MICHIGAN PROBATE ATTORNEY
A death in the family is difficult to handle by itself, let alone dealing with the related legal matters. Dealing with both is often overwhelming. In addition, the death of a loved one often creates some very difficult family dynamics. Our probate attorney understands these dynamics, and strives to counsel you in the probate process with skill and sensitivity. Our Michigan probate attorney can help you navigate the legalities of the probate process. We will help you properly administer the probate estate, or supervise the conduct of others who are administering a probate estate.
What Is Probate?
Probate can be a very confusing term. It is often used to describe both a place and a process. Probate as a place refers to Probate Court which is a specific division within the court system where one goes to seek assistance with winding up the financial affairs of a deceased loved one. An example would be the Wayne County Probate Court. Probate is also used as a verb to describe the process by which a person uses the Probate Court to assist with winding up the financial affairs of a deceased loved one. Within the legal community, probate as a process, is commonly referred to as “estate administration.”
During an estate administration (or probate), the Probate Court appoints a person to oversee the administration of the estate. This person is technically called the personal representative, although they are sometimes referred to as an executor. During the estate administration, the personal representative, among other things, supervises the collection of the deceased person’s estate, the payment of outstanding debts, and the distribution of the remaining property to heirs.
When Do You Need To Probate An Estate?
Probate is generally needed when a person leaves behind property or something of value that needs help from the Probate Court to reach the proper heirs. This is often the product of lack of estate planning. A home is a great example. When a person passes, their home needs to be transferred to their heirs. To do so, a deed must be signed to transfer the house. But with the owner gone, there is no one with the authority to execute the deed. This is where the Probate Court can help.
The Probate Court can appoint a personal representative who has the authority to sign the deed giving the home to the appropriate heirs. The same is true for bank accounts or other financial accounts. The personal representative is given the authority by the Probate Court to close the accounts and give the money to the heirs. Before the money is given to the heirs, however, the personal representative must ensure that the deceased person’s creditors are paid. The personal representative must do a host of other things before the property can be given to the heirs. These duties are discussed in more detail below.
How to Start a Probate
A probate in Michigan begins with someone formally requesting that an estate be opened. Generally, the request also asks the Probate Court to appoint a specific person to be personal representative. This is done by filing a host of pleadings and other documents with the Probate Court, including the deceased person’s last will and testament and death certificate.
In Michigan, this can be done “informally” or “formally” depending on the facts of the case. Informal probate, as the name suggests, is much simpler. It begins with the filing of an application with the Probate Court. Informal proceeding usually do not have any court hearings. Further, the estate is administered or handled without court involvement. A formal probate is more complicated and requires a court hearing. They are generally used in contested proceedings or where the parties want the court to oversee the process. Formal estates begin by filing a Petition with the Probate Court. A probate attorney can generally advise the best way to open the estate based on the facts of the case.
Testate or Intestate Estate?
What is the difference between testate and intestate? When someone dies with a valid will, their estate is said to be “testate” or a “testate estate”. In such cases, the last will and testament governs the distribution of the property and determines who will serve as personal representative. A well drafted last will and testament will also address issues such as bond, taxes, and may name a Guardian for minor children.
When a person dies without a valid last will, the estate is said to be “intestate” or an “intestate estate.” When a person dies intestate, Michigan law will determine who will get the person’s property. These rules or laws are sometimes referred to as the laws of intestacy, or the laws of intestate succession. In Michigan, MCL 700.2102(1) determines the intestate share that passes to the surviving spouse and MCL 700.2103 determines the share which will pass to other heirs. Further, if a person dies intestate, Michigan law will also determine who has the right to serve as personal representative or executor. This is found under MCL 700.3203.
In short, an intestate estate is subject to the default rules under Michigan laws of intestacy. A person can opt-out of these default rules by creating a last will and testament or revocable living trust. You can learn more about the difference between a will and trust on our free estate planning resources page.
How to Open a Probate in Michigan
Where to File a Probate?
