Probate FAQ's

Probate Issues What is a will? A will is a written document, which after your death gives instructions for how you want your individually-owned property to be distributed. A will may also indicate who is to be in charge of your property until it is distributed and who will take care of your minor children if the other parent should also be dead. If a person dies without leaving a valid will, the property will be distributed according to the dictates of intestate succession under Michigan law.

For a fee, the probate court will store a person's will for safekeeping. You can make changes or additions (called codicils) to your will at any time providing that you are mentally competent. There is an additional fee to store the amended will or codicil. All wills filed for safekeeping in the probate court are confidential. A will filed for safekeeping becomes a public document when the subject of the will dies.

What is a decedent's estate? The property solely owned by a person upon that person's death is that decedent's estate. The estate can be processed by the court in three ways — as an assignment (this would apply if the value of the estate is under $17,000), as an unsupervised administration, or as a supervised administration.

An estate can be distributed by assignment when the true cash value of the estate is not more than $17,000 (this amount can change over time based upon cost-of-living changes). The estate may be assigned to the surviving spouse or the person who has paid the funeral bill to the extent of such payment. If there is no surviving spouse and the funeral bill has been paid, the estate may be assigned to the heirs at law.

If a person leaves a will, it usually names a person to be the personal representative of the estate. However, a person does not become personal representative of an estate until appointed by the probate court. The personal representative is responsible for completing all the requirements to distribute the assets of the estate.

An estate which starts as an unsupervised administration may be changed to a supervised administration upon the petition of an interested person if it is shown that court supervision is necessary.

In all three types of estates, a petition (or application for some) must be filed with the probate court to begin estate proceedings. These forms are available from the probate court or you can get them from this site (go to Court Forms Index > >). You may not be required to have an attorney, but the personal representative may choose to have help from an attorney.

What are the functions of a guardian and a conservator? A guardian is a person appointed by the probate court to provide for the care and custody of another person called a ward. If the court decides the ward is legally incapacitated or incapable of taking care of him or herself, it may give the guardian authority to make all decisions on behalf of the ward. Sometimes the court may also limit the guardian's authority to specific decisions.

A conservator is a person appointed by the probate court to take care of the property or estate of another person who is considered by the court to be unable to handle his or her own financial affairs. The conservator is responsible to the court for how the ward's funds or property are managed.

A guardian and a conservator can be the same person or institution, or they may be different people or institutions.

To have a guardian or a conservator appointed for an incapacitated person, a petition must be filed with the probate court. Any adult interested in the well-being of the individual can file the petition. There are filing fees for guardianships and conservatorships. Before the hearing, the court will appoint someone (called a guardian ad litem) to meet with the ward and make an investigation for the court. There may be a charge for this.

A hearing will be held and the probate judge will decide after hearing testimony whether it is necessary to appoint a guardian or conservator to protect the person or property. Both a guardian and conservator must fulfill the legal duties required of the position. Guardians or conservators may be paid for their services from the ward's estate, if approved by the court.

The probate court will give you a copy of a petition for a guardian or conservator, but the court staff cannot give you legal advice about your case.

In addition, some courts have videotapes explaining what guardians and conservators do. You may want to check if one is available from the probate court nearest you. You may want to talk to an attorney.

What types of guardianship exist for minors? A guardian of a minor can have some or all of the legal powers of a parent. The two types of guardianships of minors are general guardianships and limited guardianships.

Any interested adult, or a minor over the age of 14, can file a petition with the probate court asking the court to appoint a guardian. A court appointed guardian makes important decisions such as housing, education, medical treatment and other things usually decided by a parent for the minor.

A general guardian would be appropriate if a minor has no living parents, or the parents cannot be found. If a guardian is appointed in the parent's will, the guardianship takes effect when the nominee formally accepts his or her appointment. This is called a testamentary guardian. A general guardian has all the legal powers of a parent, but is not legally required to provide for the minor out of his or her own funds.

In a limited guardianship, the proposed guardian and the custodial parent decide what powers the guardian will exercise and both must sign a limited guardianship placement plan. This plan tells the court the reason for the guardianship, how long it will last, how the child will be supported, and how the parent will stay in contact with the child. A limited guardian cannot consent to the marriage or adoption of a child.

The placement plan must be approved by the court. If the parent does not keep the agreement made in the plan, the guardian or another person named by the court may ask the family division of the circuit court to terminate the parent's rights to the child and make the child available for adoption.

Guardianships for minors under age 6 must be reviewed by the court every year to make sure the placement plan still works. The court may modify the plan when it is reviewed.

A parent must go to court to end a limited guardianship. In some cases, the court may decide that the parent is not ready to have the child back, and may set some conditions for the parent to meet before the child is returned.

If a guardian is unable to keep the child, the guardian must petition the court to appoint someone else.

When must a conservator be appointed for a minor? When a minor receives more than $5,000 from a lawsuit or inheritance, a conservator must be appointed by the probate court. The reason for naming a conservator is to protect the money until the minor becomes 18 years of age. The conservator is usually the minor's parent or legal guardian.

You must file a petition with the probate court asking for the appointment of a conservator. There is a filing fee. The court will decide at a hearing who the conservator should be. The conservator may be responsible for filing an annual account with the court.

How are mental health commitments handled? If you want to have a person whom you believe is mentally ill to be committed to a mental health facility or otherwise treated, you may file a petition with the probate court. Many times before court action, an individual is temporarily hospitalized based on an application presented to the hospital director. While a petition alleging that an individual is mentally ill is pending before a court, the individual has the opportunity to defer a formal hearing and voluntarily agree to treatment.

What is probate court? The probate court handles wills, administers estates and trusts, appoints guardians and conservators, and orders treatment for mentally ill and developmentally disabled persons.