Differences Between Death and Lifetime Probate

As estate planning and elder law attorneys, part of our process is asking our clients about their goals. Often, one of those goals is to “avoid probate.” When we explore that goal more deeply, it sometimes emerges that clients aren’t really sure what happens in the probate process. They understand that probate involves the courts, and that going through probate usually takes longer and is more costly than not having to go through probate. Many people assume that the probate process is something that happens after you die. While that’s true of death probate, many people overlook the process of lifetime probate.

Those clients are right about the fact that it is (usually) better to avoid both lifetime probate and death probate. In this blog post, we will talk about the differences between death and lifetime probate processes, and how your estate planning attorney can help you avoid them both.

What is “Lifetime Probate?”

Since fewer people are familiar with the concept of lifetime probate, let’s start there. “Lifetime probate” simply refers to any involvement your county probate court may need to have in your affairs while you are still alive. In general, that means guardianship and/or conservatorship.

In Michigan, a guardian is a person who is authorized to make personal decisions for a legally incapacitated person, called a ward. For example, a guardian might make decisions about where a ward will live, or what medical treatment they will receive. A conservator is a person who handles a ward’s finances. If both a guardian and conservator are needed, one person may serve in both capacities, or two different people might be appointed by the court.

When a guardian or conservator is needed for children, the “legal incapacity” is their age; they cannot make decisions for themselves because they are not yet adults. But lifetime probate is much more frequently needed for adults who have become incapacitated, either due to dementia or other serious injury or illness, and can no longer manage their own affairs.

It is good that a mechanism exists to protect vulnerable older adults (and younger ones, since anyone can suffer a head injury or fall into a coma). But lifetime probate is not an ideal solution. The person appointed as guardian or conservator may not be the person the ward would have wanted in charge of their important decisions. And there exists the possibility that family members may have bitter disagreements about who should serve in those roles, or even whether a guardian or conservator is needed at all. Another problem with the lifetime probate process is that it can take weeks, which may seem like an eternity when a loved one is in urgent need of protection.

What is Death Probate?

Probate after death, or “death probate” is the probate process with which more people are familiar. It involves the administration of the estate of a deceased person, which consists of assets they owned in their sole name. If the decedent had a will, the probate process will include submitting the will to the probate court for a determination that it is valid; the executor named in the will is likely to be appointed as the personal representative in charge of handling estate business. If there is no will, the court will appoint a personal representative, typically a close relative of the decedent like a spouse or adult child.

The probate process after death often takes several months. The personal representative of the estate must notify all heirs and beneficiaries of the proceedings, gather and inventory estate assets, notify creditors, and pay all legitimate debts of the estate. After estate debts are settled, remaining estate assets are distributed to heirs or beneficiaries.
People often want to avoid death probate because of the burden managing an estate can impose on the personal representative. Although the process is much easier with the assistance of a probate attorney, it can still be stressful, especially if there are disputes over the estate. In addition, the length of the process often delays the distribution of inherited property to family members.

How to Avoid Probate

Lifetime probate and death probate exist to provide resolutions to situations for which individuals did not plan. The solution is simple: to plan in advance for the possibility of incapacity and the certainty of death.

To avoid lifetime probate, you can create durable financial powers of attorney and advance health directives such as a Michigan patient advocate designation. These documents allow you to choose someone to handle your personal and financial decisions if and when you become legally incapacitated. You have the peace of mind of knowing that someone you chose is in charge of your affairs, and that no court involvement was needed to give them that authority. They can simply step into the role as soon as they are needed.
On a similar note, creating an estate plan can help you avoid your loved ones having to deal with probate after your death. As mentioned above, having a last will and testament does not avoid probate—but having a trust does. In fact, avoiding probate is one of the primary reasons that people incorporate a trust into their estate plans, although trusts offer other benefits as well.

There are some situations in which the court oversight the probate process offers is beneficial. Most of the time, though, the instinct to avoid probate is a good one. To learn more about the differences between death and lifetime probate, or how to avoid probate altogether, contact Estate Planning & Elder Law Services to schedule a consultation.