FAQs

Generally, the client has an idea of the assets owned by the Decedent. If not, we recommend looking through Decedent’s mail or documentation at the house such as bank statements, retirement account statements, employee records, etc.

If the client unaware of certain assets, we can send a general request letter to all financial institutions inquiring into whether Decedent held any financial accounts. In order to send this request, a personal representative must be appointment which grants authority to receive Decedent’s information. We also do the same general request letter to life insurance companies, annuity, and IRA companies.

Another mechanism for finding assets is searching Found Money and Michigan Unclaimed Property. The assets held by these entities are property that was never claimed and are being held by the State until claimed by the proper property owner.

It is very easy to steal assets from an estate. This is one of the main reasons that you need a competent attorney helping you with your probate matter. Listed below are a few of ways that people steal assets (have no doubt in your mind that this list is not all inclusive):

Part 1.  Stealing assets from the estate prior to a persons death:

This is really a misnomer because the Decedents estate does not exist until death.  There are many ways to transfer assets away from someone even before they die.  If someone’s name is added to a deed or a bank account then there is actually no need to go to probate for those assets.  Further, a life insurance policy has a named beneficiary and never enters probate.

Anyone could talk your loved one into changing these assets and there will be nothing you can do on your own.  There are suits that an attorney can file on your behalf. If you find yourself in this situation do not hesitate to contact us.

Part 2.  Stealing assets after death:

Most of the time when someone wants to steal after death and try to get away with it they steal through a will or trust that they have coerced the decedent into signing.  This coercion takes on many forms. If you find yourself in this situation do not hesitate to contact us.

First, we need to determine what your relation is to the Decedent, and how other family member’s are related to the Decedent.

There is a very specific “order” in which property will be distributed to a person’s family, if a person dies without a will. It is roughly: surviving spouse (if any), then children, then siblings, then parents of the decedent.

When a person dies without a will there is an order of priority established by the court as to who would be a suitable Personal Representative. It is roughly: surviving spouse (if any), then children, then siblings, etc. However, the family can “agree” on any party, as long as they sign the necessary releases. A personal representative is the person who is granted authority by the court to administer” the estate, which means sign the documents, pay the deceased’s debts and distribute the property. Generally, this is an unpaid position, although the Personal Representative may be reimbursed for expenses incurred in executing his or her duties.

In order to act on behalf of the Decedent and transfer assets pursuant to a will a probate estate must opened with a personal representative appointed who will be given letters of authority to act on Decedent’s behalf. The estate may either be unsupervised or supervised. The court may supervise an estate in order to make sure assets are being properly transferred.

A trust may be utilized to avoid the expense and delay of probate. A trust has several benefits including minimizing estate taxes, shield assets from potential creditors, preserves assets for your children until they are grown, it can create a pool of investments and managed by professional money managers. Assets are transferred into the trust, and a trustee must is named who will be responsible managing the assets for the beneficiaries of the trust.

A spouse is entitled to receive assets pursuant to intestate succession. If Decedent and surviving spouse shared children then the surviving spouse is entitled to 100% of the assets. If the Decedent had children, but they were not children of the surviving spouse, the spouse is entitled to a portion of Decedent’s estate and Decedent’s children are entitled to a portion of the estate. In addition, the surviving spouse is entitled to a statutory homestead allowance, a family allowance and an exempt property allowance which are adjusted annually to account for the cost-of-living.

A spouse is entitled to receive funds from certain retirement accounts that participate in the federally mandated law, the Employee Retirement Income Security Act (ERISA). Under ERISA, if the owner of a retirement account is married when he or she dies, his or her spouse is automatically entitled to receive 50 percent of the money, regardless of what the beneficiary designation says. In order give their benefits away, the spouse must sign a written consent.

In order to bring a wrongful death action there must be a death caused by another’s negligence, recklessness, malpractice or inaction, and there must be surviving family members who are suffering monetary injury as a result of the death.

In order to proceed with a wrongful death lawsuit, a probate estate must be opened and a personal representative must be appointed.

Settlement proceeds may be awarded to heirs and individuals that may not be heirs to the Estate, but who suffered damages for pain and suffering, lost wages, mental anguish, loss of companionship, loss of consortium, medical costs, and other expenses.

If unable to locate the Decedent’s Last Will & Testament, we recommend looking through Decedent’s mail or any documentation at the house to see if there is correspondence from an attorney’s office addressed to the Decedent. If there is correspondence contact that attorney and request copies of Decedent’s Testamentary documents.

If unable to locate mailings from an attorney, the Last Will & Testament may be held at the Probate Court in the country where the Decedent resided. The Probate Courts are located in the Circuit Court for each county. Some counties have this information online.

If you or any family member is unaware of the existence of a Last Will & Testament then it is presumed that Decedent did not have a Will.

One way to receive assets even if not named in Decedent’s Will is to contest the validity of the will. A court generally must provide an opportunity to allow others to object to the will, and a legal challenge, called a will contest, may be brought by anyone with an interest in the will who believes it is invalid. There are certain grounds to contest a will which include, the making of a later will, incapacity, if the will was made by coercion, duress, or fraud, if the will was improperly executed (a writing, signed by the person making the will, and witnessed or notarized), or if the signature of the testator or witnesses is determined to be forged.

Another way to receive assets even if not named in Decedent’s will is if the named beneficiary in the will passed after the Decedent, the beneficiaries heirs are entitled to inherit from the estate.

Omitted spouses and children are entitled to receive assets even if they are not named in Decedent’s Will.

An omitted spouse is entitled to a statutory election that would allow the omitted spouse to take a portion of Decedent’s estate had the Decedent died without a will. In the alternative, the omitted spouse can elect to take her dower rights which state that the surviving spouse is entitled to a life estate in one-third of the real estate owned by the decedent at the time of his death. In addition, a spouse is entitled to a homestead allowance, a family allowance and an exempt property allowance which are adjusted annually to account for the cost-of-living.

An omitted child is entitled to a share of the testator’s estate, which is limited to devises made to the testator’s then-living children under the will, given in equal shares to each child. In addition, Decedent’s children are entitled to receive an exempt property allowance which is adjusted annually to account for changes in the cost-of-living.

If services for Decedent’s care were provided by a non-family member, and payment for those services was not made, replacement services may be reimbursed by the Estate.