On television and in movies, a Last Will and Testament makes its appearance in dramatic fashion, usually when the family is gathered together in an attorney’s office for the reading of the will, after which they presumably collect their newly-awarded possessions and go home. In real life, things are a bit more complicated, and definitely more time-consuming.
If your loved one recently died and had a will, what should you do? The TV shows get one detail right: work with a lawyer. Here’s why you should (and what could go wrong if you don’t).
The Michigan Probate Will Process
When we talk about “probate,” what we mean is the process of authenticating a will (proving that it’s valid), then identifying, gathering, valuing, and distributing the assets of a deceased person, also called the decedent. Probate also involves paying the debts of the decedents, and any taxes that the estate owes.
Not all assets go through probate. Assets that are held in a trust are not distributed through probate. Neither are assets that are held jointly with another person, such as a joint bank account or real estate held in joint tenancy. There are certain other exceptions, but in general, all property owned by the decedent alone in his or her own name are subject to probate.
There are two different probate processes: informal probate and formal, or supervised, probate. Most estates go through informal probate, but if the estate is large, contains complex assets, or if a will contest or disputes between heirs is likely, formal probate may be called for. Making this decision is only the first of many in which an experienced Michigan probate attorney‘s guidance is valuable.
In order to begin the probate process, the will needs to be filed in the Probate Court for the county in which the decedent resided, along with an Application for Informal Probate or a Petition for Formal Probate. Once the probate case is opened, the court will appoint a personal representative for the estate, usually the person named as executor in the will, if that person is able and willing to serve.
If you are personal representative, you will have many duties, including notifying interested parties to the estate, filing inventories and accountings with the Probate Court, giving notice to creditors, paying estate debts and filing taxes on behalf of the estate. In addition, you’ll have to identify, locate, and protect the decedent’s property, which is now property of the estate.
A personal representative is a fiduciary, essentially a trustee. As such, you are responsible for protecting the rights of the estate’s heirs and beneficiaries. If you fail to do so, even inadvertently, you could be exposed to significant personal liability. This is the reason most personal representatives choose to have the help of an experienced probate attorney. An attorney will help ensure that documents are prepared properly and filed timely, and that all your other obligations on behalf of the estate are met. Because a personal representative’s attorney is performing these services for the estate, the attorney’s fees come out of estate funds.
Efficiently Probating a Michigan Estate
Meeting the complex and likely unfamiliar requirements of the Probate Court is much easier and more efficient with the help of an attorney who regularly handles these matters. The risk of going it alone is high, and getting qualified help can help you resolve estate business on a timetable that allows heirs to receive their inheritance sooner than if you tried to puzzle things out on your own. In addition to saving time and money, using an attorney to make sure the estate is administered correctly helps prevent family disputes and preserves family relationships, which is what your loved one probably would want.
Talk to an experienced Oakland County estate planning attorney to learn more about the next steps to take when your loved one has died leaving a will that must go through probate. Attorney Jim Hubbert has helped numerous Michigan clients navigate the difficult weeks and months after a loved one’s death.