FAQ

Welcome to the Law Offices of

James C. McCann and Associates

Public Administrator, Wayne County

32437 Five Mile Road, Livonia, Michigan 48154 Tel# 734.421.7333

Frequently Asked Questions:

1. WHAT IS PROBATE?

Probate is the formal legal process that administers estate and distributes assets to the intended beneficiaries of a deceased person. In short, probate determines how the deceased person's assets should be divided. This is done by either looking at a will, or if no will exists, by looking at the intestacy statues. The intestacy statues vary from state to state and they determine the hierarchy of heirs.

2. WHAT IS DIFFERENT IN FORMAL AND INFORMAL PROBATE?

The main difference between informal and formal probate lies in the court supervision and also the complexity of the estate. In informal probate personal representative is able to divide property more quickly and the probate court gives the final approval at the end of the process. In formal probate the personal representative is supervised on the each step and because of the complexity of the estate, it takes much more time to distribute the property. So, depending on the complexity of estate, personal representatives may go either way, but just to keep in mind that even though informal probate seems much simpler, personal representatives are held liable for all the mistakes made in a process. Both estates require four months elapse before distribution, to give notice to creditors and claimants.

3. WHAT DIFFERENCE DOES THE WILL MAKE IN PROBATE?

The will tells the probate court how to distribute person's assets after he/she dies, so if there is no will present, the distribution of a person's assets will be set by statue. Also, if there is a will present, the distribution of the property or assets is overseen by an executor named in a will, but if there is no will, court appoints a representative to administer the estate. Even though having a will does not avoid having a probate, carefully drafted will does make the process go smoother and more efficient.

4. IS PROBATE NECESSARY?

Some property like, joint tenancy property, insurance policies, and retirement accounts do not require probate, but instead go directly to the surviving joint tenant or named beneficiary. Probate is also not necessary for property or assets that are in trust.

5. WHAT IS A TRUST?

Contrary to the will which does not become effective until the person's death, the trust is operational as soon as it is signed. Trust may be designed for the purposes of property management, assistance to the grantor (the person who creates a trust) especially if the grantor becomes physically or mentally incapacitated, and disposition of property after the grantor of the trust dies. The living trust avoids probate since the person's property is owned by the trust, and therefore there is nothing for the probate court to administer. The assets in the trust are managed by the trustee and in many cases during the grantor's lifetime the grantor is also a trustee. Therefore the grantor is in complete control over his/hers assets and only after the grantor dies or becomes incapacitated the successor trustee takes over the management of assets. The successor trustee is hand picked by the grantor and is in charge of managing the assets, paying the debts, taxes and administration costs, and also distributes the assets pursuant to the trust. It is also a great idea to transfer all the assets to the trust before the grantor's death. If assets are not transferred, then there will be a death probate in every state in which the grantor holds real property.

6. WHAT ARE CONSERVATORSHIP OR GUARDIANSHIP PROCEEDINGS?

If there is no living trust and a person becomes incapacitated or dies then that person is subject to conservatorship or guardianship proceedings. The probate court appoints someone to take care of that person's assets and personal affairs.

7. HOW CAN A PERSON LEAVE PROPERTY TO MINOR CHILDREN?

The law requires that adults manage children's inheritances until those children turn eighteen. If a testator, the person who makes a will, wants to leave property to children, he/she should name an adult as trustee to manage that property. If that does not happen and the amount is over $5,000.00 then the court names someone as conservator to manage the property.

8. IS THERE A DIFFERENCE BETWEEN GUARDIANS AND CONSERVATORS?

A guardian is a person appointed by the court who is given the legal authority and assigned a duty to care for another's person, affairs, and sometimes property. A guardianship usually arises because an individual is unable to care for him/herself due to infancy, incapacity, or disability. A conservator is a person appointed by a court to manage the estate or assets of someone who is not legally capable of doing so.

The information you obtain at this site is not, nor is it intended to be legal advice. You should consult an attorney for individual advice regarding your own situation.