After losing a loved one, the last thing most people want to do is go through a complicated court process to settle the estate. Depending on the circumstances, the probate process can be drawn out and stressful. Increasingly, people are turning to estate planning tools like living trusts to keep their assets out of probate. But even if your family member’s estate must go through the probate court process, there are ways to simplify and streamline matters.
As a general rule, the smaller the probate estate, and the fewer heirs there are, the quicker and easier the administration of a probate estate will be.
Shortcuts to Avoid the Probate Process
If the deceased person (decedent) had a will, the will must be submitted to the probate court in the Michigan county in which they last resided when a person files a petition to open a probate estate. But what happens when there is no will?
Unless all of the deceased assets pass by non-probate means (such as through a living trust, joint ownership, or beneficiary designations) some type of probate process will probably be required. If the estate is very small, you may be able to one or more of these “shortcuts” to avoid, or at least minimize, dealing with the probate court:
If the only assets in the estate are the decedent’s wages and/or fringe benefits, those assets may be transferred without probate involvement. The decedent’s employer would have to have a contract with the late employee, or a signed statement from them, directing the employer to pay those wages and benefits to a specified person upon the employee’s death.
MCL 257.236 allows a surviving spouse or heir of a vehicle owner to apply for title to the decedent’s vehicle in their own name under certain circumstances. The vehicle or vehicles may not have a total value of more than $60,000, and the owner must not have left other property that would require probate letters of authority to be issued. The spouse or heir needs to present the Secretary of State with proper proof of the registered owner’s death and certify in writing on Form TR-29 that they are a surviving spouse or heir.
Personal Property Transfer
If any property of the deceased is being held by a hospital, nursing home, morgue, or law enforcement agency, a surviving spouse, parent, or child can claim that property (with a value of $500 or less). As long as no one has initiated the probate process, you can receive that property by furnishing identification and a signed affidavit.
Small Estates Processes in Michigan
The shortcuts above are helpful, but deal only with very specific property. Most people have assets in addition to those listed above. However, if the total value of the estate is $25,000 or less after funeral and burial expenses (as of 2022) the estate is eligible for a small estates procedure. There are three options:
Small Estates Petition
You can, with no waiting period, file a petition with the probate court stating that the decedent has died; that their estate is valued at $25,000 or less; that the funeral expenses were paid, the amount of those expenses and who paid them; and requesting the court to order the reimbursement of the funeral expenses and distribute the remaining assets to the decedent’s surviving spouse or heirs.
This petition is filed with the probate clerk, and the entire process can take as little as a few hours. One benefit of this method is that 63 days after the court’s order, any unsatisfied claims against the estate are barred, and the surviving spouse or heir cannot be made to pay any such debts.
Small Estates Affidavit
Twenty-eight days after the decedent’s death, you can present an affidavit to someone who holds property that belonged to the deceased to request the release of that property. The affidavit must contain the same information that a petition filed with the probate court would. The advantage of this method is that it allows you to bypass the probate court altogether. The downsides are that it requires a 28 day waiting period, and no protection from later creditor claims. That means that at some future point, a creditor of the deceased could come after your inheritance.
“Total Allowances” Small Estate
Under Michigan law, a portion of a decedent’s estate is preserved for their spouse and or minor children by certain “allowances.” These are called the homestead, family, and exempt property allowances. If the total of the allowances, together with funeral and burial expenses and administration costs, is greater than the total of estate assets, the estate qualifies as a “total allowances” small estate.
Unlike the petition and affidavit situations described above, a total allowances small estate requires the opening of a probate estate in the probate court. However, estate assets can usually be distributed fairly quickly to the people entitled to the allowance, and the estate can be closed by filing a few simple documents.
Do I Need an Attorney for Probate?
If your family member’s estate is small enough to qualify for one of the shortcuts or small estate procedures, you may be able to navigate it without an attorney’s help. If you choose to use a small estate procedure, be sure to use court-approved forms in order to comply with legal requirements. However, just because you may be able to manage the process without an attorney doesn’t mean that you have to.
Why would you need a probate attorney? If you are unsure about the size of the estate, or whether there may be creditor claims, or any other issue, an experienced Michigan probate attorney can help you identify next steps and possibly streamline the probate process. If you are trying to navigate the probate process without a will, a probate attorney can help to ensure that you notify all interested persons and take other necessary steps to complete the probate process correctly and with as little delay as possible. And if there are disputes regarding claims against the estate, or between heirs, it is important to have an attorney’s guidance regarding the probate process.
If you are looking ahead to the probate of your own estate, one of the best ways to make the probate process easier on your family is to create an estate plan that includes trusts. Assets held in a trust pass outside of probate. To learn more about avoiding probate, or making the process simpler, contact Estate Planning & Elder Law Services to schedule a consultation.