Michigan Elder Law Today ©

There are six tests or criteria that have to be met in order to qualify for Medicaid in a Michigan nursing home.

1.  Medical Need:    To be eligible for long-term care Medicaid benefits, the person must meet certain medical and functional eligibility criteria, i.e., they must need custodial care in a nursing home.

2.  Age or Disability:  the nursing home resident must be age 65 of, if not yet age 65, blind or disabled.

3.  Citizenship and Residence:  the nursing home resident must be a U.S. citizen or a permanent resident alien.  You have to be a resident of the State of Michigan; this criteria is met by having the intention to stay in Michigan.

4.  Income:  the Medicaid applicant's income from Social Security, pension and certain investment income must be $20.00 less than the nursing home's private pay rate.  For instance, if the nursing charges $220 per day or $6,600 per month, so long as your monthly income is $20 less than the $6,600 private pay rate, you meet the income criteria for Medicaid.  Note, if you are married, the income of the spouse who is not living in the nursing home, called the community spouse, is not counted.

5.  Assets:  the nursing home resident's countable assets must be less than $2,000.00 for at least one day of each month in which Medicaid benefits are sought.  If married, the nursing home spouse can have $2,000.00 in countable assets and the community spouse can keep a portion of assets called the protected spousal amount.  The protected spousal amount is one-half of the couple's countable assets, but at least $21,912 but no more than $109,560.00  For instance if a married couple has $80,000 in countable assets, without further asset protection steps being taken, the community spouse would only be able to keep $40,000.  Alternatively, the protected spousal amount can be set by a judge by filing a petition to increase the protected spousal amount.  In addition, certain trusts can be used to protected additional assets for the community spouse without causing any Medicaid problems.

6.  Application:  you have to apply for Medicaid, provide certain financial documentation and the Department of Human Services has to verify that you passed each of the first five tests.

We will review each of these criteria in more detail in future posts.

Andrew Byers is an Elder Law attorney in Auburn Hills, Michigan who assists seniors and their family with Medicaid nursing home benefits.

This is the first in a series of blog posts which will provide an overview of qualifying for Medicaid nursing home benefits in Michigan.

Long-term care is expensive, whether at home, in assisted living, or in a nursing home.  With nursing home care costing about $6,500 a month or more in the Oakland, Macomb and Wayne County areas of Metro Detroit, many people cannot afford to pay for nursing home care for a very long time.

These costs, for the most part, are not covered by Medicare.  They are, on the other hand, covered at least partially by long-term care insurance.  Unfortunately, few of today's seniors have such insurance.  Fortunately, the Medicaid program is there to help.  Medicaid is a government benefit program that pays for part of the cost of a senior's long-term care in a skilled nursing facility, but only if various income, asset and other criteria are first met.

Qualifying for Medicaid can be an extremely complicated process because Medicaid is a federal program administered by the State of Michigan. As such there is the federal Medicaid law, federal Medicaid regulations, Michigan Medicaid law, and Michigan Medicaid regulations that must be complied with. Medicaid is so complex that the United States Supreme Court has said the Medicaid Act is "an aggravated assault on the English language, resistant to attempts to understand it."

Medicaid's complexity causes problems for seniors and their families confronting the challenge of how to pay for nursing home care: well-meaning people give wrong advice that if relied upon, can cause a senior to become impoverished when they otherwise would not have had to.

My elder law practice is focused on helping seniors and their families navigate the Medicaid Planning and Medicaid Application process in Metro Detroit, but I also help clients located throughout Michigan. I guide my clients through the complexities of Medicaid and I help my clients take advantage of what the system has to offer and how to avoid the many traps and pitfalls.

