When a person passes away, their assets must be disbursed according to their estate plan and, when applicable, state laws and probate. At the law office of Andrew Byers, our probate lawyer in Michigan helps personal representatives of Wills or beneficiaries of an estate through the probate process. Starting with identifying estate assets and ending with the distribution of assets and inheritances to the beneficiaries. Contact us by either using the online form or calling us directly at (248) 469-4261 to learn more.
What Constitutes Probate in Michigan?
Probate is the process by which a deceased person's assets and belongings, known as their estate, are passed on to their heirs and successors. In Michigan, matters related to Wills, estates, trusts, conservatorships, and guardianships are handled by the probate courts. Each county has a probate court.
Both the probate process and outcomes can look very different, depending on whether the decedent had a valid Will at the time of death.
The Early Stages of Probate
The probate process begins after the decedent passes away. A petition or application is filed with the proper court to have probate opened, a personal representative appointed, and if there is a Last Will and Testament, to have the Will admitted into probate. This stage requires someone to volunteer to act as the personal representative (formerly referred to as the executor) of the estate.
- If there is a Will, a personal representative will likely be named in it and that person will be appointed by the court, if they are willing to act as personal representative and nobody objects.
- If there is not a Will, state law provides who may act as personal representative.
Once the personal representative is approved by the court, the personal representative must:
- Notify the heirs;
- Publish notice for any creditors;
- Take inventory of the estate (e.g. bank accounts, retirement accounts, stocks and bonds, real estate, personal effects); and
- Secure all assets.
How probate proceeds depends on whether there is a Will or not.
Probate with a Will
If the decedent died with a Will, the Will must be found, filed with the court, and a copy must be sent to the "interested parties." The interested parties are:
- the devisees, the people who are named in the Will who are supposed to inherit.
- the trustee of any trust created in the Will.
- the heirs, who are the relatives who would inherit if there was not a Will.
- the people nominated to act as personal representative in the Will
An important point to note that is if someone is your heir, the personal representative is required to send them a copy of the Will even if you excluded them as being a devisee. For example, if the deceased person had a son and two daughters, and if the Will states the daughters are to inherit everything, the son still has to be sent a copy of the Will and some of the other documents filed in the probate court. One of the reasons for this is to give people who are heirs of the deceased person, but who are not named in the Will, notice that the estate has been opened in court so that they can contest the Will.
If there are no challenges to the Will, the personal representative must first produce an Inventory listing all of the assets in the estate. The next step is the personal representative deals with any debts of the estate. Once creditors are paid, the personal representative can turn to distributing the remaining assets to the beneficiaries in accordance with the Will.
If the Will is challenged, then court hearings will be required and the process may take much longer. The challenger has the burden to prove the Will's invalidity. Challenges are often based on allegations of undue influence, fraud, or misrepresentation. Challenges are also brought forward when there is believed to be another Will invalidating the Will offered to probate court.
When a Will is challenged, if the court later decides the Will is valid, the personal representative can pay debts, bills, and applicable taxes, and distribute assets. If the court decides the Will is invalid, it will apply the state's intestacy laws. On the other hand, if the court determines the other Will is valid, it will allow the personal representative to apply the valid Will (as opposed to the invalid Will).
Probate without a Will
If there is no Will, the decedent is said to have died intestate. This does not mean their assets will not be inherited, it just means their property will pass to their heirs through their state's intestacy laws.
Once the executor has located all the decedent's assets and notified and paid the creditors, the personal representative will apply the state's laws of intestacy and distribute the estate to the decedent's heirs.
The End Stage of Probate
Once debt and bills are paid and the remaining assets are distributed, the personal representative prepares an Account, which details all of the estate's financial activities. Then a sworn statement or petition is filed with the court to close the estate, which also has the effect of releasing the individual from the role of personal representative.
Do You Need a Probate Lawyer in Oakland County?
Whether you need a probate lawyer depends on how well the estate plan was set up, the complexity of the estate, and how comfortable the personal representative is in finding out and applying the law correctly. I represent the personal representative in their capacity as the fiduciary of the estate in order to help them comply with the legal requirements imposed on the personal representative and to help them settle the estate efficiently. Regardless, a probate lawyer offers important services that can help speed up the probate process. A probate lawyer can help with the:
- Determine if the Will is valid
- Identify the interested parties and ensure they receive the notice that is required under the law
- Collection of proceeds from life insurance policies
- Identification and securing of estate assets
- Appraisals for the decedent's real property
- Payment of bills, debts, and applicable taxes
- Resolution of any income or estate tax issue
- Preparation and filing of all documents required by a probate court
- Transfer of assets to beneficiaries
- Preparation of the Account
Contact a Probate Lawyer in Troy, Michigan Today
I am here to help you with your estate plan, so that it works as you intend when being probated. If you are the personal representative or beneficiary of an estate, we can also guide you through the probate process. If you have questions, contact the law office of Andrew Byers either online or at (248) 469-4261 to schedule a consultation with our probate lawyer today.