SUPERVISING YOUR LOVED ONE'S ESTATE... WHAT IT IS, AND WHY YOU MAY WANT IT

           When a decedent dies intestate, the Probate Court may order supervised administration of the estate at any time upon petition of any interested person and upon finding that supervised administration is necessary. MCL 700.3502(3).       

            Interested parties include family members, creditors, potential heirs or beneficiaries, depending on what estate documents, if any, the person left at the time of his or her death.

             Whether supervision is necessary is up to the judge, but, in general, you will want to show the parties cannot agree, there is a history or suspicion of mishandling assets or debts of the estate or there is a conflict of interest.   

            Supervised administration is a single in rem proceeding to secure the complete administration and settlement of a decedent’s estate under the court’s continuing authority that extends until entry of an order approving estate distribution and discharging the personal representative or any other order terminating the proceeding. MCL 700.3501(1). A supervised personal representative is responsible to the court, as well as to interested persons, and is subject to directions concerning the estate made by the court on its own motion or on the motion of an interested person. MCL 700.3501(2). Supervised personal representatives have the same duties and powers as unsupervised personal representatives except the power to make distributions of the estate without prior court order. MCL 700.3501(3), .3504.

SHOULD I STOP CONTRIBUTING TO MY RETIREMENT ACCOUNT?

Should I stop contributing to my retirement account since we’re getting divorced? If this question has ever crossed your mind, don’t feel like you’re being sneaky. You’re not alone – nearly every client who comes to our offices asks this question. If your divorce court has not already issued an order restraining either spouse from changing retirement contributions, which many do at the outset of the case, then you do have options; and, if you are not yet divorcing, you have even more. Of course, you should always discuss your options with an attorney and, preferably, a financial planner, too. But there are common, universal pros and cons to changing retirement contributions. Here are a few:

Enrollment/Plan Periods: Check your plan for defined periods of time in which you can enroll, terminate or change your contribution amounts. For personal retirement accounts unrelated to your employment, this may be as simple as changing your deposit amounts online or calling your account manager. For employer-provided retirement accounts, the process can be more cumbersome, and you may find yourself having to wait for the new period to begin, and filing out several forms when it does. Check your plan, and you may find out the decision is already made for you.

Bankruptcy: If you are contemplating bankruptcy, you may want to continue your contributions. Generally, the more you have set aside in your retirement account, the better, because your retirement savings are exempt from liquidation in the bankruptcy court. This means, you do not have to use your retirement savings to pay your creditors, and you get to walk away from them with most, if not all, of your retirement savings in-tact. Beware, however, that you cannot cheat the system by pouring all of your money into your retirement account; the bankruptcy court may void the additional contributions and give that money to your creditors. If either spouse is headed toward bankruptcy after divorce, therefore, you may want to continue contributions at the maximum allowed amount – after discussing your options and risks with your divorce attorney and your bankruptcy attorney, of course.

Available Funds: Contributions to your retirement account are generally non-accessible, at least, not without paying taxes and penalties and/or proving a hardship. If you need funds during your divorce to pay temporary bills, such as rent for an apartment or attorney fees, you may want to temporarily discontinue your contributions. However, every extra dollar you have is an extra dollar you could be paying to your spouse as alimony or child support, or to your spouse’s attorney for fees, and may be counted as income for calculating long-term child support, alimony or ability to pay bills. So, if you are going to free up your funds by temporarily discontinuing your retirement contributions, be sure the funds go to a legitimate debt, plan to resume your contributions as soon as practicable (probably after your divorce), and be prepared to explain what the extra boost in your income should not count for long-term calculations.

Contributing Too Much: Do not pour every dollar into your retirement account in an effort to avoid paying alimony or child support. The divorce court may, and often does, assume that you are upping the contributions to avoid a support obligation, which you probably are, and will treat you as if you still have the dollars in your pocket. This means, you will be required to pay support at a presumably higher level, even though you do not have the dollars actually available at net income, and you may find yourself dipping into retirement, and paying taxes and penalties to boot, just to pay the support you could have paid had you not decided to contribute more.

Two Dollars In, One Dollar Out: In most states, each spouse’s retirement account is divided for the marital portion, generally meaning the value that accrued between the date of marriage and the date of divorce. The portion may be equal, or more or less, depending on your state’s laws and the factors in your case, and a prenup or postnup may govern how much, if any, to actually divide. As you begin thinking through the divorce process, you should start with the assumption that every two dollars you put in will result in one dollar going to your wife. Talk to an attorney about each spouse’s rights to a share of the account, as well as the manner and method of division (Does the now ex get cash? Does the now ex have to wait until I retire? Etc.) But keep in mind that, even if    the account is divided equally, you still have funds, one dollar for every two, for yourself, too.

And what about your spouse’s accounts? The same pros and cons apply. Make sure you are watchful of what your spouse does, so you get what’s due to you.

DIVORCING IN THE GOLDEN YEARS AIN’T SO GOLDEN

Many folks, facing the quandary of having to divorce with children, would rather run the other way than battle through it. That is, they would rather wait for their children to be grown and divorce at that time, freed from a lot of what they perceive to be emotionally- and financially-draining work. After all, the process is, in most states, much shorter, child support is a non-issue, and there will be no need to explain why Mom and Dad do not live together. That’s the theory, anyway.

In practice, however, more often the opposite is true. There are many new and unique problems, and much of the same ones, for those who are divorcing in older-age.

New & Unique Problems

While one of the largest obstacles in a divorce, child custody, is out of the way, the process of divorce is not necessarily easier. In fact, the divorce process is often just as complicated, if not more complicated, the longer a marriage lasts.

