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  Practice Areas - Probate & Estate Administration  
 

Our firm handles probate and estate administrations, which is the area of law dealing with the distribution of an individual's property at his or her death, taking into account wills, taxes, insurance, property, and trusts so as to gain maximum benefit of all laws and, at the same time, carrying out the person's wishes. Probate is the court proceeding through which a will is proved to be valid and the estate of a decedent is administered. The process, generally, includes collecting a decedent's assets, liquidating liabilities, paying necessary taxes, and distribution of property to heirs.

Lawyers refer to the entity that owns the deceased`s assets until those assets are distributed as an "estate." Estate Administration includes the probate process as well as non-probate transfers of the deceased`s assets, such as joint ownership and transfer on death (TOD) accounts. Michigan laws direct the probate court how to distribute the deceased`s estate. The law is complex, so, it is important to consult a firm that has expertise in this area of the law to ensure that the deceased`s assets are distributed correctly and according to his or her wishes.

What Is Probate?
The term probate refers to the manner of administering the property (the estate) of a decedent by a personal representative (PR) under the jurisdiction of one of Michigan's county probate courts. The estate's PR is appointed by the court, usually on the basis of being named in the will or by the interested person asking the court for commencement of the probate proceedings. The administration of a decedent's estate essentially involves 3 steps after the court has appointed the PR:

First, the marshalling of assets (the assembly, securing, valuation, and sorting of the decedent's property), second, the payment of charges (last illness and funeral expenses, amounts owed to creditors, taxes, family allowances, and general expenses of administration), and third, distribution of what is left to the estate beneficiaries (either according to the terms of the decedent's will or, if there is no will, in accordance with Michigan's law of interstate succession).

When Is Probate Required?
Generally speaking, probate is only necessary when a person dies leaving property in his or her own name (such as a house titled only in the name of the decedent) or having rights to receive property (such as wrongful death claim or a debt owed to the decedent). However, not all property in which the decedent has an interest will be subject to probate. There are 4 kinds of property which pass to a new owner on death without going through probate.

1. Property that is owned by the decedent and another person as joint tenants with right of survivorship will pass automatically to the surviving joint owner without going through probate (except in the case of certain joint bank accounts which are established with another person who is to act as agent for the decedent).

2. Beneficiary designated properties (such as life insurance, pension benefits, and IRAs) are payable on death, without probate, to the beneficiary designated by the decedent (or, if none, as designated in the contract or plan itself).

3. Properties owned by a revocable trust do not go through probate, but instead, are disposed of after death in accordance with the instructions written into the trust document.

4. There are even some forms of property owned solely by the decedent which would otherwise require probate that are exempt in certain instances. Those notable exceptions include the following -

  Unpaid wages. An employer in Michigan may pay the wages due a deceased employee to the employee's spouse, children, parents or siblings, in that order, unless the employee filed a request to the contrary with the employer.
  Cash up to $500 and wearing apparel. A hospital, convalescent or nursing home, morgue, or law enforcement agency in Michigan holding cash, not exceeding $500, and wearing apparel of the decedent, may deliver that property to the decedent's spouse, child, or parent who provides (i) suitable identification and (ii) an affidavit which states the person's relationship to the decedent and that there are no pending probate proceedings for the decedent's estate.
  Travelers checks. Most issuing companies (such as American Express) will redeem unused travelers checks following the death of the owner without requiring the appointment of a PR on submission of the checks, a death certificate, and an appropriate affidavit by the next of kin indicating to whom payment should be made.
  Motor vehicle transfers. If the combined value of one or more of the decedent's motor vehicles does not exceed $60,000, and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, the vehicle's certificate of title, and certain other Michigan Secretary of State documents.
  Watercraft transfers. If the combined value of all of the decedent's watercraft does not exceed $100,000, and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, and the certificate of title for the watercraft.
  Income tax refund claims. These may be collected without probate by filing IRS or Michigan form 1310.
  Transfer by affidavit. Personal property with a value not exceeding $15,000 may be transferred to a decedent's successor by presenting a death certificate and an affidavit stating who is entitled to the property.


Types Of Probate Administration

Small Estates
There are two types of proceedings for small estates - in either case, Michigan's small estate law provides for the manner of distributing the estate assets (i) even though the decedent may have had a will giving the property to other persons or (ii) regardless of Michigan's law of interstate succession in certain instances (if there is no will).

The first small estate proceeding applies to those cases where all of the real and personal property owned by the decedent has a total value equal to or less than the sum of the following: (1) the funeral expenses; plus (2) $17,000 (adjusted annually for inflation). Upon presentation of a petition and payment of the filing fee, the probate court may order that the funeral expenses be paid, if they have not been paid, or that the person who paid them be reimbursed. The balance of the property will be assigned to the surviving spouse, or if none, to the decedent's heirs under Michigan's law of interstate succession. No court hearing is held. During the 63 day period following the court's assignment of the property, the heir, if neither the decedent's surviving spouse nor minor child, will be responsible for any unsatisfied debt of the decedent up to the value of the property received.

For somewhat larger estates, a second kind of small estate "summary proceeding" may be available in those cases when the decedent is survived by his or her spouse or minor/dependent children. If, upon preparation of the estate's inventory, the value of the estate is less than the sum of the following:

All mortgages and liens
The homestead allowance (such an allowance of $15,000 can be paid to the surviving spouse or, if none, to the decedent's minor and dependent children)
Exempt property (up to $10,000 of the decedent's personal and household articles can be selected by the surviving spouse or, if none, by the decedent's children)
The family allowance (of up to $18,000; if a higher amount is desired, it must be approved by the probate court)
Funeral, last illness, and administrative expenses, then the PR may simply pay the amounts due the secured creditors and the balance to the surviving spouse (or, in some cases, to the conservator for the minor children) and then close the estate.

Regular Estates
There are two forms of regular administration of a decedent's estate. The first, unsupervised administration, permits the PR to act in a manner independent of the court unless intervention is requested by the PR or an interested person (such as an unpaid creditor or an estate beneficiary). This form of administration is generally preferred unless there is a specific reason to request the court’s supervision of the estate. In addition, since there is less court involvement, fewer details concerning the estate's administration will be in the court file and available for inspection by the public and the media, unsupervised administration offers some privacy for the decedent's family.

The second form of probate administration, supervised administration, requires the probate court's review and approval of much of the estate activities. For example, in supervised administration the court would be required to (i) approve the sale of the decedent's real estate (unless the decedent's will authorizes the PR to do so), (ii) authorize the payment of PR and attorney fees, (iii) review the PR's accounting of all receipts and disbursements, and (iv) prior approval of all distributions to heirs (people receiving property from the estate if there is no will) and devisees (people receiving property under a will). While the court's involvement frequently adds to the time and expense of administering an estate, the court's supervision will likely afford greater protection to the PR and the other interested persons against losses and claims.

Unsupervised administration is commenced by filing either an application or petition with the probate court. Supervised administration is commenced by filing a petition that includes a request for supervision.



 
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