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You are here, small estates: transferring property when someone dies.
This toolkit tells you how to distribute someone’s property after they have died when there is a small amount of property to distribute. For general information , and to figure out if an estate is “small,” read the Articles . Read the Common Questions if you have a specific question. If you want to settle a small estate, use the Forms link to prepare your forms. The Checklists below have step-by-step instructions for transferring property after someone dies. Go to Courts & Agencies for information about the court or agency that will handle your case.
You'll find links to legal aid offices and lawyer referral services under Find A Lawyer . If there is a Self-Help Center in your area you can get more help there. If you need something other than legal help, look in Community Services . If you need a fee waiver, an interpreter, a court to accommodate your disability, or more information about going to court, visit Going to Court .
You will need to make sure the property gets distributed according to Michigan law. Read the article An Overview of Small Estate Processes or An Overview of Informal Probate to learn about your options.
Whether an estate is small depends on the value of the property in it. Michigan law raises the small estates cut-off amount every few years. For a person who died in 2022, an estate must be valued at $25,000 or less to be small.
The Do-It-Yourself Settling a Small Estate tool can help you determine if an estate qualifies.
When a person dies, they are called a decedent.
Show more Common Questions
Checklist – how to transfer property using assignment of property ( print ), checklist – how to transfer property using transfer by affidavit ( print ), select a county for complete results.
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Avoiding Probate in Michigan
How to save your family time, money, and hassle.
Probate court proceedings (during which a deceased person's assets are transferred to the people who inherit them) can be long, costly, and confusing. It's no wonder so many people take steps to spare their families the hassle. Different states, however, offer different ways to avoid probate. Here are your options in Michigan.
In Michigan, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then—and this is crucial—you must transfer ownership of your property to yourself as the trustee of the trust. Once all that's done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.
If you own property jointly with someone else, and this ownership includes the "right of survivorship," then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.
In Michigan, these forms of joint ownership are available:
- Joint tenancy . Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts or other valuable property together. In Michigan, each owner, called a joint tenant, must own an equal share. A joint tenancy of a husband and wife is automatically a tenancy by the entirety (see below).
- Tenancy by the entirety . This form of joint ownership is like joint tenancy, but it is allowed only for married couples in Michigan.
Payable-on-Death Designations for Bank Accounts
In Michigan, you can add a "payable-on-death" (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account—your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.
Transfer-on-Death Registration for Securities
Michigan lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.
Transfer-on-Death Deeds for Real Estate
Michigan does not allow real estate to be transferred with transfer-on-death deeds . There is a type of deed available in Michigan known as an enhanced life estate deed, or "Lady Bird" deed, that functions like a transfer-on-death deed. This type of deed is not common. For more information, see Lady Bird Deeds or talk to a local lawyer .
Transfer-on-Death Registration for Vehicles
Michigan does not allow transfer-on-death registration of vehicles .
Simplified Probate Procedures
Even if you don't do any planning to avoid probate, your estate may qualify for Michigan's simplified "small estate" probate procedures. For more details, see Probate Shortcuts in Michigan . For more on avoiding probate, see 8 Ways to Avoid Probate , by Mary Randolph (Nolo).
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Transferring Property After Death With A Will
The process of transferring property after death can become complicated. You may have to go through many processes and formalities, most of which should be done promptly. One major process is to transfer real estate after someone has passed away. You may be wondering if you can keep the home in the deceased person’s name, and the answer, quite simply, is no.
Once the property owner has passed away, the title to the home must be transferred. This will require a new title to be issued and filed.
This article will help you get answers to the following questions:
- What happens to a house once the property owner passes away?
- What is probate court?
- Does a Will avoid the need for probate court?
- How can you transfer property after death with a Will?
- How can you transfer property after death without a Will?
- What does an intestate estate mean?
- How do you protect your own property after death?
- Can a house stay in the name of a deceased person once they pass away?
What Happens To A House Or Property After The Owner Dies?
When a homeowner passes away, the property must go through probate. However, when it comes to real estate, the property can switch owners or be sold to pay off debts and further distributed to family members.
What Is Probate Court?
Probate , sometimes referred to as estate administration, is the court process of administering the estate of someone who has passed away. It generally consists of paying debts, closing accounts, and transferring real and personal property to family members. The people who are to receive the assets and property from your estate are known as beneficiaries or heirs.
Does A Will Avoid Probate Court?
If your family member recently passed away and had a Will, you may wonder if it avoids probate court. In short, no, the Will does not avoid Probate Court. A Will is essentially a letter to the probate court stating how you would like your property to be distributed once you pass away and states who should execute your Will. Your Will is filed with the Probate Court upon passing in the county where you lived at the time of your death. Once this is complete, the probate process begins. If you don’t have a Will, your money and property will be distributed according to Michigan Intestate Law, which may be undesirable for some.
