Third Biggest Mistake in Probate Court

When there is ONLY a Will!

These are a few of the difficulties that arise when ONLY a Will is put in place:

Difficulty #1: Instructions to Probate Judge. What is a Will? A Will is nothing more that a letter of instructions to Probate Judge about how your estate will be divided upon your death. In essence, a guarantee of probate.

Difficulty #2: Unequal Distributions are Possible. A Will deals only with property owned in the decedent’s name alone. Jointly held property (JTWROS) passes to the surviving joint owner – and is not distributed according to the Will. So, for example, if a Will says that all property is divided equally between three children, and one child is the joint owner on a $100,000.00 bank account with the decedent, that bank account is not divided equally with the other children. The bank account passes to the surviving joint owner by contract law, not by the Will in Probate Court.

Difficulty #3. Wills require Conservatorships for Minor Children. Bequests to minor children require the creation of Conservatorships and the annual reporting to Probate Judges of all income and expense for each minor child until age 18. Some Probate Courts require approval prior to the expenditure of funds for the minor child, or before the withdrawal of funds from the minor’s Conservatorship Estate. Upon reaching age 18, the balance of the Conservatorship Estate is paid directly to the 18–year-old child without restrictions – to spend as the 18-year-old sees fit. Usually, not a good decision. In Wayne County, a bond is almost always required by the Probate Court.

Difficulty #4: Guardianships may be required for Minor Children. A Will may require the creation of a Guardianship Probate Proceedings where a parent dies while the child is still a minor, especially in single parent situations. If the Will does not appoint a Guardian, the Probate Court has the power to appoint one, or a public administrator as Guardian who is a stranger to the family. A Court appointed Guardian, can be a different person than the Conservator, which just makes caring for a minor child more difficult and expensive since two different people may be making the care and support decisions for a single minor child.

Difficulty #5: Inventory Fees. Probate Courts require the payment of Inventory Fee that is assessed on the total value of the Probate Estate, usually less than 1/2 of 1%. This fee is completely avoidable with the use of a funded revocable trust for the decedent’s personal and real property.

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The law invariably lags behind technological advances. A new product or service may take off very quickly (the iPhone is not even 10 years old), or it may equally fall off as a fad as fast as it started. (Pokemon Go hardly lasted a weekend.)

And the law moves more slowly, attempting to regulate technology where necessary, or incorporate it into practice. Some Federal Courts have provided for electronic filing since 1996; most Michigan State Courts have yet to implement an electronic filing system.

Many of our laws (and consequently contracts) retain the concept of using the United States Postal Service, rather than e-mail. Even though it is much faster, more convenient and expedient to e-mail opposing counsel certain pleadings, the rules still anticipate mailing the documents.

In the same manner, the law does not quite recognize it is easier to reach someone by E-mail than by letter. In fact, at this point in time, people are communicating through Text, Twitter and Messenger because E-mail is too slow!

Yet our laws continue to require us to provide service by either personally serving someone by the use of a process server, or mailing a certified letter, restricted to the person being served. You could send a Complaint by e-mail, Facebook messenger, and text, and it is not sufficient service, even though the person being served is far more likely to receive the document through those technologies than through a certified letter.

However, the law is slowly catching up. It has always provided a means whereby a litigant may petition the court to serve a person through Alternate Service, such as posting on their door, printing in the local paper, or providing it to another adult in the household. The court focuses on a means “reasonably calculated to give notice.” (Rule 4(f) of the Federal Civil Rules of Procedure.)

Many courts are beginning to recognize the technologies of the last decade are far more “reasonably calculated to give notice” to a person than the use of mail or even personal service. When is the last time you received personal mail? When is the last time you looked at an e-mail, text or message?

Recently, a Federal Magistrate allowed the use of Twitter to serve a Kuwaiti national, recognizing Twitter was more likely to give notice than regular means of service. Meaning you could look at a tweet, or open a message and discover you have been served!

Of course, this will raise new issues the law will have to address. How do you verify a person read a tweet? Or that the e-mail was not filtered out as spam, or blocked? For the time being, we will remain with traditional service—certified mail and process servers—and the more common alternate service of posting and publishing. But in the future, more and more persons will be asking for alternative electronic means, and it would appear courts are more inclined to grant such requests.

The next time you read a tweet—you could be served! #YouAreServed!