First, it can be helpful to distinguish the Medicare program.  Medicare is the federal government's principal health care insurance program for people 65 years of age and over.  Medicare will pay for doctor and hospital bills and may pay for up to 100 days of skilled rehabilitation services in a nursing home.  Medicare may pay for all of the first 20 days of the skilled rehab. care.  If you still need rehab. in a nursing home after 20 days, Medicare will pay for part of an additional 80 days, but there is a significant copayment of $141.50 a day. This copayment will frequently be covered by a Medigap insurance policy, provided the patient has one.  After 100 days, Medicare pays for no further nursing home care unless a new "spell of illness" begins.  A new spell of illness can begin if the patient has not received skilled care, either in a skilled nursing facility (SNF) or in a hospital, for a period of 60 consecutive days. 

What is skilled rehab?  The classic example is physical therapy for someone who fell and broke their hip.  Another example would be someone who had a minor stroke and needs some physical therapy in order to regain their strength so that they can return home.  The difference between skilled rehab and custodial care is an important point.  Custodial care is assistance with the activities of daily living such as eating, bathing, getting dressed, transferring, help in the bathroom, medication management, and the need to be in a protective and secured environment.  People with dementia often need custodial care in a nursing home because they need lots of assistance with the activities of daily living.  Medicare does not pay for any custodial care for people with dementia, only skilled rehab.

Medicaid will pay for custodial care in a nursing home, but only after the six tests to qualify for Medicaid are met, which I will describe in the next post.

Andrew Byers is an Elder Law attorney in Auburn Hills, Michigan who assists seniors and their family with Medicaid nursing home benefits.

1. Thinking it's too late to plan. It's almost never too late to take planning steps, even after a senior has moved to a nursing home.

2. Giving away assets.  First, it's your money (or your house, or both). Make sure you take care of yourself first. Don't put your security at risk by putting your assets in the hands of your relatives. Precipitous transfers can cause difficult tax and Medicaid problems as well.  While a substantial amount of money and assets can be protected, transfers have to be structured just right to avoid a long Medicaid penalty period.  The Medicaid penalty period is the number of months that Medicaid will not pay the nursing home bill.

3. Ignoring important safe harbors created by Congress. Certain transfers are allowed without jeopardizing Medicaid eligibility. These include: transfers into a trust for the sole-benefit of a spouse, transfers to disabled children, caretaker children, and certain siblings.

4. Failing to take advantage of protections for the spouse of a nursing home resident. These protections include petitioning the court for an increase community spouse resource allowance and, in some instances, petitioning for an increased income allowance.

5. Applying for Medicaid too early. This can result in a longer ineligibility period in some instances.

6. Applying for Medicaid too late. This can mean the loss of many months of eligibility.

7. Expecting the government to protect your assets. The government will only tell you what you can't do, not what the law says you can do to protect your assets. In this day and age, we have to rely on ourselves and our family members to look out for our own interests and protect our assets, not the government.

8. Expecting the nursing home to protect your assets. The nursing home staff might help you fill out the Medicaid application, but their job is to provide care, not protect your assets. When a loved one is in a nursing home, you may need to rely on various professionals, such as the nursing home staff to provide care, and an elder law attorney to advise you on Medicaid and protecting assets. It is important not to confuse the roles. Just as you would not ask the elder law attorney a medical question such as "what is the proper dosage for a medication," is it really a good idea to expect the care staff and medical professionals at the nursing home to give you sound legal advice on Medicaid?

9. Not getting expert help. This is a complicated field that most people deal with only once in their lives. Tens of thousands of dollars or more are at stake. It is penny wise and pound foolish not to consult with experts who make their living guiding clients through the process. 

Andrew Byers is an Elder Law Attorney who assists seniors and their families in qualifying for Medicaid nursing home benefits in Oakland County, Macomb County, and Wayne County, Michigan.

"My friend said . . ."

All too often, we meet people who have been given wrong information about Medicaid from well-meaning friends, co-workers, family members, and even people who work in hospitals, nursing homes, or for the government. These stories are often filled with inaccuracies and half-truths that cause people to spend more than they should when they could in fact have qualified for Medicaid coverage for the cost of their long term care in a nursing home.

