Decedents’ Estates
Probate
Death Related Probate Issues
Let’s get an unpleasant probate-related subject out of the way first. Death.
The primary death-related probate issue, deals with who gets someone’s property, after they die. Just as important is the subject of putting property that used to belong to the decedent, into someone else’s name/ownership.
When someone dies, and leaves a will, establishing how their property is to be distributed, we say that the person has “died testate”, which sounds fancy, but only means that the person died with a will. As you would expect, when someone dies without leaving a will, there has to be an analogous term for that, and there is: “intestate succession”.
If the decedent left a will, there is usually no doubt how the property gets distributed; the will is actually the “instruction sheet’ on how to distribute those assets. How is property divided when no will is left, i.e., where the person “dies intestate”? Yes, there are rules about whether the person who wrote out the will did so knowingly and voluntarily, but we are not going to deal with that on this site.
Michigan and just about every other jurisdiction has rules for what is called “intestate succession”, where the law actually dictates who has first dibs on Uncle Fester’s bank accounts, cottage property, gun collection, and other property he may have left.
There is not only an order as to who takes first, but as far as spouses are concerned, there are rules governing the minimum share a surviving spouse must get (e.g., in situations where the decedent tries to disinherit his/her surviving spouse, or where nothing is said, but the question is how much the surviving spouse gets, as opposed to his/her children.
Here is the basic distribution set up by Michigan’s intestacy law, in the following order:
Surviving spouse, who gets 100%, if the decedent left no descendant or parent; 1st $150,000.00, plus ½ the balance of intestate estate if all decedent’s surviving descendants are also descendants of surviving spouse, AND there is no other descendant of surviving spouse, who survives descendant.
EXAMPLE: Man dies, leaves an estate of $250,000.00, a surviving spouse, and three children.
SOLUTION: Wife gets $200,000.00 which equals $150K plus ½ the $100K balance of the balance of the intestate estate, leaving $50,000.00 for the three children to split.
Share to Heirs Other Than Surviving Spouse:
*Decedent’s descendants, by right of representation;
*If no descendants, then to decedent’s parents equally, or to the surviving parent;
*If there are no surviving descendants or parents, then to the descendants of decedent’s parents (usually siblings), or of either the parents by right of representation
*If there is no surviving descendant, parent, or siblings, then to the grandparents, or their descendants (this is an abbreviated description of MCLA §700.2103(d)
Survivors Must Survive Decedent by at least 120 hours (= 5 days).
If there are no “intestate heirs”, then the estate “escheats” to the state.
Right of Representation Defined: The intestate estate is normally divided by the number of surviving descendants in the generation closest to decedent. “Right of representation” becomes important if one of decedent’s children pre-deceases him/her. That pre-deceased child’s portion is divided between his/her children.
Here is an example: If decedent had three children, but one of them died before their parent (the decedent), that pre-deceased child’s 1/3 portion is divided between his/her surviving children. If the pre-deceased child themselves had three children, each would receive 1/9th of the estate (= 1/3 of their father/mother’s 1/3)
Another term came up in the context of the intestate rules, that of “escheat”, which sounds worse than it is. The detailed intestate rules, not all covered on this site, are written broadly enough, to provide a distribution to even the most distantly related cousins/nieces/nephews. In the unlikely event that not even a distant relative like this can be found, we say that the estate “escheats” to the state. In plain English, the state gets it all. It happens, but not often.
Testate & Intestate Succession
Whether there is a will or not, the property left by decedent will have to be processed into the new owners’ hands, by means of the Probate Court, where a “Deceased’s Estate” will have to be opened.
Leaving no will, does not mean that probate is avoided, even where the survivors all get along well, and there is no intra-family conflict.
If Dad left a piece of real estate, in his own name, the only way to get that real estate re-titled to the new owner is for someone representing the now-deceased Dad, as his “Estate Personal Representative” (sometimes called an Estate PR, aka “Executor”), to sign the property over to whomever. For the Estate executor or PR to have that authority, they must be appointed by the Probate Court, and that can only happen, where a Decedent’s Estate has been opened.
