Once the testator dies, does the Will need to be submitted for probate? What is the process?
Informal proceedings are used in straightforward cases where there is no dispute and an original properly executed Will exists.
Any interested person may make a written request to the probate register for an order of informal probate of a Michigan Will. Informal probate does not require prior notice to be given to all interested persons and does not require adjudication by a judge. s1105(b)
If the application is not filed within 28 days of the deceased’s death, then the application may be filed by a person who has a right or cause of action which cannot be enforced without administration (for example a creditor). s3301
The register must issue a written statement of informal probate if satisfied with the application and the original, properly executed Michigan Last Will and Testament has been given to the register. s3302
Once informal probate is granted, notice must be given to the heirs, devisees, other interested persons and persons who demand such notice under section 3205 within 28 days. s3306
If the register is not satisfied that the requirements have been complied with then the application may be denied. A reason for denial is provided. The issue may then be taken up in formal testacy proceedings. s3305
Formal Testacy Proceedings
These proceedings require prior notice to be given and are adjudicated by a judge or jury after a hearing.
They are a form of litigation, used to determine whether the deceased left a valid Will. Formal testacy proceedings may be used for any of the following:
- To probate the Michigan Will;
- To set aside or stop a pending informal probate application; or
- To have the Will declared invalid. s3401
The court fixes a time and place for the hearing and the person who filed the petition must give notice to each of the following persons:
- The deceased’s heirs;
- Beneficiaries and personal representatives named in the Michigan Last Will;
- Any appointed personal representative;
- Any person who has filed a demand for notice under section 3205; and
- Trustee of a trust which the decedent created. s3403(1)
Notice must also be given by publication to unknown persons and to persons who are known but whose address is undetermined. s3403(2)
If the petition for formal probate is not opposed, then the court may either grant or decline probate depending on the strength of the pleadings (rather than a hearing). To grant formal probate, the court must be satisfied that the testator is actually dead and that the Michigan Last Will and Testament is valid and unrevoked. s3409
Alternatively, the court may conduct a hearing in open court and require proof of the matters necessary to support the order sought. For contested cases, see “Objecting to a Michigan Will” below.
Delivering the Will
The person who has possession of a Michigan Will must deliver the original to the court with reasonable promptness. The person must either deliver the Will personally or send it properly addressed by registered mail. Failure to carry out this duty renders the person liable for damages. s2516
Safe Deposit Box
If you believe the deceased’s safe deposit box contains a Michigan Will and you do not have access, then you may ask the probate court for permission. The court may issue an order directing the institution to permit the person named in the order to examine the contents of the box. This must be done in the presence of the institution’s authorized employee or officer.
If a Michigan Last Will and Testament is found in the box, you will be required to deliver the Will to the probate register in return for a receipt.
All individuals who are present when the box is opened must sign a written statement certifying whether a Will was found and confirming that no other items were removed from the deposit box. s2517
If the value of the gross estate (after paying funeral and burial costs) does not exceed $15,000 then the court may order that the property be turned over to the surviving spouse or to the heirs if there is no surviving spouse. s3982
The court also provides a standardized form to use as a sworn statement for collection of personal property if the estate is $15,000 or less. s3983
Summary administration entitles the personal representative to make an immediate disbursement of the estate to entitled persons without giving notice to creditors. This is only allowed where the value of the entire estate (less liens and encumbrances) does not exceed the total of: the administration costs and expenses, reasonable funeral and burial expenses, homestead and family allowance, exempt property and the medical and hospital expenses of the deceased’s last illness. s3987
The personal representative needs to make an inventory and appraisal to ensure the value does not exceed the requisite amount. Once approved by the court, the property may be immediately distributed and the testator may file a closing statement. s3987
Order of Priority for a Personal Representative
In Michigan, the following persons have priority to be appointed as personal representative of a deceased person’s estate:
- The person named in a probated Michigan Will;
- The spouse (if he/she is a beneficiary named in the Will)
- Other beneficiaries;
- The surviving spouse (if not named in the Will);
- Other heirs;
- A person nominated by a creditor (after 42 days have elapsed since the death and only if the court finds the nominee suitable);
- The state or public administrator if applicable. s3203
Michigan Estate Tax
Michigan does not impose estate or inheritance tax on estates where the decedent died between December 31, 2004 and January 1, 2011. You do not need to file any estate tax forms with the Michigan Department of Treasury if the death occurs during this period.
However, you may still be required to file a federal estate tax return with the IRS.