What assets are subject to probate?

One of the most important things to determine after someone dies is: of the assets owned by the decedent, which are subject to probate?

Only assets owned solely in the name of the decedent are subject to probate.

Assets Not Owned Solely In Decedent's Name = Not Subject to Probate

1) an asset with a joint (or more than one) owner titled on the account/deed/title

2) an asset with a designated beneficiary 

3) an asset that automatically passes to a beneficiary upon death of the owner (life estate/lady bird deed)

Immediately upon death of the owner, the above types of assets, or property, transfer to the joint owner or designated beneficiary so that the asset is not left owned solely in decedent's name.

Examples: 

Mother and daughter are both named on at checking account. Mother dies. Daughter now owns bank account on her own since Mother is dead. The bank account does not need to be reported to the probate court.

Husband has a 401(k) retirement account. Wife is named as the primary beneficiary of the 401(k). Husband dies. Since Wife is the designated beneficiary, the 401(k) passes to Wife. The 401(k) retirement accout does not need to be reported to the probate court.

Mom and Dad own real property. The deed indicates that upon Mom and Dad's death, Child will own the real property. Mom and Dad die. Child now owns real property and this property/asset does not need to be reported to the probate court.

*Think about it like this... do you need someone to have the authority to be able to transfer the property or close out the bank account after loved one dies? If so, then that asset needs to go through the probate process.

Assets Owned Solely In Decedent's Name

1) Wife has a savings account with only her name on it. Wife dies. This bank account is subject to probate.

2) Husband has a life insurance policy. Husband forgets to name a beneficiary of the policy. Husband dies. This life insurance policy is subject to probate in order to transfer it to the Husband's wife or children.

3) Husband owns a piece of real estate titled only in his name. Husband dies. This property is subject to probate in order to transfer the real estate to Husband's wife, children or other beneficiaries or to sell the property.

What is probate?

Probate is a process by which an individual is given authority by the court to administer the affairs of a decedent's (dead person's) estate (property).

Here is a summary of the basic steps for probate:

1) Someone dies leaving property owned solely in their name

2) Some else files an application or petition for probate with the county probate court

3) The probate court appoints a Personal Representative to handle the affairs of the estate

4) The Personal Representative creates an inventory of the estate assets

5) The Personal Representative pays creditors of the estate and distributes the decedent's property (this can be done at the direction of a Last Will & Testament or by law if no Will)

6) The estate is closed

There are many small steps in between depending on the people and property involved, but this gives you the gist of it.

Disclaimer

All of the information found in this blog relates to Michigan law. Other states may have similar laws and procedures but they are never the same. Please do not rely on the information found in this blog as legal advice, but rather enjoy this resource as educational in nature to begin thinking about estate planning or to point you in the right direction for probate. There may be information contained in this blog that is incorrect or incomplete. Always seek the advice of a qualified attorney when you are unsure how to legally proceed. Your reading of the information in this blog in no way creates an attorney-client relationship with me.

Who says?

I'm a Michigan attorney with an appreciation for probate law. I spent about 3 and a half years learning the ins and outs of the Michigan probate courts by reading the code and trial and error. The Institute of Continuing Legal Education and the State Bar of Michigan certified me in 2012 for Probate and Estate Planning after I completed over 80 hours of seminars and workshops covering various probate and estate planning topics. I honestly do not have all of the answers and still sometimes perform by trial and error, but I know a lot more than the average person regarding probate and want to share some of that knowledge here. People do not realize how important estate planning is but their loved ones do because they are left to handle the oftentimes mess left behind.