Do I Need the Probate Court to Transfer Property?

Posted December 7, 2018

There are 4 kinds of property which pass to a new owner on death without going through probate. Property which is owned by the decedent and another person as joint tenants with right of survivorship will pass automatically to the surviving joint owner without going through probate (except in the case of certain joint bank accounts which are established with another person who is to act as agent for the decedent).

• Beneficiary designated properties (such as life insurance, pension benefits, and IRAs) are payable on death, without probate, to the beneficiary designated by the decedent (or, if none, as designated in the contract or plan itself).
• Properties owned by a revocable trust do not go through probate but instead are disposed of after death in accordance with the instructions written into the trust document.

There are even some forms of property owned solely by the decedent which would otherwise require probate that are exempt in certain instances. Those notable exceptions include the following. Unpaid wages. An employer in Michigan may pay the wages due a deceased employee to the employee's spouse, children, parents or siblings in that order unless the employee filed a request to the contrary with the employer. Cash up to $500 and wearing apparel. A hospital, convalescent or nursing home, morgue, or law enforcement agency in Michigan holding cash not exceeding $500 and wearing apparel of the decedent may deliver that property to the decedent's spouse, child, or parent who provides (i) suitable identification and (ii) an affidavit which states the person's relationship to the decedent and that there are no pending probate proceedings for the decedent's estate.

• Travelers checks. Most issuing companies (such as American Express) will redeem unused travelers checks following the death of the owner without requiring the appointment of a PR on submission of the checks, a death certificate, and an appropriate affidavit by the next of kin indicating to whom payment should be made.
• Motor vehicle transfers. If the combined value of one or more of the decedent's motor vehicles does not exceed $60,000 and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, the vehicle's certificate of title, and certain other Michigan Secretary of State documents.
• Watercraft transfers. If the combined value of all of the decedent's watercraft does not exceed $100,000, and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, and the certificate of title for the watercraft.
• Income tax refund claims. These may be collected without probate by filing IRS or Michigan form 1310.
• Transfer by affidavit. Personal property with a value not exceeding $15,000 may be transferred to a decedent’s successor by presenting a death certificate and an affidavit stating who is entitled to the property.

Closing and Re-Opening an Estate:

Posted November 17, 2018

Pursuant to MCL 700.3951 if the personal representative is unable to complete the administration of the estate within one year of the personal representative's original appointment, the personal representative must file with the court and all interested persons a notice that the estate remains under administration, specifying the reason for the continuation of administration. This may be accomplished by using Notice of Continued Administration. The personal representative must give this notice within 28 days of the first anniversary of his or her appointment and all subsequent anniversaries during which the administration remains uncompleted.

If the notice of continued administration is not filed, an interested person may petition the court for a hearing on the necessity for continued administration or petition for a settlement order under either MCL 700.3952 or MCL 700.3953 (discussed in a subsequent note). If a petition is filed the court hears such petition and grants appropriate relief to ensure prompt estate settlement. If the notice of continued administration is not filed the court will notify the personal representative and all interested persons that the court will close the estate administration and terminate the personal representative's authority within 63 days unless within that time period any of the following occur:

• The personal representative files the notice of continued administration, a petition for settlement under MCL 700.3952 or MCL 700.3953, or a sworn statement under MCL 700.3954.
• An interested person files a petition requesting a hearing on the necessity for continued administration or a petition for settlement under either MCL 700.3952 or MCL 700.3953.

The notice by the court to interested persons that the personal representative has failed to file a notice with the court will be accomplished by the court sending the interested persons Notice of Intent to Close Estate Administration and Terminate Personal Representative's Authority. It should be noted that the court is limited to either responding to the petition of an interested person or to closing its file and terminating the authority of the personal representative. If the required action is not taken by the personal representative or an interested person, the court will close its file and terminate the authority of the personal representative. This will be accomplished by the court signing a Memorandum of Administrative Closing.

How does the Probate Court close an Estate?

Posted October 12, 2018

Pursuant to MCL 700.3954 unless prohibited by court order and except for an estate being administered in supervised administration, a personal representative may close an estate by filing with the court, no earlier than 5 months after the date of a general personal representative's original appointment, a sworn statement stating that the personal representative has done all of the following:

• Determined that notice was published and the time limited for presentation of creditors claims has expired.
• Fully administered the decedent's estate by making payments, settlement, or other disposition of all claims that were presented, of administration and estate expenses, and of estate, inheritance, and other death taxes, except as specified in the statement, including distribution of the estate property to the persons entitled. If a claim remains undischarged, the statement shall state whether the personal representative distributed the estate subject to possible liability with the distributee's agreement or shall detail other arrangements that have been made to accommodate outstanding liabilities.
• Sent a copy of the statement to all estate distributees and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred.
• Furnished a full accounting in writing of the personal representative's administration to the distributees whose interests are affected by the administration. The account shall clearly state the amount paid out of the estate in fiduciary fees, attorney fees and other professional fees.

The form which would be filed would be Sworn Statement to Close Unsupervised Administration / / Supplemental. Pursuant to MCL 700.3958 if an objection to the closing statement is not filed within 28 days after the filing date, the personal representative, the personal representative's sureties, or a successor of either is entitled to receive a certificate from the register that the personal representative appears to have fully administered the estate in question. Since the statute does not require the register to issue the certificate it may be necessary to request it. The Certificate of Completion Supplemental will be used to meet this requirement. If a proceeding involving the personal representative is not pending in the court 1 year after the closing statement is filed, the personal representative's appointment terminates. The certificate does not preclude action against the personal representative or the surety.

It should be noted that this procedure is not available for an estate in supervised administration. It also should be noted that the personal representative is required to give the distributees a full accounting of estate administration. Since such an accounting need not be filed with the court, no particular accounting form is required. However, a personal representative can use Account of Fiduciary or Account of Fiduciary to accomplish this.

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