The Probate Pro provides this Probate FAQ to assist people with basic questions. This probate FAQ, glossary and the definitions, terms and videos provided are for information purposes only, and are not intended to and shall not be used as legal advice. No attorney-client relationship is formed. You use the content, information, and services on this website at your own risk. The information and services are general and educational in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of individual transactions and cases. You should consult with qualified legal counsel before acting on any of the information and services on this website.
What is Probate?
The process of administering a deceased person’s affairs.
It is a legal process that may be required after someone dies. The probate process provides for the orderly resolution of a person’s financial affairs after their death. The probate process addresses whether the person died with or without a Will, who are the heirs, provides for the notification to creditors, the resolution of creditor claims, the orderly gathering and marshalling of assets, and their distribution.
Do I need to open a probate file with the probate court?
The first question that must be asked before filing a proceeding is whether it is even necessary. The answer to that question is based on the nature and extent of the decedent’s assets. A probate estate must be commenced only if the deceased person owned assets in his or her name alone or whether a representative is needed to investigate assets or commence a lawsuit.
The following are assets that do not flow through probate (and are not dependent on what is specified in a Will):
- assets the deceased person owned jointly (the asset passes directly to the surviving joint owner).
- assets the deceased person owned with his or her spouse (the asset passes directly to the surviving spouse).
- assets with a named beneficiary designation (for example, a retirement account with a named beneficiary or life insurance policy).
- assets held in a trust.
What is the probate process?
First, someone is appointed to be the administrator of the estate. In a will, the administrator is usually named. That person is called an executor. If there isn’t a will or executor named in the decedent’s will, the probate court will appoint someone of their choice.
Assuming there is a will, it will be brought to probate court, so that the validity of the document is proved. Much like how states differ over how assets in estates are distributed should there be no will, states differ on what needs to be followed for meeting the requirements of a valid will. This means having the proper signatures, witnesses or notaries to vouch for the will’s validity.
Once the will has been validated, the decedent’s estate is identified and inventoried. Until the probate process is complete though, the assets which are part of the estate cannot be sold or distributed. With the estate being inventoried and identified, properties are also appraised. Furthermore, any debts or taxes that were owed by the decedent are paid off.
Finally, the assets that are remaining are distributed according to decedent’s wishes if there is a will.
What is the probate court’s jurisdiction?
Jurisdiction relates to which matters will be heard in a court. Generally, the probate court has jurisdiction over deceased probate estates, trusts, mental health, guardianships, and conservatorships.
Where does probate get filed?
Estates are probated in the court of the county where the decedent resided at the time of death. If the person died out of state but had property in the state, an estate may be opened in the county in which the property is located.
Why do I need to open a probate file when there is a lawsuit?
When someone dies and there is a lawsuit, in most states a person must get appointed by the probate court to have legal standing to pursue the lawsuit.
“The decedent didn’t own anything. There is no estate.” Why do I need to open a probate estate?
Even if they didn’t own any assets, when someone dies and there is a lawsuit, in most states a person must get appointed by the probate court to have legal standing to pursue the lawsuit.
“The decedent had a Will.” Why do I need to open a probate estate?
When someone dies and there is a lawsuit, in most states a person must get appointed by the probate court to have legal standing to pursue the lawsuit. The Will nominates in the probate proceeding who may serve as the personal representative.
“The decedent had a Trust. That should avoid probate.” Why do I need to open a probate estate?
When someone dies and there is a lawsuit, in most states a person must get appointed by the probate court to have legal standing to pursue the lawsuit. Generally, a Trustee does not have legal standing to file a lawsuit.
What is a Personal Representative?
A person who is appointed by a probate court to administer and represent a decedent’s probate estate.
What is a Letter of Administration or Letter of Authority?
A document issued by the probate court that evidences the powers of the personal representative.
What constitutes a valid Will?
In the state of Michigan, a valid Will must comply with MCL 700.2502. It must be in writing. It is recommended that it be drafted and executed with the assistance of a competent estate planning lawyer.
A requirement under Michigan law is that it must be signed by the testator, the person making it. In the event this does not occur, it is possible for it to be signed by another person in his or her name at the testator’s direction and in the testator’s presence.
What is a statutory Will?
A statutory Will is a pre-printed form created under MCL 700.2519. It can be limited in its application but permits the following provisions:
- You may leave up to two cash gifts of any amount to people or charities.
- You may write a list of personal and household items and identify who is to receive each item.
- You may select a personal representative to administer your property.
- You may appoint a guardian and conservator in case you and your spouse both pass before any children reach the age of 18 years.
Probate FAQ: Free Forms and Video Help
How can I get free probate forms?
The Probate Pro offers access to free pre-printed forms. You can access the free probate forms here.
How do I get free probate information?
The Probate Pro has created many videos to assist you in the probate process. You can access the free probate videos here.
How do I get probate a list of common probate definitions?
The Probate Pro has created a probate glossary of common probate words. You can access the free probate Glossary here.
Probate FAQ: The Probate Pro
Who is The Probate Pro?
The Probate Pro, PLC is a national probate coordination law firm. The Probate Pro law firm handles probate and trust matters, litigation and appeals, estate planning, guardianships, estate and trust administration, and elder law. The Probate Pro is a Division of The Darren Findling Law Firm, PLC.
For decades, The Probate Pro has been practicing and providing probate related legal services. With offices in Michigan, Florida, Ohio and Illinois, The Probate Pro has earned a reputation of being the premier probate law firm.
Have additional questions that were not listed in this probate FAQ page? We would be happy to answer your questions.
