What is probate?
Probate is a court-supervised process of distributing and overseeing property/assets after a person dies. The purpose of probate is to determine the wishes of the deceased, pay debts, and to distribute the property according to the decedents wishes. The following occurs during probate:
1) Determination of the executor or the appointment of an administrator.
2) Authentication of the will.
3) Identification and inventory of the decedents property identification of heirs and beneficiaries.
4) Payment of debts and taxes.
5) Distribution of property according to a will or according to state law.
Many individuals take into consideration avoiding probate in deciding on an estate planning option.
Is avoiding probate possible through probate exemptions?
Yes, in some states the law provides a way of avoiding probate by allowing an exemption or a simplified probate process for small estates only worth a certain amount. It is different from state-to-state, smaller estates can elude the probate process. In a few states, probate is eliminated or a simplified probate process applies for property left to the surviving spouse. Ask an experienced attorney what the current state laws affect your estate.
Does probate take a long time?
In Michigan, probate need not and normally does not take long. Personal representatives are accorded broad powers to accomplish the administration of estates expeditiously.
They are empowered to handle most details (liquidating assets, paying debts and expenses, etc.) without seeking court approval for each and every transaction.
How does the probate process end? The probate process ends upon receipt by the beneﬁciaries of their proper share of the estate and release of the personal representative from further responsibility for the administration.
Probate is mandatorey for wills, not for most trusts. An attorney who specializes in estate planning can tell you your best options
How does the probate process begin?
When a person dies their assets in his or her name alone, an estate must be started by a personal representative to handle the decedent’s assets and take care of settling the decedent’s affairs. This is called the probate or estate administration process. The personal representative can be an individual or corporation (such as a bank or trust company).
What happens after an estate is started?
The job of the personal representative is to settle the decedent’s affairs by notifying beneﬁciaries, performing all of the accounting involved with estate transactions, noting all of the assets, paying the debts regarding the estate, pay taxes, and properly distributing the estate assets to all of the beneficiaries. The personal representative is the only one legally authorized to deal with the assets of the estate and handle matters of estate administration.
Why is there a probate process?
Reasons for the probate process include prevention of fraud and protection of creditors and rightful beneﬁciaries of the estate. Beneﬁciaries are entitled to notice of the estate administration and an accounting of all estate transactions. They also have access to all documents ﬁled by the estate. The probate process in Michigan is an efﬁcient way to protect beneﬁciaries and creditors and to assure proper distribution of estate assets.
Do all of the decedents' assets go through the probate process?
No. All assets held in joint ownership between spouses/partners or with others with right of survivorship pass automatically to the survivor and may not be subject to probate.
Bank accounts held in joint ownership or in trust for another are also not subject to probate. Assets with designated beneﬁciaries such as life insurance policies, annuities, transfer on death accounts, IRAs, and various retirement plans pass to named beneﬁciaries and are usually not subject to probate. Finally, assets held in a trust are governed by the terms of the trust rather than the decedent’s will and pass outside the probate process. It is important to note that assets controlled by the decedent at death, even if not subject to probate, are still subject to all the same death taxes as probate assets.
What are the costs of probate?
In Michigan, the costs of probate include ﬁling fees, publishing notice to creditors, and the court inventory fee. In addition, legal fees are paid, on an hourly basis, to the attorney handling the estate work, which may include preparation of various death and income tax returns. The personal representative may charge a reasonable fee.
Before hiring an attorney, always check out their credentials with the Michigan State Bar Association.