Probate Law 101

What is Probate?

Probate is the court-supervised process of locating and determining the value of the assets owned in the individual name of a deceased person, referred to as a “decedent,” paying the decedent’s final bills, estate taxes and expenses of administration, and then distributing what is left of the decedent’s assets to his or her heirs. 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 Michigan’s law of intestate succession.

When is Probate Necessary?

Generally, probate is necessary when a person dies leaving property in his or her own name or having rights to receive property, such as a 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. Property that will pass to a new owner on death without going through probate includes: (1) property owned by the decedent and another person as joint tenants with right of survivorship; (2) beneficiary designated properties, such as life insurance, pension benefits, and IRAs; and (3) properties owned by a revocable trust.

What Are the Types of Probate Estates?

Informal Estates

Unsupervised administration of an estate may be conducted using informal or formal proceedings. In an informal proceeding, no court hearings are necessary, a personal representative is appointed by the court and given authority to probate the estate, and most of the activities involved in probating the estate are done without court involvement.

Formal Estates

While very similar to informal proceedings, probating a decedent’s estate using formal proceedings provides the security of a court order deciding issues within the estate. Formal proceedings are conducted by a judge, rather than the probate register, with notice given to interested parties. Formal proceedings may be used to begin the administration of an estate or they may be used at any time during the administration of an informal estate to have issues within the estate decided by court order.

Small Estates

Michigan law provides a streamlined process for distributing the assets in a decedent’s estate if the balance of the estate after the payment of funeral and burial expenses is $18,000 or less. The process is usually quick and no court hearings are necessary.

Supervised Estates

Supervised administration of an estate is available in limited circumstances and provides close oversight by the court during the probate process. They are the most expensive of the probate estates because litigation is usually involved. With proper planning, court supervision of estates can usually be avoided.

How Long Will Probate Take?

The time it takes to probate an estate depends on how complicated the estate is. For example, complicated tax situations, questions regarding the value of property, the need to sell assets, disputes over debts, lawsuits against the estate, or difficulty finding heirs can all cause delays. A lawsuit involving a challenge to the will may cause long delays. As a result, probate can take anywhere from six months to several years. However, the average estate takes approximately one year to get through probate, unless you are able to use the procedure for small estates which is much faster.

Why is it Important to Have a Probate Attorney?

You are not required to hire an attorney to probate an estate, but probate can be complicated and you can be personally liable if you do something wrong. Probate law is an area that is very specialized and includes a lot of deadlines, documents and red tape. One minor omission or missed deadline can have serious consequences. A probate attorney can be used to take a personal representative through the entire probate process from start to finish. A probate attorney can also be hired to advise the beneficiaries of an estate on legal and other matters that arise during the course of the probate process.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.