For more information, contact:
Kerry D. Hettinger
Kalamazoo: 324-2000 Battle Creek: 968-5000
Three Rivers: 273-7800 Sturgis: 659-6161
Coldwater: (517)278-6800 Dowagiac: 782-2500
Fax: 344-3601 Statewide: 800-294-5055
Many people ensure their wishes by creating a will or trust document to distribute their assets at death. These tools, if used properly, will encourage a clear resolution to probate issues that strictly adhere to the decedent's desires. However, many decedent's do not use these tools, and at the time of the death, the estate is intestate, and must go through the probate process.
The administration of estates in Michigan is solely covered by the provisions of the Revised Probate Code, MCLA 700.1 et seq., MSA 278.5001. Further procedural aspects of probate law are covered in Chapter 5 of the Michigan Court Rules. The probate court holds jurisdiction over all of the following:
- All matters relating to the settlement of a decedent's estate, whether testate or intestate;
- All questions relating to the administration of trusts, including trusts under wills and inter vivos trusts created by the trust agreement or declaration of trust;
- Proceedings concerning guardianships, conservatorships, and protective proceedings for minors and legally incapacitated persons, including the settlement of estates of such persons;
- Proceedings to review and settle fiduciaries' accounts and instructions or directions to fiduciaries;
- Any contract proceeding by or against an estate, trust, or ward; and
- The determination of property rights and interests.
The probate process is governed by many rules and procedures, regarding instate or testate transactions, heirs at law, notice of commencement of proceedings etc. However, there are six rules that should be considered when dealing with all probate issues:
- Under the Code, real property is treated the same as personal property. Under the provisions of the law, certain distinctions were made between who was entitled to receive real estate and who was entitled to receive personal property.
- Any heirs-at-law of the decedent must survive the decedent for 120 hours. If the presumptive heir-at-law of a decedent dies within 120 hours following the death of the decedent, the heir is not considered an heir-at-law, and he or she will not be entitled to any share of the decedent's intestate estate.
- A surviving spouse is given a preferential status over the decedent's surviving sisters and brothers. If there are no surviving children or parents of the decedent, the decedent's spouse is the sole heir-at-law, even though the decedent may have left surviving brothers and sisters.
- There is no longer a distinction made based on the sex of the surviving spouse. In other words, there are no longer any preferences given to widows.
- A surviving spouse is given a dollar preference over the decedent's children and parents in two cases: first, if a decedent leaves no surviving children or issue but leaves a surviving parent, the surviving spouse is entitled to the first $60,000 of the decedent's intestate estate. The balance is then divvied equally between the surviving spouse and the surviving parent. Second, if a decedent leaves children or issue all of whom are also the surviving spouse's child or issue, the decedent's intestate estate shares the remainder equally with the children or issue.
- The code contains to key exclusionary rules to bar distant relatives of the decedent from inheriting the intestate share of the decedent's estate. These more distant relatives are not considered heirs-at-law of the decedent. First, any distant relative of the decedent's grandparents is excluded from any share of the decedent's intestate estate. Any such relative is not an heir-at-law of the deceased. Second, if when tracing lineage through the decedent's grandparents issue are located in more than one degree of kinship to the decedent, the issue in the more remote degree are excluded from sharing in the decedent's intestate estate; they are not heirs-at-law. Thus, when the nearest degree of kinship to the decedent is located by tracing through the decedent's grandparents, these issue are the decedent's sole heirs-at-law. As a corollary to this exclusionary rule, if no issue of the decedent's grandparents can be located, then there are by definition no heirs-at-law of the decedent, and the decedent's intestate estate will escheat to the State of Michigan.