What is probate and do I need it?

James P. Frederick

Written by

Probate Attorney - Livonia, MI

Contributor Level 20

Posted over 2 years ago. Applies to Michigan, 5 helpful votes



"Living Probate" - Guardianships and Conservatorships - What happens

If a person with a legal incapacity needs representation, the probate court can provide someone with legal authority to care for that person and or his or her assets. Under Michigan law, a Guardian has charge of the physical custody, medical treatment and living arrangements of the ward. A Conservator is in charge of the ward's business and financial affairs. If someone needs a Guardian or Conservator, an interested party files a Petition with the county probate court. A hearing date is set. The court appoints a Guardian ad litem (GAL), who is an attorney in the community, to investigate the situation and to make a recommendation to the judge. The GAL usually interviews everyone involved, which may include parents or other family members, doctors, etc. At the hearing, the judge may take additional testimony before deciding what is in the ward's best interests. A ward over the age of 14 can express their own preference.


The costs of Guardianship and Conservatorship

It costs $150 to file either guardianship or conservatorship. There is no discount if you decide to file both. The ward's estate would also be responsible for the charges of the GAL, if it can afford to pay it. If not, then the County would pay this cost. There may also be attorney fees to represent the petitioner. These are usually charged on an hourly basis, and range from about $500-1,500.


Ongoing responsibilities of guardians and conservators

On an annual basis, the guardian must file a report with the probate court on the ward's condition. This report details the living arrangements of the ward, any special needs, any medical issues and the physical and mental health of the ward. It also provides information on the social interactions of the ward, and any other matters of concern. The Conservator is require to file an Inventory, which lists the initial value of the ward's assets. On at least an annual basis, thereafter, the Conservator must file an Annual Account with the Probate Court, which reports the income and expenses of the estate, since the initial inventory. The Conservator must keep careful records and invest the ward's assets as an ordinarily prudent person would. The reports must be served on the court and all interested parties. The court can require additional responsibilities. Commonly, the court will either restrict assets of minors or require the posting of a surety bond.


Probate of a Decedent's Estate

When a person dies with assets titled in their name alone, no one has legally authority to transfer title to those assets. Whether there is a Will or not, a probate estate must be opened in order to deal with those assets. An interested party can apply or petition the court to be appointed Personal Representative. (In some places, this person is called an Executor, Executrix, Administrator or Administratrix, or a similar name.) The court issues "Letters of Authority" which are literally the court's provision of legal authority to transfer title to the decedent's assets. This is done either according to the terms of the Will, if there is one, or by intestate law, which is the legislature's attempt to anticipate what a person would want done with their assets, if there is no Will.


The costs of administering a decedent's estate

There is a $150 filing fee to open an estate. There is a $12 charge for each certified Letter of Authority. (You generally need at least one certified copy for each asset of the estate). There is a publication charge of $71.30. There is an Inventory Fee which is based on a percentage of the value of the estate. This fee would be $144 for an estate of $25,000, and $1,175 for an estate of $1,000,000, for example. The largest expense is often the fee of the attorney representing the Personal Representative. Most attorneys charge either an hourly fee or a flat fee for probate work. For a basic administration, this usually results in a fee range of about $4,500-7,500. For complicated situations the fee might be more than this. For contested estates, the fee could be MUCH higher than this.


Responsibilities of Personal Representative

There is not enough space to list all of the duties of the Personal Representative. (PR) The PR has the right to liquidate or otherwise deal with the decedent's assets in much the same way that the decedent could have, during lifetime. The PR is subject to fiduciary duties to the beneficiaries (and sometimes the creditors) of the estate. The PR is generally required to follow the terms of the Will, if there is one. The PR must give notice to all interested parties of the initiation of probate proceedings, the terms of the Will, if there is one, and the fee arrangement with the attorney. The PR must prepare an Inventory which lists the date of death value of the probate assets. When the estate is ready to be closed, the PR provides the beneficiaries with a Final Account, which lists the expenses and any income accruing during probate. The PR then distributes the assets according to the Will or intestate law, and files a Closing Statement with the court.


How long does probate take?

For a guardianship or conservatorship, the proceedings generally take 6-8 weeks from start to finish. A decedent's estate must be open for six months. If there are difficult assets to value and/or sell, then this could delay closing the estate. If the estate is contested, all bets are off, and the estate could be open for years. If a decedent's estate is open for more than a year, then the PR must file a Notice of Continuing Administration with the court and serve a copy on all of the interested parties.

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