Similar stories have also prompted people to assume that what worked for a friend will work for them as well. So, they may put all their money into certain types of annuities or enter into certain funeral contracts in hopes that they will immediately qualify them for benefits. Unfortunately, they soon find out that these transfers mean they are unable to receive benefits for several months or even years because the Medicaid rules have changed and now prohibit them.

Medicaid is a government benefit program. If the senior who is now a nursing home resident paid federal income tax, Michigan income tax, and FICA payroll withholding taxes, that senior has supported the Medicaid program for others. It's a shame that if now, when the senior could use the assistance of the Medicaid program themselves, they do not utilize it due to bad information. That's why it is important to contact an elder law attorney who concentrates his or her practice in Michigan Medicaid Planning. With a clear picture of your specific situation, a Medicaid Planning attorney can explain those laws that should allow an individual or married couple to preserve their house and enough of their assets to live comfortably for the rest of their lives.

Have you heard this myths about Medicaid eligibility?

Myth:  If you're already in a nursing home, there is nothing you can do to protect your assets.

 Truth: There is no such rule. You may qualify now. The 36 month rule (which is now 60 months) is a disclosure requirement. You have to disclose up to 60 months of financial records and transactions, including any transfers, when applying for Medicaid, but you can still protect your assets, even if you're already in a nursing home.

Myth: You have to give away your assets to protect them.

Truth: You don't have to give up control of your assets to protect them and you shouldn't.

Myth: The law permits Medicaid to take your home.

Truth: Your home is not counted as part of the $2,000 countable asset limit so long as the equity in your home is below $500,000. However, Michigan's new estate recovery law will allow the state to seek reimbursement from your estate to recover Medicaid costs after your death.  However, the law also allows you to structure the title to your home so that you still own it and estate recovery is avoided at your death.

Myth: My father is in a Michigan nursing home and my parents have $90,000 in the bank. My mother has to spend it down to $2,000 before my father qualifies for Medicaid. How will my mother be able to live on $2,000?

Truth: Under the Medicaid Catastrophic Coverage Act, all of your parent's bank account can be protected without spending down to $2,000.

Myth: My mother is a widow, is in a nursing home and has $8,000 in a savings account and $23,000 in an investment account. A person at the nursing home said my mother has to spend down to $2,000 before she qualifies for Medicaid.

Truth: Even though your mother has already moved to a nursing home, it is possible that she may be able to keep 50 to 70% of these assets and still qualify for Medicaid.

Myth: I met with a caseworker at the Department of Human Services and they said my mother would not qualify for Medicaid until she spent down to $2,000. The caseworker did not mention she could keep 50 to 70% of her assets.

Truth: The state will only tell you what you can't do, not what you can do. The Department of Human Services will authorize Medicaid to pay when you qualify, but it's not the state's job to do Medicaid planning for you to help you qualify. The state has an interest in paying as little as possible, so other then telling you to buy a prepaid funeral or that there is a Community Spouse Resource Allowance, the state will not assist you with Medicaid planning. In this day and age, we have to rely on ourselves and our family members to look out for our own interests, not the government.

Myth: I am married and my husband had a stroke and had to move to a nursing home. We own a home and have $120,000 in the bank. The lady at the nursing home said I can only keep $60,000 before my husband qualifies for Medicaid.

Truth: You can keep the full $120,000 under the Medicaid Catastrophic Coverage Act. We cannot rely on big institutions like hospitals and nursing homes to give us proper Medicaid planning advice. The staff are well meaning, but their job is to provide care, not to know all the legal intricacies of the Medicaid law. Also, the staff in these for-profit institutions are very busy. They would like to help you as much as possible, but they have to spend most of their time are their primary duty, providing care. In this day and age, it is our responsibility to seek out professionals to give us proper legal or financial advice and not rely on big institutions.

Andrew Byers is an Elder Law Attorney who assists seniors and their families in qualifying for Medicaid nursing home benefits in Oakland County, Macomb County, and Wayne County, Michigan.

