Understanding The Probate Process With A Will
In our most recent blog entry, we promised a more in-depth analysis of the probate process. In this blog, we will discuss the probate process for the family of a decedent with a Last Will and Testament, and how having a Last Will and Testament operates. An estate for a person who has a Last Will and Testament is called a testate estate. If you have questions about probate or estate planning, our Lake Orion, MI probate lawyer is here to help.
In the event the decedent had a Last Will and Testament and a trust, and the Last Will and Testament names the trust as the beneficiary of the will, the will is commonly referred to as a Pour-Over Will. This is because the assets of the Probate estate pour over to the trust once the Probate estate process is completed. The probate process in this scenario is normally somewhat shorter than a typical probate estate.
In this instance, the Probate estate will be opened by the person nominated as Personal Representative in the will. The probate process still needs to be followed by the Personal Representative, which includes, but is not limited to, the following:
- Drafting and filing the initial documents to open the Probate estate
- Publishing a notice to creditors in legal news in the county where the Probate estate is being administered
- Filing an accurate inventory of the Probate estate’s assets with the Court
- Making sure all claims of the Probate estate are paid in the order of priority set by statute
- Preparing a final accounting and serving said accounting on all interested parties of the Probate estate
- Making distributions to the beneficiaries of the estate
- Filing the paperwork necessary to close the estate
It is mandatory in the State of Michigan that a Probate estate be open at least 5 months before it can be closed in the vast majority of circumstances.
If the Last Will and Testament names different beneficiaries than the trust, then the nominated Personal Representative will go through the probate process and have to distribute the assets to the beneficiaries named in the will once the Probate process has been completed and the Probate estate is ready to conclude. This typically takes more time than transferring assets to a trust, as all the beneficiaries will need to sign documents agreeing to the final distributions of the Probate estate, or hearings will need to be held to determine the final distributions.
One of the big detriments to having to go through Probate—regardless of whether there is a trust and a pour-over will—is having to publish notice in legal news in the county where the Probate estate is being litigated. This publication to the decedent’s creditors gives the creditors 4 months to file claims against the estate. This notice is not required when all assets are handled within a trust.
If creditors file claims, these can turn into litigation within the Probate as the legitimacy of the creditor’s claims and the amounts they are to be paid from the Probate estate need to be litigated if the creditor and the Personal Representative are not in agreement as to what should be paid by the Probate estate to the creditor.
In our last blog entry on this subject, we will discuss the probate process in which the decedent did not leave behind any estate planning documents. If you have any questions about probate, selling an inherited home, estate planning, or securing your business for the future, we are just a phone call away. Reach out to Gudeman & Associates, P.C. today.
