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An Overview of Formal Probate


    When a person dies, they are called a decedent. A decedent leaves property behind. That property needs to be passed on to those who will inherit it. The property could include:

    • Real property (houses and other buildings, land and the things attached to it)

    • Personal property (furniture, cars, and other things not attached to land)

    • Bank accounts

    • Stocks and bonds

    • Debts owed to the person

    The law spells out how a person’s property must be distributed when that person dies. In Michigan, the probate courts are in charge of making sure a decedent’s estate is distributed correctly. This is called probate administration. The estate includes a lot of the decedent’s property. Some of the property is not part of the estate and is not distributed through the probate court. The estate does not usually include:

    • Jointly owned property

    • Insurance policies

    • Retirement accounts

    • Trusts that are not established by a will

    Jointly Owned Property

    Jointly owned property is property owned by more than one person. It is generally not included in an estate. Examples of jointly owned personal property are if you and the decedent are both listed on the title of a car or if you have a joint bank account. When the decedent died, you automatically had full ownership of that property, so it is not part of the estate. You may want to take a copy of the decedent’s death certificate to the bank or Secretary of State office to remove the decedent’s name from the account or car title.

    However, sometimes joint ownership is more complex. If you own real property with the decedent, or if you own any property with the decedent and someone else, ownership can be hard to understand after a death. Read Jointly Owned Property to learn more about this, or use Find a Lawyer to look for legal help in your area.

    Simplified Processes

    There are different ways an estate can be administered. If the estate does not have much property in it, you may be able to use a simplified process where the probate court is not involved at all, or only a little bit. The simplified processes are:

    • Assignment of property

    • Transfer by affidavit

    • Collecting money due from an employer

    • Transferring a vehicle

    • Collecting personal property

    These processes ignore the wishes in a decedent’s will, if any. In order to qualify for a simplified process, an estate must be worth $22,000.00 or less for a decedent who died in 2014-2017. This number goes up every few years. To learn more about the simplified processes, read An Overview of Small Estate Processes.

    Administration in Probate Court

    If a decedent’s estate has a lot of property, or the heirs want to follow the decedent’s will rather than the legal inheritance formula, the estate will usually be distributed in probate court. Probate proceedings can be informal or formal. Formal probate proceedings are heard by a probate judge, while informal proceedings are heard by a probate register. Formal probate has more steps than informal probate. If a dispute over the will or appointing a personal representative is likely, formal probate gives more oversight and finality than informal probate. To learn more about informal probate proceedings, read An Overview of Informal Probate.

    Most of the time, you can choose whether or not the administration of the decedent’s estate is supervised. However, there are some cases that require supervised administration. With supervised administration, a probate judge must review and approve activities affecting the estate. Unsupervised administration does not require a judge’s oversight. There are different steps and forms used in both types of administration. To learn more, read Supervised and Unsupervised Probate Administration.

    Formal probate is very complex, whether it is supervised or unsupervised. You may want to talk to a lawyer if you are planning on formally probating an estate. Use Find a Lawyer to find lawyers and legal services in your area.

    This article may also help you understand the probate process if you are an heir or devisee of someone whose estate is being probated with or without supervision.

    Formal Probate Proceedings

    You must be an “interested party” to begin formal probate proceedings. An interested party is any person who has an interest in, property right in, or claim against the estate. It can include the decedent’s:

    • Heir

    • Devisee

    • Creditor

    • Beneficiary

    Complete and File the Forms

    If you are an interested party, you must complete and file a Petition for Probate and/or Appointment of Personal Representative to begin the process. You can use this petition to ask a judge to enter an order for any of the following:

    • Probate a will

    • Set aside or prevent a will’s informal probate

    • Find that the decedent died intestate (without leaving a will)

    If you file the petition asking the judge to order a will be probated or to determine testacy (whether there is a valid will), you must give notice to interested parties. Along with your petition, you also should attach a certified copy of the decedent’s death certificate. You must also pay a $170.00 filing fee when you file your petition.

    If the court does not already have the original will, you must submit it or an authenticated copy of the will with your petition. If you do not have the original or authenticated copy of the will, you must describe the substance of the will in your petition and explain why the will is unavailable. If you think the decedent may have left a will in a safe–deposit box, you can ask the court to order you be given access to it. You do this by completing a Petition and Order to Open a Safe–Deposit Box to Locate a Will or Burial Deed.

    When you file the petition, you can ask the judge to appoint a personal representative for the decedent, but you do not have to. The personal representative is the person who will take any actions needed on behalf of the estate. Once you file your petition, a probate register can no longer act on any informal probate proceeding. If someone was informally appointed as a personal representative before you filed your petition, you can ask the probate judge either to confirm that person or to appoint a different person. If you ask the judge to appoint a new personal representative, the previously appointed representative cannot distribute property while your petition is pending.

    Appointing a Personal Representative

    Michigan law spells out the priority order of who can be appointed as a personal representative. The order is the same for both formal and informal proceedings. The order from highest to lowest priority is:

    • The person named as personal representative in the decedent’s will

    • The decedent’s surviving spouse, if the spouse is a devisee

    • Other devisees of the decedent

    • The decedent’s surviving spouse, if the spouse is not a devisee

    • Other heirs of the decedent who are not devisees

    • A creditor’s nominee (the creditor must wait 42 days after the decedent’s death to nominate someone, and the court must find the nominee suitable)

    • The state or county public administrator (this person must wait 42 days after the decedent’s death, and there must be no known heir or U.S. resident beneficiary entitled to a share of the decedent’s estate)

    A person who is named as the personal representative in a valid will has the highest priority. This person cannot transfer this priority to anyone else. However, everyone else can transfer their priority by nominating another person to be the representative. Also, a judge can find the person with the highest priority to be unsuitable and nominate and appoint someone else.

