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Basic Probate Law

A Primer On Basic Probate Law

There is a tired cliche that says that the only things that are certain are death and taxes. Given the certainty of death the law has from ancient times recognized that death causes struggles over the ownership of property of the deceased and has developed a variety of systems to handle these.

The first of these systems is called intestacy. Intestacy occurs when a person dies without a will. In this instance property is distributed according to a statutory scheme. The statutory scheme is based upon what the legislature assumes a person would want to do with their property upon their death.  Distribution is very inflexible and not subject to much of a challenge.

The second system is called “probate substitutes”. These consist of putting properties into multiple names. Under this system the property passes to the survivor. Again, this is inflexible as the surviving party has an existing property interest at the time of death. It is possible, but difficult, to attack the transfer as subject to “undue interest”.

The final system is called “testacy” and involves the use of wills and trusts. Under this system the will or trust dictates the distribution of property. It is much more flexible because the person who signed the will or trust has the discretion of where the property is to be left. There are statutory safeguards built into this scheme to prevent some persons from an unfair disinheritance. Some limited challenges to the will can be made under “undue interest” here as well. Again, these are possible, but difficult.

To discuss issues with opening, processing, or challenging an estate call an experienced Bloomfield Hills probate lawyer at (248) 432-1612 for a free consultation.