I was recently asked to give a virtual presentation on the probate process and how that has been affected by the pandemic. I realized this would probably also make for an interesting blog topic.

The probate court, like all courts, are governed by written court rules. In Michigan we follow the Michigan Court Rules (MCR). These rules are designed to create consistency between the various courts throughout the state. In addition to these rules, most courts have their own internal rules, which are usually listed on the court’s website. These rules can include things like proper attire for court hearings or what additional forms may be needed to initiate a probate matter.

When the pandemic hit and the state was forced into a shutdown, the courts had no choice but to close as well. As with all areas of society, at first there was confusion. Both staff and attorneys were not sure how to keep cases moving forward without appearing in front of a judge. Since then the courts have slowly started introducing new procedures for hearing cases. Unfortunately, each court has initiated their own procedures, so any consistency that was created by the court rules have more or less disappeared.

Opening a Probate Estate After a Death

As with all types of court matters, probate cases are initiated with the filing of certain documents. In matters concerning the death of an individual some of the paperwork that needs to be filed also needs to be notarized. When a decedent (the person who passed away) leaves a will, the will needs to be submitted to the court along with the application and testimony to identify heirs. The court requires that these documents be in their original form, copies are not accepted. The issue has become, how do we get these documents safely to the court?

Many courts throughout the state of Michigan allow for online filing. This can be a huge benefit for attorneys who don’t have time to go down to the court to file a case. With online filing, the court allows for electronic signatures and scanned copies of documents.

Unfortunately, in Michigan, the probate court does not have an electronic filing system and since the courts are closed to the public, we are unable to drop off filings to the court clerk. This has left most attorneys with a huge conundrum. How do I ensure my documents are safely delivered to the court? In the case of a will signed by the decedent, if this document is lost, it is not replaceable.

Washtenaw County has been kind enough to create a drop-box, where people filing documents can physically deliver their documents to the court. However, other courts have not followed suit, and we are left at the mercy of the USPS. Typically, the mail is reliable, however, during the pandemic we have seen consistent issues with the reliability of the US postal service. Unfortunately, I do not have a solution and have had to resort to mailing original documents with tracking and hoping for the best. To date, all my filings have eventually made it to the probate court. However, once it gets there, I have experienced enormous delays.

Prior to the pandemic, if I were opening an estate, I would take the documents to the probate court and have the estate opened that day. These days it is taking anywhere from 30 to 60 days before I receive the documents back from the court, depending on the county. This can be attributed to huge delays within the court itself compounded by delays within the postal service.

Probate Court Hearings

The courts remain closed to the public; however, the judicial process must continue. It took a little time, but the courts have somewhat adapted. All probate matters are now heard by a judge via the virtual meeting program ‘Zoom.’ This allows the court to see the participants in real time and hold hearings without any fear of coming into contact with the virus.

There are lots of benefits to holding hearings this way; it allows people to attend hearings without leaving their home or work place, no one has to drive to court or pay for parking, and there’s no waiting for your case to be calling in a crowded courtroom. However, there are disadvantages as well. Mainly, it is difficult to have a private conversation with your attorney when you are live on the web. Additionally, all court proceedings are supposed to be open to the public, and while most people do not care enough to attend court hearings that do not pertain to them, some hackers have seen this new virtual courtroom as an opportunity to wreak havoc on the justice system.

While it has not been a terribly smooth transition, the courts, attorneys, and parties to court proceedings are figuring things out and continue to move forward. My hope is that a vaccine will be approved in the near future to bring society back to a state of normalcy, however, I also hope that as technology continues to progress, the Michigan probate court will see the benefit of moving to an online filing system.