When an individual who owns real estate dies, many attorneys assume that it is necessary to open a probate estate to pass title to family members. However, title to Michigan real estate passes immediately on death and probate may not be necessary if the decedent died intestate. An individual entitled to property by intestacy may establish title to the property by proving the decedent’s ownership, the decedent’s death, and the individual’s relationship to the decedent, although the individual may be liable for costs of administration, creditors’ claims and the surviving spouse’s and dependent children’s allowances. MCLA 700.3901. That liability lasts for one year from the time of the property’s distribution. MCLA 700.3957.
These principles give rise to interesting repercussions related to liability for real estate taxes, property insurance and the claims of creditors, including Medicaid estate recovery. If property passes outside of probate and there is only one year to pursue a claim, that makes it difficult for claimants to pursue the property.
Where the intestate decedent owned a parcel of land and no other assets requiring probate, the execution of an affidavit may pass title to the heirs. The affidavit should set forth the decedent’s ownership, the legal description of the real estate, the date and place of the decedent’s death, and the identities and relationships of the heirs to the decedent. The affidavit should be executed by a disinterested third party with knowledge of the salient facts. A specimen affidavit follows:
AFFIDAVIT AS TO HEIRS
AFFIANT, JEREMIAH JOHNSON, Attorney, of 22312 Garrison Street, Dearborn, MI 48124, having made proper inquiry into the facts stated below, makes this statement under MCLA 700.3901 and says:
1. SAMUEL PRINCETON, died intestate on February 9, 2017, with a residence address of 448 Tannahill Street, Dearborn, MI 48124.
2. The death certificate of SAMUEL PRINCETON is attached as Exhibit A.
3. At the time of his death, SAMUEL PRINCETON was the owner in fee of the following-described real estate in City of Dearborn, Wayne County, Michigan:
Lot 67 Fort Dearborn Manor, L49, P67;
448 Tannahill Street;
82 09 154 67 035.
4. The heirs at law of SAMUEL PRINCETON, at the time of death were:
a. PERSEPHONE PRINCETON, of 13087 Agnes Street, Southgate, MI 48195, daughter,
b. GARFIELD PRINCETON, of 141 Harrison Street, Trenton, Mi 48183, son.
5. SAMUEL PRINCETON was not survived by a spouse and there were no other intestate heirs.
6. PERSEPHONE PRINCETON and GARFIELD PRINCETON claim title to the real estate described in § 3, above, as of February 9, 2017.
Executed June 25, 2017 by: JEREMIAH JOHNSON
In Wayne County, Michigan, this instrument was acknowledged before me June 25, 2017, by JEREMIAH JOHNSON as a free act and deed.
My commission expires
May 18, 2019 CAMELLIA MONTI, Notary Public
When recorded return to drafter. Send tax bills to PERSEPHONE PRINCETON, of 13087 Agnes Street, Southgate, MI 48195.
Drafted by JEREMIAH JOHNSON, Attorney, of 22312 Garrison Street, Dearborn, MI 48124.
In most cases, the affidavit will be recorded as an exhibit to a deed conveying all of the interests to one heir or to a third party, signed by all of the heirs. However, recording the affidavit in the chain of title for the property should start the one year waiting period.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2017 John B. Payne, Attorney