People often refer to an estate having to “go through probate” as if probate were a single, standardized process. In fact, there is more than one type of probate. In Michigan, there is formal and informal probate. The formal probate process is overseen by a judge after a petition is filed with the probate court. Any estate of a deceased person (decedent) in Michigan can go through formal probate, but not every estate needs to. For many (if not most) estates, it makes more sense to go through the informal probate process. Let’s talk about when informal probate is appropriate and what is involved in the process.
What is Informal Probate?
Probate in general is the process of settling a decedent’s estate, paying their last debts, and distributing remaining assets and property to heirs or beneficiaries. Informal probate is generally simpler and more cost-effective than the formal probate process. Unlike formal probate, informal probate is an administrative process. There is no court oversight, and no need for court hearings.
An interested person files an Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate) to open the estate. The words testate and intestate refer to whether the decedent had a will. A person who had a valid will is said to have died testate; a person without a will died intestate.
When Can an Estate Go Through Informal Probate?
An estate can go through informal probate if there is an original will and nobody is contesting its validity. If there is no will, an estate can still go through it if there is no dispute about who is legally entitled to inherit from the estate.
There is no value amount above which an estate must go through formal probate rather than informal probate. However, estates with significant or complex assets (such as a family business) may be better off going through formal probate. If you are not sure whether informal or formal probate is called for in your situation, talk to an experienced Michigan probate attorney about the pros and cons of informal vs. formal probate.
Estates with total assets of less than $24,000 may not need to go through informal or formal probate at all. Instead, there are streamlined short-cut processes, referred to as “small estate” proceedings, especially if a spouse or children are the only heirs.
How Does Informal Probate Get Started?
As mentioned above, an interested party can open a case by filing an application with the probate register in the Michigan county where the decedent last resided. The “interested party” is usually a family member but it can also be an unrelated party who was named in the will, or a creditor of the estate. If your family member has died, you must open an estate within 42 days of the death or someone else might.
A personal representative will be appointed to administer the estate. If the person filing the application was named in the will as personal representative, they will have priority to be appointed. If the applicant was not named in the will, he or she may still be appointed personal representative if no one with higher priority under the law challenges the appointment. Even a personal representative named in the will has no authority to act on behalf of the estate until officially appointed by the probate register.
If you apply to open an informal probate matter, and there are people with higher priority than you under Michigan law to be appointed personal representative, you must serve them with a copy of the application to give them a chance to challenge the appointment (and you must file proof with the court that you did so). Depending on whether these people were served personally or by mail, you will have to wait between seven and 14 days for the probate register to open the case and appoint a personal representative.
What Does a Personal Representative Do?
The personal representative is responsible for identifying, locating, inventorying, and safeguarding the decedent’s property. If you are the personal representative in an informal probate matter, your duties will include:
- Serving required notification to all interested parties;
- Preparing an inventory and paying the inventory fee;
- Preparing the decedent’s final income tax return and paying any taxes owed out of estate property;
- Giving notice of estate proceedings to creditors;
- Paying all legitimate debts of the estate according to the priority they are given under law (It is critical to pay debts according to legal priority, because if the estate does not have enough money to satisfy all debts, lower priority debts must go unpaid.);
- Distribute remaining assets according to the will or as prescribed by Michigan law;
- File documents needed to close the estate.
Informal probate typically takes less than a year, and may take less than six months. However, if it extends for more than a year, you will need to file a Notice of Continuing Administration.
Do I Need a Lawyer?
Informal probate is usually simpler than formal probate, but it can still be confusing and complicated. An attorney is familiar with probate processes and required forms and can make sure the process proceeds smoothly. The services of an attorney in most probate matters, formal and informal, are generally considered a benefit to the estate. For this reason, attorney fees are usually paid out of estate funds rather than the personal representative’s pocket.
If you have questions about whether an estate needs to go through formal or informal probate, or need the assistance of an experienced Michigan attorney for a probate matter, we invite you to contact our law office to schedule a consultation.