Q: What is Probate?
Probate is the process of settling one's estate after death.
There are other types of probate too, such as guardianship and conservatorship for people who are too ill or incapacitated to handle their own financial affairs and medical decisions, such as an elderly person who had dementia, a young adult who had a bad accident that left them incapacitated, or a middle-aged person with a serious illness.
In Michigan, the probate court also appoints guardians for children who are legally considered minors (under the age of 18) and whose parents have passed away or otherwise cannot care for them. For minors, the probate court also administers conservatorships for people under age 18 who have more than $5,000.00 in assets.
Q: Why would the probate court be involved in settling my estate if I have a valid Last Will and Testament?
Whether your estate has to be settled in probate court or not does not depend upon if you have a valid Last Will and Testament. Rather, the issue is if the deceased person owned property that was titled solely in their name at death. If that is the case, settling the estate in probate will most often be required. The reason for this is the deceased person can no longer draft checks on their bank account, sign a deed transferring their home, or call their financial advisor to sell a mutual fund. If such assets are titled solely in the deceased person's name, someone has to be appointed by the probate court to settle your estate. In Michigan this person is called the personal representative, though in the past this person was called the executor. The personal representative, after being appointed by the probate court, then has legal authority to take control of the deceased person's assets, safeguard them, pay the deceased person's income taxes and any final bills, and then distribute the assets that remain to the people the deceased person specified in the Will.
Elder Law, Estate Planning, and Probate attorney Andrew Byers helps people in Troy, MI and throughout Oakland County, MI including Royal Oak, Clawson, Berkley, Huntington Woods, Rochester Hills, as well as throughout the metro Detroit area, including Macomb County and Wayne County, Michigan.