Legacy Law Blog

Probate, the legal process through which a deceased person’s estate is administered, can often feel like a daunting process, especially for those navigating it for the first time.

You’ve probably heard many stories in the news about a famous person passing away and the family fighting in court. It happens all the time. But it’s a vastly different experience when someone in your own family passes away and you might have to handle their assets.

Probate in Michigan, as in many other states, includes settling debts, distributing assets, and ensuring that the decedent's wishes are honored according to their will or, in the absence of a will, according to state law.

Below is a broad overview of the Michigan probate process and what you might expect if you and your family have recently lost a loved one.

What is Probate?

Probate is the legal process to validate a deceased person’s will (if one exists) and oversee the distribution of their assets. The process is generally conducted in the probate court, which also handles matters related to trusts, guardianships, conservatorships, mental health proceedings and a limited variety of other matters.

Key Steps in the Probate Process

1. Filing the Will and the initial Application/Petition: The process begins when an interested party (usually, but not always, a family member or someone named in the will) files the will and certain other documents with the probate court.
2. Appointing a Personal Representative: The court will appoint a personal representative (that’s the Michigan term for an executor) to manage the estate. If the decedent had a will and named a personal representative, that person has top priority, unless there are good reasons to appoint someone else.
3. Inventory of Assets: The personal representative is responsible for compiling a detailed inventory of the decedent’s assets. The inventory will show the total value of the decedent’s assets as of the date he or she passed away. Occasionally, depending on the particular asset, this might require an appraisal or other estimate of value.
4. Paying Debts and Taxes: Before distributing assets, the personal representative must pay any outstanding debts, taxes and expenses associated with the estate. Creditors usually have a limited period to submit their claims, so it is crucial to be aware of those timelines.
5. Distribution of Assets: Once debts are settled, the remaining assets can be distributed to those people or entities as specified in the will, or, if there is no will, according to Michigan law. The absence of a will is called being intestate, and therefore such assets would pass under Michigan intestacy law.
6. Closing the Estate: The final step involves submitting a final account with the probate court and/or the interested parties and obtaining approval to close the estate. This happens after the personal representative has administered the entire estate and there is no more work to be done.

Types of Probate in Michigan

There isn’t a one-size-fits-all probate process in Michigan. State law allows for several different types of probate proceedings. An experienced probate attorney can help to determine which process is best suited for your particular case:

Formal Probate: This process can be used when there are disputes, complexities, or when you don’t have the original will. It is usually more time-consuming and intensive because it often involves multiple court hearings before a judge. The benefit is that you have the judge sign off on actions, which is an important backstop if there are contested issues.

Informal Probate: A relatively streamlined process which can be used when the will is uncontested, and all parties agree on the proceedings. This is generally faster and less costly. Importantly, you can mix and match between informal and formal probate if it suits your case.

Small Estate Proceedings: For estates valued below a certain threshold (currently $50,000, which is indexed for inflation), Michigan allows a simplified process that bypasses the probate court. The small estate process has other restrictions, but it can be quite useful and efficient if handled correctly.

Key Considerations

• Duration: Probate can take anywhere from several months to years, depending on the estate’s complexity and any potential disputes among heirs.
• Costs: Probate involves court fees, attorney fees and other administrative costs, which can reduce the estate’s overall value.
• Privacy: One downside of probate is that it is a public process. Wills and court filings are generally accessible to the public, which may expose personal financial information such as the value of certain assets or who is entitled to receive property.

Is There a way to Avoid Having to go Through the Probate Process?

This is one of the most common questions probate lawyers are asked. While probate might be necessary in some cases, there are strategies that you can do now, during your lifetime, to help your family avoid probate when you pass away:

• Living Trusts: Assets placed in a revocable living trust can bypass probate, allowing for a quicker and more private distribution to beneficiaries.
• Beneficiary Designations: Accounts like life insurance policies, retirement accounts, payable-on-death bank accounts, and even Michigan real estate, can all pass directly to named beneficiaries.
• Joint Ownership: Property owned jointly with rights of survivorship can automatically transfer to the surviving owner upon death, avoiding probate.

Conclusion

Navigating probate in Michigan can be complex, but it can help to understand the basics. Whether dealing with a straightforward estate or a more complicated situation, consulting with an experienced probate attorney can provide invaluable guidance and help to ensure that the wishes of the deceased are respected.

If you’re facing the probate process, consider reaching out to legal professionals who specialize in it. They can help demystify the process and offer personalized advice based on your unique circumstances.