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Intestate Succession in Michigan

Posted by Andrew Byers | Mar 17, 2011 | 7 Comments

In Michigan, a decedent's heirs are determined by applying the rules of intestate succession. If the decedent died intestate, these rules determine who will ultimately receive the residue of the decedent's estate. There are several general rules of intestate succession that are used to identify heirs in all Michigan probate court proceedings.

First, a surviving spouse is given preferential status over the decedent's other surviving relatives.  If there are no surviving descendants or parents of the decedent, the decedent's spouse is the sole heir, even though the decedent may have left surviving brothers and sisters or other relatives. A surviving spouse is also given a dollar and share preference over the decedent's descendants and parents, as follows:

If a decedent leaves no descendant but leaves a surviving parent, the surviving spouse is entitled to the first $204,000 of the decedent's intestate estate. The surviving spouse then receives three-quarters of the balance and the surviving parent(s) receive one-quarter.

If any of the decedent's descendants are also the surviving spouse's descendants, then the surviving spouse is entitled to receive the first $204,000 of the decedent's intestate estate and shares the balance equally with the decedent's descendants.  This means that if Dad dies, Mom inherits the first $204,000 and has to split the rest with the kids.

If none of the decedent's descendants are descendants of the surviving spouse (they are the surviving spouse's stepchildren), then the surviving spouse is entitled to receive the first $136,000 of the decedent's estate and shares the balance equally with the decedent's descendants.

If the decedent leaves no surviving descendant or parent, then the surviving spouse is entitled to receive the entire intestate estate.

The above amounts must be indexed annually for cost-of-living adjustments. MCL 700.1210.  Note that there is no distinction based on the gender of the surviving spouse. In other words, there are no preferences given to widows over widowers with respect to intestate shares.

If there is no surviving spouse, the entire estate passes to the following individuals who survive the decedent in this order:

  1. The decedent's descendants.
  2. If there are no surviving descendants, the decedent's parents.
  3. If there are no surviving descendants or parents, the descendants of the decedent's parents, i.e., brothers and sisters, then nieces and nephews.
  4. If there are none of the above, half goes to the decedent's maternal grandparents or their descendants and half goes to the decedent's paternal grandparents or their descendants. If there is no one to take on one side of the family, the entire estate passes to the relatives on the other side.

A nonspouse intestate heir takes his or her share by representation. This distribution scheme is also called per capita at each generation. The estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains one or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

Michigan's Estates and Protected Individuals Code (EPIC) contains two key exclusionary rules to bar the decedent's distant relatives from inheriting an intestate share. These more distant relatives are not considered heirs of the decedent under the following principles:

Any distant relative of the decedent who is not a descendant of the decedent's grandparents (either maternal or paternal) is excluded from any share of the decedent's intestate estate. Any such relative is not an heir of the deceased.

When tracing lineage through the decedent's grandparents, if descendants are located in more than one generation relative to the decedent, the descendants in the more remote generation take by representation only.

As a corollary to this rule, if no descendants of either of the decedent's grandparents can be located, the decedent's intestate estate will escheat to the State of Michigan. Under EPIC, the state is considered an heir of the decedent if no relative can be found to take. In such cases, the Attorney General is an interested person in the estate.

Any heir of the decedent must survive the decedent for 120 hours. If a presumptive heir of a decedent dies within 120 hours following the death of the decedent, then that heir is deemed to have predeceased the decedent, the presumptive heir is not considered an heir, and he or she is not entitled to any share of the decedent's intestate estate.

The rules of intestate succession apply in the same way regardless of whether the property in the estate is real property or personal property. Under many states' law, distinctions were made between who was entitled to receive real estate and who was entitled to receive personal property.

Note that an adopted individual is the child of his or her adoptive parents and not of his or her natural parents for the purposes of intestate succession (except in the case of a stepparent adoption, in which case the adopted individual continues to be considered the child of the stepparent's spouse). A child born out of wedlock can be an heir and take by intestate succession when the man completed an acknowledgment of parentage, the man joined the mother in correcting the birth certificate, the man and child established a mutually acknowledged relationship of parent and child before the child was 18 that continued until terminated by the death of either, or an order of filiation establishing paternity was entered during the man's life. A child who is not conceived or born during a marriage will be considered to be “born in wedlock” if the parents marry after the child's conception or birth.

Does this seem complicated?  It is.  These laws have been refined by the Michigan legislature and courts over the years to respond to the many different personal situations that occur when someone never gets around to making a Last Will & Testament or Trust.   You can simplify this process by making a Will and/or Trust to override Michigan's default intestacy laws.  That way, your estate will pass as you decide. 

About the Author

Andrew Byers

Andrew Byers' elder law practice focuses on the legal needs of older clients and their families, and works with a variety of legal tools and techniques to meet the goals and objectives of the older client. Under this holistic approach, I handle estate and longevity planning issues and counsel cli...


Rodney Sr. Reply

Posted Dec 13, 2019 at 08:52:49

Is there a statute that clarifies at what time does an heir become owner of real property of the decedent through intestate succession? Immediately at the time of death or after everything goes through probate court?

Andrew Byers Reply

Posted Dec 13, 2019 at 14:00:02

In general, once a probate estate is opened and a personal representative is appointed, the personal representative holds titled on behalf of the estate until the real property is actually transferred to the heir with a deed. However, how the law applies to the facts of each case is very specific, so it is always best to meet with an attorney to review the entire situation and applicable documents in order to provide a more specific answer.

Kathleen Carter Reply

Posted Aug 25, 2020 at 15:44:58

Hi Andrew – In the case of deceased having no will, no children, spouse or parents and only one living sibling. Does the estate go solely to the one living sibling? Or if there are children of deceased siblings, would the portion that would have gone to living sibling, go to live children of deceased sibling? Much appreciated – dealing with a challenging situation – and having a confirmed answer to this would be very helpful! Thank you.
p.s. what about verbal beneficiary instructions the now deceased gave to a third party social worker that were never written down? Does that hold any weight under the law when determining beneficiaries?

Andrew Byers Reply

Posted Aug 27, 2020 at 14:06:40

Kathleen – in Michigan, the living sibling and the children of the deceased siblings would inherit under Michigan’s intestacy statute. The nieces/nephews would inherit the share of their deceased parent, i.e., if there is one deceased sibling who had two children, the children would each inherit half of the deceased sibling’s share.

As for your other question about verbal instructions, in general the law favors written instructions, but in order to give a complete and accurate answer further factual information would be needed.

Daniel Reply

Posted Aug 28, 2020 at 10:55:20

I assume that when unmarried decedent, in Michigan, having two children, is predeceased by one of said children, that child’s portion of intestate estate is divided amongst child’s living children? So two children, no spouse, estate is 50/50, one child is predeceased with five children. Now estate is 50% living child, 10% grandchild No. 1, 10% grandchild No. 2, 10% grandchild No. 3, 10% grandchild No. 4, 10% grandchild No. 5?
1 – 5 being grandchildren of original decedent, and the children of decedent’s predeceased child who was also unmarried.

Stacy Reply

Posted Oct 07, 2021 at 15:40:36

Same situation as Andrew only the decedent had 3 children, 2 predeceased the decedent, but with unequal children by each predeceased child. So, if living adult child #1 had three children & predeceased child #2 had 2 children & predeceased child #3 had one child. How is it divided? Is it divided percent wise by 3, then subdivided by grandchildren or does the ‘one’ grandchild of predeceased # 3 get the entire percentage of her predeceased parent?

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