Whether you are an heir or beneficiary to an estate or the personal representative responsible for guiding the decedent’s assets through the probate courts, it’s important to understand the legal aftermath that follows when someone passes away, commonly referred to as probate or estate administration.
Broadly speaking, the term “probate” is often used as a shorthand to refer to the legal process through which a person’s property is gathered and distributed after they pass away. In Michigan, this administration process generally includes:
- Appointing a personal representative to oversee the estate
- Collecting and inventorying the assets of the estate and determining their value
- Paying or resolving the decedent’s debts and final expenses from the estate
- Distributing remaining assets to the appropriate parties, in line with the decedent’s wishes and all applicable laws
Even in the best of circumstances, administering a loved one’s estate can be a complex and emotional process. It can be made even more difficult when issues or complications arise, causing estate administration to drag on for an extended period of time.
Why is this so important to consider? There are both financial and time costs associated with probate, which can become more problematic the longer the process goes on. The longer probate continues, the more time it may take for your loved ones to get access to their share of the estate — making an already tough transition even harder to manage. Meanwhile, an extended probate can cost more in court fees and administration fees — while causing distress and potentially deepening family conflicts, which can take an emotional toll on all involved.
Realistically, the uncontested probate process in Michigan typically takes less than a year. However, the length of time needed to fully administer an estate will vary from case to case, and can be influenced by any number of factors — including (but certainly not limited to) the size of the estate, the complexity of the estate assets, the amount of planning done by the decedent, the competence and efficacy of the personal representative, the number of parties involved (including heirs, beneficiaries, and creditors of the estate), and the likelihood of family conflicts or disagreements.
Curious about specific issues that might arise during estate administration? While everyone’s experiences will be unique, here are some common examples of situations that can cause probate to drag on and become more expensive:
The Personal Representative Is Not Fulfilling His or Her Duties
The personal representative for an estate is tasked with many important responsibilities, and expected to execute them to a high level. Like a trustee or a conservator, the personal representative is a fiduciary, meaning that he or she is expected to place the best interests of the estate above their own.
If the decedent did not name a personal representative in their will, it may take time to find someone who will serve, particularly if there are disagreements over who should be appointed. The personal representative may also be slow to carry out their duties, or make mistakes that drag out the process or even cause financial damage to the estate, such as failing to take a full accounting of the estate assets, or mishandling property or funds.
If a personal representative is mishandling the estate, failing to comply with the decedent’s instructions, or not living up to their obligations under the law, they may be penalized for breach of fiduciary duty, including being removed from their role as PR.
There Are Contests or Disputes to a Will or Trust
An interested party — including, but not limited to, an heir, a devisee named in the will, a spouse, or a child of the decedent — may challenge the validity of will on the grounds of undue influence, fraud, incapacity, improper execution, or forgery. If there are conflicting wills or missing documents, this can lead to disputes, as well. Contests may also arise when the decedent omits their spouse or one or more children from a will.
The validity of a trust can be similarly challenged, particularly if certain legal formalities are left incomplete. An interested party may pursue litigation in order to terminate, modify, or reform a trust, or dispute the actions of a trustee.
The Decedent Owned Property In Multiple States
The more complex or unusual the assets in an estate, the more complicated, and time-intensive, probate can become. In particular, the estate administration process can become more complicated when the decedent owns real estate in multiple states.
Foreign real estate is not subject to jurisdiction of the primary probate court. As a result, such situations require a separate probate proceeding typically called an ancillary probate, which must be addressed in each state where the decedent’s real property is located. Without an ancillary estate opened for each state, the Michigan personal representative cannot effectively convey property and a cloud on title could result.
There Are Numerous Claims from Creditors
Settling creditor claims is an important part of administering an estate. It is the duty of the personal representative to publish notice to creditors of the estate, process the payment of all valid claims, and give notice to creditors if their claims are being disallowed. The PR is also responsible for filing and paying taxes on behalf of both the decedent and the estate.
An estate may need to remain open if the PR fails to carry out any of these duties. The personal representative or other fiduciaries representing the estate may need to challenge creditors claims if they are unreasonable, illegitimate or inappropriate, or if there are any outstanding questions or disputes with creditors that need to be resolved.
The Decedent’s Estate Plan Is Incomplete, Out of Date, or Unclear
Thorough and comprehensive estate planning can simplify and streamline probate for everyone involved. However, if the decedent’s estate plan is out of date, ambiguous, or incomplete, it can throw a major wrench in the gears.
An incomplete estate plan leaves more room for disputes and family conflicts, particularly if a spouse or child believes that they were omitted accidentally. A determination of heirs may be necessary if the decedent’s will is unclear or incomplete, or if he or she leaves many assets that will need to be distributed in line with Michigan intestacy laws.
Administering an estate can also be made more difficult if the decedent does not choose a suitable fiduciary —that is, one who is reliable, trustworthy, skilled, and communicative. Similarly, if the decedent has not updated their will or trust to represent changes in their personal circumstances — for instance, to make adjustments for a beneficiary who has passed, or acknowledge a change in their relationship with their loved ones — this can make for a much longer and more complex administration.
Navigating Estate Administration from Beginning to End: The Importance of Working with an Experienced Probate Attorney
Even under the best of circumstances, facing probate can be a difficult proposition, particularly when you enter this challenging period alone.
Whether you are a personal representative, an heir, a creditor, or a named beneficiary, the knowledge and guidance of an experienced probate attorney can help you understand your rights and duties and the ins and outs of this important process, while also giving you a supportive ally as you recover from grief and move forward.
If you are currently dealing with the legal aftermath following the passing of a loved one, Attorney Dean Patrick can provide the assistance and support that you need as an estate, contested or not, is guided through the Michigan probate courts. For fiduciaries, our office can provide informed professional advice to guide you through the legal process, explain your legal obligations, and help you discharge your duties in an efficient and expedient manner to avoid personal liability.
Interested in taking steps to make estate administration simpler and more efficient for your loved ones down the line? Mr. Patrick can also help you set a plan for you and your loved ones. His knowledge of Michigan probate law ensures you will get the legal help you need when it’s time to take care of your estate planning, including wills, trusts, and powers of attorney.
At the Patrick & Associates, PLLC., PLLC, we put our legal experience and skills together with our commitment to excellence in representing your rights. You can depend on our law firm’s ability to listen to you and our talent for creative strategies as we help you navigate probate, including (but not limited to) general probate litigation, wills and trusts contests, beneficiary disputes, guardianships, and conservatorships.