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

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

Generally, the answer is “no”.  On occasion, you will see a movie or television show where someone has passed away and there is a subsequent meeting of the heirs, with the attorney for the deceased.  They together gather for a “reading of the Will”.  While I am sure these things happen, once in a blue moon – that is 2 full moons in a month, by the way –  the realities are that in most cases the heirs and beneficiaries pretty much know what is in the Will (or Trust Agreement) of the deceased, and no such meeting occurs.  Or, if there is such a meeting, it is generally a friendly gathering of the sons and daughters of the deceased to review the anticipated administration of the estate.  This would include a discussion of  the decedent’s wishes as to who is to get what in terms of  items of personal property (hopefully the deceased left a list),  to determine if an estate sale might be necessary, and how and when the house will be put on the market (and who is going to clean it out).

Once someone dies, everything that is “titled” in their name is essentially “stuck” in the name of the deceased, until their Will is probated or their Trust is administered.  If the deceased left no Will or Trust, then they are deemed to have died “intestate” and probate proceedings again will have to be commenced in order to deliver their property to the person(s) entitled to receive it, under the laws of descent and distribution of the State of Michigan.  The professionals at Damon, Ver Merris, Boyko & Witte, PLC, can assist you with your estate planning needs and administration of an estate or trust.

The person who is put in charge of an estate (whether there is a Will or not) is called a personal representative.  They have fiduciary duties to those named in the will to properly administer the property of the deceased according to his or her wishes (or to follow the rules of intestacy if there was no Will).  These duties also include the obligation to sell assets, collect income (and pay it into the estate), pay proper bills, and render a final account and serve it upon all interested parties. This person is typically the “next of kin” of the deceased, usually the spouse if one survived, or a child if there was no surviving spouse.  The personal representative is entitled to reasonable compensation for his or her time spent on estate administration.

In order to “get things going” the proposed personal representative will file with the local Probate Court (typically within 30 days of the date of death), the original Will of the decedent (if it exists), along with a Petition for Commencement, an Inventory (listing all known assets on hand with their date of death value), an Application to Determine Heirs, a death certificate, and a number of other associated documents. These documents are then served upon interested parties.

In most cases, these are what are called “unsupervised” proceedings, where there is no direct Probate Court involvement or supervision of what is going on in administering the estate. Unless someone has a problem with the Will or the petitioning  party acting as personal representative, the Will is usually admitted as the decedent’s Last Will and Testament and the proposed personal representative is appointed as such, and he or she proceeds forward with administration of the estate.

Typical Will contests generally revolve around claims of undue influence, lack of testamentary capacity or intent, or lack of execution (or proper execution) of the relevant documents.  The burden of proving such matters falls upon the person contesting the Will.  Usual contests concerning the actions of a personal representative revolve around failure to perform (or timely perform) their duties, lack of notice, and self-dealing concerns.

After the estate is underway, the personal representative sends notice thereof to all known creditors and publishes a Notice to Creditors to File Claims in a local newspaper.  This notice gives creditors 120 days to assert a claim against the estate or their claim will be barred.  (You want to publish this notice as creditors’ claims generally take priority over any distribution to the decedents heirs or beneficiaries).  While this time period is running, the Personal Representative (who is issued “Letters of Authority” by the Probate Court), proceeds to close bank and financial accounts in the decedent’s name, sells  the decedent’s motor vehicle (unless it was given to a particular person), makes sure that any specific items of personal property are given to the person(s) designated under the Will, conducts an estate sale (usually with assistance of a professional in this area) if there are enough remaining items of personal property to warrant it, and then lists and sells the decedent’s home, usually through a realtor.

If there were life insurance policies, the life insurance companies are notified and provided with a copy of the decedent’s death certificate, so that they can process the death claim and distribute the benefits to the named beneficiaries under the beneficiary designation in the insurance policy (or transmits them to the estate if no person(s) was named).  Likewise, similar actions are taken in connection with retirement accounts.  Also, the social security administration should be notified so that any future benefit checks are stopped and the social security death (burial) benefit can be issued.

We will continue with this article in the next installment, to be issued shortly.  In the meantime, should you need help administering an estate or trust, or need to put your own financial affairs in order, please give the estate planning professionals at Daman, Ver Merris, Boyko & Witte , PLC a call at (616) 975-9951.  We are here to help guide you through the process.   – Larry A. Ver Merris / November 21, 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.