Innovative Law Services

Probate

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What Does "Probate" Mean?

Probate can be simply described as a means of transferring title to property. After a person dies, that person is no longer able to transfer title to property titled in their name. Probate is a procedure for transferring title to the decedent's property to the persons entitled to it.

Many people believe that by having a Will they will avoid probate. While a Will may make probate easier, there still must be probate of those items titled in the decedent's name alone. The Will tells the court which people should be entitled to the decedent's estate. The probate court will monitor the procedure, determine creditors and then transfer title to those people through court orders. Other options may help avoid probate if all of the assets are transferred owned through estate planning procedures. Upon death, title to specific assets may transfer automatically without the need of probate. This options include beneficiary methods, joint accounts, transfers on death (i.e. TOD forms with the bank), recordable deeds with the Register of Deeds office, and/or establishing a revocable trust. Each option has various implications for tax planning and personal preferences that require careful consideration.

It is important to note that only property titled solely in the decedent's name alone is a part of the decedent's probate estate and subject to probate.

  • For example, if real estate is owned jointly with rights of survivorship, the real estate may transfer with a copy of the death certificate because it passes directly to the survivor with the deed language.

  • Likewise, a jointly held bank account with the right of survivorship passes directly to the survivor according to the contract with the bank with no probate required.

  • The beneficiary of an insurance policy receives the proceeds without the probate process because ownership is determined by the insurance contract.

  • An automobile owned in the decedent's name alone is an exception to this rule because of a special statute which allows the Secretary of State to transfer title to an heir if there are no probate proceedings.

 

There are several statutes that allow for assets owned by the decedent to pass to the decedent's heirs without the necessity of probate. These statutes are exceptions to the general rule as to when probate is required.

MCL 257.236 provides that the title to vehicles of a decedent whose total value does not exceed $60,000 may be transferred to the heirs by the Michigan Department of State if there are no other assets requiring probate. The Secretary of State must receive proof of death of the registered owner and a certificate to verify the applicant is the surviving spouse or an heir of the decedent. This is accomplished by filing the papers at the Secretary of State Office.

MCL 324.80312 provides for the transfer of water craft without probate proceedings if there are no other assets requiring probate and the value of the water craft is less than $100,000. This is accomplished by filing the proper papers directly at the Secretary of State Office.

MCL 408.480 provides that wages or fringe benefits in any amount may be delivered to the heirs of the decedent in order of priority listed in this statute. The priority is as follows: surviving spouse, surviving children, surviving mother or father, and surviving sister or brother.

MCL 700.3981 provides that a hospital, convalescent or nursing home, morgue, or law enforcement agency holding cash not exceeding $500 and wearing apparel of a decedent may deliver the cash and wearing apparel to a person furnishing identification and an affidavit that the person is the spouse, child, or parent of the decedent and that an estate of the decedent is not pending. These documents are given to the person holding the property and are not filed with the probate court.

 

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