How Do You Transfer Property After Death With A Will?
So, how do you transfer property after death with a Will? If the property owner passed away with a Will, then their Will likely says who the home should pass to upon their passing. Once the Will is validated in Probate Court and the estate is opened, the Executor can transfer the real estate to the heirs .
In some instances, the decedent’s property may need to be sold before the transfer of ownership can occur, even if there was a Will. The Executor must make this decision and take into consideration the size of any debts. If there’s still debt after all assets are sold, then the property may have to be sold before anyone can inherit it.
What Does It Mean If You Die Intestate?
When someone dies intestate, it means they passed away without a Will. When this happens, your real and personal property will be distributed according to Michigan’s Intestacy Laws. The court determines who will receive your belongings according to the law instead of how you wished for them to be distributed. For example, if you pass away without a Will and have no immediate family, your belongings may be distributed to a long-lost family member you’ve never met. If you want to avoid a situation like this, it’s a good idea to prepare a robust estate plan, like a Will or Living Trust, to ensure that your wishes are followed the way you want. In your Will, you appoint an Executor, also known as a Personal Representative, to distribute your property, so it’s best to choose someone you trust.
How Do You Transfer Property After Death Without A Will?
If a homeowner passes away without a Will, the property will be distributed according to Michigan’s Intestacy Laws. However, each state has its own laws, so it’s important to consult an attorney in your state for assistance on how to transfer property after death.
The Executor, and in some cases, the court, will determine if they need to sell the property to cover any estate debts and fees associated with the probate proceedings. If the Executor doesn’t need to sell the home, it will be distributed to the heirs according to state law. In most states, the order of priority goes from the spouse to children, to parents, to siblings, etc.
If A Person Dies, Can A House Stay In A Deceased Person’s Name?
No, a property cannot stay in the name of a deceased person. If you would like to transfer property after death, it must be transferred to the deceased’s relatives according to their Will or by the state’s intestacy laws. Once the proper new owners have been found, and probate has been opened, the new owner must file a new Deed on the title with the county Register of Deeds Office. When you file the Deed, you will likely need to record the decedent’s Certificate of Death at the same time.
Filing a new Deed is necessary to ensure you are the legal owner of the property and to ensure you can continue paying property taxes. You will also be able to take over utilities. Once the transfer is complete and the remainder of the property is closed, the estate is ready to be closed out. There may be some fees along the way, but this typically varies for each state.
If Property Is Owned Jointly, What Happens If One Of The Owners Dies?
When it comes to jointly-owned property, the surviving owner receives full property ownership in most cases. However, in some states, the property may avoid the need for Probate Court and can be transferred to the survivor.
Jointly owned properties are common for married couples. Once one spouse passes away, the property can be transferred to the surviving spouse. Even though the property may avoid probate, it is still a good idea to include the home in your estate plan because, even after death, the property may still have to go through Probate Court.
How Do You Transfer Property After Death Without A Will And No Heirs?
So, how do you transfer property after death if the deceased didn’t leave a Will and had no heirs? If a homeowner passes away with no heirs, the state’s intestacy laws will determine who the next heir will be. In addition, the laws will help determine the next living family member. According to the state’s intestacy laws, if there’s no will and no relatives, then the state will take possession of the property.
How Do You Protect Your Property After Death?
You can protect your property after death by creating a robust estate plan. This is especially important if you own a home, regardless of the ownership type or marital status. If you have a Will, it will help ensure your wishes are followed, and your property is distributed to who you intended to.
Some people choose to create an estate plan until later in life, as this is what most people do. However, starting your estate plan after you purchase real estate is a good idea if you would like to protect your property for your family if you were to pass away.
People are usually unaware of the probate process, especially for large items like real estate. If you’ve ever wondered if a house can stay in the name of a deceased person, you’re not the only one. Transferring real and personal property after death can be confusing and usually involves court supervision. Creating an estate plan will give you and your family peace now and in the future.
Do I Need A Probate Lawyer To Transfer Property After Death With A Will?
As we mentioned earlier, a Will must go through probate court.
Due to this, it’s generally recommended that you hire an experienced probate attorney to assist you with the process, especially if you are wanting to transfer property after death.
Having an attorney is useful because the probate process can become long, stressful, and confusing.
An attorney will assist you during the probate process to ensure your loved one’s property can be distributed to their family in a timely manner.
At Rochester Law Center, our compassionate and dedicated Michigan Probate Lawyers are experienced in all matters of probate administration and serve every county in the state of Michigan.
We make probate fast, easy, and stress free by acting as your guide through the complicated paperwork and legal proceedings you’ll undoubtedly be facing throughout the Michigan probate process.