Married Couples Owning Property
What about the very common situation in which a piece of real estate is owned by a married couple, and the deed to that real estate indicates ownership by “husband & wife”? What happens in that situation, is that the surviving spouse automatically becomes the 100% owner, upon the death of their spouse.
When and if there is a need to open an estate for the first spouse to die, that real estate, which had been jointly owned by a married couple, does not go into the deceased person’s estate. The automatic vesting of real estate in the hands of the surviving spouse is written into Michigan’s real estate law as an exception to the general rule that property granted to two/more persons, is to be considered a “tenancy in common”, unless joint tenancy (or ownership) is expressly stated on the conveyance paperwork.
Joint Ownership – With Right of Survivorship
This works the same way as title to property owned by married couples. In this case, one of the joint owners dies, and as long as the conveyance paperwork makes clear that the surviving joint owners (also called, confusingly, “joint tenants”) had a “right of survivorship”. In that case, the surviving joint owner becomes the 100% owner of the real estate, and the interest owned by the deceased joint owner does not become part of that person’s estate.
Tenancies (or Ownership) In Common
There is a big difference between joint ownership (aka joint tenancy) with right of survivorship, and joint ownership/tenancy, as “tenants in common”
In the case of “tenancies (ownership) in common” the property is owned by two or more people. However, when one of them dies, the surviving co-owner does not get the deceased person’s share of the property, unless they buy it. The deceased person’s share goes into their estate, for distribution to their heirs.
Property Other Than Real Estate
The rules are the same for property, other than real estate. If the property is jointly owned, with a right of survivorship, the surviving owner(s) obtain the deceased person’s share automatically. If owned as a tenancy in common, as Michigan law says it is, unless specified to the contrary, the deceased person’s share goes into their estate, for distribution to their heirs, while the surviving co-owner(s) continue to own the share they owned before their deceased co-owner dies.
Bank Accounts
I often urge clients to make sure that they have either a “joint ownership status” on their accounts, or a “pay on death” provision. Both can be set up, directly with your bank, without the intervention of a lawyer.
The problem with a joint ownership arrangement is twofold. Do you really want the joint account holder to have access to your funds? Sometimes, with older clients, it becomes a convenience to have a trusted family member help them with checks and payments. Upon the death of one account holder, the account becomes the property of the survivor, and the monies are not included in the estate of the deceased account holder.
In “pay on death” situations, the money and the access to it are yours and yours alone. Upon your passing, the bank transfers the money to the “pay on death payee”, and that money is not included in the estate of the deceased account holder.
With the advent of electronic cash apps like Venmo, CashApp & Zelle, there are differences between the three, as it relates to cash going into our out of the linked account. Rather than deal with this special situation here, I would suggest you talk with your banker, about how and whether you can set up electronic access to more than one person.
Testate v intestate – probate court; intestate succession
Benefits of avoiding probate – joint name – jtwros; h/wife
Joint accounts, pay on death
Transferring title to real estate – Lady Bird Deed & Trusts
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Often times, clients want to avoid the invasiveness and delays of probate court. If a probate estate is filed, you will need permission to sell the property, even if you got a great price, and nobody objects. What’s more, because you need permission, there is a delay in transferring title, something that makes your property less desirable.
Enter the discussion about “trusts” and Lady Bird Deeds.
A “trust” is a device by which property is transferred to someone “in trust” (hence the name), with the provisions that they will handle or sell the property in a manner consistent with the instructions of the person creating the trust (sometimes called the “trustor”). Property transferred by trust does not go into the deceased person’s estate.
