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Who is an Heir Part 1

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:

1. 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.

2. Spouse takes the first $150,000 plus 3/4 of the balance, if there are no surviving descendants, but there is a surviving parent.

3. 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.

4. 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:

1. The decedent's descendants by representation. The term "representation" will be explained later in this note.

2. If there is no surviving descendant, the decedent's parents equally if both survive or to the surviving parent.

3. If there is no surviving descendant or parent, the descendants of the decedent's parents or of either of them by representation.

4. 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.

5. 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.

This should give you a general idea as to how intestate succession works in Michigan. This discussion will continue in the next note. There are other provisions of EPIC which qualify the way intestate succession operates. Those provisions will also be discussed in the following note. (See Who is an Heir, Part 2)

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