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“Administering the Small Probate Estate – Part II”

by | Mar 26, 2018

ADMINISTERING THE SMALL PROBATE ESTATE – PART II

In the prior article I discussed expedited procedures available under Michigan law to deal with a small estate (less than  $22,000), where the deceased generally had only clothing and cash of $500 or less, was due a paycheck, or had money in a bank or credit union which combined with other (non-real estate assets) totaled less than that amount.  In those cases, there is a simple Affidavit and Assignment procedure that can be followed to place title to those assets in the names of the named beneficiaries under a Will, or otherwise in the names of the heirs of the deceased.  In this article, I will discuss dealing with motor vehicles and real estate in situations where, again, the total assets in an estate do not exceed $22,000

If the deceased only owned personal property that is not titled (such as household goods and furnishings), had a bank or credit union account, and a motor vehicle, then the most expeditious way to get these assets transferred out to his or her heirs or named beneficiaries under a Will is to follow the Affidavit and Assignment procedures found under the Michigan Probate Code (EPIC).  Under the Affidavit of Decedent’s Successor for Delivery of Certain Assets Owned by Decedent, you simply wait at least 28 days and then complete this Affidavit indicating your relationship to the deceased, when they died, if they had a Will (and, if so, its date), confirm that there is no real estate involved, that the total net assets in the estate are less than $22,000, that there is no pending probate proceedings, and identify who is entitled to the decedent’s property.  This form is then signed in front of a notary public.  It can then be presented to a financial institution along with the decedent’s death certificate.  That institution can then release any funds on hand to those named in the Affidavit, in the percentages stated.  The bank or credit union is then released from liability to the same extent as if they were dealing with a Personal Representative in a typical Probate estate.

If you also have to transfer title to a motor vehicle, watercraft, and/or mobile home, you can do so through a local Secretary of State (SOS) office.    This can be done provided the total value does not exceed $60,000 (motor vehicles) and $100,000 (boat)    a given in this example –  by bringing the title(s) involved to a local Secretary of State office together with a certified copy of the deceased death certificate and completed SOS TR-29 form (Certification from an Heir to a Vehicle), which the SOS will have on hand, indicating the relationship of the applicant to the deceased title-holder.  If more than one person is named as a beneficiary or heir in the foregoing Affidavit form, but you want title to the vehicle involved placed solely in the name of one individual, then the other persons named in the Affidavit can consent to this being done by signing a SOS form waiving or releasing any claim to the vehicle involved.  You should also have lien termination statements (signed by the secured creditor) with you or released on the title; otherwise, the new title holder will take title subject to the lien, which will continue to appear on the title.   

Under the above procedures, there is no Probate Court involvement.  If a Will exists, you would simply send it in to the appropriate Probate Court for “no proceedings” within 30 days of the date of death.  Since there is no probate (and thus no Personal Representative), you do not have to publish a Notice to Creditors to file claims, and wait the 4 months from publication for claims to come in before safely disbursing funds.  (Since the homestead allowance, family allowance, exempt property, administrative costs and funeral bills have priority over claims of general creditors, in any event, and such items will most likely tally up to the $22,000 figure, there is really no point in publishing such Notice for estates with assets that total less than that amount).

  If you have real property (land and buildings) involved, and the real estate (less liens) is still less than $22,000, then the above Affidavit procedures will not work.  In that case, you will have to follow the Petition and Order for Assignment provisions of the Michigan Probate Code (EPIC) by having the surviving spouse, heirs, or the person who paid the funeral bill file such a Petition with the applicable Probate Court and paying the $25 filing fee. You will have to attach a certified copy of the death certificate and the funeral bill, indicating who paid it, as that person(s) is entitled to be reimbursed first from the assets on hand.   The Probate Court will then immediately enter an Order of Assignment of the property on hand, to be used first to pay the funeral and burial expenses (or to reimburse the person who paid them).  The remaining property is then assigned out to the decedent’s heirs, who take such property subject to claims of creditors of the deceased for 63 days from the date of the Order.  (Before engaging in this procedure, it would be prudent to check with a title insurance company to make sure that they will insure title to the real estate over to a subsequent purchaser, and what they will require to be recorded in order to evidence the interest of the new owners, so that more formal probate proceedings are  not later needed when you decide to sell the property).

If the estate is more complicated or has much more in the way of assets, none of these procedures will work, and regular formal (or informal) Probate proceedings will likely be necessary. Should you need assistance in administering a probate estate, big or small, you would be wise not to try to do this yourself.   Abraham Lincoln famously said: “He who is his own lawyer has a fool for a client”.  To have things done correctly and efficiently, contact the estate planning professionals at Damon, Ver Merris, Boyko & Witte, PLC, who can quickly review your options, help you select the best means of proceeding, guide you through the process, and set you at ease.    Call us today at (616) 975-9951. We are here to assist you.    Larry A. Ver Merris  /  March 26, 2018

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.

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