Often, when we ask clients what their goals for estate planning are, we hear, “I want to avoid probate.” Much of the time, this is a very reasonable goal. Probate, while simpler than it may have been in years past, is still a process that can take many months, or even longer. During that time assets may be tied up, and there are some costs associated with probate as well. It makes sense that people would want to bypass the process if possible, getting assets directly into the hands of their intended beneficiaries by using living trusts or other estate planning tools.
However, going through probate is not, in and of itself, a bad thing. Probate is simply a court-supervised process of settling a deceased person’s (decedent’s) estate, making sure that legitimate debts of the estate are paid and the remaining property goes to the people to whom it was intended to go. Under some circumstances, this court supervision is unnecessary and cumbersome. Other times, it can serve as a useful and reassuring structure. When is it a good idea to go through probate?
When Probate is a Good Idea
One circumstance in which you might not want to be too quick to avoid probate is if there is likely to be a dispute between heirs, as sometimes happens. Adult children of the deceased might, for instance, harbor resentments against each other, and some might believe that one child unfairly influenced the parent to make gifts to him or her at the expense of siblings. This is just one of many scenarios in which a dispute among heirs might arise.
When such disputes seem likely, it may be best to have the probate court as a backstop. All heirs will have the opportunity to raise concerns within the probate process and have those concerns addressed by a judge. Issues are likely to be resolved formally and relatively swiftly, instead of being left to simmer and create permanent estrangement between family members. The probate process isn’t a guarantee that harmony will be restored and relationships preserved, but the formality of the process and impartiality of the judge means that parties are more likely to respect and accept the resolution of disputes.
The structure of the probate court can also be helpful if the decedent’s heirs, or the personal representative of the estate, feel the need for an outside source to provide accountability. An experienced probate attorney can guide the personal representative through the required tasks of the probate process, making sure that nothing is overlooked. In addition, creditors of the estate and other heirs may appreciate the ability to access documentation that estate business is in order.
Speaking of creditors, they provide one last reason to go through the probate process. The probate process involves a protocol for notifying creditors of the decedent’s death, and sets a time limit for creditors to make claims against the estate if notice was properly given, typically four months after publication of the notice. If proper notice is not given, creditors may have up to three years after the deceased’s death to make claims.
Therefore, going through probate, and giving notice to creditors as required by the law, can provide a measure of certainty to heirs that no creditors will appear after they have received distributions, trying to claim a piece of the estate. Even if a late-appearing creditor’s claim is not legitimate, heirs in that circumstance would still have to go through the trouble of challenging the claim. If claims are barred through the probate process, this outcome is avoided.
Important Information About the Michigan Probate Process
In Michigan, as in most states, the services of a probate attorney are payable from estate funds, not out of the pocket of the personal representative of the estate. This is because an attorney’s services are considered a benefit to the estate. Most personal representatives who are family members of the deceased have never handled a probate estate before. A knowledgeable attorney can help a personal representative meet deadlines and avoid missteps, meaning that the estate is usually administered more quickly and efficiently.
As mentioned above, there are some costs associated with probate, but an attorney’s services can also save the estate money. As many individuals who have served as executors or personal representatives can attest, an attorney’s help also provides valuable peace of mind—not only to the personal representative, but to heirs who want to know that the estate is being administered properly.
If you are wondering if you should allow your estate to go through probate, speak with your estate planning and probate attorney. When your attorney understands your concerns and goals, he or she can help you create an estate plan specifically designed to minimize problems and achieve your aims. That may mean avoiding probate altogether, minimizing your probate estate through the use of living trusts and other devices, or allowing your entire estate to go through the Michigan probate process.
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