EXCEPTIONS TO FORMALLY PROBATING AN ESTATE

There are special exceptions to formally probating an estate found in the Estates and Protected Individuals Code. Some are done with no court action while another requires the filing of a petition and the court issuing a court order without a hearing. This article explains these special laws.

The first exception to probate found in EPIC involves decedent’s wearing apparel and cash up to $500. The transfer of this property without probate court involvement applies when decedent dies outside of his or her home. Probating of an estate could occur at a later date. MCL 700.3981

A hospital, convalescent or nursing home, morgue, or law enforcement agency that is holding the decedent’s wearing apparel, regardless of its total value, and cash up to $500, may deliver such items to specified persons. If any other person or organization is holding any of these items, delivery cannot be made to an heir under this law.  

The person seeking these items must show proper identification and give an affidavit that he or she is decedent’s spouse, child, or parent and there is no probate estate pending. Any of these persons can give the affidavit but the person with highest priority is entitled to the wearing apparel and cash. 

If an estate is administered at a later date, the personal representative can demand delivery of the items from the person who received them under the affidavit.

Another special law for transferring assets without any probate court involvement is new under EPIC. It includes certain assets totaling up to $15,000. There can be no real property in decedent’s estate for this to be available. Also, there can be no probate administration of decedent’s estate pending or completed.

The only property that can be transferred is tangible personal property, stock, an obligation, or a debt owed to decedent. A person possessing the property can transfer it to a successor of decedent upon being presented a proper affidavit. MCL 700.3983

This successor could be a spouse or heir but could also be another who is entitled to share in the estate under other provisions of EPIC. There is no order of preference.

A request for transfer of any of these limited items of decedent’s property cannot be made until at least 28 days after decedent’s death. This is done by presenting the holder of any of the property with decedent’s death certificate and a special affidavit.

This special affidavit is a standardized form that is available in the probate court offices. If all the requirements of the statute are met, the successor is entitled to receive the assets without a court order.

There is a similar law in EPIC that permits a transfer of assets through a court order. Upon filing a petition with the court and, without a hearing or notice to anyone, the court may issue an order transferring nearly any kind of asset owned by decedent at the time of death.  MCL 700.3982

This law has a much greater application than the affidavit above referred. It applies to persons who die before and after the effective date of EPIC, namely April 1, 2000.

Both personal property of any kind and real estate can be transferred using this law. A person can die with a valid will but it is not probated in this procedure. Therefore, no property is transferred as directed in the will.

This small estate transfer law can be used for property having a combined gross value of up to $15,000. If funeral expenses are paid from the estate after death, that amount is excluded from the gross estate. In some instances, this reduces the estate to less than $15,000. The estate can then be simply transferred by court order without estate administration.

Under this law the funeral bill must be paid ahead of any transfer of assets to surviving spouse and heirs. That is, if the funeral expenses have not been paid, the property is first assigned to the funeral provider. A person who has paid this bill may be reimbursed ahead of surviving spouse and heirs.

In both situations, the remaining property is assigned to the surviving spouse. If there is no surviving spouse, the balance goes to the heirs equally.

The surviving spouse and minor children will receive the property free of any other creditor claims. All other heirs receiving any of the property remain responsible, up to the value of the property received, to creditors of decedent for 60 days after the order is issued.

The petition form is available in the court. Proof of payment or nonpayment of the funeral expenses must be presented with the petition. The order is usually issued the same day the petition is filed. There is a filing and inventory fee to be paid upon filing the petition.

Sometimes a petition for distribution of a small estate is filed with the court and the order is entered then months or years later another asset of decedent is found. If the combined value of the assets from the prior petition and the value of the newly found asset do not exceed the statutory value of $15,000, an amended petition can be filed. The order will then enter to transfer the newly discovered asset as was done with the initial petition.