Who has the right to open a probate case?

The question in the title of this article is a bit presumptive.  Considering whether probate is even required in the first place is perhaps a better starting point. Probate refers to the administration of the estate of a decedent (deceased person) by a personal representative (PR) under the jurisdiction of one of Michigan’s county probate courts. Probate is not always required. It is typically initiated only if the decedent owned assets in his or her name alone. Notably however, not all property in which the decedent has an interest will be subject to probate.

In general, there a four kinds of property which do not require probate in order to pass to a new owner:

  1. Beneficiary designated properties (e.g. life insurance, pension benefits, and IRAs) are payable on death to the beneficiary designated by the decedent.
  2. Properties held by a revocable trust do not go through probate, but are distributed upon death by a trustee in accordance with trust provisions.
  3. Property owned as joint tenants with a right of survivorship automatically passes to the surviving joint owner without the need for probate. The same applies to a tenancy by the entirety arrangement between spouses.
  4. Certain property like unpaid wages, income tax refund claims and the decedent’s clothes or jewelry not exceeding $500 may be claimed outside of the probate process.

Outside of these four categories, if the decedent still left assets in their name worth more than $15,000 (adjusted with inflation) or solely owned real property, then probate is generally required.

In response to the question of who can petition the court to initiate probate proceedings, Michigan law allows a broad category of persons called ‘interested persons’ to do so. Under Michigan law, interested persons generally includes heirs, devisees under a will in question or previous wills and fiduciaries of the decedent’s estate or trust.

Implicit in its definition, probate begins with the appointment of a personal representative (“PR”). There is an order of priority regarding who can be appointed PR. If a valid will exists and a personal representative is identified in that will, that person automatically has the highest appointment priority. Without a will, the surviving spouse or their nominee has first priority, followed by the other heirs of the deceased or their nominee. If none of these persons is willing or able to act as the personal representative, the state or county public administrator may be appointed.

When considering filing a petition to begin probate proceedings, you must also consider the likelihood of your appointment as PR and the scope of responsibilities that that entails. At TGQ Law our expert attorneys can give you sound advice on your next best step.   Contact us today and schedule a no-cost fifteen minute consultation so that we can help you ascertain your appropriate next steps.

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