There are many of the same procedures, such as the filing, the service, the pretrial conference, the investigation process, the settlement negotiations, the voluntary or court-ordered mediation, and the trial preparation. Subpoenas go to employers whether the spouse is married with kids or married and not supporting any kids. Witnesses are still interviewed. The same meetings before trial take place. Granted, there is no parenting evaluation, no interviewing the children for their custodial preference, and no custody issue, really. But that does not mean a couple simply says “I want a divorce,” and poof it’s done. Your attorney will still have work to do, much of it the same whether or not children are involved.

There are the obvious disadvantages. The longer a couple remains married, the more intertwined their assets become. These include retirement accounts, inheritances that have been applied to marital expenses, like the home mortgage, investment accounts, loans, etc. It can be down-right impossible to trace who contributed what when, and most judges are apt to divide everything equally no matter how much you argue that, for example, you made a down-payment on a home thirty-or-so years ago and can prove it. (To the judge, that you did not complain for thirty years is proof enough that you do not, really, want that money back.) Similarly, the longer the marriage, the more retirement money to be divided. Usually, this means the breadwinner has to give one-half, and in some states more, of his nest-egg to his ex.

And then there are the not-so-obvious, but dangerous, ones.

Take that retirement account example again. In most states, retirement accounts are divided equally between the parties for the value that built between the date of the marriage and the date of the divorce. Unless the couple depleted the accounts during the marriage, this means there is more to give-up in an older-age divorce than a younger-age divorce. And this, right when the spouse giving up that share is most likely to need it, at retirement age. Younger spouses have time to contribute to their retirement and effectively “make up” for what they lose as a result of divorce, but the same is not true, absent winning the lottery, for older-age spouses.

Consider health insurance as a second example. Those too young for Medicare and too healthy for Medicaid find themselves in limbo looking for health insurance when it is lost as a result of divorce. On the one hand, for group healthcare insurers covered under federal COBRA laws or state-equivalents, continuation coverage is an option. This means, the spouse who would lose insurance at divorce can elect to continue coverage for a certain period, usually three years or more, after the divorce. However, the price can be staggering, as much as 102% of the monthly premium, and prohibitive. For those without group healthcare coverage, the cost for private health insurance can be just as much, if not more, than continuation coverage and the policy laden with preexisting condition exclusions and waiting periods.

And, as a third example, consider housing. Unless you plan on living with your ex as roommates after your divorce, someone has got to leave the home. Or both of you. But where to? There’s your son’s or daughter’s home, but that will get uncomfortable fast. You could agree to live in the home until it is sold, then split the profits, but that could take many months, a year or more, and the profits, if any, will probably not get you each your single-dream-home. There’s apartment living, but the down-sizing is down-right daunting, and the cost to rent is often just as much, if not more, than the cost to buy. But try to convince the bank that you are mortgage worthy now that you are divorced and retired, and you’ll find yourself getting nowhere quick. Maybe you are a luck couple and have two houses, one for each at divorce. But, if you are like most couples, you have one home and cannot afford it to begin with.

And the list could continue. The point is, getting rid of the custody problem does not make your divorce any less problematic. In many ways, there are more problems to deal with, and less time and money to deal with them.

The Same Problems

Similarly, some problems exist whether you are twenty or sixty when you divorce.

Children are a big one. Custody may not be an issue in your divorce if you wait, but that does not mean your children will stay out of it. They will question you, and, if anything, they will be hurt more that you waited and “kept up a sham” or lied to them when they were younger. In some states, you will still be liable for child support for children in college or children with developmental or physical handicaps. And, in all states, they may still be called as witnesses to testify for or against you.

Emotional baggage is another. You might expect older, wiser adults to have wiser divorces, but that is simply untrue. Unless it is a truly mutual endeavor, which is rare, one spouse will be upset that the other spouse lied for years waiting for the “right” time to divorce, and this translates to an unwillingness to settle and a desire to do battle at trial.

Spousal support is another. You might expect a judge to decide that two spouses who are older, retired or retiring, in relatively good health and not required to support children, should accept living a down-sized retired lifestyle, from pensions and not spousal support. Not so. The judge will attempt to maintain a marital standard of living and will not expect both spouses to accept a retired lifestyle just because the one who wants a divorce wants to retired. This means that one ex-spouse, usually the husband, has to continue to work to support the other even though he intended to retire.

And this list, too, could continue.

If You Waited

If you waited to get a divorce, all is not lost. But there is some homework you should do with your attorney before your case concludes. At a minimum, you should:

Investigate community health insurance programs. Some counties have free- or low-cost insurance programs for residents who are too young for Medicare but unable to afford or obtain private insurance coverage. Most of these programs have income requirements, so be sure to structure your property division and spousal support payments to comply with them.

Prepare the family. Consult with a family therapist to learn the appropriate ways to tell your children that you have decided to get a divorce and answer their question why. If you and your spouse get a long, pick a time to do this together. Be honest and frank, but break the news to them gently, because they are still your children and, at a certain level, are to be treated as such even if they are adults.

Value the retirement accounts. Do not agree to divide your retirement accounts simply because the statute in your state says you might have to. If possible, you and your spouse should meet with a financial planner to review your options at retirement and get a better, more realistic picture of what it will be like after divorce. Spend the money on an expert to have all of the accounts valued. You may find that the values are comparable or that you can give a little more in other property, such as a bank account, to preserve your future stream of retirement income. Ask your attorney or financial planner to recommend an expert, or contact your benefits office for a recommendation.

Whatever you do, deciding to just wait is the worst choice. If you are thinking about divorce now, now is the time to consult with an attorney about your options, with and without children involved, when you are young and when you are old, how to prepare now, and what you should expect no matter what your age.