Trusts are often preferable where there are complexities. Sometimes those complexities caused by the amount of property that has to be distributed; by where the trustor thinks he/she might change their mind about who gets the property after the trustor dies; whether the beneficiary is a minor; blended family/second-third marriage situations; where there are concerns regarding percentage ownership after the trustor dies, or where the trustor wants to make provisions for one of their survivors
A Lady Bird Deed is a deed by which the owner maintains an interest in the property for the rest of their life, and what they are deeding to their successors is a “remainder interest” in the property, i.e., the ownership rights after the initial owner dies. The Lady Bird Deed empowers the original owner to sell or mortgage their property, as per normal; in that event, the persons getting the property upon the death of the original owner (sometimes called the “remaindermen”) can only take what their predecessor (the original owner) has, to transfer to them. If the original owner no longer owns the property, the remaindermen get nothing. If the original owner mortgages the property, the remaindermen get a property subject to that mortgaging.
Lady Bird Deeds are often used by people who want to avoid having Medicaid funding for their long-term care denied. This may happen, because they sold the property in a short enough time before moving into long-term care, such that Medicaid considers the sale of the property (or the transfer of the property into a revocable trust) to be an effort to circumvent Medicaid eligibility rules.
The comments I am making here about the effect of Lady Bird Deeds, trusts and Medicaid funding are meant to be general only, and not necessarily applicable to your situation.
OK. You have to file a probate case; your surviving parent just died. Who serves as Estate PR/executor, the surviving spouse, you or one of your siblings? A creditor perhaps?
Priority
Under Michigan law, the person named in that parent’s will as their nominee for Estate PR/executor will have priority. That could make you as “the first among equals” between you and your siblings, or if your parent named someone else, that person would have priority. Usually, though the order of priority for service as Estate PR/executor is as follows (in order):
*Nominated in will
*Surviving spouse, as long as he/she is a devisee in the will (meaning they get property in the will)
*Other devisees
*The surviving spouse
*Other heirs
*After 42 days after the death of the decedent, a nominee of one of the decedent’s creditors
Incidentally, being named as Estate PR/executor does not mean you will take a greater amount from the probate matter. It just means you will have to answer to the judge more.
There is another “priority” issue, that of claim payments; this is particularly important where the estate is a bit smaller, and “there is not enough to go around. Michigan law sets up this priority for claims to monies from an estate (again, in order):
*Costs & expenses of administration (filing fees, inventory fees, legal fees, Estate PR/executor compensation, publication/ mailing costs, appraisal/valuation fees, costs of probate surety bonds)
*Reasonable funeral/burial expenses;
*Homestead allowance;
*Family allowance;
*Exempt property;
*Federal debts/taxes
*Reasonable necessary medical/hospital expenses – last illness
*State debts/taxes
*Other claims.
Worth pointing out here, is the priority of funeral/burial expenses over debts, and even over federal & state taxes. Make sure that you have any receipts from the funeral/burial/cremation, and a reasonable amount for any post-funeral luncheon there may have been. It is often a way for making sure that the family retains at least this money.
You now have a choice between what type of estate to open, “formal” or “informal”
An informal estate is used when there are no disputes between heirs, no other complications, and where court supervision is really not required. An application is filed, and no formal court permission is needed to close, although there will be procedures to follow.
Where disputes are anticipated (e.g., will disputes, conflicts between heirs, etc) and the parties need court supervision, a petition is filed for formal estate proceedings
These are the forms required to open a decedent’s estate:
Application for Informal Probate
-or Petition for Formal Probate
Confidential Form to Accompany App/Pet
Confidential Form to Accompany AOA
Notice of Appointment & Duties of Estate PR/Exr
Register’s Statement (Informal Only)
Bond of Fiduciary (if required at all)
Order of Formal Proceedings (Formal Probate Only)
MI probate law covers a broad swath of subjects, and not just decedent’s estates. It covers guardianship, conservatorship, mental health proceedings, developmentally disabled persons guardianships, and trust litigation
Each specific area of probate law has its own rules and statutes, and understandably, a different universe of people who will be deemed to have an interest in the outcome of any petition, or other court decision. These people are called “interested persons”. Sometimes, each subpart of MI probate law has distinctions between the various types of persons who are considered to be “interested persons”, and those persons are specifically defined in the MI Probate Court Rules, Rule 5.125.