Many people believe that joint accounts are a good way to avoid probate and transfer money to loved ones, and such accounts are sometimes referred to as "the common person's estate plan." But while joint accounts can be useful in certain circumstances, they can have dire consequences if not used properly. Adding a loved one to a bank account, savings bond, or investment account can affect Medicaid planning as well as expose your account to the loved one's creditors.

When a person applies for Medicaid long-term care coverage, the state looks at the applicant's assets to see if the applicant qualifies for assistance. While a joint account may have two names on it, most states assume the applicant owns the entire amount in the account regardless of who contributed money to the account. If your name is on a joint account and you enter a nursing home, the state will assume the assets in the account belong to you unless you can prove that you did not contribute to it. Proving that would often require obtaining old financial records, which can be impossible to locate with all the financial institutions that have merged or gone out of business in recent years.  Even if you can produce the records, you will often have to have a hearing before an administrative law judge and, in some cases, may have to pursue an appeal in the circuit court.  As a practical matter, to have any chance of success, you would need the assistance of an attorney, so there will be attorney fees.

In addition, if you are a joint owner of a bank account and you or the other owner transfers assets out of the account, this can be considered an improper transfer of assets for Medicaid purposes. This means that either one of you could be ineligible for Medicaid for a period of time, depending on the amount of money in the account. The same thing happens if a joint owner is removed from a bank account. For example, if your spouse enters a nursing home and you remove her name from the joint bank account, it may be considered an improper transfer of assets.

Another problem with joint accounts is that the account is vulnerable to all the account owners' creditors. For example, suppose you add your daughter to your bank account. If she falls behind on credit card debt and gets sued, the credit card company can use the money in the joint account to pay off your daughter's debt. Or if she gets divorced, your account could get caught up in the divorce.  If the joint owner has a bankruptcy or lawsuit, your assets in the joint account could be lost.

In addition, you cannot plan for contingences with a joint account. For instance, your Last Will and Testament may provide that your assets are to be distributed in equal shares to your two children. The Will may contain a contingency provision that if one of your children does not survive you, that their share of the inheritance passes to their children.  That can make a lot of sense, because if your grandchildren’s parent is deceased, those grandchildren may certainly need the money if they are young.  However, if your bank account is a joint account or payable on death account, your grandchildren will not receive your deceased child’s share because under joint ownership, everything passes to the surviving joint owner, which, in this case is your other child.  Joint ownership overides a Will.  In a Will or Trust you can plan for such contingencies, including protecting assets for young beneficiaries or family members who become disabled.

Finally, you need to be sure you can trust the joint account holder because he or she will have full access to the account. Either account owner can take money out of the account regardless of who contributed to the account.

There are better ways to conduct estate planning and plan for disability. A power of attorney and Trust will ensure that a person of your choice can manage and access your assets for you if you become disabled.  If you are seeking to transfer assets and avoid probate, a Trust may make better sense. To learn more, contact our office.

Andrew Byers is an Elder Law attorney in Auburn Hills, Michigan and assisting clients with estate, long-term care and asset protection planning is part of his elder law practice.

Many people believe that Medicare covers nursing home stays. In fact Medicare's coverage of nursing home care is quite limited. Medicare covers up to 100 days of "skilled nursing care" per illness, but there are a number of requirements that must be met before the nursing home stay will be covered. The result of these requirements is that Medicare recipients are often discharged from a nursing home before they are ready.

In order for a nursing home stay to be covered by Medicare, you must enter a Medicare-approved "skilled nursing facility" or nursing home within 30 days of a hospital stay that lasted at least three days. The care in the nursing home must be for the same condition as the hospital stay. In addition, you must need "skilled care." This means a physician must order the treatment and the treatment must be provided daily by a registered nurse, physical therapist, or licensed practical nurse. Finally, Medicare only covers "acute" care as opposed to custodial care. This means it covers care only for people who are likely to recover from their conditions, not care for people who need ongoing help with performing everyday activities, such as bathing or dressing.

