What Is Probate and Why Does It Take So Long?
Ever wondered why settling an estate can feel more like a marathon than a sprint? The answer often lies in a legal process called probate. Probate occurs after someone dies in order to distribute their assets. Its primary purpose is to identify, gather, and distribute the deceased person's assets according to their last will and testament or, if one doesn't exist, according to intestate succession laws. In this article the probate law attorneys of Thompson Legal will help provide a basic understanding of what the probate process entails, as well as highlighting some of the key legal considerations of probate that you should be aware of.
Please note that this post is not exhaustive, and every situation is unique. In the event that you have legal questions about probate, it’s advisable to speak with a licensed attorney. Contact Thompson Legal to speak with a Michigan Probate Attorney today.
When is Probate Necessary?
Probate is generally required when a will exists, when no will exists, or the estate is complex. If a person has a valid will, the probate process ensures that the decedent’s wishes are carried out. If the probate estate is subject to a will, an original copy of that document will have to be mailed to the appropriate probate court for administration. On the other hand, if a person were to pass without a will, Michigan’s intestacy laws apply. Probate court oversight will be required in the following cases:
Administration of a testate estate (including a Will),
Administration of an intestate estate, or
A dispute arises in the administration of an unsupervised estate or trust.
While probate can be a necessary step for some, there are many ways to minimize or avoid the probate processed entirely. Some of the most common methods include:
Revocable Trusts: Establishing (and funding) a revocable living trust during one's lifetime can transfer their assets outside of the public probate process.
Joint Ownership: Assets held in joint tenancy with right of survivorship pass directly to the surviving owner upon the death of the other. However, the implications of immediate joint ownership of the asset should be discussed with an attorney.
Payable on Death (POD) Accounts: Bank accounts, life insurance policies, and retirement accounts can be designated as POD, meaning they pass directly to named beneficiaries upon the owner's death.
2. What Happens in Probate?
Probate is a multi-step process that involves a variety of legal tasks. The first hurdle in the probate process is often opening the estate and appointing the appropriate personal representative. Then the personal representative can start the work of identifying the deceased person's assets, such as bank accounts, property, and investments. Next, creditors and beneficiaries are notified, and any outstanding debts are paid off. After that, taxes are filed, and the remaining assets are distributed to the beneficiaries according to the terms of the will or intestacy laws.
The probate process does not have to drag on. In actuality, Michigan’s Estate and Protected Individuals Code provides in MCL 700.3954 that personal representatives can close a probate estate after five months have passed, typically so long as the creditor period has expired and final distributions have been made. However, there are a multitude of factors that arise which complicate estate administration, requiring the estate to remain open for extended periods.
3. What Complicates Probate?
Several factors contribute to the length of time it takes to settle an estate, but most commonly they can be grouped into complexities with the estate, legal procedures, or emotional factors. Unsurprisingly, estates with a large number of assets or beneficiaries, or those with particularly complicated assets, can be more time-consuming to settle. Additionally, document preparation, court scheduling, and notice periods can delay the process. Finally, emotional factors, such as grief or disagreements among family members, can also contribute to the length of the probate process.
Estate Complexities
Asset Location and Identification: If assets are scattered across multiple jurisdictions or difficult to locate, it can significantly delay the process.
Business Interests: Businesses often require valuations, audits, and potential dissolution, which can be time-consuming.
Real Estate: Selling real estate can take time, especially in slow markets or if there are disputes over ownership or value.
Contested Wills: If there are challenges to the validity of a will or disputes among beneficiaries, the process can be significantly delayed by legal proceedings.
Legal Requirements and Procedures
Court Scheduling: Probate courts often have backlogs of cases, leading to delays in hearings and decisions.
Notice Periods: Courts typically require that notice of the probate proceedings be given to potential heirs, creditors, and other interested parties. This can take time, especially if these individuals are difficult to locate.
Paperwork and Documentation: The probate process involves a significant amount of paperwork, including inventories, accountings, and court filings. This can be time-consuming, especially if the executor or administrator is not familiar with legal procedures.
Missing Heirs: If the intended heir is unable to be located and to receive their share, a personal representative may be required to go through extended disbursement procedures.
Emotional Factors
Grief and Loss: The death of a loved one can be a difficult time, and grieving family members may not be able to focus on the probate process.
Family Disputes: Disagreements among family members about the intentions of the decedent, distribution of assets, or other matters can significantly delay the process.
4. Tips to Speed Up Probate
While probate can be a lengthy process, there are steps you can take to expedite it. One way is to ensure that your estate planning documents are in order and up-to-date. This includes having a valid trust agreement or will, a power of attorney, and a healthcare directive. Additionally, appointing a reliable executor can help streamline the process.
There are also strategies that can be employed, particularly during the administration of the estate. Most importantly, ensure that all necessary documents, such as bank statements, property deeds, and tax returns, are readily available to avoid delays. Secondly, always maintain open and effective communication with the executor, attorney, and court to promptly address any issues. Third, strive to resolve any disputes amicably, if possible, to avoid lengthy legal proceedings. Consider selling assets that may be difficult to distribute or that could complicate the probate process. Finally, consider hiring a qualified probate attorney who can guide you through the process and identify potential bottlenecks.
Be Patient! Even with these strategies, the probate process can still take time. Patience and understanding are essential during this challenging period.
5. Conclusion
While probate can be a time-consuming process, it is essential to ensure that the deceased person's wishes are carried out and their assets are properly distributed. Factors such as the complexity of the estate, legal protocols, and emotional circumstances can delay probate. Additionally, legal challenges among heirs can significantly stall the process. While the probate process can be lengthy and frustrating, understanding the factors that contribute to its duration can help individuals manage expectations and plan accordingly. It is often advisable to consult with an attorney to discuss strategies for streamlining the process and minimizing delays.
To avoid the probate process altogether, consider creating a comprehensive estate plan, including a will, trust, and other relevant documents. By planning ahead, you can save your loved ones time, stress, and potentially significant costs. A well-crafted estate plan can also help ensure that your wishes are carried out according to your desires, even after you're gone.
This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a probate attorney, please Contact Thompson Legal at (734) 743-1646 to schedule a consultation.