We understand the intricacies and nuances involved with probating an estate and can help you navigate every step of the way while keeping costs as low as possible.
Call us today at (248) 613-0007 for a free case evaluation.
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Online Deed Preparation
DeedClaim > Michigan > Lady Bird Deed Form
Michigan Lady Bird Deed Form
Michigan lady bird deed form – summary.
The Michigan lady bird deed form allows property to be automatically transferred to a new owner when the current owner dies, without the need to go through probate. It also gives the current owner retained control over the property, including the right to change his or her mind about the transfer.
Special language is required to ensure that the deed qualifies as a lady bird deed. This language is automatically included by our deed preparation service and valid in all Michigan counties. Get Deed
How a Michigan Lady Bird Deed Form Works
A Michigan lady bird deed form allows a person to retain control over Michigan real estate during his or her life and automatically transfer the real estate at his or her death. The property transfer occurs automatically at the prior owner’s death, avoiding probate .
Michigan lady bird deeds work by dividing ownership into lifetime and future interests. When a person creates a lady bird deed, she transfers property to herself for the rest of her life. This creates the lifetime interest, called a life estate . The person who holds a life estate is called the life tenant .
The deed also identifies at least one other party—called a remainderman or remainder beneficiary —to inherit the real estate at death. The life estate deed may designate multiple remainder beneficiaries, and the remainder beneficiaries may include people, trusts, or organizations.
During the life tenant’s life, the life tenant retains control of the property. This control includes the right to sell, gift, mortgage, or otherwise dispose of the property without the remainder beneficiary’s involvement.
At the life tenant’s death, the title transfers to the remainder beneficiaries. The transfer happens automatically, without the need to probate the property.
Michigan is one of only five states that recognizes lady bird deeds. The other states include Florida , Texas , Vermont, and West Virginia.
Other Names for Michigan Lady Bird Deeds
Although this deed is most commonly known as a lady bird deed , the technical name is enhanced life estate deed . The deed is “enhanced” in the sense that, unlike a traditional life estate deed, it provides the life tenant with retained control over the property. These deeds are also called ladybird deeds , with no space between “lady” and “bird.”
Benefits of Michigan Lady Bird Deeds
Michigan lady bird deeds have several benefits that make them ideal planning tools for Michigan property owners that want to transfer real estate at death without going through probate.
Avoiding Michigan Probate. Most people that use Michigan lady bird deeds do so to avoid probate. A properly drafted Michigan lady bird deed will pass automatically to the remainder beneficiaries on the death of the life tenant, without the need to probate the property. Many benefits described below—such as tax savings and Medicaid planning—depend on the probate avoidance feature.
Retaining Control. Given a choice, most people would prefer to keep control of their property while they are still alive. As discussed below, traditional life estate deeds forfeit control. A Michigan lady bird deed avoids this problem by giving the owner (life tenant) retained control to sell, mortgage, or gift the property without involving the remainder beneficiaries.
Medicaid Asset Protection. The Michigan Department of Health & Human Services—the agency that that administers Michigan’s Medicaid program—has expressly approved the use of lady bird deeds (see p. 37 of Bridges Policy Glossary ). Because property transferred by lady bird deed is not part of the probate estate, it is not subject to Medicaid recovery after the owner’s death. A transfer by lady bird deed is not considered a “divestment” when calculating the Medicaid penalty period for purposes of qualifying for nursing home care.
Saving Taxes. Because a person who creates a Michigan lady bird deed retains control over the property, the transfer is considered incomplete for tax purposes during the owner’s lifetime. No federal gift tax return is required, and there are no federal gift tax consequences. On the original owner’s death, the property is included in the owner’s estate, qualifying the property for a basis step-up at death. This basis step-up effectively erases any appreciation that has accrued in the property and can save capital gain taxes.
Retaining Homestead Exemption. Because a Michigan lady bird deed does not transfer ownership until death, it does not affect the owner’s homestead (principal residence) exemption. Property that qualifies for homestead exemption before the transfer continues to be eligible for homestead exemption after the transfer.
Saving Property Taxes. A Michigan lady bird deed is not considered a transfer of ownership for property tax purposes. This means that the transfer will not cause a reassessment of the property or trigger an “uncapping” of the taxable value of the property .
Saving Legal Fees. A living trust provides many of the same benefits as a lady bird deed but requires additional cost and complication. A lady bird deed can accomplish many of the same objectives as a living trust—including retaining control during life and avoiding probate at death—without the complication of a living trust.
Relationship of Lady Bird Deed Form to Warranty of Title
The designation of a deed as a lady bird deed (or enhanced life estate deed ) deals exclusively with the estate planning feature (control during life and probate avoidance at death). Other deeds are named after the warranty of title they provide. These types of deeds include quitclaim deeds , covenant deeds , and warranty deeds .
