Ask the Attorney

QUESTION: My Mother just passed away. She had a Will done but I am being told I have go through the Probate Court. I thought you didn’t have to go through probate if you had a Will; is that right?

ANSWER: This is one of the most common questions that I receive. Unfortunately, the answer is no; a Will does not avoid probate. An old saying is that a Will is a “ticket” to probate. Which remains true today. Two of the main reasons for having a Will prepared are to direct who gets your assets when you die and to appoint who will administer your estate. These are very important. As such, a Will is a very important document to have, but one thing it does not do is avoid probate.

However, in most cases probate is a much simpler process than it used to be. The old horror stories of probate consuming all of the assets and leaving the children penniless are few and far between now. Besides, we don’t even know if you have to open a traditional probate, or if you can use one of the much quicker “Small Estate” proceedings, or if you even have to go to probate at all. It depends on the type of assets, the value, and how they are titled.

If the balance of the estate, after paying funeral and burial expenses, is $23,000 or less, there are two small estate proceedings that could be used which are significantly less work and much quicker than a traditional probate. If the estate consists only of automobiles, and the total value of the automobiles do not exceed $60,000, then you can go to the Secretary of State’s Office and the title(s) can be transferred directly to the heirs without the need for probate. If the assets were joint titled with another person, then the assets may pass to the other person under the survivorship laws without the need for probate. However, in the case of joint titling, the asset must be titled properly for the survivorship function to work. I have seen many deeds prepared by persons other than attorneys that were done incorrectly and as a result, the property had to go through probate.

I would suggest you see an attorney who handles probate estates. He or she can advise you of your options under the law. Keep in mind for your own estate planning needs that a Trust may be a better option for you than a Will. A Trust will avoid probate if it is done properly.

Michael B. Walling is an Elder Law & Estate Planning attorney with an advanced Master of Laws degree. He manages the Elder Law Center and law firm of Michael B. Walling, PLC. He has offices in Battle Creek and Portage, Michigan. Mr. Walling is also a Part-Time Professor at Western Michigan University.

This column is intended for general information purposes only and should not be considered as legal advice to any particular person.