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 Michigan probate attorney understands these dynamics, and strives to counsel you in the probate process with skill and sensitivity. Our firm can help you navigate the legalities of the probate process. We will help you properly administer the probate, or oversee the conduct of others who are administering a probate.
Our attorney has years of experience guiding families through the probate process in Michigan. Regardless of the complexity of your situation, Atlas Law, PLC is here to help you!
Call us today for your free consultation (248) 773-5555. We also offer virtual consultations!
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. 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 “administration.”
During administration (or probate), the Probate Court appoints a person to oversee the administration of the probate. This person is technically called the personal representative, although they are sometimes referred to as an executor. During the administration, the personal representative, among other things, supervises the collection of the deceased person’s assets, the payment of outstanding debts, and the distribution of the remaining property to heirs.
When Do You Need To Open a Probate?
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. Probate can generally be avoided with the help of an experienced estate planning attorney. 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.
Should You Hire A Probate Attorney
Handling an estate with the probate court can be difficult. There are various pleadings that need be filed to open the estate, along a host of other pleadings that need to be filed thought the estate’s administration. Each pleading needs to be filed at the appropriate time and in the proper order. Hiring an experienced probate attorney can help you avoid pitfalls and unnecessary mistakes during the process. This, intern, will help ensure you have less court hearings and a smoother estate administration.
How to Start a Probate
A probate in Michigan begins with someone formally requesting the court to open a probate proceeding with the court. 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. The process generally goes much smother with the help of a probate attorney.
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 probate 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 probate cases begin by filing a Petition with the Probate Court. A probate attorney can generally advise the best way based on the facts of the case.
Testate or Intestate?
What is the difference between testate and intestate? When someone dies with a valid will, it is considered “testate”. 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, they are considered “intestate”. 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. A person can opt-out of these default rules by setting up last will and testament or creating a revocable living trust. An experienced attorney can help you understand the difference between a will and trust.
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. Accordingly, 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 a probate. 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 the deceased person’s revocable trust. Once the interested person files the necessary paperwork to open the probate 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. 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.
Letters of Authority
If you are appointed personal representative the Probate Court will issue “letters of authority.” This is a court order that proves you have the authority to act as personal representative. 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 the probate is opened, the personal representative is required to settle or administer the deceased person’s affairs. Below is a list of some of the personal representative’s responsibilities:
Gather and Manage Assets
The personal representative must gather and control all assets which belonged to the decedent at the time of his or her death.
Provide Notice to Heirs
After being appointed, the personal representative must mail notice of his or her appointment to the heirs and devisees.
Notice to Creditors
The personal representative must also notify all of the deceased person’s creditors that he or she has passed away. Typically, the personal representative must publish a notice to creditors in a local newspaper. In addition, notice of the death must be mailed to all known creditors. The gives the creditors an opportunity to submit their claims.
Determine Statutory Allowances
It is the personal representative’s obligation to determine whether any statutory allowances must be paid. In Michigan, statutory allowances include a homestead allowance, exempt property allowance, and a family allowance.
The personal representative must prepare an inventory or list of the decedent’s assets and their values. The inventory must also be delivered to the court and the heirs. In Michigan, the probate court charges an inventory fee based on the value of the probatable assets. Your lawyer can assist in calculating this fee.
Pay the Decedents Debts and Expenses
The personal representative must determine which claims and expenses are valid under Michigan Law. If there are not enough assets to pay all debts and expenses, you must determine which debts and expenses should be paid first according to Michigan law. The rules regarding creditor claims are highly technical. Thus, you should consult with a Michigan probate attorney prior to paying creditor claims.
The personal representative must also ensure that all taxes are paid and that all tax returns for the decedent are prepared and filed. This applies to both state and federal taxes.
Distribute Remaining Assets
After payment of all debts and expenses, the remainder of the assets may be distributed to the heirs. The heirs may vary depending on whether the decedent died with or without a will. If there are not enough assets to make the gifts as set forth in the Will, it is the personal representative’s responsibility to determine how the distributions should be made under Michigan law. A probate attorney should assist in this process, as the rules governing distributions can be complicated.
Close the Probate
Finally, the personal representative must close the probate. There are several methods available to the personal representative to close the probate. The simplest method is to file a Sworn Statement. This process is relatively simple, but does not provide the personal representative with any protections. Generally, the safest way is to file a Petition for Order for Complete Settlement. This asks the court to formally review the pleadings and approve the personal representative’s work.
The personal representative must also assess possible inheritance or gift tax, and, if available, explore opportunities to minimize such taxes. With the help of a probate attorney, these tasks are often much easier.
Cost of Probate
The Probate Court charges several different fees for a typical probate. First, there is the filing fee. This is the fee charged by the court to open the probate. 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 assets which are being probated. 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 matter and whether there are any disputes.
Probate Court Forms
The court’s website provides a collection of probate forms approved by the Supreme Court Administrative Office. These are sometimes referred to as SCAO forms. The website also provides guidance as to how the forms should be completed. Please note, however, the Court staff is prohibited by law from providing legal advice and is not allowed to assist you in completing the forms.
Probate Checklist: What to do After a Death
Dealing with the death of a loved one can be an overwhelming and emotional experience. From making funeral arrangements, closing accounts, consolidating debts, securing property, opening a probate, to the more obscure tasks of cancelling voter registration cards and subscriptions, it can be difficult to balance the broad range of responsibilities. In an effort to alleviate some of the confusion and help you navigate this difficult time; we created a checklist of what to do following the death of a loved one.
Probate Checklist PDF
Michigan Probate Lawyer
Probate Court is not a fun place. It is costly and very time consuming. It also places a tremendous burden on loved ones who are already grieving from their loss. Let us help! If you need help from an experienced Michigan probate lawyer contact us today. We can help you navigate your case through the probate court.
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