The term probate refers to the systematic and orderly administration of a decedent’s property. This administration is conducted through one of Michigan’s County Probate Courts. The probate court will be determined by the decedent’s residence, prior to their death.
The grieving process can become even more difficult with the complexity of probate court interaction. Whether or not you have a Will, your estate may still need to be probated. Your “estate” consists of all your property. Some of your property may automatically pass to joint owners or beneficiaries, however, other assets that you own in your name alone may have to be administered in probate court before final distribution is made to your heirs or devisees (persons named in your Will).
The probate process is only necessary if a person dies leaving property in their individual name or having rights to receive property only in their own name. Property which is excluded from the probate procedure includes:
If, however, the decedent held property or had the right to receive property in their own name then probate administration must proceed.
The first step in probate administration is to determine whether or not the decedent had a Last Will & Testament. The Will is a formal instruction to the presiding judge as to the decedent’s wishes concerning their property. If there is no Will, then the Estate is still administered, however, pursuant to Michigan Statutory provisions provided in the Estate and Protected Individuals Code. The code provides the default provisions under which all Estates are administered, unless there is a Will.
The next step is to determine whether the probate administration will be formal or informal. The difference between the two is the amount of court supervision which will be required. Generally, Estates are administrated in an informal fashion, however, in certain situations where there will be contested matters, formal proceedings may be beneficial.
The most important function of probate administration is naming a personal representative (often referred to as the executor). The personal representative is appointed by the court, either pursuant to the Will or by statutory authority. The personal representative has important duties and responsibilities including:
Usually the decedent names a personal representative (executor) to take over the management of his or her affairs upon death. If the decedent fails to name a personal representative, the court will appoint one to settle the estate. If you are named a personal representative in a Will, you will have a responsibility to make sure that all debts are paid and all property is properly distributed to the heirs and devisees.
The probate process carries with it a number of costs that are usually paid out of the estate assets. These costs include fees of the personal representative, attorney fees, and court costs.
During the probate process there will be other considerations such as 1) whether the surviving spouse can receive a year’s support and what the appropriate amount is; 2) whether the residence can pass outside the probate process; and 3) filing proper estate taxes. An experienced probate attorney can help you make these decisions.
The procedure for probate administration is time consuming and places the personal representative under potential individual liability. The Estate is required to remain open for at least four (4) months, after which it can be closed. The personal representative has an obligation to all of the heirs and creditors of the Estate to deal with them in an impartial and independent manner. Individuals should also consider the fact that the entire probate administration procedure is open to the public and inspection of probate court files can be done by any individual. Therefore, parties often plan to avoid probate in order to maintain the decedent’s family’s privacy.
Our office can assist you in providing for an orderly and systematic transition of assets to your desired heirs and still maintain your privacy. This will insure that the assets and distribution of the assets remains confidential and out of the public.
Unfortunately, many older adults may face long periods toward the end of their life where they may not be able to make decisions for themselves, often caused by such issues as a stroke, Alzheimer’s, dementia, an accident, or other serious medical conditions. If an individual has a Patient Advocate Designation the decisions about his/her medical care may already be provided for. If an individual has a General Durable Power of Attorney then his/her financial matters will be taken care of.
What if the individual does not have one or either of these documents? This is when a formal guardianship and/or conservatorship may be required. It is not simple to arrange and will need a probate court judge’s approval. An experienced probate attorney can help you through this process.
A guardian is a person appointed by the court to make decisions about heath care and personal matters for an adult who is incapacitated. A guardian can also be appointed for a minor child. Guardianships begin with the filing of a petition at the probate court. Upon filing, the judge will appoint a court visitor to interview the people involved and will file a report for the court to review. If no objections have been made and the court visitor’s report supports the guardianship the judge will usually sign a petition appointing a guardian.
The probate court might determine if a guardianship/conservatorship is appropriate and considers the following in determining incapacity:
If someone makes an objection to the petition, the judge will hold a hearing. At the time of the hearing, witnesses can testify and the interested parties can present any additional evidence. The judge will then decide if the individual is incapacitated, whether a guardian is necessary, and if the proposed guardian is qualified and suitable.
The guardian’s powers are included on the order signed by the judge. Usually, the guardian will have the power to decide where the protected person lives and is responsible for making arrangements for the protected person’s care, safety and health care decisions. The guardian is required to file an annual report with the court regarding the protected person’s residence, the type of services he/she is receiving, and their current medical and physical condition.
A Conservator is a persona appointed by the court to make financial decisions for a person who is incapacitated. A Conservator can also be appointed for a minor child. Conservatorships also begin with the filing of a petition at the probate court. If no objections are filed, the judge will usually sign an order appointing a Conservator.
A conservator may be required to post a surety bond before being allowed to take control of the protected person’s assets. The bond amount is usually based on the value of the protected person’s assets and annual income. The conservator will be required to file an inventory of assets and income with the court and take the necessary steps to preserve and protect these assets. The Conservator will use these assets and income to pay for reasonable expenses of the protected person. The Conservator must also file an annual accounting listing the assets, income and expenses paid during the past year.
Temporary guardians and conservators can be appointed in the case of an emergency. This appointment is usually 30 days and the petitioner must show strong evidence of a serious or immediate danger to the individual’s health or assets.
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The information presented within this website is for general information purposes and is NOT and should not be considered as being “legal advice”. You should not act on any information presented herein without the verifying same with your attorney or lawyer.