Because the names for these kinds of deeds are based on different features, a single deed may be appropriately called by multiple names. For example, a deed can be both a lady bird deed and a quitclaim deed. See What is the Right Title for Your Deed? For more information about deed titles.
Comparison of Michigan Lady Bird Deeds to Traditional Life Estate Deeds
The Michigan lady bird deed form is a spin on the traditional life estate deed form . Regular life estate deeds have historically been the go-to instrument for transferring property automatically at death. But traditional life estate deeds have a significant drawback: Loss of control. A person who conveys property using a conventional life estate deed cannot change her mind without involving the remainder beneficiary.
Example: Ashley creates a conventional life estate deed that transfers her home to Ashley as the life tenant Brett as the remainder beneficiary. The next year, while Ashley is still alive, she decides that she wants to sell her home and buy a different one. Because Ashley used a traditional life estate deed form, she cannot sell her home without Brett’s consent. If Brett is unwilling or unable to sign (due to disability for example), Ashley cannot transfer the property.
In this scenario, most people prefer to retain control of property during life. This loss of control is a significant reason life estate deeds are rarely used. Lady bird deeds fix this problem. Like a traditional life estate deed, a lady bird deed automatically transfers property at death. But the enhanced feature of a lady bird deed also gives the original owner the right to change his or her mind without involving the remainder beneficiaries.
Comparison of Michigan Lady Bird Deed to Living Trust
Sometimes a living trust can be an alternative to a Michigan lady bird deed. Like a lady bird deed, a living trust allows the transferor to retain control during life and avoid probate at death. But living trusts are, by comparison, relatively expensive. An attorney is often needed to draft the trust instrument and related documents, and the deed is still required to transfer the property into the trust. A lady bird deed can avoid this expense and hassle.
How to Create a Michigan Lady Bird Deed
Although lady bird deeds have their roots in common law, the most common type of Michigan lady bird deed form is based on Michigan Title Standards (6 th Edition), available on the Michigan state bar’s website . Standard 9.3 states:
The holder of a life estate, coupled with an absolute power to dispose of the fee estate by inter vivos conveyance, can convey a fee simple estate during the lifetime of the holder. If the power is not exercised, the gift over becomes effective.
This standard is important because of the role of title insurance in real estate transactions . As a practical matter, whether a deed is valid depends on whether a title insurance company will recognize the deed. The reason that lady bird deeds are not used in other states is that title insurance companies in those states don’t recognize them. This is not a problem in Michigan since the Michigan Title Standards explicitly recognize lady bird deeds.
Michigan lady bird deeds must meet the requirements of other deeds. These requirements include:
- A valid legal description ;
- The warranty of title provided by the deed;
- A statement of the consideration provided , if any;
- Margins and spacing that meet the requirements of Michigan’s recording laws;
- Signature and notary acknowledgments that comply with Michigan law; and
- The form of co-ownership if multiple remainder beneficiaries are named.
Like other deeds, lady bird deeds are valid when signed and delivered and should be recorded as soon as possible.
When preparing a Michigan lady bird deed, it is important to use correct language and format. Failure to do so could cause additional recording costs or refusal to register the deed. In some situations, improper drafting can invalidate the transfer or require costly court proceedings to straighten out title issues. The lady bird deeds prepared by our Deed Generator were designed by attorneys to meet all Michigan requirements.
