4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

Michigan uses the same terminology in Section 4:04.1 of the Underwriting Manual.

Is there a statutory time limit for (a) probating a decedent's will, or (b) opening administration of an Intestate's estate? If so, specify for both situations. Provide statutory citations.

There is no strict statute of limitations for either probating a Decedent's will or opening administration of an Intestate's Estate. However, all equitable doctrines such as laches apply. As such, an heir who presented a will 14 years since the death of a Testator was estopped from having it administered when parties were advised of proceedings and claims. MCLA 700.144 and Foote v. Foote, 61 Mich. 181.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

Yes. Community Property does not exist in Michigan. If a decedent owned property in his or her own name, the personal representative must obtain a court order to convey the property subject to applicable rights of Dower in a female spouse. MCL 700.281 et. seq. Tenancy by the Entirety property passes automatically to the surviving spouse. MCL 554.44 et. seq. Dower is a wife's automatic 1/3 interest in the property of her deceased husband. MCL 700.281 and MCL 554.2 and 558.1.

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes, Michigan recognizes joint tenancies. In Michigan, joint tenancy has a survivorship feature. As such, when a joint tenant dies, the remaining joint tenants take an undivided interest in the property. The sole remaining joint tenant takes the property free and clear of the heirs of the deceased tenants. MCL 554.44 et. seq. and Michigan Land Title Standards 6.2. In Michigan, property held by a husband and wife is known as a Tenancy by the Entireties. The estate of the husband and wife is deemed a separate person from the individual interests of the individual wife and husband and their individual creditors.

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. A surviving spouse may elect to take the equivalent of his or her intestate share (reduced by 1/2 of the property to be received from the deceased spouse outside the terms of the will [such as deeds]) instead of taking under the will. MCLA 700.282.

Summarize the steps required for a testate administration. Provide statutory citations.

Testate Administration: MCL 700.118 to 700.173:

  • Admit will to probate or submit Application for Independent Probate if Decedent's property is held in Trust.

  • Notify Creditors a publication in legal newspaper for four consecutive weeks, with delivery of notice to known creditors.

  • Prove will is authentic at a court hearing.

  • Hearing for objections to will's provisions or the appointment of the personal representative.

  • Prepare an accounting of Decedent's assets and submit it to Probate Court.

  • Pay claims of the Decedent and distribute net assets to the Decedent's beneficiaries.

Summarize the steps required for an intestate administration. Provide statutory citations.

Intestate Administration: MCL 700.104 to 700.117

File Petition for Commencement of Intestate Proceedings in accordance with statutory scheme, i.e. (1) Surviving Spouse, (2) Child or children, (3) Parent, (4) etc.

Obtain Court Order approving administration of Intestate Estate and appointment of personal representative.

Proper notifications, hearings, payments to creditors, and distributions to heirs at law similar to testate proceedings.

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Yes, an ?Affidavit of Heirship?. There is no statutory form other than it have two witnesses and a notary to be recordable. From an underwriting standpoint, each Affidavit should be reviewed on a case by case basis to ascertain all the proper parties and relevant information have been recited in the affidavit.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Small Estates. MCLA 700.101 is a short form procedure for estates of $15,000.00 or less. Upon submission of an affidavit of the surviving spouse or heirs and an inventory of the decedent's assets the short form procedure may be used. It is general underwriting practice in Michigan to require either a specific Court order authorizing the sale of real property from the Personal Representative of the so called ?Small Estate? or an Order of Small Estate authorizing the Decedent's spouse or heir(s), as applicable, to convey real property with issued Letters of Authority from the Court.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Other Probate Procedures. The only other form of probate procedures are: Procedures for Foreign wills and Independent Probate:

  • Independent Probate: MCL 700.301 to 700.361. Independent Probate is a procedure that is not supervised by the Probate Court unless an heir or party in interest objects to the Independent Procedure. An Independent Personal Representative is appointed by the Decedent prior to his or her death, generally pursuant to a revocable living trust or will or both. The Independent Personal Representative (IPR) is a fiduciary subject to duty of loyalty and good faith. The IPR must notify creditors and heirs and take all actions required in the administration of a testate estate supervised by the Probate Court. Heirs or a party in interest may petition on the court for removal of an Independent Personal Representative upon proper grounds.

  • For conveyances of real estate, an IPR does not need a Court Order approving the conveyance of the decedent's real estate. The IPR must be authorized by the terms of the Decedent's will and trust to convey property without court order and must to subject to a court limitation on authority to sell. MCL 700.664. An IPR may not convey property to him or her self directly or indirectly without a court order unless the terms of the will or trust or both specifically authorize it. Of course transactions of this nature should be carefully scrutinized by an underwriter/examiner and analyzed on a case by case basis.

Does your state statutes provide for an ?inheritance? tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Michigan Inheritance Tax. MCL 205.201 et. seq., and 205.231 et. seq. Yes. Michigan's Inheritance tax has been recently amended and is now similar to the Federal Estate Tax, based on the total fair market value of the Estate as of the Decedent's date of death. The tax paid to the Michigan Treasure is a credit to the Federal Estate Tax Due from the Decedent's estate.

The Michigan Estate Tax Return must be filed within 9 months of the Decedent's date of death, just like the Federal Estate Tax Return. MCL 205.204.

Does your statutes provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Michigan Estate Tax Lien: Yes. MCL 205.29. The lien attaches automatically to the decedent's assets without filing or notice. If the Decedent's estate is $600,000 or less, the Michigan lien does not attach (since this is the amount of property that is exempt from Federal and Michigan Estate Tax).

The Michigan Estate Tax is a lien on the gross estate until the tax is paid in full. If real estate is being transferred before the tax is paid, the Treasury Department will issue a lien release form from all or part of the real property under the following conditions:

  • If Treasury feels no tax liability exists;

    [A party must submit an affidavit that the gross estate is $600,000 or less;]

  • If the Seller or Mortgagor is a surviving joint tenant by the entireties;

  • If any part of the real estate must be sold to pay claims against the estate or administration expenses;

  • If a partial payment has been made which Treasury or the Probate Court feels is sufficient to cover the tax which will be due;

  • If the real property is sold before the due date of the return and 8 percent of the net cash proceeds is submitted to Treasury as a partial payment;

  • If the real property is sold after the due date of the return and a payment is submitted to Treasury for the lesser of:

Sixteen percent (16%) of the net cash proceeds; or

The amount of tax shown on the return.

NOTE: If a lien has been recorded with the county where the property is located, the full amount of the lien must be paid before a release can be issued.

NOTE: From a practical standpoint, the waiver will be issued promptly when the affiant is relying upon Items E or F payment to the Treasury.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

Sale of real property during pendency of intestate estate: The appointed Personal Representative of the Intestate Estate must obtain from the Court Proper Letters of Authority and a specific Court Order to convey any real property of the Decedent after proper notice and a hearing where heirs and parties in interest may object to the conveyance.

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

As a general rule, a personal representative must obtain a court order to convey real property of the estate if the Decedent's will and trust authorize such a conveyance, and the IPR has given proper notice of his appointment to the heirs and parties in interest and there has been no timely objection to his or her appointment or conveyance of the real property or both.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

As discussed above in the prior question, the general rule is that a personal representative must obtain a court order to sell property of the estate unless it is an Independent Probate and the IPR is authorized by the will or trust to convey without court order. (MCL 700.301 to 700.361).

Does your state statutes provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Yes. MCL 700.231 to 700.240. Foreign wills may be probated. The provisions are similar for wills of Michigan decedents except that a special affidavit must be filed to authenticate the will.