“Do They Really Read The Will (Estate Administration) – Part II”

Do They Really Read the Will? (Estate Administration) – Part II)

In the prior article I addressed the question about reading a Will (it rarely occurs) and spent some time on reviewing the probate process and what usually happens when a probate estate is opened.  This article concludes that discussion.

Once all assets have been administered (given to the person named under the Will, sold or taken to a local charity if they do not have sufficient value) and the claims bar date (120 days) has run, the personal representative can then proceed to pay any legitimate claims (or object to those which are questionable) and then wrap up the estate.  (Note that in most cases there is no federal estate tax due, as an individual can exempt almost $5,500,000 in assets and husband and wife can now exempt almost $11,000,000 in assets due to what is called “portability,” and there no longer is a Michigan inheritance tax).

The personal representative files a final account and gives notice thereof to all interested parties. This account lists all of the property on hand, and additions or subtractions therefrom, identifies the costs of administration, and shows the proposed final distribution to be made to heirs or beneficiaries.  If any interested party has a problem with such account, they can file an objection and the Court will determine if the account is proper and corresponds  with the decedent’s wishes as set forth in his/her Will (or properly follow the laws of intestate distribution of the State of Michigan if there was no Will).

How quickly the personal representative acts and how complicated things are will generally determine how long the estate remains open.  For instance, if the estate is not complicated and the personal representative acts quickly, the estate could be closed in as little as 5-6 months (remember that 120 days – i.e. 4 months –  has to pass so that all creditors are given an opportunity to file a claim against the estate).   If the estate is more complicated or the personal representative does not act quickly, the estate could remain open for several years.  If there is a Will contest or other related contested proceedings, it will delay the administration of the estate even more and things will naturally take longer.

If you have a Trust, none of the probate procedures outlined above generally apply.  In most cases nothing then goes through probate and all of the decedent’s assets are then administered by the (successor) Trustee named in the Trust.  (The named successor Trustee also should give notice to creditors to file claims against the Trust of the decedent to again start the 120 day claims bar date).  The Trustee gives similar notice to all trust beneficiaries and supplies them with a copy of the Trust (or relevant portion thereof) and administers the decedent’s property in a fashion similar to that described above in a probate setting.  A final account is prepared and provided to the beneficiaries and, if there are no objections, the property is distributed per the terms of the decedent’s Trust Agreement.  As none of the above is subject to Court supervision (unless there is a fight about something), and specific court rules or procedures do not have to be followed), matters can generally proceed a little faster.  Also, none of the terms of the Trust Agreement are subject to public scrutiny, as generally nothing is filed with the Probate Court; thus there is much more privacy and confidentiality as no one (other than the other trust beneficiaries), knows who is getting what.

If you have the need for legal counsel to help guide you through such process, the experienced estate planning professionals at Damon, Ver Merris, Boyko & Witte, PLC, are here to help.  Our firm has been around for over 100 years serving the legal needs of West Michigan and we have almost 200 years of combined experience in representing individuals in a myriad of estate planning settings as well as in administering their Will or Trust.  Whether your needs might relate to estate or trust administration, the drafting of a will, trust agreement, a durable power of attorney, or patient advocate designation (also called a living will) we are here for you.

As Ben Franklin famously said, “By failing to prepare, you are preparing to fail”.  Thus, making a decision to do nothing is making a decision.  Don’t be like a friend of a relative who wanted to make sure his parents and sister got nothing out of his estate.  He did absolutely nothing to accomplish this goal and, guess what, they got everything!

Take care of your affairs while you still can and avoid any potential “messes” down the line.  Don’t be penny wise and pound foolish (I think Ben said that too) and leave it to others to clean up your mess or figure out your intentions.  (Do you really want an unknown judge or the laws of the State of Michigan to determine who should get your property?).  Give us a call at (616) 975-9951 to discuss your desires so that we can draft an estate plan that meets with your wishes, not those of others or the State.  Contact Damon, Ver Merris, Boyko & Witte, PLC, today.   – Larry A. Ver Merris / November 27, 2017

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.