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Probate for Decedent’s Estates in Michigan
Probate Courts in Michigan handle the process of transferring title to property owned by people at the time of death. The Probate Court also has jurisdiction when appointing guardians and conservators for minors and incapacitated individuals.
During our lifetimes, we are generally able to manage our property and financial affairs without having a court involved. However, at death, the Probate Court must transfer a decedent’s property in accordance with a Will or the laws of Intestacy, unless alternate arrangements have been made, such as establishing a trust, naming beneficiaries, or taking other steps to automatically transfer property at death without Probate Court supervision.
Wills Do Not Avoid Probate
Simply having a Will does not avoid probate. A Will gives the court instructions on which people should get which assets, and the Probate Court oversees the process of carrying out those instructions. But it also ensures that the laws have been followed, final expenses have been paid, and provides a place where creditors and heirs can make claims against the estate.
Role of the Probate Attorney
Michigan law does not require that an attorney assist with probate filings, but an experienced lawyer can help make the process go much more smoothly by ensuring that all of the state’s legal requirements are met, while assisting the personal representative carry out the wishes of his or her loved one. Because some inheritances can result in unintended consequences, an experience probate attorney will also help clients with post-death planning to examine alternative options that might achieve more favorable tax treatment or otherwise maximize the benefits to the survivors.
Opening a Probate Case
The first step in “probating” a Will is to open a probate case by filing the Will and other documents with the Probate Court in the county where the decedent last maintained his or her residence; if no residence was maintained in this state, then it would be filed in the county where the decedent’s property is located. For people whose last permanent address was in Grand Rapids, Byron Center, Lowell, Wyoming, Grandville, and surrounding areas, the Kent County Probate Court is where the petition would be filed. For probate estates for residents of Jenison, Hudsonville, Zeeland, Northern Holland, and surrounding areas, the probate petition should be filed with the Ottawa County Probate Court in West Olive. If the last residence was in Southern Holland, Saugatuck, Wayland, or nearby areas, then the probate petition must be filed in Allegan County Probate Court. Finally, a petition would be filed in Muskegon County Probate Court if the final residence of deceased individual was in Spring Lake, Fruitport, Whitehall, Montague, Norton Shores, Muskegon, and surrounding areas.
This step is usually done by the surviving spouse, child, or the personal representative named in the Will, but it may be done by any interested party, such as a creditor seeking to collect on debts of the decedent or a financial institution looking to distribute property of the decedent.
Appointing a Personal Representative
The Probate Court will then appoint a personal representative to carry out the terms of the Will, if there is one, or to administer the estate in accordance with the laws of intestacy if there is not. The personal representative (formerly called an executor or executrix) is typically the person named in the Will, unless an heir raises a valid objection, such as fraud. If there is no Will, then the court will typically appoint a surviving spouse, child or other next closest relative. If none of those can be located or none are willing or able to be the personal representative, the court will appoint an independent personal representative, who is usually an attorney or other professional fiduciary.
Duties of the Personal Representative
The personal representative is the fiduciary of the Estate. This generally means that the personal representative must hold and manage the assets of the Estate in a manner that provides the greatest benefit and least risk to the beneficiaries under the Will, the heirs under intestate succession or creditors of the estate. Therefore, a personal representative needs to understand and abide by the fiduciary duties required by law and the Will, such as a duty to keep money in an interest bearing account and to treat all beneficiaries equally. Failure to comply with these fiduciary duties could result in the personal representative being removed by the court and be held personally liable for any harm to the estate. Because a fiduciary is generally permitted to fulfill his duties by relying on the advice of an attorney, many personal representatives find that involving an experience probate attorney, like Attorney Shawn Eyestone, is a relatively inexpensive way to quickly administer the Estate and fulfill his or her fiduciary duties at the same time.
Assets, Debts, and Distributions
The personal representative’s first task is to take an inventory of the property of the decedent and collect any income. Before distributing any of the assets, the personal representative must pay any valid debts and taxes, including funeral and medical bills. Not all debts are valid, so a determination needs to be made for each claim against the estate. Following that, the costs of administering the probate estate are paid, including probate court fees. Finally, the remaining property is distributed to the beneficiaries named in the Will or to the heirs under the intestacy laws of the state if there is no valid Will. This process typically takes from five months to a year, depending on a number of factors, including the type of assets, amount and type of debt, the court docket, and the personal representative’s schedule. Some estates with a lot of real estate or other complicating factors remain open for a number of years while the Personal Representative and the Probate Court work through these issues.
However, the process can be drawn out much longer, as any party with an interest under the Will or through the laws of intestacy may challenge any aspect of the probate administration, such as Will contest challenging the validity of the Will, various claims against the personal representative, or demands by unnamed heirs against the named heirs or by the named heirs against one another.
Flat Fees for Uncontested Probate
Many times a lawyer experienced with the unique family dynamics of death and probate can address misunderstandings and confusion about the decedent and his or her wishes before they become unmanageable. Often those excluded from a Will simply want an ear to listen to their story, and by employing flat-fees for uncontested probate matters, we are able to provide a neutral ear of a caring probate attorney for those questioning the process and a calm voice and advocate for the estate without needlessly running up a large legal bill, as might occur if the legal fees were charged by the hour.