Black Tie Formal or Dressy Casual? What avenue should you take when probating a will?

The last thing most people think about after losing a loved one is, "what needs to be done to wrap up my [mom, dad, grandpa, grandma, brother, sister, etc.] affairs."

When someone dies and does not have a Trust,  before all their property can be distributed, meaning money can be withdrawn from bank accounts, a house is sold, the family heirlooms can be claimed, an "estate" needs to be opened through a process called probate.  An estate means all money and property owned by a person.  Probate is the process of dealing with the estate of someone who has died, which includes clearing debts and distributing their money and property according to the will.

In Michigan, there are two ways to probate a will: Informally or Formally.  MCL 700.3301 et. seq., 700.3401 et. seq. When deciding to probate a will informally or formally, there are several factors to consider.

What Questions to Ask:

The first question to ask when deciding to probate a will informally or formally is: how involved do I want the court to be? Under informal proceedings, the court remains hands-off in the estate's administration, which means that the responsibilities fall of the named Personal Representative with minimal court supervision.  On the other hand, formal proceedings require the court to be more involved.

The second question is: Is there any reason to think the will is not valid, are there contentious beneficiaries or outstanding debts (in the case that the estate has no money).

A final question is: Is there the possibility that the will might get probated in another state? Since formal probate proceedings include court orders, formal proceedings might be more favorable because other courts are more likely to accept court orders.

Formal Proceedings

The critical defining feature of Formal proceedings is the involvement of the Probate Court. Unlike in an informal proceeding, the Probate court Judge will take an active role in administering the estate.  Generally, there are two options in formal proceedings: supervised administration and unsupervised administration; the former is used on specific issues within the administration, such as determining the estate's heirs or the validity of a will.

Informal Proceedings

Informal proceedings, alternatively, are used to help simplify the administration of an estate without the probate court's involvement.  With informal proceedings, the process to open, administer, and close the estate is more straightforward because many of the forms are submitted to the probate register.

Moreover, when commencing informal proceedings, most of the forms used are standard State-Court Administrative Office approve documents, which can be straightforward and easy to prepare and file.

So, Which should you choose?

Great, you know that an estate needs to be opened before any property can be distributed, but which do you choose?

If there is any possibility that there will be issues amongst the surviving spouse, children, or descendants of the decedent, the first thing to do is consult an attorney.

Next, determine the estate's size and potential problems that could arise during the administration.  Are there multiple possible wills? Is there a child who might fight the distribution of property? If so, then it might be wise to proceed with a Formal Supervised Administration.

Alternatively, if the estate is under $50,000 or there are no potentials for litigation, it may be simpler and more cost-efficient to open an informal estate.

Losing a loved one is never easy, and navigating the court system can provide additional stress and is emotionally taxing.  It is always advised that you seek out an attorney experienced in probate matters to help you navigate the probate courts quickly and efficiently.