Questions About Probate Law Answered by Michigan Probate Attorneys

What is probate?

Probate is the court-supervised legal procedure that determines the validity of your will. Probate affects some, but not all of your assets. Non-probate assets include things like a life insurance policy paid directly to a beneficiary.

The term probate is also used in the larger sense of administering your estate. In this sense, probate means the process by which assets are gathered, applied to pay debts, taxes, and expenses of administration, and distributed to those designated as beneficiaries in the will.

Is it true that probate is expensive, time-consuming, and bureaucratic?

Probate used to be considered all of the above and more. Times have changed and so has the probate process in most states. While probate is seldom as costly and time-consuming as it once was, it still makes sense to avoid the process when possible to minimize expenses and expedite the time in which your loved ones receive their portion of your estate.

How much does probate cost?

The expenses of probate (which can include court and appraiser fees) depend on the state where you live and the size of your estate.

According to the American Association of Retired Persons (AARP), the typical cost of probate runs $1,500; however, this is a very rough estimate. If complications arise, such as an invalid will or a will contest, all bets are off.

Good estate planning can minimize expenses by passing most of your property through a living trust or by joint tenancy or some other means that avoids probate, so that very little property is left to be distributed through your will. The smaller the size of the probate estate, the lower the costs, especially if it is small enough to qualify for expedited processing.

What if my estate doesn’t qualify for such simplified probate?

If your estate is relatively small or uncomplicated and your will is well-drafted, your spouse or other executor may not need a lawyer to help with the probate process. If things become more complex, the need for a lawyer becomes greater. The more complex the probate process, the more hours the lawyer will have to put in and the more it will cost.

How long does probate take? How does my family survive before my estate is freed up?

The average estate completes the probate process in six to nine mouths, depending on the state’s probate laws. The current probate procedures in many states now make it possible for your survivors to obtain funds to live on while your estate is being probated.

Should I plan my estate to try to avoid probate?

Yes. Even for people with moderate assets, probate can be expensive and time-consuming, and ties up money and property that could go directly to your beneficiaries. Probate is also a public process. For these reasons, probate avoidance should be an element of an estate plan.

Who is involved in the probate process?

The main players are the probate court and your personal representative. The probate court’s involvement varies depending on what kind of probate procedure exists in your jurisdiction. There are various degrees of court supervision required in different areas.

If you have a will, the personal representative is called your executor, the person you appointed in your will to administer your estate. The executor named in the will is in charge of this process and probate provides an orderly method for administration of the estate.

If you don’t have a will, the court will appoint someone to handle these tasks, usually at greater expense to your estate than if you had appointed an executor and given him or her the necessary powers to settle the estate.

Is a lawyer necessary for probate?

It depends largely on the state you live in and the size of your estate. Even though probate laws have become more transparent in most states, the process can still be complex and time-consuming.

As a result, it may be more expensive for a non-lawyer to negotiate than it is for an experienced estate lawyer. Some states even prohibit executors from handling probate without a lawyer’s assistance.

On the other hand, a few states (California, Wisconsin, and Maryland) have simplified probate procedures so much that it is often possible for a non-lawyer to probate a small estate. The good news for those who can avoid probate by way of enacting a revocable trust, joint tenancy, life insurance or other non-probate transfers of property is that these techniques save money.

In these cases you still need a will to dispose of residual property (most of your assets will be distributed in other ways); however, the cost and time to probate such a simple will is minimal, even with a lawyer’s assistance.

What can my family do to reduce the costs of probating my estate?

For most estates, you can appoint a non-lawyer as executor (usually a family member) to do most of the work such as gathering information and records. The executor files the required forms, figures and pays the taxes, and distributes the estate’s assets. If the executor has any questions, he or she can consult an experienced estate lawyer.

What does it mean when a will is contested?

Occasionally, those who do not receive what they consider a “fair share” from a dead relative’s will may want to challenge, that is, contest, the will.

The most common grounds for a will contest is that the will was not properly executed; the testator lacked testamentary capacity  which translates to the ability to make a will (the classic example being the testator ‘s senility when he left his estate to the named beneficiary); undue influence (the evil sister hypnotized her dying brother into leaving her the whole estate); fraud (the evil brother retyped a page of the will to give himself the Porsche collection); or mistake (you will your million dollar Summer home to “my cousin John” and it turns out you have three cousins named John).

How can I plan to avoid a will contest?

There’s an old saying that states, “You never really know someone until a will is read.” However, if your will conforms to legal requirements, a challenge is unlikely to be successful. It’s also another reason to consult with an experienced estate planning lawyer and to update your will periodically. There are other concrete steps you can take to reduce the chances of a will contest as well.