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  • Writer's pictureAndrew Steiger

Michigan Intestate Process

If a family member passes without a will in Michigan, property that must transfer to heirs through the Michigan probate court process will be subject to the Michigan intestate laws. The Michigan probate court applies the statutory intestate laws found in the Michigan Estates and Protected Individuals Code (EPIC) to determine who receives the property. It is generally always advisable to execute will in Michigan for estate planning purposes to avoid this uncertainty.

How Does Property Transfer Inside or Outside of Probate in Michigan?

Property in Michigan may pass to heirs or co-owners without going through the probate process as part of an estate plan (including property held in a living trust, jointly owned property, retirement accounts, etc.), having a valid will as part of a Michigan estate plan is generally a smart idea for all estate plans. A will acts as a backstop to other Michigan estate planning strategies and avoids the application of the Michigan intestate rules to any property that must be transferred through the probate process. This is especially true when someone decides not to own property jointly or does not execute a living trust. This post intends to go through the basic Michigan intestate rules to highlight scenarios where a valid will would avoid problems.

Background on Michigan Intestate Succession Rules and Heirs

The Michigan intestate rules were drafted by attorneys and the state legislature to produce reasonable results in cases where no will exists or the will is invalid. An invalid will includes a will that a Michigan probate court refuses to admit and probate for a variety of reasons including lack of required signatures, lack of capacity by the person making the will, improper execution, undue influence, etc. In other cases, a valid Michigan will that the probate court accepts may be ineffective. For example, an improperly drafted will may not dispose of all the decedent's property. This could happen where a will only disposes of certain types of property or property owned at the time of drafting the will, without concern for all property or property acquired after executing the will.

Michigan Probate Court Procedures for an Estate

To apply the intestate rules, a Michigan probate court must first sort out various relationships of the decedent, including whether the decedent had a spouse, children, siblings, living parents, etc. The first set of rules to look at is those where a decedent is married. If the decedent was married and had no parents or descendants, then the surviving spouse would receive the entire probate estate. If the decedent had children and a surviving spouse, the Michigan rules make a key distinction related to whether the children are from that spouse or a prior spouse, or both. If the decedent had children with the surviving spouse, the spouse would receive the first $229,000 plus half of the remaining intestate estate property. The result is the same if the surviving spouse also had children without and also without the decedent , but who gets a share of the other remaining half of the property after the first $229,000 becomes the question. In this case, only the children of the decedent receive a share of the property that goes to the decedent's descendants. The children of the surviving spouse who are the stepchildren of the decedent would not receive a share as a proper descendant of the decedent. This different treatment may not be the decedent's true preference.

What Happens When a Michigan Decedent Has Children from a Prior Marriage

If the decedent has children from a prior marriage and none with the surviving spouse, the surviving spouse would receive $153,000 plus half of the remaining property subject to the intestate rules. This may not be enough for the surviving spouse and a will could provide a funding mechanism or determine an amount to fully provide for the surviving spouse as well as the surviving children.

For any estate property that does not pass to a surviving spouse under the rules discussed previously, the intestate rules provide guidance that the decedent's descendants would receive the property. Descendants includes the decedents surviving children, grandchildren, or great grandchildren. To receive a share of this property, a descendant must be alive for at least 120 hours after the decedent passes. Living descendants like grandchildren may receive shares even if their parent (the decedent's child) dies before the decedent dies. This is called receiving a share by "representation" and requires a careful analysis to determine the amount of share distributed to the qualifying heirs. If no descendants of the descendant exist or survive the decedent, then the surviving parent or parents receive the intestate share, and if they have passed, then the decedent's living siblings or their descendants. And if none of those classes of individuals is living, then the state of Michigan will happily accept the property of the estate.

What to Do If a Loved One's Michigan Probate Estate Is Subject to the Intestate Rules

This is just a general overview of the Michigan intestate rules. Other rules may apply to alter the distribution of intestate property. If a loved one passed and did not leave a will, the Michigan probate rules of intestate succession will apply to determine how to distribute property, pay creditors and control the estate. If you have questions or need assistance with the probate process, contact probate attorney Andrew Steiger at Law Office of Andrew M. Steiger, PLLC for a free consultation.

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