WHAT IS PROBATE?
The term “probate” gets thrown around a lot when talking about people’s assets or property and people hear Probate Court a lot and don’t necessarily know what either means. There is the Probate Court, which oversees the protection of incapacitated or mentally disabled individuals and their assets. These types of matters are called Guardianship or Conservatorships. What Probate Court is most known for is having jurisdiction over the proper transfer of assets at death. Individuals and attorneys refer to this process as Probate.
Probate is a legal process in which to administer an estate after an individual passes away. An estate is all the money and property (real estate or personal) owned by an individual at death. Once an individual dies, they are referred to as a decedent. Typically, there is one individual in charge of an estate, and they are called a Personal Representative. A Personal Representative for the estate has the duty to act in good faith, with honesty, loyalty, and candor, and in the best interests of the estate’s beneficiaries. The law requires Personal Representatives to follow the terms of the deceased person’s Last Will or if the decedent died intestate (meaning there was no Last Will) they must follow the statutory law to determine heirs and how to handle the estate property. Ideally, there are two avenues to take in Probate Court. Avenue one is informal probate and avenue two, is formal probate. Regardless of which route is needed in court, if a person dies with assets titled in their own name, meaning there are no joint owners or beneficiary designations, the probate process in either regard can be a minimum of six months in the State of Michigan.
In general, informal probate is when a Personal Representative is able to administer the estate without there needing to be a court hearing in front of a Judge. The Personal Representative would file an informal petition for probate and the applicable supplement forms with the probate court register who would then give the Personal Representative Letters of Authority and a signed order. Letters of Authority is what is needed in order to handle any of the decedent’s assets. Informal probate makes sense to do when there is a valid Last Will, which no beneficiaries or heirs are contesting or there is no Last Will at all but all the beneficiaries or heirs sign a renunciation agreeing to one particular individual serving as a Personal Representative of the estate. Essentially informal probate is a good idea if all parties involved get along and know there will not be any fighting, contesting, or drama.
Formal probate is when a Personal Representative files a petition and applicable supplement documents to open a probate matter with the court and request a hearing date in front of the Judge requesting the Judge formally appoint them as Personal Representative and determine the validity of a Last Will if there is one. Formal probate may be necessary whether there is or isn’t a Last Will when a beneficiary believes there is a possibility of parties wanting to contest or if there are aware there will be issues when administrating the estate if parties are disagreeing on how to divide property, and etc. Formal probate is a good avenue to take if you know ahead of time, you’ll need the court to decide any issues.
Whether you file for informal or formal probate, a Personal Representative will still have to get a tax identification number, file final income taxes, do a notice to creditors, a notice to beneficiaries, file an inventory, do accounting and etc. This is where working with experienced grand rapids probate lawyers would come in handy. An experienced probate attorney knows the proper paperwork to be filed, the tasks to get done, how to handle creditors, and deal with family members. As michigan probate lawyer, we take pride in assisting families through this difficult process.
Please call the Law Offices of Sean Patrick Cox, P.L.L.C. in Grand Rapids, Michigan at 616-942-6404, to set up a free consultation.