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Probate & Estate Administration

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are marshaled, managed and distributed.  If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-supervised administration would be necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

The probate process for each estate is unique, but usually involves the following steps:

  • Filing a petition with the proper probate court.
  • Notice to heirs under the will or to statutory heirs (if no will exists).
  • Petition to appoint Personal Representative for the estate.
  • Inventory and appraisal of estate assets by Personal Representative.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets.
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.


FREQUENTLY ASKED QUESTIONS

What happens if someone objects to the will?
An objection to a will, also known as a “will contest” is not a fairly common occurrence during the probate proceedings, however, if the will is contested it  can be costly to litigate.

In order to contest a will, the contestant has to have legal “standing” to raise objections.  This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will.  In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as the Personal Representative.

Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain types of assets are “non-probate assets” and do not go through probate.  These include:

  • Property in which title is held as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and does not have to be probated.
  • Retirement accounts such as IRA and 401(k) accounts when there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust.  Legal title to such property passes to successor trustees without having to be probated.

Do I get paid for serving as an Executor?
Personal Representatives are reimbursed for all legitimate out-of-pocket expenses incurred in the process of marshaling, management and distribution of the deceased’s estate assets.  In addition, you may be entitled to statutory fees, which vary from location to location and on the size and complexity of the probate estate.  The Personal Representative has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets put in his or her care.  It is advised that the Personal Representative retain an attorney and an accountant to advise and assist him or her with his or her duties.

How much does probate cost?  How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate assets, the existence of a Will and the location of real property owned by the estate.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.  Common expenses of an estate include personal representatives' fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds.  These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.


Peter J. Johnson Law Office, PLLC assists clients in St Joseph, Benton Harbor, Stevensville, Sodus, Baroda, Bridgman, Berrien County and throughout Michigan and Illinois.



© 2017 Peter J. Johnson Law Office, PLLC
800 Port Street, P.O. Box 618, St. Joseph, MI 49085
| Phone: (269) 982-1100

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