BEGINNING THE PROBATE OF AN ESTATE

This article will explain some of the requirements for starting the probate of a decedent’s estate. There are other articles written about the various methods of transferring title of assets without probating an estate. See Index of Articles.

After an attorney examines the documents and papers of a deceased and establishes that there is an estate that must be probated through court proceedings, the type of probate proceeding must be selected.

As of April 1, 2000 in Michigan, probate of a decedent’s estate is started by using either an informal or a formal proceeding. After the personal representative is appointed, the estate will be administered either as unsupervised or supervised administration.

Filing an “application” for probate of the estate commences an informal proceeding. It may request an admission of a will and the appointment of a person named in the will to serve as personal representative of the estate. If there is no will to be probated, the application will ask for the appointment of a named individual to be the personal representative.

The application is a request to the Probate Register for the admission of the will and/or appointment of a personal representative. If the application is within the requirements of the statute, the register will issue a document named a “Register’s Statement.” 

If the proposed personal representative has filed an acceptance of appointment, the register also issues a very important document titled “Letters of Authority.” This is used by the personal representative to prove he or she has authority to access records of the decedent and to do all acts necessary to administer the estate.

After the personal representative is appointed, the estate is administered without any court involvement. This is called unsupervised administration. When the administration has been completed, the estate can be closed without a hearing by using a special sworn statement.

The entire estate administration could be done with no court hearing ever being held. If a petition is filed with the court asking for a specific order, a hearing will be held. There can be none or any number of separate petitions filed during unsupervised administration.

If a will was admitted in an informal proceeding, any interested person can object to it at any time, including after the estate has been closed. While administration is pending, an objection must be filed in writing and set for formal hearing before the judge.

The second method of starting an estate proceeding is by filing a petition (as opposed to an application) with the court and sending notice to all interested persons in the estate. There are court rules that define who the interested persons are that must receive a copy of the petition and a notice of the hearing.

This is called a formal proceeding. Every formal proceeding requires the filing of a pleading that requests a court order. After the hearing on the petition to start the probate, the court will enter an order that sets forth the results of the hearing.

This order will determine the testacy of the deceased. If there was a will, it will either be admitted to probate or denied probate. The heirs of the deceased will also be determined in the order. The personal representative will be appointed and will be ordered to file an acceptance of appointment and may be ordered to file a bond.

After this hearing, the Letters of Authority will be issued to the personal representative once the acceptance of appointment, and if ordered, a bond is filed. The estate will thereafter be administered as an unsupervised administration. This is the same as with the informally commenced estate administration.

Although the administration of most decedent estates in Michigan will continue to be unsupervised, an estate may be supervised upon request of an interested person or from a direction in a will. Supervised administration can be ordered at the initial formal hearing or may be ordered later during the unsupervised administration. 

Even if the estate administration began by an informal application, it can become supervised by filing a petition and the court conducting a hearing and ordering supervised administration.

In every supervised administration, the court must determine the validity of decedent’s last will, if there is one, must appoint a personal representative to administer the estate, and must enter an order approving any distribution of estate assets to the heirs or will beneficiaries named in decedent’s will.

Under supervised administration, the personal representative must file additional papers with the court. Those papers must also be served on the interested persons.

In all other respects, the estate is administered with no court supervision unless the court restricts the authority of the personal representative or a petition for an order is filed.

Once a personal representative has court authority to act as administrator of the decedent’s estate, there are many responsibilities to be undertaken. For information about the general duties of a personal representative, see the article entitled: Some Duties Of A Personal Representative Of A Decedent’s Estate.

More information on this topic can be found at the Calhoun County Courts Probate Notes site.

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