Testacy in probate law refers to families who have planned for passing of loved ones in limited fashion such as setting up will which directs that assets are passed on according to loved one's wishes. From time to time it becomes questioned whether, prior to passing, the loved one lacked what is termed "testamentary capacity" which holds that the loved one knows not the contents of his estate nor what his or her intentions were regarding it. This only comes up when one heir to the estate becomes unsatisfied with the share he or she receives from distribution. Again, this only comprises less than one percent of the estates ever probated in Michigan.
The Probate process can seem to be be a mine ridden path for the unwary. Some practitioners excitedly say that when loved ones die without an estate plan, a law suit must be initiated against the belongings of the loved one or loved ones resulting in a judgment against the person no longer able to represent or defend him or herself. If the loved one leaves no instructions such as an Estate Plan or Trust and dies with assets in their name, probate proceedings must be opened up which amounts to a law suit against the assets of the decedent brought by creditors of the decedent. While this may be partially true, it is not as alarming as all that. All the law requires is for an interested person to file a petition to open an estate, either supervised or unsupervised, depending on the local rules of the court where the loved one has died. If there is no will directing where the assets go, the proceedings are used to determine which heir or heirs inherit and which claims must be paid from the deceased love one's remaining assets. If the loved one leaves a will, this makes the process much easier as the Court will know where to direct the assets barring objections and pay claims as they arise prior to distribution. Our office employs several probate avoidance techniques to place assets in desired hands sometimes avoiding both probate but also more expensive estate planning involving trusts. In addition, sometimes a probate estate must be opened if the loved one is involved in civil litigation or bankruptcy proceedings at the time of death before relief may be granted in these forums.
A good reason to avoid probate is to come in and direct that the assets either be placed in trust or listed as avoiding probate by joint ownership with rights of ownership. Our offices commonly recommend such actions to save trouble, heartache at someone's passing and decrease final expenses.