Whoever the “interested persons” are in your case, of whatever type the case may be, you must serve all interested persons with notice, or other required papers, and then you must swear under penalty of perjury to the Court, that you have done so.
Normally, there is a three-year statute of limitations, or deadline, starting on the date of death, within which the decedent’s creditors must file claims for repayment of debts owed by the decedent during their lifetime.
When you are in a situation, however, where you want to sell Dad’s house, it is not too convenient to wait around for three years, for Dad’s creditors to “come out of the woodwork”, and to file a claim. It would be great if there were some way to shorten that “creditor claim” period, so that creditors have a shorter amount of time to file their claims, and the surviving family can move on with their lives, that much more quickly.
There is. By filing a “Notice to Creditors” with the court, you can shorten that statute of limitations/deadline from three years to four months, at least as to unknown creditors. That Notice to Creditors must be published in a newspaper as defined by MCR 2.106(F).
After that Notice is published in a newspaper, the newspaper will provide an “Affidavit of Publication”, by which they attest that the Notice was published, and that Affidavit is then filed with the Probate Court.
As indicated above, beginning 42 days after a decedent’s death, a creditor can open an estate for the deceased person.
Normally, nothing angers surviving family members more than a creditor (debt holders, and “tort creditors”, who are seeking to hold the deceased person’s estate liable for an injury or death of another person)
Typically, what will happen is that the creditor files for estate opening, serving surviving family members as “interested persons”. Angry about the filing, one or more of them will object, based on the priority rules, which give the priority to serve, to surviving family members.
While the surviving family will not be inclined to cooperate with the creditor, once the matter is in court, they will have no choice.
Under Michigan law, the Estate PR/executor has 91 days, beginning on the day the “Letters of Authority” are issued to them, within which to file an initial inventory.
Then, every year thereafter, an accounting will be due on or before 56 days after the end of “the accounting period”. See MCR 5.1310(C)(2). In turn, the accounting period ends on the anniversary date of the issuance of the “Letters of Authority” (the document that proves your status as Estate PR/executor)
When the annual accountings are filed, they are served on the interested persons, along with a copy of the Petition to the Court, asking that the particular accounting be approved. The interested persons can agree to allow the accounting by signing a “Waiver-Consent” form. They can also object to allowing the accounting, by filing written objections, or by showing up in court, and articulating their concerns.
There will be a concluding, or final account due, when the estate is ready to be closed.
The Estate PR/executor may be required to post a bond, in an amount set by the probate judge. A bond is simply an insurance policy by which the decedent’s survivors (i.e., “the estate”) is/are effectively insured against malfeasance by the Estate PR/executor.
Understandably, different types of probate cases will have different types and classes of people are interested in the outcome. The classes of such “interested persons” are set forth in Michigan Court Rule, MCR 5.125(C). For example, persons deemed interested in the outcome of a probate petition/application are defined as:
Devisees (people to whom the will makes gifts)
Nominated trustees and beneficiary under a trust created in a will
Heirs (natural heirs by virtue of family relationships)
Nominated Estate PR/executor
Trustee of a revocable trust
By contrast, persons deemed to have an interest in the settlement of a will contest are
The devisees (who by definition, were given something in the will); and
The heirs (who evidently did not, and therefore contested the will)
There are 33 categories of persons deemed to have an interest in different types of probate matters, and so I will not go into all 33 here. My point is that different probate matters describe different types of people as “interested persons”, to whom notice must be given.
Notice of what? Just about anything that gets in front of the probate court, for a decision by the judge. It could be a Petition (such as a Petition to Allow Sale of Real Estate, or a Petition to Allow Accounts), or it could be an effort to ultimately close the estate, by means of “sworn statements” (in the case of informal probate matters), or Petition to Close Estate (in the case of formal probate matters). It could be just about anything at all.
How do you certify that you have served all of the “interested persons”? Probate matters involve a lot of forms, and there is a form “Proof of Service”, which you must file, attesting under penalty of perjury, that you have served everyone.
