Probate Court

Who is an Heir

An heir is defined under the Estates and Protected Individuals Code (EPIC). "Heir" means, except as controlled by MCL 700.2720, a person, including the surviving spouse or the state, that is entitled under the statutes of intestate succession to a decedent's property. MCL 700.2720 which will be discussed later is a rule of construction used to determine those who take under a gift to "heirs" or a similar term. A person who dies without a will is a person who dies intestate. A person who dies intestate has their estate distributed according to the scheme set up by the state called intestate succession. It can be said that everyone dies with a will. You either make your own will or the state makes one for you (intestate succession). Intestate succession proceeds as follows under EPIC upon the death of the decedent.

Intestate Succession

The dollar amount of the intestate share of the surviving spouse shall be adjusted annually for inflation beginning January 1, 2001. Pursuant to MCL 700.2102, the present intestate share of the surviving spouse is as follows:

  • Spouse takes the entire share if there are no surviving descendants or parent. "Descendant" means, in relationship to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in EPIC.
  • Spouse takes the first $150,000 plus 3/4 of the balance, if there are no surviving descendants, but there is a surviving parent.
  • Spouse takes the first $150,000, plus 1/2 of the balance, if any of the decedent's descendants are also descendants of the spouse.
  • Spouse takes the first $100,000, plus 1/2 of the balance, if none of the decedent's surviving descendants are descendants of the spouse.

Pursuant to MCL 700.2103, any part of the intestate estate that does not pass to the decedent's surviving spouse under MCL 700.2102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the following individuals who survive the decedent:

  • The decedent's descendants by representation. The term "representation" will be explained later in this note.
  • If there is no surviving descendant, the decedent's parents equally if both survive or to the surviving parent.
  • If there is no surviving descendant or parent, the descendants of the decedent's parents or of either of them by representation.
  • If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent's maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same matter as the 1/2.
  • If there is no taker under the above provisions, the intestate estate passes to the state of Michigan.

Representation

The term "representation" is fully defined by MCL 700.2106. This definition is very different from the way "representation" is currently used in the Revised Probate Code. Under the Revised Probate Code representation was used to mean a per stirpes distribution. Under EPIC, representation is used to mean distribution per capita at each generation. Since the term is extremely important in understanding intestate succession and has been given a different meaning, it will be discussed at some length.

Pursuant to MCL 700.2106(1) if a decedent's intestate estate or a part of the estate passes by representation to the descendants, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest to the decedent that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

The following will try to explain the above statutory language by way of an example. Assume that the decedent dies leaving no surviving spouse. Decedent does leave two surviving sons, A and B; a deceased son, C, who left no descendants; a deceased daughter, D, who left one child surviving her, V; and a deceased son, E, who left four children surviving him, W, X, Y and Z. We look to the generation nearest to the decedent with surviving descendants. That generation contains two surviving children, A and B, and three deceased children, C, D, and E. C is disregarded since he left no descendants. Therefore, the estate is divided into 4 shares. A and B each get one share with each share constituting 1/4 of the estate. The rest of the estate ( 1/2) is combined and divided equally among the five grandchildren. V, W, X, Y, and Z each would receive one share with each share constituting 1/10 of the estate.

Pursuant to MCL 700.2106(2) if a decedent's intestate estate or a part of the estate passes by representation to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's paternal or maternal grandparents or either of them, the estate or part of the estate is divided into as many equal shares as the total of the surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains 1 or more surviving descendants and the deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated 1 share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.

The following will try to explain the above statutory language by way of an example. Assume that the decedent dies leaving no surviving spouse, no descendants and no surviving parents. Decedent does have a surviving brother, A; a deceased brother, B, with two surviving children, T and U; a deceased brother, C, with one surviving child, V; and a deceased sister, D, with one surviving child, W, and a deceased child, X. X has two surviving children, Y and Z. We look to the generation nearest to the deceased parent, in this case, which will be the generation containing A. That generation contains one surviving child, A, and and three deceased children, B, C, and D. Therefore the estate is divided into 4 shares. A would get one share constituting 1/4 of the estate. Next, the remaining estate (3/4) is combined and divided into 5 shares representing the four surviving grandchildren of the deceased parent, T, U, V, W and a deceased grandchild X. T, U, V, and W will each receive one share constituting 3/20 of the total estate. Next, the remaining estate (3/20) is divided into 2 shares representing the two surviving great grandchildren of the deceased parent, Y and Z. Y and Z will each receive one share constituting 3/40 of the total estate.

