A new Michigan law amends the Revised Judicature Act to authorize an additional judge for the Macomb County Probate Court beginning Jan. 1, 2025. Currently the county has two probate judges. The addition of a third probate judgeship would be subject to the approval of the Macomb County Board of Commissioners.

The signing of House Bill 4823 into law demonstrates the increasing case load for probate court in the county. However, many of the cases that land in court could have been avoided with advanced planning. So, how does one avoid probate court?

What is probate?

Probate is a court process where the estate of a deceased individual is administered so that creditors are paid, assets are gathered, and property is distributed to the rightful heirs and beneficiaries. Probate can be initiated either with or without a will.

Probate without a will

When a person dies without a will, he or she is said to have died intestate. If the deceased person (often called a testator) does not have assets or has a small estate, probate may not be necessary.

However, in many cases, if a testator dies without a will in Michigan, his or her assets are distributed to certain family members through the probate process. It is during this process that the probate court will review the individual’s assets and provide a final ruling about the division and distribution to beneficiaries.

Proceedings generally begin with the appointment of an administrator who will oversee the testator’s estate. This person is responsible for paying off outstanding debts, receiving legal claims against the estate, locating legal heirs, and more. After, the probate court inventories assets available for distribution among legal heirs.

Probate with a will

When an individual with a will dies, the executor (a person legally responsible for sorting out the financials of someone who dies) is responsible for initiating the probate process. The executor – usually a family member – begins by filing the will with the probate court. The court will then determine the authenticity of the will. The court will grant the executor the legal power to act on behalf of the deceased.

Why would you want to avoid probate?

The probate process, which often lasts six months to a year (or more) can cost thousands in legal fees. Fees are paid from the estate. Probate proceedings are usually open to the public, so there is little privacy involved.

Ways to avoid probate

Some of the mechanisms that can be used to avoid probate include:

• Certain assets automatically avoid probate. Jointly owned real estate, if properly titled, may pass to the other owner. An IRA, 401(k), or life insurance policy usually has a named beneficiary. Pensions may have rights for the surviving spouse.
• A person may transfer ownership of property during their lifetime, a move designed to ensure that it is not included in their estate upon their passing and therefore is not subject to probate.
• Payable on Death (POD) or Transfer on Death (TOD) accounts enable funds to be paid out to a named beneficiary upon the passing of the account holder and bypass the probate process altogether.
• Another way to exclude assets from probate is to have a trust. Trusts can be irrevocable or revocable. If revocable, a person has the opportunity to make changes or cancel at any time. Irrevocable trusts generally cannot be changed. Avoiding the cost and time of probate is one of the main reasons that people establish a trust so it’s best to hire an attorney to help with this complicated process. Trusts – especially those of considerable size – are tricky and should not be done without a lawyer.

Help is available

The estate planning attorneys at O’Reilly Rancilio are available to answer your questions regarding probate. For more information, please call 586-726-1000 or visit our website.