FAQs

Michigan probate laws govern wills and intestacy proceedings. The following can help you understand what is necessary and what you should do. Gafkay Law, PLC, can help provide guidance in probate matters. Gafkay Law, PLC represents personal representatives and others involved in Probate matters all over Michigan.

What are the court fees associated with opening a probate case?

Presently, it is $150.00 to open a case.

What or who is a personal representative?

Previously had been called an executor. A personal representative is a fiduciary who guides an estate through the process from gathering assets through distribution. A will names the personal representative. If there is not a will, the court will appoint the personal representative. However, the priority of individuals to be selected as personal representatives is defined by statue. MCL 700.3202 provides that persons not disqualified have priority in the following order.

  1. The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
  2. The decdedent’s surviving spouse if the spouse is a devisee of the decedent.
  3. Other devisees of the decedent.
  4. The decedent’s surviving spouse.
  5. Other heirs of the decedent.
  6. After 42 days after the decedent’s death, a creditor may be named under certain circumstances.
What if there is no will?

Michigan has laws that provide for the distribution of the estate. If someone dies without a will, it is called an “intestate estate.” Under MCL 700.2102, if an individual dies without a will and leaves a spouse, the spouse will inherit the majority of the estate. The descendent’s of the deceased will inherit the remainder of the estate depending on their relationship with the surviving spouse of the descendent. MCL 700.2103 provides for the distribution of the estate if there is no spouse. An individual’s descendants will inherit. If there are no descendant’s the individual’s parents then siblings and their descendants. If there is still no one to take then the grandparents and their descendants.

What are the personal representative's job duties?

Any personal representative is responsible for guiding an estate through the probate process. It is a position of trust and one that should be taken seriously. Michigan law applies certain duties to the job. If you fail to perform the duties properly, you can be held personally liable for the losses or damages that arise. A quick summary  of the duties:

  • Confidentiality. A personal representative under MCL 700.1212 owes a duty of confidentiality to the heirs or devisees of the estate the estate.

  • Inventory. A personal representative must inventory the estate within 90 days and then update the inventory with any additional information.

  • Account. A personal representative has a duty to provide beneficiaries of an estate with an account yearly and at the completion of the estate.

  • Fairness or Equality. A personal representative must treat all heirs and devisees equally.

  • Reasonably informed. A personal representative must keep presumptive distributes reasonably informed about the settlement of the estate.

  • Prudent Investor Rule. A personal representative has a duty to invest the assets of the estate as a reasonably prudent person would exercising reasonable care, skill, and caution.

  • Efficiency and Expeditiously. A personal representative must act to efficiently and expeditiously settle the estate.

  • The Best Interest of the Estate. The personal representative must act consistently with the best interests of the estate.

  • Settle Claims.  A personal representative has a duty to determine if there are any claims and pay or settle the claims when necessary.

  • Self-Dealing. A personal representative has a duty not to engage in self-dealing.

A personal representative should keep good records documenting expenses and income of the estate as well as time spent performing services for the estate. If you are appointed as a personal representative there are many ways to create liability for yourself, and hiring an attorney can help you navigate the process and avoid any unnecessary liability.

Do I have to go to court?

Probably not, depending on the specific circumstances of the estate. Many estates are opened and closed without ever physically going to the courthouse.

What do I need to get started?

You will need a copy of the will and a death certficiate.

What other fees will be charged?

The probate court charges an inventory fee, which derives from the value of the probate estate. There will likely be additional fees for appraisers, auctioneers, accountants, attorneys, realtors, and other professionals who assist you in collecting the assets and distributing them or liquidating the assets.

Where can I get more information about probating an decedent's estate?

Oakland County, Michigan has a web site that provides a large amount of information about Probate. It can be found here. The State of Michigan also offers a self-help page. It can be found here.

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