Detailed Answer
In Michigan, property can transfer at death either through non-probate methods or via a will in probate. Understanding the distinction helps you know why some real estate bypasses probate while other real property must go through court.
1. Non-Probate Transfers
Non-probate transfers pass outside the will and do not require probate proceedings. Common methods include:
- Joint Tenancy with Right of Survivorship: When co-owners hold property as joint tenants, the surviving owner automatically owns the entire property upon death. See MCL 554.61. (mcl-554.61)
- Tenancy by the Entirety: Married couples own property together. When one spouse dies, the survivor owns it entirely—no probate needed. (See MCL 554.68.)
- Transfer-On-Death Deed (TOD Deed): Under the Uniform Real Property Transfer on Death Act, you record a TOD deed naming a beneficiary. At death, title passes directly to that beneficiary. (MCL 565.201 et seq. mcl-565.201)
- Living Trust: If you place real property in a revocable living trust, the trustee distributes it per trust terms without probate.
2. Probate Transfers
Probate applies when real property is solely in the decedent’s name without non-probate designation. Under the Estates and Protected Individuals Code (EPIC), you must open a probate estate to:
- Validate the will;
- Identify and inventory assets;
- Pay debts and taxes;
- Distribute property to heirs and beneficiaries.
The probate process begins by filing a petition in the circuit court of the county where the decedent lived. See MCL 700.3801. (mcl-700.3801) If the real estate is passing under a will, the court supervises its transfer to beneficiaries by probate decree.
3. Why You May Still Need Probate
Even with a will in place, any real estate not held in joint tenancy, not in a trust, and without a TOD deed must undergo probate. Probate ensures clear title, settles creditor claims, and legally transfers the property.
Disclaimer: This article provides general information about Michigan law and does not serve as legal advice. Always consult a qualified attorney for guidance on your specific situation.
Helpful Hints
- Check your deed to see if it names joint tenants or a TOD beneficiary.
- Consider a revocable living trust to avoid probate altogether.
- File TOD deeds early; they must be recorded before death.
- Review your will periodically to ensure it reflects current assets.
- Consult an attorney to confirm whether probate is required in your county.