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Transfer on Death Deeds
What Is a Transfer-on-Death Deed? If you own real estate, such as a home, in your sole name but you have not created a trust and transferred your property’s title to the trust, it is virtually guaranteed that your beneficiaries (or heirs) will have to deal with probate after your death. If the time and expense required to create a living trust does not make sense for your situation but you still want to avoid the probate process, a transfer-on-death (TOD) deed may be the solution. A TOD deed (also known as a beneficiary deed or sometimes called a Ladybird Deed) does what it sounds like it does—it transfers your real property to your selected beneficiaries upon your death, similar to a payable-on-death designation for a bank account or a transfer-on-death registration for an investment account. The TOD deed is considered an enhanced life estate deed. You own and control the property during your lifetime, but you also can also sell it, lease it, refinance it, give it away, or do anything else with it you choose. You continue to be responsible for paying the mortgage and taxes and maintaining the property. If you still own the property at your death, the TOD deed works to automatically transfer the property to your named beneficiaries without having to go through probate. And if you change your mind during your lifetime about whom you have named as beneficiaries in the TOD deed, you can amend or revoke it at any time. How is it used? Michigan is one of the more than twenty-five states that now allow the use of TOD deeds, and more states are considering adopting laws that allow them. You do not have to actually live in a state that allows TOD deeds to be able to use one, but the property must be located in such a state. The requirements for creating a TOD deed vary by state, but in essence, the process includes the following basic steps. Complete the TOD Deed With the assistance of an experienced attorney, determine the specific language required for the TOD deed to comply with the relevant state’s law. Remember to look at the requirements in the state where the property is located . A TOD deed will look much like any other property deed, but it will contain specific language that makes it clear that you own the property during your lifetime and the transfer to the named beneficiary does not take effect until after your death. Name Your Beneficiary Your beneficiary can be one or more people or organizations, such as a business, charity, or trust. You may want to consider naming a contingent, or alternate, beneficiary in case your first choice for beneficiary passes away before you or is not in existence when you die. You want to be sure to use the beneficiary’s legal name rather than categories or relationships, such as “my children.” For example, if you are naming your two daughters as your beneficiaries, you should use “Jane Doe and Julie Smith” instead of “my daughters.” If you name more than one beneficiary, you should indicate on the deed how the beneficiaries will own the property (as equal joint tenants with rights of survivorship, as tenants-in-common, each as to an equal one-half share, or some other form of co-ownership). Describe the Property Be sure to use your property’s correct legal description in the TOD deed. Your property’s legal description may be found on the current deed recorded in the official property records, your sales contract, or your mortgage documents. However, legal descriptions are not always copied accurately. It is important to consult an experienced real estate or estate planning attorney or a title company regarding the preparation of deeds and the accuracy of legal descriptions on deeds. Sign the Deed If you are the property’s sole owner, you are usually the only person who needs to sign the deed. However, if you are married and live in a community property state or if you have declared the property your homestead, it may be prudent or required that both you and your spouse sign the deed, a joinder, or a waiver to show that your spouse has no objection. An experienced real estate or estate planning attorney or title company can ensure that your intended transfer meets all legal requirements and is properly documented. If you co-own property with someone else as tenants in common, you can use a TOD deed to designate a beneficiary for your share of the property. If you co-own the property as joint tenants, all co-owners will need to sign the deed, and it will not be effective until the last surviving owner passes away. If only one co-owner signs the TOD deed, it will not be effective unless the signer is the last owner to die. Keep in mind that even if you and your co-owner sign a TOD deed, if you die first, the surviving co-owner can revoke the TOD deed before their death. Make sure the deed is signed according to the relevant state law. For example, Michigan requires that your signature be notarized. Some states require two witnesses. The beneficiary does not need to sign the TOD deed. In fact, a beneficiary does not even need to be told about the deed (although it is usually a good idea to do so). However, the deed will be recorded and become a matter of public record, so you will not be able to keep it a secret either. Record the Deed File the deed with the register of deeds or proper authority, along with the required recording fee. Again, consider working with an experienced real estate or estate planning attorney or title company to ensure that the TOD deed is accurate and effective and recorded properly. Benefits of a TOD Deed There are a number of reasons why you might want to use a TOD deed. As already discussed, a TOD deed can be used to avoid the public and sometimes costly and time-consuming probate process. In an effort to avoid probate, some property-owning parents will put their adult children’s names on their existing deed. The problem with this approach is that because the adult child is a current owner, the parents’ property becomes immediately subject to the child’s creditors, divorce settlement, etc. In addition, this approach may cause unintended gift tax consequences. If the property is subject to a mortgage, there may also be real estate transfer, conveyance, or documentary stamp tax consequences and even the inadvertent triggering of the mortgage’s due-on-sale clause. A TOD deed avoids this problem because there is no immediate transfer or change in beneficial ownership—a child beneficiary has no ownership in or legal right to the property until after their parents’ death. Another benefit of TOD deeds is that they can be created relatively cheaply and easily. In addition, a TOD deed can be changed or revoked at any time, but be sure to follow your state’s laws for effective revocation. A TOD deed will take precedence over a last will and testament, even if the will was written later, so it is important to remember that a will cannot change or revoke a TOD deed. One additional benefit with a TOD deed in Michigan and many other states is that when planning for long-term care, the creation of the TOD deed is not considered a divestment, a transfer that triggers a penalty period when attempting to qualify for Medicaid benefits. Disadvantages of a TOD Deed One of the downsides of a TOD deed is that complications can arise if you have multiple beneficiaries, significantly impacting beneficiaries’ inheritances or resulting in outcomes that do not reflect your ultimate wishes. Example : Mom has four adult children. She creates a TOD deed naming her four children as the beneficiaries of her home as joint tenants with rights of survivorship. Mom’s oldest child dies, leaving three children. Mom is incapacitated and cannot update the TOD deed. When Mom dies, the home will go to her remaining three living children, leaving the deceased oldest child’s two children (Mom’s grandchildren) with nothing. However, if the TOD deed named her four children as beneficiaries of her home as tenants in common, each beneficiary would inherit a separate but equal share, and in this example, the deceased child’s one-quarter share will be distributed according to their estate plan (and not automatically revert to their surviving siblings). Is a TOD Deed Right for You? A TOD deed is one of the tools available in estate planning, but it is not right for everyone. It can be an inexpensive and simple way to avoid the probate process upon your death and transfer your real property to your intended beneficiaries. However, it is important to understand the practical and legal implications for your individual situation and wishes. Please contact us if you have questions about whether using a TOD deed is appropriate for your circumstances.
