Probate is the court-supervised process by which the validity of a will, if any exists, is determined and a decedent’s (deceased person’s) property is distributed to the appropriate beneficiaries. The probate process ensures that the decedent’s property goes to the correct people, and that those beneficiaries are given clean title to the property they inherit. Probate is a complex and time-consuming process, and it is important that it be conducted correctly so as to avoid future problems. An experienced wills and estates attorney can guide you through the probate process, working with the court to properly distribute your loved one’s property.
Probate does not necessarily affect every aspect of a decedent’s estate. Only property distributed via a will or under the rules of intestacy is subject to the probate process. Probate is not necessary for property held as joint tenants; beneficiary designations, such as life insurance policies; or property in inter vivos trusts.
During the probate process, the decedent’s estate will be opened and administered. An attorney can help you:
- File the will with the probate court;
- Appoint a personal representative, who is responsible for the administration of the estate;
- Send appropriate notice of the probate process to creditors and other parties;
- Take an inventory of the property;
- Appraise the property;
- Collect any debts owed to the decedent;
- Pay any liabilities that the decedent owed to others;
- Pay taxes and file tax returns—the estate tax return is especially complex, and should only be handled by an attorney;
- Identify and locate beneficiaries;
- Distribute property according to the will or trust or, if there is no estate plan in place, according to Michigan’s rules of intestacy;
- Retitle assets to beneficiaries; and
- File a petition for discharge and close the estate.
If there is a dispute in the probate process, we can litigate, and ensure that your loved one’s estate is distributed according to his or her wishes. Disputes may arise about the legitimacy of wills, trusts, or powers of attorney; the powers of guardians or conservators; or the administration of the estate.
There are three main reasons to contest a will in Michigan:
- Undue influence;
- Lack of testamentary capacity; and
- Formalities of execution.
Undue influence means that someone, generally a person in a position of trust, used improper influence to lead the testator (the author of the will) to execute a will or trust that did not reflect the testator’s actual wishes. A testator will be found to lack testamentary capacity if the testator was not of sound mind at the time of making the will, and did not fully understand what he or she was doing. There may be problems with the formalities of execution if the will was not signed or witnessed properly. Often, someone will contest a will for a combination of reasons.
If you believe that a loved one’s will is being improperly contested, or if you believe that undue influence or another problem means that a will does not accurately reflect your loved one’s true wishes, an attorney can help you seek justice.
If you need help in probating a will, or if you believe that there has been a problem with the probate process, please contact Royal Oak probate attorney John Little for a free phone consultation.