If Real Property Passes Automatically at Death vs. Why Do I Have to Probate the Will in Michigan

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney. See full disclaimer.

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.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney. See full disclaimer.