Note that if you need skilled nursing care to maintain your status (or to slow deterioration), then the care should be provided and is covered by Medicare. In addition, patients often receive an array of treatments that don't need to be carried out by a skilled nurse but which may, in combination, require skilled supervision. For example, the potential for adverse interactions among multiple treatments may require that a skilled nurse monitor the patient's care and status. In such cases, Medicare should continue to provide coverage.

Once you are in a facility, Medicare will cover the cost of a semi-private room, meals, skilled nursing and rehabilitative services, and medically necessary supplies. Medicare covers 100 percent of the costs for the first 20 days. Beginning on day 21 of the nursing home stay, there is a significant co-payment ($141.50 a day in 2011). This copayment may be covered by a Medigap policy. After 100 days are up, you are responsible for all costs.

Thinking about a time when you will need help taking care of yourself is not fun. That is why most people put off discussing long-term care until it can't be ignored. But it is better to start long-term care planning early. Here are some reasons to start planning now:

People are living longer and are more likely to need long-term care. Life expectancies keep increasing, which means you are more likely to need help at some point. At least 70 percent of people over age 65 will require some long-term care services at some point in their lives, according to the U.S. Department of Health and Human Services.

Care expenses are high. Whether you receive care in a nursing home or at home, expenses are rising. According to the 2010 MetLife Market Survey of Long-Term Care Costs, in 2010 the average cost of a room in a nursing home was $83,585 a year and home care aides averaged $21 per hour. Those figures aren't going to start going down. For 2011, the State of Michigan has determined the average cost of a nursing home in Michigan is $6,816 per month or $227 per day

Family caregivers may not be available. In more and more households, both partners work. In addition, children often move far away from their parents. This means that your adult children may not be able to easily take of you when the time comes.

The earlier you plan, the better. By planning ahead, you may be able to preserve your assets instead of using them all up paying for long-term care. In addition, if you plan early, you may have more options for care and may not have to worry about qualifying for Medicaid.

To start planning for long-term care, talk to your elder law attorney. Planning steps may include executing advance directives and a comprehensive power of attorney, putting assets in a trust, purchasing long-term care insurance, or creating a caregiver contract with an adult child. An experienced elder law attorney can help you figure out the best plan for you.

Andrew Byers is an Elder Law attorney in Auburn Hills, Michigan and assisting clients with estate, long-term care and asset protection planning is part of his elder law practice.

Many people use the terms Alzheimer's disease and dementia interchangeably, but they have very different meanings. Although dementia is a group of symptoms that include memory loss, the term itself doesn't explain what is causing the symptoms. Alzheimer's disease is the leading cause of dementia, but here are many other causes.

Dementia is a general term for memory loss that is severe enough to interfere with daily life. The signs of dementia may include forgetfulness, difficulty making plans, thinking ahead, or using language, as well as changing character traits, among other symptoms. Alzheimer's disease accounts for 50 to 80 percent of dementia cases according to the Alzheimer's Association, but there are other causes, including vascular dementia, Lewy body dementia, frontotemporal dementia, and Wernicke-Korsakoff syndrome.

Alzheimer's disease is a partially hereditary disease that causes a loss of brain cells. The symptoms start out mild but grow progressively worse over time. There is no cure, but there are medications that can treat the symptoms and slow the disease's progress. An early symptom of Alzheimer's is difficulty learning new information. It can then progress to more severe symptoms such as forgetting names and places, disorientation, mood and behavior changes, and an inability to relate to others. Eventually, it can lead to the inability to talk, walk, or eat.

Dementia, whether caused by Alzheimer's disease or some other underlying disease, is not a normal part of aging. If someone you know is exhibiting signs of dementia, they should get immediate medical attention to understand what is causing it.  As the dementia progresses, people often lose the ability to care for themselves and may need assistance with the activities of daily living such as eating, taking medication, bathing and getting dressed.  In many cases, it becomes unsafe for the person with dementia to be alone, resulting in the need for care at home, in an assisted living facility or nursing home.

