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The word “probate” refers to the administration of a deceased person’s estate.  If a person dies leaving a valid will, then their estate is distributed in accordance with the provisions in their will. If a person dies without a will, this is called dying "intestate," and their property must be distributed in accordance with the provisions of the state’s "intestate succession" law.

The term "heirs" refers to those persons entitled to the property of the deceased under the "intestate succession" law. There is a very specific "order" in which property will be distributed to a person's family, if a person dies without a will.  It is roughly: surviving spouse (if any), then children, then siblings, etc.  Note that non-related individuals (live-in companions, "significant others," caretakers, non-adopted step-children) have no rights of intestate inheritance from a deceased under the law of Michigan.  Only an attorney can analse and explain to you how the laws of "intestate" inheritance will be applied in your specific situation.

In order to make sure that your property is distributed in the way that you want after your death, you must have written "estate planning" documents in place, such as a Will or Trusts or Deeds, etc. Without this, the laws of the State of Michigan will decide who gets your property.

If a deceased person owned no property titled in his or her name alone, then there is no property to administer and no need for probate. For example, if spouses own all of their property together as husband and wife, then upon the death of the first spouse the property passes automatically to the surviving spouse without the need for probate. However, cars, houses, bank accounts, stocks, bonds, etc. that were in only the deceased's name will require the opening of a probate estate in order to be distributed.

In Michigan, probate administration is under the "jurisdiction" (authority) of the probate court, which is a "county" court.  Several detailed forms, documents, and "sworn statements" must be filed with the probate court in order to open an estate. These forms are often complicated and time consuming. The family of the deceased person is not required by law to have an attorney to open an estate. However,   most people find it is much easier and faster to have an experienced lawyer handle the legal paperwork involved in administering an estate.

When the estate is opened, a. "Personal Representative" will be appointed to "administer" the estate, which means sign the documents, pay the deceased's debts and distribute the property.  "Personal Representative" is the term used under Michigan law for the position which was formerly called the "executor" or "administrator".  Most wills will specify who the Personal Representative will be. It is usually someone close to the deceased, and may or may not be a family member. Generally, this is an unpaid position, although the Personal Representative may be reimbursed for expenses incurred in executing his or her duties.

When a person dies without a will there is an order of priority established by the court as to who would be a suitable Personal Representative.  It is roughly: surviving spouse (if any), then children, then siblings, etc. However, the family can "agree" on any party, as long as they sign the necessary releases. Often a survivng spouse is too upset or too elderly to be comfortable acting as Personal Representative, and they may defer to one of their children.

The Personal Representative is granted "Letters of Authority" that allow him or her to sell property (such as cars and houses), access safe deposit boxes, etc. It is the duty of the Personal Representative to first pay the debts of the deceased out of the proceeds of the  estate, including burial expenses. Then the Personal Representative must distribute the assets in strict accordance with the will - or if there is no will, in strict accordance with the laws of "intestate" inheritance.

Probate proceedings are generally public in nature. In most circumstances, anyone can examine the court files t review a deceased person’s estate. This is done by simply going to the probate court for the county where the individual resided at the time of death, and asking to see the file. Copies of all documents (except "vital records" such as birth certificates) can be made for a nominal charge.

There are certain filing fees involved in opening an estate, a "notice" to creditors must also be published properly in the newspaper, and the court will also require the filing of an "Inventory" of property and annual and final "Accountings." The court also must be satisfied that all "interested parties" have been served with proper notice of the proceedings. And in many cases certain "releases" will have to be obtained.  It is a time consuming and often tedious process that can take many months.

Because of the complex and detailed legal nature of administering an estate, the largest expense is often the attorney fees. Attorneys generally charge by the hour for probate work, and will want a "retainer" or down payment before beginning.   These fees may sometimes seem very large to someone who is unfamiliar with probate administration. However, once most people experience how much is involved in administering an estate, they understand the need for these fees.

Many people are now attempting to avoid probate entirely, to avoid legal fees and to make it easier for their surviving family. "Living Trusts" and other legal documents can be drawn by attorneys to accomplish this. It is often desirable to avoid probate, however the techniques used to do so are also complicated, and usually require the advice of an attorney.  In some limited situations it may not be desirable to avoid probate, at all. The desired results from one technique or another should be discussed thoroughly with an experienced attorney the best method for determining your specific needs.

To read more about "AVOIDING PROBATE" Click Here.

regarding PROBATE & ESTATES, Click Here.


    Information on this site is GENERAL INFORMATION only, and as such
Information is based soley on MICHIGAN LAW & may vary greatly in other States.
Obtaining consultation from a qualified attorney in your State is the only way to insure
a proper understanding & evaluation of the law as it applies to your specific matter.
Laws can and do frequently change and are subject to interpretation,
and information on this site may be superceded by new laws or interpretations.

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