Administering an estate through the probate court, whether through formal or informal proceedings, can be an expensive and time-consuming ordeal. After paying the $175.00 filing fee, notice must be provided to all interested persons that someone is interested in the role of personal representative. There may be a disagreement over who will be personal representative and whether there is a valid will, all issues that a judge may have to sort out. Notice must be published to any creditors of the estate and four months is allowed for any claims to be filed. Additionally, there may be required accountings and other additional court procedures necessary to close the estate. It takes five months at the absolute minimum to resolve a decedent's affairs in probate, but most never happen that quickly.
However, if the value of the decedent's property minus the funeral and burial expenses is less than $23,000.00, then the estate may qualify for small estate proceedings. The petitioner can fill out and file PC 556 (Petition and Order for Assignment) with the local probate court. The Order of Assignment is signed by the judge (sometimes the same day as filing), distributes the decedent's assets according to law, and consists of the following:
- The $25.00 filing fee plus the inventory fee are both due at filing. Most Michigan probate court websites have an online calculator for figuring the inventory fee based on the estate's value.
- A surviving spouse, heir, or the person who paid the decedent's funeral bill may petition the court for small estate proceedings. No personal representative is appointed, and no Letters of Authority are issued.
- No notice to creditors is required to be published. However, an heir that receives property from the estate is responsible for any of the decedent's unsatisfied debts up to 63 days after the Order of Assignment is granted, up to the value of the property received. This potential liability to creditors does not apply to the surviving spouse or the decedent's minor children.
- No will is presented for probate. However, a will can still be filed with the probate court for safekeeping if additional probate proceedings are necessary.
- According to MCL 700.3982, a person filing for small estate proceedings must provide evidence that either the decedent's funeral or burial expenses are unpaid OR they were paid by a person other than the estate. This is satisfied by providing the unpaid bill from the funeral home and cemetery or providing the receipt showing final expenses were paid. The decedent's property is distributed in the following order:
- To pay the unpaid funeral and burial expenses OR reimburse the person who paid the funeral and burial expenses.
- The decedent's surviving spouse.
- The decedent's heirs according to Michigan's Intestate Succession laws.
There is another small estate procedure that does not require any court procedures. According to MCL 700.3983(1), "[a]fter 28 after a decedent's death, a person indebted to the decedent or having possession of tangible personal property or an instrument evidencing a debt, obligation, stock, or chose in action belonging to the decedent shall pay the indebtedness or deliver the tangible personal property or the instrument to a person claiming to be the decedent's successor upon being presented with the decedent's death certificate and a sworn statement made by or on behalf of the successor...". This successor can use PC 598 (Affidavit of Decedent's Successor for Delivery of Certain Assets Owned by Decedent) as a legally sufficient sworn statement containing all of the following declarations:
- The estate does not include real property.
- The value of the entire estate, minus the value of liens and encumbrances on any of the decedent's property, does not exceed $23,000.00 (if the decedent died in 2018).
- 28 days or more have passed since the decedent's death.
- An application or petition for the appointment of a personal representative is not pending or granted in any jurisdiction.
- The claiming successor is entitled to payment or delivery of the property.
- The name and address of each other person that is entitled to a share of the property and the portion to which each is entitled.
The transfer by affidavit procedure can even be used to change the ownership of corporate stock from the decedent to the successor pursuant to MCL 700.3982(2), provided that all other conditions are met. If an estate is eligible for both the small estate procedure under MCL 700.3982 or the transfer by affidavit under MCL 700.3983, the person holding the decedent's property cannot require the use of one process over the other.
If you have questions about the applicability of small estate proceedings or transfer by affidavit procedures for your probate matter, do not hesitate to contact the experienced probate attorneys at Kershaw, Vititoe & Jedinak PLC.