Ryan M. Wilson, Practice Area Chair
The term “probate” refers to the process of administering the property of a decedent by a personal representative under the jurisdiction of the probate court. The personal representative is appointed by the probate court. In most situations, the person or institution named in the will is appointed. The personal representative use to be referred to as the executor.
The administration of the decedent’s estate generally involves three steps: (1) the gathering and valuing of assets; (2) the payment of debts, family allowances, taxes and expenses of administration; and (3) the distribution of the remainder to the beneficiaries.
Generally, probate is only necessary when a person dies and leaves property in his or her individual name. However, please keep in mind that some kinds of property pass to someone on death without going through probate, i.e., property which is jointly owned goes to the surviving joint owner and beneficiary-designated properties (such as life insurance, retirement benefits and IRAs) are payable on death without probate.
Michigan has small estate proceedings when the property owned by the decedent has a total value equal to or less than the sum of the following: (1) funeral expenses; plus (2) $19,000.00 in 2008. Upon presentation of a petition and payment of the filing fee, the probate count may order that the funeral expenses be paid or that the person who paid them be reimbursed. The balance will be assigned to the surviving spouse, or if none, to the decedent’s heirs under Michigan law.
For somewhat larger estates, a similar kind of small estate proceeding may be available when the decedent is survived by his or her spouse or minor children. The total value of the property in the probate estate must be less than the sum of the following: (1) all mortgage and liens, (2) homestead allowance ($19,000.00 in 2008); (3) exempt property allowance ($13,000.00 in 2008); (4) family allowance (maximum of $23,000.00 in 2008); and (5) funeral, last illness and administrative expenses. These amounts are subject to a cost-of-living adjustment and generally increase each year.
There are two forms of regular probate administration: unsupervised and supervised. Unsupervised administration permits the personal representative to act in a manner independent of the probate court unless intervention is requested. This form of administration is generally used unless there is a specific reason to request probate court supervision.
Supervised administration requires the probate court to review and approve most of the estate activities. The court’s involvement frequently adds to the time and expense of administering an estate.
In summary, Michigan has simplified and streamlined its probate processes over the years. The probate code was re-written in its entirety, with an effective date of April 1, 2000. Probate should not be looked upon as some dreaded process. It is efficient and fairly simple despite what you may hear from living trust marketers.
This summary is intended as a source of general information. If you have questions regarding this summary or desire additional information, please contact Ryan M. Wilson at (517) 377-0897 or rwilson@fraserlawfirm.com.
