live with the parents, they may not be treated as part of the household, and may lose No Fault "household" coverage for that reason.  More importantly, though, is that the children added to the policy are not the Primary Insured on the account, instead they are additional drivers added to the account.

The court held that as additional drivers added to the account, they were not "insured" for the purposes of being able to receive No-Fault benefits under Michigan Law. So, if those children also didn't get coverage for no longer being a member of the parents household, they may be completely out of luck under the Michigan No-Fault coverage.

Free Speech rights and your License Plates

Anyone who has applied for a vanity license plate knows that the DMV won't allow certain combinations of letters (or words).  Their policy often cites "public policy" or "safety" of our transportation system and citizens, or that a particular plate would be "offensive".

Recently in Michigan, a citizen sued the Secretary of State in Federal Court over an overbroad censorship of what could be allowed on license plates.  Guess what?  The Citizen won!  In fact, two Citizens won.

David DeVarti sued the MI Secretary of stated for the denial of his request for a "WAR SUX" license plate. The state defended their denial, arguing that "SUX" carries a sexual connotation inappropriate for a license plate.  The State in effect lost by settling the case.  The settlement required the state to issue the license plate AND to pay $21,500 in attorney fees to DeVarti.

Also, another lawsuit in Federal court asked for  issuance of the plate “INF1DL”.   It too, was initially rejected by the state, but after the lawsuit was filed, the state issued the license plate.

These are significant cases in that they go to the core of our First Amendment right to Free Speech.  There are certain times when certain speech should be restricted, but clearly the State of Michigan had gone too far in their restriction of free speech on your license plates.

Same-Sex Couples and Title to Their Home

Recently the Kent County Michgan Recorder of Deed refused to record a deed of a same-sex couple married in another state.  The deed was to convey their home to themselves as tenants by the entirety (a legal entity allowed only for a married couple).

Because Michigan does not allow or recognize same-sex marriages, Kent County was correct in not allowing the deed to be recorded, as is dictated by current law in Michigan.

So what's the big deal?

Tenancy by the entirety exists only if persons are married at the time the deed is recorded.  Any subsequent marriage will not create a tenancy by the entirety, but will instead default to tenants-in-common.  This is a key distinction, as there are no rights of survivorship when the property is held as tenants-in-common (there is also not the asset protection from creditors available for the home afforded to one spouse under tenancy-by-the-entireties). 

So what is a same-sex couple to do if they want rights of survivorship upon the death of one spouse?  As discussed earlier, even if a county in Michigan did record their deed as tenants-by-the entireties, it may very well be voided by the court and the home ownership would default to tenants-in-common.  Instead, a same-sex couple can get "joint tenants with rights of survivorship" simply by recording the deed in that way.  They won't get the home protection from creditors of one spouse as they would under tenants-by-the-entireties, but at least the surviving spouse would have full ownership, passing outside of probate, upon the death of the other spouse.

As we can see the writing on the wall, same-sex marriage will eventually be allowed in Michigan, as the current Michigan constitutional prohibition against same-sex marriage will probably fall under the next constitutional challenge.  When that happens, any married couple can (and should) consider home ownership under tenants-by-the-entireties.