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Property Transferred Without Probate
There are 4 kinds of property which pass to a new owner on death without going through probate:.
Property which is owned by the decedent and another person as joint tenants with right of survivorship will pass automatically to the surviving joint owner without going through probate (except in the case of certain joint bank accounts which are established with another person who is to act as agent for the decedent).
Beneficiary designated properties (such as life insurance, pension benefits, and IRAs) are payable on death, without probate, to the beneficiary designated by the decedent (or, if none, as designated in the contract or plan itself).
Properties owned by a revocable trust do not go through probate but instead are disposed of after death in accordance with the instructions written into the trust document.
There are even some forms of property owned solely by the decedent which would otherwise require probate that are exempt in certain instances. Those notable exceptions include the following:
Unpaid wages: An employer in Michigan may pay the wages due a deceased employee to the employee's spouse, children, parents, or siblings in that order unless the employee filed a request to the contrary with the employer.
Cash up to $500 and wearing apparel: A hospital, convalescent or nursing home, morgue, or law enforcement agency in Michigan holding cash not exceeding $500 and wearing apparel of the decedent may deliver that property to the decedent's spouse, child, or parent who provides (i) suitable identification and (ii) an affidavit which states the person's relationship to the decedent and that there are no pending probate proceedings for the decedent's estate.
Travelers checks: Most issuing companies (such as American Express) will redeem unused travelers checks following the death of the owner without requiring the appointment of a PR on submission of the checks, a death certificate, and an appropriate affidavit by the next of kin indicating to whom payment should be made.
Motor vehicle transfers: If the combined value of one or more of the decedent's motor vehicles does not exceed $60,000 and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, the vehicle's certificate of title, and certain other Michigan Secretary of State documents.
Watercraft transfers: If the combined value of all of the decedent's watercraft does not exceed $100,000, and there are no probate proceedings for the decedent's estate, registration of title may be transferred by the Michigan Secretary of State to the surviving spouse or next of kin upon submitting a death certificate, an affidavit of kinship, and the certificate of title for the watercraft.
Income tax refund claims: These may be collected without probate by filing IRS or Michigan form 1310.
Transfer by affidavit: Personal property with a value not exceeding $15,000 may be transferred to a decedent’s successor by presenting a death certificate and an affidavit stating who is entitled to the property.
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REAL ESTATE LAW
How to remove a deceased person from a property deed in michigan.
- Inheritance & Estate Law in Michigan
Every time a person who owns real estate dies in Michigan, one of three things can happen to that real estate:
- It is held jointly with others and title automatically passes to other owners of the property.
- It is part of the probate estate and passes from there to a beneficiary or heir.
- It is part of the probate estate and is sold to raise money to pay estate debts.
To understand these options, it is necessary to get an overview of estate law and the probate process in Michigan.
What Is Probate in Michigan?
If friends and relatives of a deceased individual were allowed to deal informally with the estate assets, it is very likely there would be controversy. At the very least, creditors might not be paid, and potential beneficiaries might be in conflict. That is why Michigan, like other states, requires that the estates of residents who die pass through a court-supervised process called probate.
Probate is a legal proceeding that governs the issues and controversies about how a decedent's estate should pass in Michigan. A personal representative is appointed to manage the proceeding.
Although there are several types of probate, ranging from a summary procedure for small estates to supervised formal procedure for contested estates, all require that the court be given notice of the steps taken, and some require that every step be authorized by the court.
Does All Real Property Pass Through Probate?
When a person dies in Michigan, most of their cash, bank accounts, retirement accounts and real and personal property become part of the estate's probate property unless they are trust assets. Probate property includes all assets that become part of the estate in probate. All assets, including real property, that the deceased owned by themselves rather than held jointly with someone else are probate property.
Assets that a deceased person owned jointly with one or more individuals may not be probate property. This is the case with real property. If the deceased was the sole owner of the real property, it must pass through probate in order to be transferred to someone else. If they held title to a property with one or more persons that includes the right of survivorship , the property passes directly to the other surviving joint tenants upon one owner's death.
