Probate is the legal process that settles a deceased person's estate, including validating the will, identifying assets, addressing debts and taxes, and distributing remaining assets to beneficiaries. Let us help you navigate this complicated process to ensure the smooth transfer of your loved one's assets.
Probate is the court process by which the property of a deceased person is administered and distributed.
Estate administration after a person's death involves:
Identifying information about the deceased person including whether there was a Last Will and Testament
Gathering the assets of the estate
Paying debts & final expenses
Distributing remaining assets
At Douglas H. McPhail, PLC, we have more than 30 years experience in every aspect of probate estate administration.
The probate administration process applies to all assets owned solely by the deceased person at the time of death. Any asset or property owned solely by the deceased person at the time of death cannot be accessed or sold without Letters of Authority issued by the probate court.
Many families don't learn about the need for probate until after their loved one is already gone. Often the probate process is triggered because a surviving family member has been denied access to a bank or investment account, been denied the right to sell real estate or has been denied the right to receive a payment owed to the deceased person.
Probate does not apply to assets that were subject to transfer on death or beneficiary designations. Common examples of non-probate assets include IRAs, 401k plans, annuities or life insurance. Jointly owned assets are not generally subject to probate if held jointly with a right of survivorship. This exception does not apply to real estate held by the deceased person as a tenant-in-common.
The short answer is, no.
Too many families incorrectly assume that no probate administration is required if the deceased person had a Will. When the deceased person dies with a Will, the process is known as a "testate" administration. Assuming that the Will is in proper form, in most cases, the person designated to serve as the personal representative can obtain Letters of Authority by informal appointment without a hearing in the probate court.
Once appointed, the personal representative administers and distributes the deceased person's assets according to the instructions contained in the Will.
When a person dies without a Will, the probate process is referred to as an "intestate" proceeding. Simply put, when a person dies without a Will, who is appointed to administer the estate and how assets are divided is determined by state law.
In blended families, the financial results can be catastrophic to the deceased person's survivors. When a person dies without a Will, the estate administration process is usually slower and more expensive especially if there is no agreement about who should be responsible for administering the deceased person's estate.
A personal representative is someone appointed by the court to control or manage property that belongs only to the deceased person. For the best results, an attorney should help you prepare the necessary documents to open an estate and request appointment as the personal representative.
The court will appoint a personal representative from the following list of people, in order, starting from the top:
The person named in the deceased person's Will
The surviving spouse if the spouse is a named beneficiary in the Will
Other beneficiaries named in the Will
If there is no Will, the surviving spouse
If there is no Will and no surviving spouse, the deceased person's other heirs
A person designated by the deceased person's creditor if more than 42 days after the deceased person's death
Some other persons determined by the court
The personal representative of the estate must "accept" the appointment in writing before Letters of Authority can be issued. This means that the personal representative agrees to fulfill all duties imposed by law and to file all necessary reports with the court or other persons that are required by law.
Common reports and duties include:
Notice of Administration to heirs or beneficiaries
Notice to Creditors by newspaper publication or direct notice to known creditors
Inventory of all assets owned by the deceased person
An account of all receipts and disbursements made by the personal representative
Filing estate, inheritance, or income tax returns
Before distributing assets to the heirs or beneficiaries and closing the estate, the personal representative must first pay the deceased person's debts and expenses incurred in administering the estate. If the debts owed by the deceased person are greater than the value of the remaining assets, it is possible that some beneficiaries might not receive anything.
Michigan law requires a four-month waiting period after notification to creditors. This waiting period may determine the priority of payment and amounts available for distribution.
The order of who gets paid is determined by law meaning that some debts and expenses have greater priority than others. It is the personal representative's responsibility to adhere to the priority rules set by state law. If the personal representative pays bills or distributes assets in the wrong order, legal proceedings may be initiated to recover incorrectly distributed assets or the personal representative may face personal responsibility for the deceased person's debts.
If there are significant debts, certain minimum allowances are provided to the deceased person's heirs. The amount and value of these allowances depend on the deceased person's marital status and whether there are minor children.
The personal representative can close the estate administration only after certifying that all debts and taxes have been paid and that assets have been distributed to the correct persons. It is best that the personal representative obtains receipts for all distributions and makes a final accounting before closing the estate.
Ultimately, court costs, attorney fees, and other expenses are paid from the assets of the deceased person's estate.
Once all of the information needed to process an application for the appointment has been processed and filed, it usually takes about 2 weeks to obtain Letters of Authority. If there is no Will or there is a family disagreement about who should serve as personal representative, it can take much longer to obtain Letters of Authority.
The soonest date an estate can be closed is 5 months from the date Letters of Authority are issued. The actual amount of time needed for administering an estate varies according to the amount of estate debt, the value and complexity of assets, the structure of the deceased person's family, and economic conditions at the time of death.
How Can We Help?
At Douglas H. McPhail, PLC, we've helped families like yours navigate the probate process. From beginning to end, we are prepared to help you handle probate administration in an efficient manner according to the law.
We can help with:
Information gathering
Will validation
Court Filings
Creditor notices
Evaluating asset information
Inventory preparation
Tax accounting issues
Debt resolution
Medicaid estate recovery
Asset distribution
With decades of experience, we understand that each situation is unique. We're committed to working closely with you to adapt our knowledge and services to your specific needs and circumstances.
Our primary goal is to simplify the probate process, reducing stress and allowing you to concentrate on honoring your loved one's memory. We're here to answer your questions, address your concerns, and provide the comfort that comes from having a trusted legal team by your side.
We provide estate planning counsel to our clients protecting their assets and preparing their family's estate planning needs. Learn more about our firm.
