Cummings, McClorey, Davis & Acho, P.L.C. (CMDA) is experienced in all areas of probate. Our team of attorneys provides assistance in the administration of an estate and the more complex issues of probate administration.
What is probate?
Probate is the court-supervised process of locating and determining the value of the assets owned by a deceased person, referred to as a “decedent,” paying the decedent’s final bills, estate taxes and expenses of administration, and distributing the decedent’s assets to his or her heirs and beneficiaries. 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 is distributed in accordance with Michigan’s law of intestate succession.
When is Probate Necessary?
Generally, probate is necessary when a person dies leaving property titled 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. 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?
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. Most of the activities involved in probating the estate are done without court involvement.
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 are used when there are issues which are contested and often are used to begin the administration of an estate. Formal proceedings are used at any time during the administration of an informal estate to have issues within the estate decided by court order. Only a very small percentage of estates go through supervised proceedings.
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.
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 title to property or debts of the decedent, 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, a typical 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 deadlines, documents and administrative requirements. A 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.