Joint Tenancy With Right of Survivorship
What kinds of ownership allow the right of survivorship? In Michigan, only joint tenancy title deeds can include the right of survivorship. If this is the case, as soon as one of the owners dies, their interest in the property passes in equal shares to all other surviving owners. To determine whether a Michigan deed includes the right of survivorship, look in the deed for the words "joint tenants with full rights of survivorship,” JTWROS, or similar language.
These right-of-survivorship deeds are used in estate planning to preserve ownership within a specific group of individuals. They are used frequently between married couples, but can also be used between multiple co-owners who agree on the equitable distribution of deceased tenants’ ownership interests of non-probate assets.
So if a parcel of real estate that a deceased owned is held in joint tenancy with the right of survivorship, there is no need to worry about removing their name from the deed. All that is necessary to prove clear title in the remaining owners is the death certificate.
What Happens in Michigan Probate Proceedings
If real estate is not held in joint tenancy with the right of survivorship in Michigan, it must pass through probate in order for a deceased owner's interest to be transferred. That means that it is important to understand what a probate is and how it works.
Each Michigan probate is different, dealing with different size estates with different issues involved. However, the procedure can involve any of a variety of steps taken by the personal representative. Some are similar in all probates. The steps range from looking for a will to paying taxes to distributing the estate assets to beneficiaries and/or heirs.
The probate process can involve any of these issues :
- Determining whether the deceased drew up a will.
- Locating a will if the deceased made one.
- Finding the persons who witnessed the will.
- Court hearing and ruling on any will challenges.
- Adjudicating the validity of a will.
- Determining who the heirs are if no valid will is found.
- Appointing someone to serve as the personal representative for the estate.
- Identifying and finding estate probate assets.
- Transferring the probate assets to the personal representative or the administrator.
- Calculating the value of the probate property to see if any shortcut procedures apply.
- Compiling a complete list of probate debts.
- Determining whether claimed debts are legitimate.
- Locating beneficiaries of a will, or determining and locating heirs of the deceased.
- Converting assets like real estate to cash, if necessary, to pay estate debts.
- Managing any ongoing businesses of the estate during probate.
- Completing estate tax forms and paying any taxes due.
- Distributing property to beneficiaries or heirs.
Dying Testate vs. Intestate
Who inherits real property if it is part of the probate estate? That depends on whether the decedent left a valid will. In Michigan, a will is valid if made by a person over the age of 18 and signed by that person in the presence of two adult witnesses who also sign the will. It can also be valid as a holographic will if it is handwritten by the person making the will and signed by them.
The issue of whether an estate must be probated in Michigan is not impacted by the existence of a will or by the lack of one. In either case, the cash, property and other assets held by the deceased at the time of death must pass through a legal process in order to transfer property to living beneficiaries and/or heirs. That process is probate.
But who will inherit real property from the probate estate does depend on whether or not there was a valid will. Early probate duties of the personal representative include locating the will and determining if it is valid.
Dying Testate in Michigan
When a resident of Michigan dies leaving a valid will – testate – the estate laws of Michigan require that the instructions in the will be followed to the extent possible. For example, the court will almost always appoint the person who was named in a will as personal representative to that post. Obviously, if they are dead or refuse, that is not possible.
Likewise, during probate, it is the inheritance specifications set out in the will that control distribution of assets to the maximum extent possible. The persons or organizations named in a will are termed "beneficiaries," and those who inherit without a will are termed "heirs."
Transmitting Real Estate in Probate
If a will leaves everything to a spouse or to a close friend, the real estate generally passes to that person. If it is bequeathed to a nonprofit organization or to a child, the personal representative transfers the property to that person after the probate court approves the transfer.
Typically, this is accomplished by using a fiduciary deed signed by the personal representative. The only requirement for a fiduciary deed is that the personal representative states that they are signing in their capacity as the personal representative of the estate. This can be a quitclaim deed , a legal document that transfers property without any warranty, but it does not have to be.
However, if the real estate is the only asset, and the decedent left significant debts, the personal representative may have no choice but to sell the property to cover these obligations. In that case, any money remaining from the sale after debts are paid would pass to the beneficiary.
Dying Intestate in Michigan
If a decedent dies without making a will, they are said to have died intestate. An obvious result of this is that they left no binding instructions about who is to inherit their real property. But Michigan law includes a provision setting out which close relatives will inherit when a Michigan resident dies intestate. These are termed "heirs."
These laws generally set out the order in which next-of-kin will inherit by how close the relationship is. Michigan puts the surviving spouse and the deceased's children and descendants on the top of the heir list. Grandchildren are considered descendants, but only inherit in their parent's place if the parent died before the decedent.
Family Member Priorities for Inheritances
If there is no surviving spouse, the decedent’s children or the children of any deceased children inherit everything. But if the decedent left neither a surviving spouse nor descendants, the inheritance moves down the list, in this order:
- Decedent's parents.
