Frequently
Asked
Questions
1
What is probate?
Probate is the court-supervised legal process for settling a person's estate after they die.
During probate, the court appoints someone to handle the estate (called the personal representative), who is responsible for identifying and valuing assets, notifying creditors, paying valid debts and expenses, and ultimately distributing the remaining property to the appropriate beneficiaries or heirs.
Not every asset has to go through probate. Assets held in a properly funded trust, jointly owned assets with rights of survivorship, and accounts with valid beneficiary designations can often pass directly to the intended recipient without probate.
While probate is sometimes necessary, it can involve court filings, legal expenses, administrative work, and months of waiting before an estate can be fully settled. A thoughtfully prepared estate plan can often minimize the assets that must go through probate, making the process easier and more efficient for your loved ones.
2
What is a will? What happens if i die without a will?
A Will (also called a Last Will and Testament) is a legal document that says what you want to happen to your assets after you die. If you die without a will, you're considered to have died “intestate.” Each state has laws that determine who inherits your property and how your estate is handled. In Michigan, intestate succession laws determine who inherits your probate property.
The result depends mainly on whether you're married, whether you have children, and which relatives are still living.
3
What is a trust? How do i know if i need one?
A trust is a legal arrangement where you put assets under the control of a trustee, who manages those assets for the people you choose (the beneficiaries).
A trust may be worth considering if you:
-Own a house or other property and want to make transferring it easier after your death.
-Want your assets to avoid probate where possible.
-Have minor children and want their inheritance managed rather than giving them unrestricted control at a young age.
-Have a child or other beneficiary who isn't good at managing money.
-Want someone to manage your property if you become incapacitated.
-Have a complicated family situation, such as children from different relationships.
-Own property in multiple states, which can make estate administration more complicated.
-Have a larger or more complicated estate requiring more personalized planning.
Not everyone who dies without a trust goes through a full probate administration. Assets with beneficiary designations, certain jointly owned property, and other non-probate transfers may pass outside probate.
4
what is a durable power of attorney and when do i need one?
This is an important part of an estate plan. A durable POA is a legal document where you choose another person (your “agent”) to handle financial or legal matters for you if you become unable to do so yourself.
If you become incapacitated, this person can handle matters for you. Being related does not automatically give a person authority over your finances. A properly executed POA can prevent your loved ones from having to go through a court proceeding to obtain authority to manage your affairs.
5
WHAT HAPPENS TO JOINTLY OWNED PROPERTY IF ONE SPOUSE DIES?
This depends on how the property is titled and how the wording is on the actual deed.
6
HOW CAN I DESIGNATE A GUARDIAN FOR MY CHILDREN?
In Michigan, if you have minor children, you can state in your Will who you want to serve as their guardian if you die. That appointment has priority over someone the court might otherwise appoint. Having a plan is especially important for a scenario in which both parents die.
7
WHAT SHOULD I DO IF I GET DIVORCED?
Post-divorce, it is very important to review and update your estate plan. Michigan law does automatically revoke certain provisions in wills, trusts, and other governing documents that benefit a former spouse after a divorce. It can also sever certain survivorship rights between former spouses. But you should not rely on those automatic rules because your estate may involve beneficiary forms, jointly owned property, retirement accounts, insurance, trusts, and other documents with their own rules.
8
is an estate plan worth the cost?
It can be tempting to put off estate planning because of the upfront cost. However, a well-designed estate plan can save your loved ones significant time, expense, and stress later.
Without proper planning, some or all of your assets may have to go through probate, which can involve court costs, attorney fees, paperwork, deadlines, and delays that may last for months or longer. Estate planning is an investment made now to make things easier later.
9
what is the probate process like in michigan?
The probate process can be fairly cumbersome in Michigan, even when nobody is fighting and the estate is relatively straightforward.
For a typical Michigan probate estate, someone generally has to open the estate with the probate court, have a personal representative appointed, identify and value probate assets, prepare an inventory, pay the probate inventory fee, notify interested parties, provide notice to known creditors and publish notice for unknown creditors, address creditor claims and debts, handle applicable tax filings, distribute assets, and complete the paperwork necessary to close the estate. A regular Michigan probate estate generally cannot be closed in less than five months, and creditor notice must be published at least four months before closing. If administration continues beyond a year, the personal representative must file a Notice of Continued Administration explaining why it remains open. There are also actual probate costs beyond attorney fees. This process can become substantially more involved in certain circumstances.
10
CAN YOU DO AN ESTATE PLAN IF YOU ALREADY HAVE DEMENTIA?
A diagnosis of dementia does not automatically mean that a person has lost the legal ability to make or update an estate plan.
The important question is whether the person still has sufficient mental capacity to understand the documents and decisions being made. Someone in the early stages of dementia may still be able to create or update a will, trust, durable power of attorney, or health-care directives.
If a loved one has recently been diagnosed or is beginning to experience cognitive decline, it is important to speak with an estate-planning attorney sooner rather than later.
If the person has already lost the capacity required to sign estate-planning documents, the options become more limited. An attorney can review any existing powers of attorney, trusts, beneficiary designations, and other planning documents to determine what authority is already available. If sufficient planning was not completed before incapacity, a guardianship or conservatorship proceeding may be necessary.
Planning early allows you to choose who will help you and how your affairs will be handled. Waiting until capacity is lost may mean those decisions have to be made through the court system.