What happens if you cannot truthfully certify that you have served all of the “interested persons”? One of two things; either your Petition will be dismissed, or it will be adjourned to a time when you can truthfully certify that you have served everyone. Sometimes, you have in fact served everyone, but you simply did not file the Proof of Service; most probate courts will allow you to do this at the hearing.
One last matter to discuss is the requirement of the Petitioner’s personal appearance at the hearing. While there is no specific statute or court rule requiring this, most probate judges will dismiss your petition, if you do not personally appear at the hearing.
This is particularly frustrating, where the Petitioner him/herself will have no real input into the hearing, which is conducted between the lawyers and the court.
Also, since Covid, many courts have gone to a protocol of hearing matters by videoconference technology, usually Zoom. Even if that is not the case, as a matter of protocol, you can usually ask the court to allow you to “appear by Zoom”, and most will be accommodating most of the time, particularly if you are disabled, or live at a great distance from the court.
Anything that is done in the legal system, generally, can be done either by litigating the question in front of the judge, or by means of agreement among the “interested persons”.
In turn, the “interested persons” document their agreement to a particular step, or petition, or request, by means of signing a form called a “Waiver-Consent”.
Probate cases involve family, often times, and that often brings emotional issues into things. Sometimes an “interested person” who is also family, refuses to sign, because they disagree with the step you are trying to take. Sometimes, they neglect to sign, because they are busy with other matters, and meant no harm, and did not mean to communicate any uncooperative stance.
Ultimately, my advice to clients who have relatives who seem, or who actually are uncooperative in probate court matters involving the distribution of property is this:
Money is not worth losing friends and family over.
Whether the property is divided by will, or by intestate rules, there will come a time when the property is divided, and the estate is ready to close.
If you are the Estate PR/executor, it is probably a good idea to have everyone taking personal property or assets, to sign a probate court form “Receipt”; receipt of real estate will be documented in other ways.
In an informal estate, the Estate is formally closed by means of the filing of a “Sworn Statement”, and by the court responding with a signed “Certificate of Completion”
In a formal estate setting, the closure of the estate must be petitioned to the court, with notice to all the “interested persons”, so that if any of them feel they were cheated, they can bring those concerns to the attention of the Court.
Under MCLA §700.3982, as enacted in 2024, estates of $50,000.00 or less are eligible for a lower cost “Small Estate Procedure”. Normally, I would not point out when a statute was enacted. However, in this case, it is important, because that $50,000.00 figure gets indexed up annually. Currently, in 2026, the threshold is up to $53,000.00; any estate of that amount or less, is eligible for “small estate” treatment.
The probate law in Michigan imposes a tight deadline on small estates. The same forms are used, however, to open small estates.
As indicated above, these are the forms required to open a Small Estate:
Application for Informal Probate
Confidential Form to Accompany App/Pet
Petition & Order For Assignment (Small Estate Petition)
Confidential Form to Accompany AOA
Notice of Appointment & Duties of Estate PR/Exr
Register’s Statement (Informal Only)
Bond of Fiduciary (if required at all)
Probate courts are given exclusive jurisdiction in MCLA §700.1302, over questions of trust validity, internal affairs, administration, distribution, modification, etc.
MCLA §700.7203 gives probate courts exclusive jurisdiction over matters brought by a trustee or benefit, regarding the administration of a trust.
In short, people create trusts to avoid probate, but if there are disputes regarding the terms or validity of a trust, or the proposed distribution, the probate court will have jurisdiction over it.
In the aftermath of someone’s death, people are usually too busy grieving to start the process of “marshaling”, or organizing the assets for distribution. Making the process more difficult, is the reticence most people have, for letting others in on their private financial lives.
My suggestion is that you make a list of the assets, the debts, the account numbers, the addresses of all creditors, debtors and account holders, and the physical location of all papers relevant to each issue.
You know where everything is. Put down on paper where “everything is”
I have developed a lengthier description of my thoughts on the subject, and I am attaching a link to that document here.
