Probate is the process by which a court authenticates the will of a deceased person (assuming the deceased made one). There are a lot of assumptions floating around about the probate process, many of which are actually misconceptions. Here are 5 things people commonly get wrong about probate.
1. If I die without leaving a will, the state will get everything I own.
This is a fear having to do with what is called intestacy. Intestacy is what happens if you die without a will and state law kicks in. Each state has its own rules regarding inheritance, but what’s important to know is that if any relative (no matter how distant) is turned up that person will inherit prior to the State of Michigan receiving your assets. If no relative can be found, the state will get the property (called escheat), but this is extremely rare.
2. Probate takes years.
Usually, unless the estate is contested, the only delay required by law is a period giving creditors the opportunity to file claims. Generally, it begins when notice of the probate proceedings is published in the local newspaper, and lasts from about 5 to 6 months (sometimes longer due to general delays by the system or the attorneys involved). Once the creditor window is over, the probate process can end and the estate closed as soon as the personal representative can gather assets and pay debts, claims and taxes. There are certain situations where probate might drag on, like in the event of family fighting or in the event of a very large estate.
3. Probate is expensive and will significantly eat into my assets.
In most states, probate costs will not come to more than 5% of the estate. The exception is a state like California where attorneys charge a percentage of the value of the estate. Fortunately, Michigan is not one of those states.
4. I don’t have to leave my spouse anything if I don’t want to.
Sometimes couples want to avoid leaving each other much in the way of the assets (for example, in a second marriage where both spouses have children of their own). Special planning is necessary in order to disinherit a spouse in Michigan. If you don’t plan, after death, the surviving spouse can choose not to take the share of assets left in the will and instead opt for what is called the “elective share” under Michigan law. Many people are surprised that a spouse can choose the elective share and, despite the language of the will, the surviving spouse will receive a significant share of the estate.
5. The oldest child is entitled by law to be the personal representative (executor) of their parent’s estate.
Being the oldest child is something the law simply doesn’t take into account. If the deceased parent names a personal representative in the will, then that person will be the personal representative unless the court believes there is a strong reason not to. If a personal representative is not named, the court will look to Michigan law and what is called a “priority list.”
Glenn Matecun proudly serves the citizens of Michigan in the areas of elder law, estate planning, and special needs law. Visit our website to learn more and schedule a consultation.