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Small EstatesDolores M. Coulter © November 2008
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Q. My husband died recently. All of our property, except for his car, was either in our joint names or I was the beneficiary on his accounts, so I didn’t think I would have to worry about probate. However, my husband’s brother died about six months before he did and left him a small inheritance. Now the attorney for his brother’s estate is telling me that I will have to open a probate estate for my husband, but that it should be simple because the amount is under $50,000. Is that right? Yes. In a previous Question & Answer I discussed the small estate procedure for estates where the total value of the assets subject to probate, minus the funeral and burial expenses, is under $22,000 (for persons who died in 2016). For those estates the surviving spouse or the heirs, if there is no surviving spouse, can file a petition in the Probate Court and obtain an order assigning the assets to the spouse or the heirs on the same day. This procedure is not available to you if the amount that your husband inherited from his brother, minus your husband's funeral and burial expenses, is over $22,000. However there is another small estate procedure that is available where the decedent left a surviving spouse and the estate that is subject to probate is less that $64,000 (for persons who died in 2016). This is called a small estate summary proceeding in Michigan probate law. Technically the summary proceeding is available where the total value of the assets subject to probate, minus mortgages or other liens, is less that the total of the allowances, plus administrative expenses, reasonable funeral and burial expenses, and the medical expenses of the last illness. The total amount of the allowances is $64,000, so the summary proceeding can be used where the total value of the estate, minus mortgages and liens, is less than $64,000 plus the administrative expenses and reasonable funeral and burial expenses, and the medical expenses of the last illness. Michigan probate law provides for three allowances that a surviving spouse can claim against the estate of his/her deceased spouse: the homestead allowance, family allowance, and exempt property allowance. The allowances must be paid regardless of whether the decedent died with a will or without a will. These allowances must be paid before any other claims can be paid, except for administrative expenses (such as probate court fees and attorney fees) and funeral and burial expenses. The allowances must be paid before any creditors are paid and before anyone else who is entitled to inherit from the decedent can receive anything from the estate. For persons who die in 2016, the homestead allowance is $22,000; the family allowance is $27,000; and the exempt property allowance is $15,000.00. The $27,000 family allowance is the standard allowance. It can be increased if the surviving spouse can show that a larger amount is needed in order to adequately provide for his/her maintenance for a period up to one year. If there is no surviving spouse, the allowances can be paid to a minor child or in some cases to an adult child. Your question indicates that the amount that your husband inherited from his brother’s estate was less than $50,000. At the time of your husband’s death he was entitled to this inheritance but it had not yet been paid to him. When the personal representative of your brother’s estate is ready to distribute the assets he will have to pay your husband’s share to the personal representative of your husband’s estate. This is why the attorney told you that you would have to open a probate estate for your husband. However, as the attorney noted, the probate procedure should be simple because you can use the small estate summary proceeding. If your husband died without a will, or if he died with a will and named you as his personal representative, you can file an application in the Probate Court requesting informal probate of his estate and appointing you as personal representative. You will then have to send notices to all interested parties (his heirs and anyone named in his will). You will also have to prepare an inventory listing all of your husband’s assets that are subject to probate. In your case that would include the car as well as the inheritance from his brother. If the total value of those assets is less that the total allowances of $64,000, plus administrative expenses, reasonable funeral and burial expenses, and any unpaid medical expenses of his last illness, the estate qualifies for the summary proceeding. You will not have to publish a notice to creditors. You can immediately pay, in order of priority, the administrative expenses, the funeral and burial expenses (or reimburse whoever paid them), pay yourself the allowances, and pay any unpaid medical expenses of his last illness. You can then close the estate by filing a Sworn Statement with the Probate Court stating that you have completed all of the requirements. If none of the interested parties files an objection within 28 days the Probate Court will send you a certificate of completion and the estate will be closed. There are several procedures for very small estates which we will discuss in subsequent Questions & Answers, including the procedure where the only asset in the estate is a motor vehicle. |
