As an estate planning attorney, I routinely hear clients say that they want to avoid probate at all costs. Most of the time, these statements are based off horror stories that clients have heard from other individuals. They may not even understand what all is involved in the Michigan probate process. The fact of the matter is probate should be avoided under most circumstances. However, certain situations do exist where probating an estate may be a good plan.
Probate involves a court process whereby a deceased person’s (the decedent’s) estate is processed through the legal system. During this process, the person’s assets are inventoried, fees are assessed based off of those values, the deceased person’s creditors are notified of the person’s death and given a chance to file a claim against the estate, and these claims are properly handled. Probate can be a process supervised by the court or one overseen in an unsupervised case but handled by a named personal representative or executor. It can be done without the assistance of a probate attorney, although hiring a lawyer who is experienced in this area is usually recommended. The probate process can take several months or even up to a year to successfully complete, and it can involve a lot of legal fees to complete. It is for this reason that many clients want to avoid probate through a revocable living trust or other methods.
However, probate can be beneficial in certain circumstances. If the deceased left a lot of debt, probate can be an excellent way to deal with creditors of the decedent. The probate process offers structure and rules that require the personal representative to notify known creditors of the deceased, as well as publishing notice of the death for unknown creditors to allow them to make a claim against the estate. This publication usually gives four months for these creditors to officially file a claim under the legal matter. Requiring them to file a claim also allows the personal representative to determine whether all claims are legitimate. The probate case also protects the personal representative from creditors continuing to come after him or her for payment after the estate is closed. It adds extra protection and peace of mind that can help a personal representative who finds himself or herself overwhelmed by pushy creditors.
Death often brings out the worst in people. No one wants to think that their children will fight over their estate, but it does happen. Deep-seeded resentment often comes to the surface after a parent dies, and these disputes can bubble over into something beyond their control. Having a probate case open, even if the matter is unsupervised, can help with these situations, especially if the personal representative handling the matter is one of the adult children involved in this dispute. If the heirs do not believe the personal representative is doing his or her job correctly, a supervised probate case can be a way to ensure that these issues are handled formally. Having an impartial judge sign off on estate decisions can also protect the personal representative in the event the heirs continue to pushback on his or her choices. The case adds a level of accountability that may be needed. If the personal representative is making careless decisions, the court can also step in and remove him or her and appoint a neutral third-party to handle the matter in extreme circumstances.
If you are not sure whether probate is a good choice for your family member’s estate, talking with a probate attorney can be a good first step. Do not let the fear of legal fees deter you from taking this step. Keep in mind that legal fees are reimbursed through the estate itself, and the personal representative is not required to pay these expenses out of his or her pocket.
At Sullivan Law, we offer estate planning packages at a flat and reasonable fee. We also offer free consultations to discuss what your needs are, what you would like to do, and how that can be best accomplished. Everyone’s needs are different, and your wishes should be clearly listed and understood.
Call us at 248.917.1351 or email at asullivan@sullivanlawonline.com to schedule your free consultation today. We look forward to working with you!