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.
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:
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 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.
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.
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.
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.
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:
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.
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.
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.
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:
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:
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.
Kent County Courthouse
180 Ottawa Avenue NW, Suite 2500
Grand Rapids, MI 49503
Monday - Friday
8:00am - 5:00pm
Filings are accepted until 4:30pm
Judge David M. Murkowski
Chief Judge Probate Court
Susan B. Flakne, Register