If a person becomes incapacitated and he or she does not have written Powers of Attorney, a court proceeding will be necessary to determine if someone else must help make financial and health care decisions. The probate judge will determine who will have authority over the incapacitated person and his or her money (the conservator), and who will help with medical and placement decisions (the guardian). If someone you know is involved in a Guardian or Conservator proceeding, he or she must have competent and seasoned legal counsel to ensure his or her rights and preferences are protected.
The probate court has jurisdiction over matters concerning Estates, Guardianships and Conservatorships. So if a family member or loved one has passed away or is incapacitated, the probate court (as opposed to other civil courts) has exclusive authority to decide matters concerning such situations. Note that if a person has a Revocable Living Trust that is properly funded, it should avoid probate.
The goals of the probate process are to provide a final accounting of the decedent’s assets, ensure that his or her valid debts are paid, and provide for an orderly distribution of the Estate. Through the probate process, property held in the decedent’s individual name is ultimately transferred to the heirs. If there is a Will, the probate court will follow the provisions of the Will in transferring the assets. If there is no Will, Michigan law will apply to determine to whom the Estate goes and who will manage the financial affairs.
For Guardianship and Conservatorship proceedings, the goal is to appoint a suitable person to care for the incapacitated person and his or her financial assets. A guardian must see to the proper care of the person, and the conservator must preserve and protect his or her assets.
The probate court has its own procedural rules to deal with the issues that arise in these areas. The probate court follows statutory laws enacted to govern Estates, Guardianships and Conservatorships. These statutory laws, known as the Estates and Protected Individuals Code (or “EPIC”), are the backbone of the probate practice. As probate experts, we are intimately familiar with EPIC, and we have extensive technical and practical experience applying its rule of law to our clients’ circumstances.
In addition to having a depth of knowledge about EPIC, we also have extensive knowledge regarding fiduciary standards and accounting – that is, the rules and laws that govern the conduct of personal representatives, guardians and conservators. We understand how real estate and business laws interconnect with the probate laws. Finally, we are familiar with the intricacies of the federal and state tax laws.
The Probate Process
The goal of the probate process is essentially to provide a final accounting of the decedent’s assets, ensure his or her creditors are paid, and provide for an orderly distribution of the remaining balance of the estate.
If a person is incapacitated and cannot make personal and medical decisions for themselves they may need a guardian. The guardian will usually have the right to access medical records, help make treatment decisions and decide where the person is going to live.
If a person is incapacitated and cannot handle his or her own financial affairs, the probate court will appoint a conservator. The conservator has control over an incapacitated person’s financial assets (e.g. bank accounts, investments, real estate). The conservator must keep track of all receipts and expenditures.
We recognize the sensitive nature of familial disputes over estates, and we remain committed to protecting our clients’ rights and interests while giving the necessary consideration to the relationships that are affected. Probate litigation is a complex and unique area of law. With our focus on estate law, we are exceptionally well prepared to represent a client involved in any dispute regarding these matters.