- Decedent's siblings.
- Decedent's nieces and nephews.
- Decedent's grandparents.
- Decedent's aunts, uncles and cousins.
The next in line to inherit cannot inherit if anyone higher on the list is still living.
Who Gets What as Intestate Heirs?
The question of which relative inherits the real property from an intestate estate depends on what relatives are still alive when the decedent dies. Sometimes relatives share the inheritance:
- Only surviving spouse: In Michigan, if a decedent leaves only a surviving spouse, they are the sole heir and inherit everything.
- Surviving spouse but no living parents or descendants: Spouse inherits everything.
- Surviving spouse and descendants: A surviving spouse receives $150,000 and half the balance of the estate if the spouse and the decedent had any children together; the children receive the other half of the estate. But if the decedent had children in another relationship, the spouse inherits only the first $100,000 and half the remainder of the estate, and the rest is shared equally by all surviving children.
- Surviving spouse but no descendants: If a decedent leaves a spouse and at least one parent but no descendants, the spouse takes the first $150,000 of the estate, then 75 percent of the rest. The parent or parents take the remaining 25 percent.
- Decedent leaves no living relatives: When someone dies without any living relatives and no valid will, the estate goes to the state.
Once it is determined which heirs will inherit the real property, the personal representative must get the court's permission to transfer title. When the court gives approval, the personal representative signs a fiduciary deed. There is no need to remove the name of the decedent from the deed. When the heir takes the deed to be recorded, the recorder will issue a new deed in the heir's name.
- Michigan Legal Help: Common Questions About Probate Administration
- Michigan Estate Plans: What Is Right of Survivorship?
- FindLaw: Mchigan Probate Laws
- Elder Law: What Happens Under Michigan Law if I Die Without a Will?
- Michigan Legal Help: Common Questions About Quitclaim Deeds
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.
- How to Do a Quitclaim Deed in Michigan
- How to Transfer a Deed at Death in New Jersey
- New York State Next of Kin Laws
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Probate Information Probate & Estate Administration
Steps to Take After the Decedent's Death
As soon as possible after your loved one's death, the following items should be located and given to the person responsible for completing the deceased's final affairs:
- Directives regarding funeral arrangements
- Prepaid funeral or burial contracts & related documents
- Original last will & testament
- Trust agreements (if any)
- Premarital agreement (if any)
- Bank statements & account information
- Keys to any safe-deposit boxes
- Statements for retirement & brokerage accounts
- Automobile, trailer, & other vehicle titles
- Tax returns & tax documents (including 1099 & W-2 forms)
- Birth & marriage certificates
- Military discharge documents
- Stock certificates & savings bonds
- Social Security card
- Copies of bills owed by the deceased
- Deeds & tax information for real estate
When is Probate Required?
Generally, probate is necessary when a person dies owning property in his or her name alone or when the person has rights to receive property at some time in the future (such as an inheritance from someone else). There are three kinds of property that may not need to be probated: (1) jointly-owned property that goes to the surviving owner; (2) property that goes to a named beneficiary; and (3) property transferred to a trust. These kinds of property are explained below.
- Property that is owned jointly by the decedent and another person with right of survivorship automatically goes to the surviving joint owner. Many bank accounts between spouses are owned this way; when the first spouse dies, the surviving spouse becomes the owner of the whole bank account.
- Property such as life insurance, pension benefits, payable-on-death bank accounts, and IRAs are distributed to the named beneficiary after a proper claim is made to the property's custodian.
- Property transferred to a trust before the decedent's death is administered according to the terms of the trust, and does not need to be probated.
This brochure is for informational purposes only. The information provided in this brochure is not legal advice. You can get legal advice from a lawyer who is a member of the State Bar of Michigan at http://directory.michbar.org . You can find a lawyer who knows about the probate and estate administration process by searching for a lawyer in your area and using the practice area search terms “probate & estate planning/estate administration” or “trusts & estates.” The information in this brochure may be modified or rendered incorrect by future legislative or judicial developments and may not be applicable to any individual reader’s facts and circumstances.
Copyright 2016 Probate & Estate Planning Section of the State Bar of Michigan .
Permission to print or copy part or all of this work for classroom use is granted without fee provided that copies are not made or distributed for profit or commercial advantage and that copies clearly display this verbatim notice. Otherwise, permission must be obtained to copy all or part of this material in any manner. Abstracting with credit is permitted. To further copy, republish, post on servers, or redistribute to lists requires prior specific permission from the Probate & Estate Planning Section of the State Bar of Michigan. Persons granted permission to copy this work must display the above Publication Notice followed by "Included here by permission."
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