The probate court has jurisdiction over a decedent's assets that are not in trust, do not name a beneficiary, or are not owned jointly. Contrary to popular belief, Wills do not avoid probate. The probate court also governs the appointment of guardians and conservators, and is the proper forum for resolution of inheritance disputes.
If a decedent died with a Will (testate), the Will must be filed with the probate court and admitted (authenticity confirmed). A personal representative (formerly known as an executor or executrix) will be appointed. The personal representative administers the decedent's estate. Letters of authority, issued by the court, serve as the official documentation of the personal representative's power to act. The court may require the personal representative to procure a bond if it believes that one is required to protect the assets of the estate from misuse.
If a decedent did not have a Will (intestate) a personal representative must be appointed by the probate court based on priority under the statute. After appointment of a personal representative, probate proceedings can either be supervised (all actions of the personal representative must be approved by the court) or unsupervised (court approval is not required but may be requested), regardless of whether or not the decedent had a Will. Where the decedent did not prepare a Will, the court will rely on the Michigan statutory laws of intestacy to determine the decedent's rightful heirs. Michigan probate law is governed by EPIC ("Estate and Protected Individuals Code").
A guardian may be appointed by the probate court to care for a minor or a legally incapacitated person. A legally incapacitated individual is one who is impaired by mental illness, mental deficiency, physical illness, chronic intoxication, or other causes. All guardians must be appointed by the probate court. The court must ratify the appointment of all guardians, even those named in the decedent's Will. A "full" guardian is able to make all decisions for the individual and a "limited" guardian may only make decisions proscribed by the court.
The probate court judge will typically appoint a "guardian ad litem" to be the eyes and ears of the court. The guardian ad litem will interview witnesses, including the ward or incompetent, and report his or findings and recommendations to the court. A conservator administers a minor or incapacitated individual's financial affairs. A conservator must submit an annual accounting of the protected individual's income and assets. The conservator is entrusted with the protected individual's property, which must be administered prudently and exclusively for the benefit of the ward. Guardians and conservators are entitled to reasonable compensation for their services under Michigan law. The probate court must approve the compensation of all such fiduciaries.
We at Accettura & Hurwitz have years of experience in all forms of probate. Although the goal of our estate planning practice is to avoid probate, we have helped clients through supervised and unsupervised probate proceedings, small estate procedures, and disputed estate claims. We also help guide clients through the process of obtaining guardianships and conservatorships.
For probate court assistance and administration of probate estate matters in Michigan, contact us today!