House Budget Committee Chairman Paul Ryan (R-WI) has proposed a budget that would radically reshape both the Medicare and Medicaid programs and shift more costs to seniors and people with disabilities.

The proposed budget, aimed at shrinking the nation's deficit as well as the size of government, slashes $1.43 trillion from Medicare and Medicaid over the next 10 years, in part by bringing the curtain down on the popular Medicare program as we know it and by ending Medicaid's guarantee of nursing home benefits for seniors.

Here are the broad outlines of the proposed changes to Medicare and Medicaid and their impact on seniors.

Medicare: Starting in 2022, people who turn 65 or who qualify for Medicare because of a disability would not enroll in the current Medicare program but instead would receive a "premium support payment" (what many call a "voucher") to help them purchase private health insurance. Also beginning in 2022, the age of eligibility for Medicare would increase by two months a year until it reaches 67 in 2033. Because the plan also repeals the new health reform law's coverage provisions, many 65- and 66-year-olds would be uninsured.

Under the Ryan plan, future seniors would pay far more for health coverage than do today's beneficiaries, according to an analysis by the nonpartisan Congressional Budget Office (CBO). For example, by 2030 a typical 65-year-old would pay 68 percent of the total cost of her coverage, compared to the 25 percent she would pay under current law, the CBO calculates. In 2022, the typical 65-year-old Medicare beneficiary would be spending $12,500 a year out of pocket in today's dollars.

This new Medicare scheme would apply to anyone who is age 54 or younger at the end of 2011.

Medicaid: The House Republican proposal would turn Medicaid funding to states into a "block grant," something proposed by George W. Bush in 2003 and by Newt Gingrich in 1995. Rather than the current system, under which the federal government matches every dollar that states spend on Medicaid, under the House Republican plan starting in 2013 states would receive a fixed amount every year, which would only increase with population growth and the overall cost of living. The result, according to the CBO's analysis, is that by 2022 federal funding for Medicaid would fall 35 percent below what the federal government now is projected to provide states, and the shortfall would be 49 percent by 2030.

States would have to make up for this dramatic loss in funding by restricting eligibility for Medicaid (including nursing home coverage), reducing covered services, and cutting payment rates to health care providers. The result would be more uninsured or underinsured citizens, as well as doctors, hospitals, and nursing homes refusing to take Medicaid patients. It would be easier for states to make these changes than under current law because the Ryan plan would give states additional flexibility in designing their Medicaid programs.

Whether these proposals will become law remains to be seen.

“Aid and Attendance” is an income-tax free special monthly pension available to wartime veterans and their surviving spouses.  The monthly pension available ranges from $1,056.00 to $1,949.00.  The United States Department of Veterans Affairs (the VA) administers the program.  The receipt of these funds can help a veteran or their widow pay for long-term care without spending all of their money.  That is important, because once the older person’s money and assets are gone, their care options can be extremely limited.

One of the factors the VA considers when processing an application for Aid and Attendance is the amount of the claimant’s estate and net worth.  A “claimant” is either the veteran or their surviving spouse.  The VA’s rules define corpus of the estate and net worth to mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant, except the claimant’s home, including a reasonable lot area, and personal effects.  Personal property means all tangible property that is not land. 

In regards to a home, in general this means you can own a home and obtain Aid and Attendance.  However, if the home is sold, the cash proceeds received from the sale are countable and could disqualify a claimant from continuing to receive Aid and Attendance.  This can be avoided by transferring title to the home to a properly drafted irrevocable trust for VA purposes before applying for Aid and Attendance.  In regards to personal property, generally clothing and household furniture and furnishing would not be countable for Aid and Attendance qualification purposes.  However, personal property that could be considered an investment, such as a coin collection, would be countable.

