Probate administration, or probate proceedings, refers to the process when the services of the probate court are needed to administer an estate. An estate may need to be “probated” for the following reasons:
- An aspect of the estate, including a living trust, is contested.
- The estate has assets that need to be probated.
- The court is asked to appoint a guardian and conservator of a minor or an adult that requires protection.
- Any interested party, or a creditor of the deceased, forces probate.
What to do When a Loved One Dies
Upon the death of loved one, the following checklist can be helpful for the organized administration of the deceased’s estate:
- Obtain details regarding funeral, burial, cremation, and determine if there are any prepaid arrangements.
- Obtain several copies of the death certificates.
- Obtain the original will and trust agreement.
- Obtain bank/brokerage/retirement account statements.
- Obtain any life insurance documents, savings bonds, etc.
- Determine if there is a safety deposit box.
- Obtain titles to real estate, automobiles, and other vehicles.
- Obtain decedent’s identification and Social Security Card.
- Obtain exact legal names, addresses, birthdates, and social security numbers of all parties named in the will, and other close heirs.
- Look for any medical bills, utility bills, or other bills/debts that need to be paid.
- Keep taxes paid on real estate.
- Cancel Social Security (this is usually done as a service by the funeral director).
The Probate Court Process
The probate court process of a decedent’s estate begins when a petition is filed with the probate court. The court will request a copy of the will and a death certificate. If everything goes smoothly, the court will appoint the personal representative named in the will. Once an estate is filed with the probate court, the following steps will occur:
- A notice will be published in the legal news.
- The personal representative will open a checking account in the name of the estate for all receipts and disbursements.
- The personal representative will coordinate with a CPA for filing any tax returns and paying any taxes that are due.
- The personal representative will be provided with Letters of Authority (court orders) which allow the personal representative to collect assets, sell real estate, and make transfers.
- An accounting of all receipts and disbursements, is required to be filed with the court and served on all interested parties.
The best-case scenario exists when an estate is uncontested and the decedent’s affairs are fairly well organized at the time of death. An order to collect assets (Letter of Authority) may be obtained from the probate court within a matter of days upon filing a Last Will and Testament, death certificate, and initial probate pleadings with the court. The personal representative may make financial distributions to the parties named in the Last Will and Testament to the extent that there are sufficient funds to pay federal taxes, state taxes, maintain the property, and pay other expenses incident to death and probate proceedings. Publication of probate proceedings is required to allow creditors and/or other interested parties of the proceedings to file a claim against the estate. Pursuant to MCL 700.3801, claims by creditors must be made within 4 months after the date of the publication.
Does a Living Trust Avoid Probate?
An estate can be planned to completely avoid probate proceedings by joint ownership of property or by distributing property according to the terms of a living trust. However, property not held jointly or that does not pass according to the terms of a living trust, will need to be probated. Probate is the court process of administering an estate and transferring property after death pursuant to your will or according to the laws of intestacy if you die without a will. &Ldquo;Probate” is not a bad word. In Michigan, most estates qualify for informal probate and the estate can be administered without any hearings before the judge unless the court’s intervention is requested or necessary. If an asset is not properly held by the living trust, the probate court will assist in facilitating the distribution of the probate estate to the entitled beneficiaries according to the will.
Plan, Prosper & Live Well
Contact Macomb Estate Planning if you are looking for an estate plan that gives you confidence and peace of mind. We can also provide you with efficient legal services to probate the estate of a loved one if necessary.