Tips you need to know to take a loved one's estate through probate

Posted at 10:38 PM, Nov 18, 2016
and last updated 2016-11-22 17:55:26-05

After you lose a loved one, estate planning attorneys say there are several steps you should take.

Within 42 days of the death, contact the Probate Court in your county to find out whether you should do a formal or an informal administration of the estate.

Michigan Legal Help has a lot of information compiled from the courts and the judges – click here to see what they advise about formal estates, and here to learn about informal probate.

We also asked Livonia attorney Carol Kramer to provide her advice about the best steps to take after the passing of a loved one:

1.  DO NOT publish an obituary.  That includes on-line, the funeral home web site, cremation society or newspaper. Parties search these as a way to open estates, make money, steal their identity and even rob the deceased's vacant home.

2. Determine if there are any assets in the sole name of the deceased.
   --if all assets are jointly owned, they pass to the joint party and no probate estate is necessary
   --if it is real estate and does not specifically say joint tenant on the deed, or state husband and wife, a probate estate will be necessary
  --if assets are titled in just the name of the deceased, a probate estate will be necessary

3.  If assets in the sole name of the deceased, or not held as a joint tenant for real estate, then determine the type of asset
     --assets with a beneficiary designation, such as an IRA, insurance policy, a ladybird deed or a payable on death bank account go a named party.   If no party is named, they will be part of the probate estate
  ---all other assets not designated with a named beneficiary or held jointly will be part of a probate estate.

You are just trying to determine if an estate is necessary and do not have to locate all of the assets to open an estate. Additional assets, as they are found, can be added to the estate.

4.  Determine the value of the assets that require a probate estate.  That will determine the court procedure, whether it is a small estate, or a full probate procedure.

5.  Look for a will to determine if specific parties are named to inherit and administer the estate.

6.  Obtain the names and addresses of all parties named in the will and those family members who would inherit by law. 

7.  Obtain an original death certificate.

8.  If there is no will, seek agreement who should open and handle the estate as Personal Representative.   If there is agreement and all parties sign the proper court form in agreement, it will make the process smoother.

9.  Contact an attorney.   The attorney will handle the estate or give you direction, depending on the level of work you want to do and fees you want or can afford to pay.

10.   An attorney can fill out and file the appropriate forms.   If you choose to do this on your own you will need to obtain and fill out the proper court form to open the estate.   There are several different kinds, small estate, informal estate and formal estate, depending on the value and circumstances, so you will need either an Application or Petition, in addition to the supporting forms, including testimony regarding heirs and acceptance of the appointment.  The court cannot give you legal advice, and I have seen the court give forms to open estates that require hearings when a simpler process was all that was needed. 

11.  File the forms in court and pay the fees to open the estate.   You will obtain a letter giving you the authority to speak and act on behalf of the estate as Personal Representative.   You can be paid for your time while acting for the estate.

12.  Once the estate is open you need to publish notice to creditors and allow 4 months for claims by the deceased creditors.

13.   Notify known creditors using the court form.  This includes Mortgage Company and credit card companies.   They may also want copies of the death certificate.

14.   Notify the credit bureau of the death.   This may prevent identity theft as the deceased social security number appears on the death certificate and death certificates are public records accessible to anyone who pays the fee.

15.  Continue to look for additional assets and determine the value of the assets.  Within 3 months of opening the estate you must file an inventory with the court and determine the inventory fee to be paid to the court based on the value, but assets can be added to the inventory up to the time you close the estate. 

16.   If there is a home you will want to secure the home, take care of the utilities and maintenance and sell the home.  If there are parties living in the home, seek rent until sold.  If this is a formal estate you will need to obtain permission of the court to accept the agreement to purchase at a hearing.

16.  When all claims have been filed and the Personal Representative determines they are valid, or denies the claim, then the claimants can be paid, assets distributed to the heirs, and the paperwork filed to close the estate.