PROBATE ADMINISTRATION
Probate law has to do with the handling of an estate when someone, such as a family member or other loved one, passes away with property which does not "automatically" go to someone. Many estates do not need to go through probate because the decedent had all of his property joint with his wife, or because all of his assets (such as IRA's and 401(k)'s had his wife as the beneficiary. However, some assets may be left in the decedent's name alone. These assets must go through probate.
Probate laws make sure that spouses and children don't get left with nothing. They also make sure that creditors are paid properly, including funeral homes, and mortgage companies. Finally, after bills are paid and allowances are paid, any remaining assets are distributed to the “heirs,” or the descendant. If the decedent had a valid will, the will dictates where the assets go. If the decedent died without a will, this is known as "intestacy," and the state will give the decedent's property according to the default provisions as set forth by statute.
If you are currently in a situation where you’ll be dealing with the Michigan state court system in relation to a probate or estate related matter, or if you think that you will be in this kind of situation in the near future, it is important that you hire an attorney that knows the ins and outs of Michigan probate law.
What exactly is Probate? Probate is a legal process that begins with a “petition” (a request) to open the estate and name a personal representative (some states call this person the "executor") who is responsible for the administration of the deceased’s property. The next step is when an official Notice of Creditors is printed in a local newspaper and Notice of Administration is sent to other involved parties. Creditors then have a set amount of time, typically 4 months, to file their claims. Then the personal representative can pay the debt and distribute the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.
While, this may sound simple, probate law and the handling of estates is often complex, especially with second marriages, disgruntled children, minor beneficiaries, and larger estates. These situations present the personal representative and the beneficiaries with multiple requirements and tasks to be preformed by not only the personal representative, but also by an experienced attorney and, if the estate is over $1,500,000.00, usually a tax consultant.For example, an estate including only a single house and single bank account that has been left to a single beneficiary will probably be a far easier and quicker process to deal with than an estate containing multiple houses that are located in various states, and that are left to multiple beneficiaries. This becomes especially difficult if an estate includes leaving assets to a minor.
If you’re dealing with probate issues in Michigan, there are some factors of prime importance that you’ll benefit from knowing. The first of these factors has to do with how the procedure works. Without knowing this, your are likely to have a long and difficult road, before you are able to get your case pushed through.
You’ll also want to make sure that you are up-to-date on formal testacy, and especially on how hearings are prompted by petitions. This is important for just about anyone involved in the Michigan state probate system, given that this hearing will contribute a great deal to the outcome of the estate being probated. Also, it is a good idea to be clear on ‘election’ and the consequences of not electing in a timely fashion. This could result in penalties that, aside from being costly, could prevent your case from going through as planned.
Finally, it’s essential that you know all about the way that after-born heirs are treated in the Michigan state probate process, with respect to wills that were written beforehand. Probating an estate is a matter that’s not to be taken lightly, which is one of the main reasons why many people attorneys. By doing so, they find the process to be less stressful and are able to rest assured knowing that their cases are handled as they should be.
There are two main procedural factors that contribute to the probate process, which are of extreme importance, especially for someone who is not very familiar with Michigan state laws. The first of these is the deadline schedule that is placed on the various procedures and the filing of documents. It is imperative that these deadlines are followed, as not doing so can cause additional work and lengthy delays.
The second procedural factor has to do with the proper drafting of the legal documents. This factor converges with the first, resulting in these documents having deadlines that are set by the state of Michigan. Some of the documents that you’ll have to write are petitions, affidavits, requests, orders, inventories, etc. If you don’t have much experience in writing formal, legal documents, you should consider hiring an attorney to handle this, as the guidelines set by the state must be followed precisely. Most attorneys, including our office, have automated programs which make this task very efficient and cost-effective.
The formal testacy proceeding begins, when the court decides on a time and place for the hearing. Petitions must give notice in the way that the state of Michigan describes in the statutes. These notices will need to be sent out to the decedent’s heirs, as well as to the devisees and personal representatives named in the will. On top of this, these petitions must meet Michigan state standards, which can be difficult for people inexperienced in writing and reading legal documentation.
People dealing with formal testacy issues in the Michigan state probate system find it convenient to hire an attorney who can help them write up these petitions, so that their cases may go smoothly and as planned. People who try to make their way through the system on their own often find the experience to be quite time-consuming and stressful, given the nature and language of the laws.
If the surviving spouse of the decedent does not make an “election” (publicly acknowledge that he or she will take the share provided by the will), the court presumes that the spouse elects such share. This is the case expect when there is no election made and the principle administration is closed. There are other exceptions as well, which can be found in Michigan state probate documentation. There is such a vast and expansive amount of information pertaining to these laws, that it is not possible to summarize everything in a brief article like this one. For this reason, attorneys offer their services to people like you who want to be sure that their case is handled in an efficient, knowledgeable manner.
Handling a simple estate is not rocket science. By the same token however, following the death of a loved one, it is not an easy thing to go through or deal with. Therefore, it’s often a good idea to hire an attorney experienced in the field of Michigan probate law to help you with the matter. Having an attorney on your side will help you make sure that the estate and assets of your loved one’s particular case are handled in a proper and legal fashion.