By: Jeffrey M. Bloom, Esq., Law Office of Jeffrey M. Bloom, PLC
Not everyone is lucky enough to have parents or loved ones with a well-drafted and carefully considered estate plan. Instead, it is often that people simply don’t get around to creating (or refuse to make) an estate plan. They put it off, procrastinate, and deny that they need it. Indeed, it’s human nature to deny one’s own mortality. So, if you find yourself having to deal with the estate of a loved one who didn’t have an estate plan, what do you do?
The first step is to make sure that your loved one really doesn’t have an estate plan. Check their house thoroughly. Look in safety deposit boxes (if you have access to them). Call any lawyers they knew or worked with in the past. Check the local courts to see if any will(s) have been filed for safekeeping.
Assuming you’ve searched diligently and haven’t located a will or trust, you’ll next need to determine if your loved one had any assets that need to be probated. This would include any assets or property that did not pass from your loved one through “will substitutes” such as beneficiary designations, joint tenancies, lady bird deeds, or other mechanisms that “automatically” pass on assets without the need for filing for probate. Note that, even if your loved one had a trust, there may be assets that were not titled to the trust and therefore need to be probated.
If your loved one has assets that need to be probated, the next step is to file an application or petition with the probate court to open what is known as an intestate estate. In that filing, you’ll ask the probate court to open an intestate estate and to appoint what is known as a personal representative (presumably you). A personal representative, often referred to as the “executor”, will be the person in charge of administering the estate. The person who will serve as the personal representative is determined by an order of priority in Michigan’s Estate and Protected Individual Code (“EPIC”). Generally speaking, the spouse of the decedent has first priority to serve as personal representative, followed by the decedents’ children. It is important to carefully review and understand the priority statute, because any individuals having greater or equal priority to serve as personal representative will need to be named in your probate filing and are entitled to special notice.
Once an estate is opened and a personal representative is appointed, the estate will be administered like any other estate, except that Michigan law will determine to whom the decedent’s estate is to be distributed. Under Michigan law, if the spouse is still living, all of the assets will go to him/her. If the spouse is no longer living, the estate will be distributed to the decedent’s descendants (i.e children, grandchildren, etc.) “by representation.” This means that the assets will go to his or her children, but if one or more of those children are no longer living, the assets will go to their respective children. If those persons are no longer living, the assets go to their children, and so on. If decedent has no children or other living descendants, the law provides that the assets go to the decedent’s parents by representation. If there are no such living individuals, the statute provides further direction as to how the estate is to be distributed, and should be carefully reviewed.
In conclusion, while it is not ideal for your loved one to die without an estate plan in place, Michigan law provides a detailed procedural and statutory scheme for administering his or her estate. If you find yourself in the position of having to administer a loved one’s intestate estate, it is important to have a clear understanding of these laws, and to consult with an attorney if you have any questions or concerns. If you do not administer the estate properly, you may find yourself on the wrong end of complaints, or worse, lawsuits, by unhappy or disgruntled heirs.
Jeffrey M. Bloom is the managing member of the Law Office of Jeffrey M. Bloom. His practice focuses on probate litigation, estate planning and administration, litigation, and elder law matters, along with a niche practice in liquor licensing. He also handles traditional business matters, including business formation, shareholder disputes, noncompete and trade secret matters, and breach of contract disputes.
He can be reached at jeff@jmbloomlaw.com or (313) 300-9983. To learn more about him and his practice, visit his website at www.jmbloomlaw.com
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