WHAT DOES IT MEAN TO PROBATE AN ESTATE?

This article is an introduction to general concepts of probating a decedent’s estate and why it may be necessary to do so.

The word “probate” is a common term in our vocabulary. Yet its definition is not well known or understood. Upon death, obviously a person can no longer transfer property he or she owns at the moment of death. The means to transfer title to property owned by a decedent to the persons entitled to it is called “probate.”

A decedent’s estate is probated by proceedings conducted in probate court. When probate laws first developed, nearly all steps in the probate process had to be approved in the probate court by the judge. Now when an estate is probated, very little of the administration is court approved. Sometimes an estate is fully probated with no court hearing and with the probate register issuing the necessary court approved documents. 

It is important to note that only property that is titled in decedent’s name alone is probated. Where husband and wife own their house as husband and wife, if husband dies, the wife will own the house and there will be no probate. If husband alone owns 500 acres of real estate at his death, this real estate must be probated for title to pass to his heirs or according to the terms of a will, if he made one.

Many types of assets can be owned by two or more people as joint tenants with full rights of survivorship. When one joint owner dies, that person’s ownership passes to the other living joint owners. For example, if three persons are named on a bank account as joint tenants with full rights of survivorship, upon the death of one, the decedent’s share of the funds passes to the two survivors. They thereby become the only owners of the funds in the account no probate is required to pass ownership to them. Even if the decedent had made a will giving the share to a third person, the account share will pass to the two surviving joint owners, not to the third person.

When an individual dies as the sole owner of property, ownership of that property must pass to someone. The property can pass to persons named in a will. To do this the will must be admitted to probate. In other words, it is probated.

If the person has not made a will naming the successor owner or owners, the property will pass according to laws of the state where the decedent resided at the date of death. A person who dies without a will dies “intestate.” 

If an individual dies intestate, the property owned at death that must be probated will pass according to the laws established by the state. In Michigan, as of April 1 this law is known as the “EPIC”, that is, the Estates and Protected Individuals Code. The prior probate code, known as the Revised Probate Code, was revoked in its entirety.

The process to probate a decedent’s estate is complicated and technical. The court has very little involvement in the process. A personal representative is appointed and has many responsibilities and duties. Also, there are many potential personal liabilities for failure to properly administer the estate. Other articles have been written that explain some of the laws that have to be applied in the administration of a decedent’s estate. By reviewing the index of articles, the reader can make the appropriate selection.

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