Estate Planning & Probate

You have been telling yourself that you’ll get around to making a will or, better yet, an estate plan that maybe, includes a trust.  It seems like a good idea that should be done for everyone’s sake, someday. But, what if that “someday” never happens?  When you die without a will or trust, it’s called dying “intestate”, which simply means that your family or loved ones are faced with problems, sometimes, many problems. Your wishes about who should benefit from your estate may not be honored.  People you have cared about deeply could be left without anything or, at least be left without the financial security you would have wanted them to have.  Most importantly the people left behind are forced to make choices that you may not have wanted them to make and face consequences you never intended for them to face.

Dying without a will or trust in Michigan means that the probate court gets to determine and control the distribution of the assets in your estate. The court-supervised process that your estate must go through when you die and there is no trust is known as Probate. Even with a will, your estate must go through Probate but, at least then, there is a guiding document that indicates how you wish to distribute the assets of your estate.  Any property that you own at the time of your death that is jointly owned will pass automatically to the co-owner and accounts, like IRAs, 401-ks, Life Insurance or, other retirement benefits that have designated beneficiaries, will not go through the probate process but, everything else you own in your name alone must go through the court’s probate process.

The probate process is likely to end with results you never wanted or intended. Also, probating your estate can take a substantial amount of time and could cost a significant amount of legal fees that could have been avoided.  A properly and professionally designed estate plan may make it possible for you to put in place an estate that side-steps the probate process entirely. 

What Happens To Your Property?

Dying without a will means that while some assets will go directly to your co-owners or, as mentioned above, to your named beneficiaries, the rest of your property is distributed according to the Michigan Law of Intestate Succession. This law is complicated. If you die and have a surviving spouse but have no living children, parents or grandchildren, then your entire estate passes to your spouse. If you have surviving children, parents or grandchildren, even if they aren’t related to your surviving spouse, your spouse will not receive the entire estate.  What your spouse will receive depends on whether or not your living relatives are children, grandchildren, or parents and may also depend on the size of the estate you left behind.

According to the law, where you don’t have a surviving spouse, your children will divide the contents of your estate in equal shares. If you have no surviving children, your surviving grandchildren, siblings, or parents are each entitled to a share of your estate. 

If you have been married more than once and have children from different marriages the application of the law becomes more difficult when you die without a will.  These children may not be treated the same way as you would have intended.  If you don’t have a will or estate plan and you have a child with special needs, your child could be put at risk of losing certain lifetime benefits that he or she may have, or may be qualified to receive, if only you had a left a well-drafted will or estate plan that covered such issues.

If you die without a will or trust, people you loved and cared about, but are not your relatives, receive nothing.  Perhaps you wanted to leave something for charities, special causes or organizations you cared about, also receive nothing. If you have no living relatives and you die with no will or trust then, whatever you do leave behind, according to the law of intestacy, escheats --(goes)-- to the State of Michigan.

As a result there is only one way to avoid these types of consequences, and many others not mentioned in this brief overview, like:

  • Who will Administer your Estate
  • Who will care for your minor children
  • What happens if you own or share in ownership if a private business company or partnership.

The one way is to have a will or estate plan designed by you and a lawyer experienced in estate planning.  Additionally, through proper estate planning you can also plan for what happens to you if you become ill, injured or otherwise incapacitated while still alive, you can control who will care for you.  Your personal affairs, medical care, financial and business interests will be covered and you will have your own plan in place in the event that you are unable to take care of those interests on your own.

Marshall S. Tauber is a qualified Personal Family Lawyer(R), who has undertaken significant training in Estate Planning, asset protection and family wealth legacy planning in order to assist clients through educating and preparing them for their present and their future by making their own choices about what happens and how they best serve those they love the most.  We urge you to fill out the contact us form on this page & elsewhere on this site to learn more or to make an appointment, (by calling the phone number below), for a Family Wealth Planning Session, a comprehensive program that allows you to design the plan that best serves your needs and the needs of those most important to you. Please call us today at 248-712-1690.