• Attorney Andrew Steiger

What Happens In Michigan Probate Without a Will - Michigan Intestate Rules

Updated: Jul 5, 2019

If you pass without a will, property that must transfer to heirs through the probate court process will be subject to the Michigan intestate rules. The probate court will apply the intestate rules found in the Michigan statute to determine who receives the property. It is generally always advisable to execute will in Michigan for estate planning purposes to avoid this uncertainty. While certain property 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 is generally a smart idea for all estate plans. A will acts as a backstop to other estate planning strategies and to avoid 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 co-own property or implement a living trust plan. This post intends to go through the basic Michigan intestate rules to highlight scenarios where a valid will would avoid problems.

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 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 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. In such cases, the remaining property not disposed of in accordance of the will would pass based on the Michigan intestate rules.

To apply the intestate rules, the probate court would first need to 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 result the decedent would prefer.

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.

This is just a general overview of the intestate rules. Other rules may apply to alter the distribution of intestate property. By drafting a will or other estate planning documents, the application of these rules may be avoided to provide for the distribution of estate property according to the intent of the decedent. If you have questions about an existing estate plan or need assistance implementing an estate plan, please contact attorney Andrew Steiger at Steiger Tax Law for a free consultation.

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