    If someone has a higher priority than you do to be the personal representative, it does not mean that you cannot be appointed as the personal representative. It only means that if that person challenges you to be the personal representative, he or she will likely be appointed.

    Serve the Notice on Interested Parties

    After you file your petition, the court clerk will schedule a hearing. In some courts, the clerk will schedule your hearing when you file your petition. In other courts, they will schedule it later. When you file your petition, ask the court clerk when hearings are scheduled. If your hearing is not scheduled when you file your petition, ask if the court will contact you with a hearing date or if you should call back to get a hearing date.

    Once a hearing has been set, you must give notice to or get signed consent to the petition from the interested parties, namely:

    • All the decedent’s heirs

    • All devisees and personal representatives named in the will

    • A personal representative whose appointment has not been terminated, if applicable

    • Any person who filed a demand for notice, if applicable

    • The trustees of the decedent’s trusts, if applicable

    Notice can be served by:

    • First-class mail at least 14 days before the hearing

    • Personal delivery at least seven days before the hearing

    • If an interested party’s name or address is unknown, a single publication in a newspaper having general circulation in the county where the hearing is set, at least 14 days before the hearing

    Attend the Hearing

    Attend the hearing. For general information about going to court, visit the Going to Court: Extra Tips and Forms Toolkit and video.

    During the hearing, the probate judge will determine the decedent’s domicile, the decedent’s heirs, and whether there is a valid will. The length and number of hearings largely depend on whether your petition is contested. An interested party can contest (object to) the will being probated or the legitimacy of the will. Contesting or defending a will can be complicated. You may want to talk to a lawyer if you are in this situation. Use Find a Lawyer to find legal services in your area.

    If your petition is not contested, or if the judge decides to continue the proceedings over the objections, the judge will enter an Order of Formal Proceedings. If a personal representative was nominated, he or she must sign and file an Acceptance of Appointment before acting on behalf of the estate.

    Responsibilities of the Personal Representative in Formal Probate

    A personal representative in formal probate proceedings has the same role as one in informal proceedings, except the personal representative may not distribute property without a court order. The personal representative must do all of the following:

    • Prepare an inventory

    • Pay the inventory fee

    • Give notice to known creditors and publish a notice to unknown creditors

    • Pay the taxes and file the final tax return for the decedent

    • Pay the bills of the estate and claims against the estate

    • Distribute the remaining assets as ordered by the judge

    • File a Notice of Continuing Administration if the estate is open for more than a year

    When a decedent’s estate is administered in probate court, creditors must be given notice so they can try to collect money the decedent owed them. Known creditors must be sent notices. Different types of creditors have different priorities. Those with higher priorities get paid first.

    The personal representative must serve on all interested parties the following:

    • The Notice of Appointment and Duties of Personal Representative

    • Notice Regarding Attorney Fees

    • Right to Spousal Election

    • Inventory

    • Personal Representative Notice to the Friend of the Court, which is filed with the Friend of the Court

    • Account of Fiduciary

    Closing the Estate

    Before an estate can be closed, the following must happen:

    • The estate must be open for at least five months

    • Required notice to creditors must be published at least four months before closing

    • The inventory fee must be paid

    • Any estate/inheritance taxes must be paid (proof of payment required)

    There are two ways to formally close an estate—complete an estate settlement or request a settlement order. An estate can be formally closed regardless of whether it was under supervised or unsupervised administration. To learn more about probate supervision, read Supervised and Unsupervised Administration.

    Complete Estate Settlement

    The personal representative of an estate can file the Petition for Adjudication of Testacy and Complete Estate Settlement after the time for presenting claims expires. You or any other interested party can file this petition one year after the personal representative was appointed, if the time for presenting claims has expired.

    With this petition, waivers and consents are needed from all interested parties. Otherwise, a hearing will have to be scheduled to close the estate, and all interested parties must be given notice of the hearing. The same service rules as listed above apply.

    Settlement Order

    An Order for Complete Estate Settlement is a formal closing procedure used when a will has been admitted informally. This order can only be used when you don’t want the will proved valid and formally admitted by the court at closing. The personal representative can file the order after the time for presenting claims expires. You or any other interested party can file this petition one year after the personal representative was appointed, if the time for presenting claims has expired.

    Settlement orders only require notice to the personal representative (if he or she is not the person filing it), devisees, and claimants. There is no requirement to give notice to heirs. This means the order does not bind heirs, and they can contest the will.

    Social Security Benefits

    If the decedent was getting Social Security benefits, you should notify the Social Security Administration (SSA) of the death as soon as possible. The funeral home director may file a form to tell the SSA about the death, or you may need to do this yourself.

    If the decedent was paid benefits for the month after their death, the benefits will have to be paid back to the SSA. If the benefits are direct deposited and the account is still open, the SSA may withdraw the funds.

    You can learn more from the SSA’s publication about stopping payments and applying for survivor benefits if you are eligible.

    Income Taxes

    When a person dies, their estate becomes a new taxpayer for income tax purposes, separate from the person. The estate must get an Employer Identification Number (EIN) from the IRS. You can learn more about how to get an EIN on the IRS’s website. The assigned number is used on any accounts in the name of the estate, such as bank, credit union, and brokerage accounts.

    The EIN is also used to file the decedent’s final income tax return. You can learn about what is needed for the final tax return on the IRS’s website.