The first step is to determine the appropriate county to file the application. This is called “venue.” In Michigan, this is generally where the deceased person resided at the time of his or her death. If the person resided outside of Michigan, it should be filed in the county where the deceased person’s property is located. So if the person lived in Detroit, the case would be filed in Wayne County. If the person resided in Florida, but owned land in Oakland County, then it would be filed in Oakland County.
Who May File the Probate?
Only an “interested person” may open an estate. Michigan law defines an interested person as (1) devisees (the named heirs of a will); (2) nominated trustee and current trust beneficiaries of a trust under the will; (3) heirs; (4) persons nominated as personal representative in the last will; and (5) trustee of a the deceased person’s revocable trust. Once the interested person files the necessary paperwork to open the estate they are referred to by the court as the “petitioner.”
Who May Serve As Personal Representative?
Generally, the petitioner requests that a personal representative be appointed for the estate. Michigan law dictates who has priority for appointment. The priority is as follows: (1) the person named personal representative in the will (if one exists); (2) the surviving spouse if the spouse is a devisee of the decedent; (3) other devisees of the decedent; (4) the decedent’s surviving spouse; (5) other heirs of the decedent; and lastly (6) after 42 days following the decedent’s death, the nominee of a creditor, if the court finds the nominee suitable. The person must also be 18 years or older.
Of note, persons with “priority” can waive or renounce their right to act as personal representative. This is done by filing a renunciation with the court. Also, a person entitled to be appointed personal representative may nominate another person to act as personal representative on their behalf. This is important because often a person with greater or equal priority may prefer that someone with lesser (or equal) priority serve as personal representative. This is common when a parent dies without a will and leaves two children. Each child has the same priority or right to serve as personal representative. One child may waive their right and allow the other to serve.
Additionally, a person who does not have the highest priority may send a notice of their intent to file a probate before filing to those people who have equal or greater priority. If proper notice is given, and nobody else files or objects to the petitioner’s appointment, the petitioner may be appointed Personal Representative.
If you are appointed personal representative the Probate Court will issue “letters of authority.” This is a court order that proves you have been appointed by the court to wind up the estate. Letters of authority are issued once the court or probate register is satisfied that the petitioner is qualified to be named the personal representative and the petitioner has filed a bond, if bond is required. In an informal proceeding, the letters are issued by the court register. In a formal proceeding, they are issued after the court holds a hearing.
What Does The Personal Representative Do?
Once appointed, the Personal Representative must administer the estate before the assets may be distributed to the proper parties. Among other things, the personal representative must:
- Locate, protect, and value all estate assets
- Notify the proper parties of the probate administration
- Prepare an estate inventory
- Calculate statutory exemptions and allowances
- Notify the deceased person’s creditors
- Pay proper claims
- Prepare an accounting and deliver it to the appropriate parties
- Transfer estate assets to the proper beneficiaries
- Prepare and file tax returns
- Make distributions
- Close the estate
The personal representative must also assess possible estate tax and inheritance tax, and, if available, explore opportunities to minimize such taxes. For more, see our Guide to Probate in Michigan and our Probate Checklist.
Cost of Probate
The Probate Court charges several different fees for a typical estate. First, there is the filing fee. This is the fee charged by the court to open the estate. Next, the court charges a fee to certify the personal representative’s letters of authority. Finally, the court charges an inventory fee which is based on the value of the estate. There are various inventory fee calculators available online. In addition to these standard fees, the Probate Court will charge an additional filing fee for motions and petitions.
The cost of probate in Michigan can vary dramatically, from relatively nominal to thousands of dollars. The cost largely depends on the complexity of the estate and whether there are any disputes regarding the estate.
Michigan Probate Lawyer
At Atlas Law, PLC, we are familiar with probate court and know how to navigate the probate process. Our Michigan office serves all of Southeast Michigan and Ann Arbor, including Oakland County, Wayne County, Macomb County and Washtenaw County. If you have probate law questions or need assistance with a probate, call us now!
We offer free consultations and flexible appointments to meet your needs, including weekends and after hours appointments.
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