As you could see, situations dealing with the descendants of a decedent's parent (brothers, sisters, nieces, nephews, grand nieces and grand nephews) can be confusing. When you get to situations where the heirs are determined by tracing the descendants of grandparents (uncles, aunts, first cousins, first cousins once removed, etc.) things can get very complicated. Under the present statutory scheme, first cousins may inherit but second cousins may not.

People often confuse the distinction between first cousins, first cousins once removed and second cousins. Your first cousin is the child of your aunt or uncle. A child of a first cousin is your first cousin once removed. A grandchild of your first cousin is your first cousin twice removed and so on. Second cousins are related to each other by descending from the same great grandfather or great grandmother. Full cousins must be of the same generation. The children of first cousins are second cousins to each other. The grandchildren of first cousins are third cousins to each other.

The parent of your second cousin is your first cousin once removed in the ascendancy and may not inherit because he or she is the descendant of great grandparents rather than grandparents. This person is not a second cousin even though the child of a great aunt or uncle because you must remember that cousins must be of the same generation. We could continue to discuss this complicated subject almost indefinitely, but since we are only concerned with who is an heir and not who will be the next English king, we will end it at this point.

Requirement that heir survive decedent for 120 hours

Pursuant to MCL 700.2104, an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period. This section does not apply if its application would result in a taking of the intestate estate by the state under section 2105.

Kindred of the Half-Blood

Pursuant to MCL 700.2107, a relative of the half-blood inherits the same share he or she would inherit if he or she were of the whole-blood.

Afterborn Heirs

Pursuant to MCL 700.2108, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Advancements

Pursuant to MCL 700.2109, if an individual dies fully or partially intestate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only under the following circumstances:

  • The decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement.
  • The decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

Debts to Decedent

Pursuant to MCL 700.2110, a debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.

Alienage

Pursuant to MCL 700.2111, an individual is not disqualified to take as an heir because the individual or an individual through whom he or she claims is or has been an alien.

Individuals Related to Decedent Through Two Lines

Pursuant to MCL 700.2113, an individual who is related to the decedent through 2 lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Parent and Child Relationship

Pursuant to MCL 700.2114(1), an individual is the child of his or her natural parents, regardless of their martial status. The parent and child relationship may be established in any of the following manners:

  • If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession.
    • A child conceived by a woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence.
    • If a man and woman participate in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage is void, the child is presumed to be their child for the purpose of intestate succession.
  • Only the individual presumed to be the natural parent of a child may disprove a presumption that is relevant to the relationship, and this exclusive right to do so terminates upon the death of the presumed parent. If a child is born out of wedlock or if a child is born or conceived during a marriage but is not the issue of that marriage, a man is considered to be the natural father of that child for purposes of intestate succession if any of the following occur:
    1. The man joins with the mother of the child and acknowledges that the child is his child by completing an acknowledgment of parentage as prescribed in the acknowledgment of parentage act.
    2. The man joins the mother in a written request for a correction of certificate of birth pertaining to the child that results in issuance of a substituted certificate recording the birth of the child.
    3. The man and child have borne a mutually acknowledged relationship of parent and child that begins before the child becomes age 18 and continues until terminated by the death of either.
    4. The man is determined to be the child's father and an order of filiation establishing that paternity is entered as provided in the paternity act.
    5. Regardless of the child's age or whether or not the alleged father has died, the court with jurisdiction over probate proceedings relating to the decedent's estate determines that the man is the child's father, using the standards and procedures established under the paternity act, 1956 PA 205, MCL 722.711 to 722.730.

Pursuant to MCL 700.2114(2), an adopted individual is the child of his or her adoptive parent or parents and not of his or her natural parents. This general statement is further clarified as follows:

  • An individual is considered to be adopted when a court of competent jurisdiction enters an interlocutory decree of adoption that is not vacated or reversed.
  • A child adopted by a stepparent remains an heir of the natural parent who is married to the stepparent.
  • An adopted child retains the ability to inherit from or through the other natural parents. However, the permanent termination of parental rights of a minor ends kinship between the parent whose rights are so terminated and the child for purposes of intestate succession by that parent from or through that child.

Pursuant to MCL 700.2114(4), inheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child.