In processing an application for Aid and Attendance, the VA will determine whether or not the claimant’s financial resources are sufficient to meet the claimant’s basis needs without receipt of the special monthly pension. If the VA determines that the claimant’s assets are sufficiently large that the claimant could live off the assets for a reasonable period of time, the clerk who is processing the application can deny it.  This is a subjective standard and there is no specific dollar amount that can be designated as excessive net worth.  The VA’s rules provide they are to consider the facts and circumstances in each case.  Variables to consider are the claimant’s income, expenses, life expectancy and the extent to which assets can be converted into cash to pay for the claimant’s needs.  These needs will typically include unreimbursed medical expenses, including the cost of home health care, assisted living care, or nursing home care.

As such, before applying for Aid and Attendance, it is a good idea to make sure the veteran or their surviving spouse qualifies first.  Do not apply to see what will happen, especially if you are acting as a fiduciary for an older person as their agent under a Power of Attorney or as successor trustee of their revocable living trust.  An elder law attorney who is also accredited by the VA can assist in calculating the claimant’s net worth for Aid and Attendance purposes before an application is submitted, thus increasing the chances that the application for the pension will be approved.  If a veteran who is living in an assisted living facility that costs $4,000 to $6,000 a month receives the monthly $1,644 Aid and Attendance pension, the receipt of these funds can help the veteran avoid becoming out of money, and out of options, thus enhancing their well-being by not having to move to another facility and avoiding a financial crisis in the family.

Andrew Byers is an Elder Law attorney in Auburn Hills, Michigan and is accredited by the U.S. Department of Veterans Affairs.  Assisting veterans and their surviving spouses with long-term care planning and Aid and Attendance are part of his Elder Law practice.

How do you access a safe deposit box after the owner passes away?  If the deceased owner (the “decedent”) had a safe deposit box, it may be a good idea to gain access to the box as soon as possible.  The Last Will and Testament or Trust and other documents needed to settle the estate can often be found in a safe deposit box.

Under Michigan law, safe deposit boxes jointly owned with another person are not sealed at death. The surviving joint tenant may gain immediate access. While this may be convenient, be careful in who you designate as a joint tenant on a safe deposit box because the joint tenant has the right to enter the box and remove any items in it, at any time.  Designate the wrong person and the jewelry, gold coins, or cash that “everyone in the family knows was in the box” may go missing for good. 

If you have a probate estate, the probate court may appoint a personal representative for your estate.  If the joint tenant is someone other than the personal representative, then both the joint tenant and the personal representative have full access to the box. If the box is jointly leased with someone other than the personal representative, however, the personal representative must open the box in the presence of the safe deposit company’s authorized employee.  Michigan law then requires that a list of items removed by the personal representative must be made and served on the other joint owner within seven days.  

What if the safe deposit box was just registered in the decedent’s name?   Then the law provides that even before a personal representative is appointed, any interested person, as defined in Michigan’s probate laws, may petition the probate court to open a safe deposit box to look for a will or burial plot deed.  However, to utilize this law you need to know the name of the financial institution and location of the branch where the safe deposit box is located and the box number.

The probate judge may issue the order immediately after a $10 fee has been paid. Once the order has been issued, the box may be opened in the presence of an officer or authorized employee of the bank. All those in attendance must sign a certificate stating whether a will or burial deed was found in the box and that no other items were removed. Items contained in the safe deposit box other than the will or burial plot deed may not be removed from the box.

The certificate and any will or burial plot deed found in the box are to be delivered to the probate register. The register issues a receipt for these materials to the bank where the box was found.

What if you are not sure if a deceased person had a safe deposit box?  In order to find out, an estate will have to be opened in probate court and a personal representative appointed.  A personal representative, once appointed, has authority to inquire of a bank if there was a safe deposit box and the bank is authorized to disclose that information to a personal representative.  The personal representative, once appointed, has full access to the box.