A formal request one might make of a Probate Court judge; in District and Circuit Court, these requests are usually referred to as “motions”. While there is no significant difference between a Motion & a Petition, the Probate Court uses its terminology, so you should be aware of it.
Notice of Hearing –
Typically, whatever you are petitioning for, will be the subject of a hearing, held in court, on a specific date, and at a specific time. You will typically be required to serve this Notice of Hearing (on a specific Probate Court form below; in Michigan, Probate Court form – and forms for other courts, are published by the State Court Administrative Office, or SCAO; you can find the SCAO forms here), along with the Petition.
Whoever files the formal request, or Petition, is referred to as the “Petitioner”. While that is probably lawyer-proof common sense, the important point to make here, is that if someone files a Petition, and does not then show up at court, for the Petition they filed, that Petition will likely be dismissed. However, there may also be a sanction of some type attached to your failure to appear, so make sure you appear on Petitions you file.
The individuals/entities to whom a Petition is directed; there may not always be such a person.
Interested Person –
There are classes of persons whom the law deems to be interested in the outcome of any Petition filed in the Probate Court, and those “interested persons” must be served with the Petition, and other necessary paperwork, before the Judge will consider your petition. Failure to serve these “interested persons”, will result at minimum in a postponement of your Petition, if not outright dismissal. Michigan Court Rule 5.125 sets forth what type of people are “interested persons”, for the purpose of about 35 different Probate Petition situations.
Just because you are filing a formal Petition in the Probate Court, does not mean that someone will always oppose it. Many, if not most times, the “interested persons” will all agree to the relief you are seeking, but you will have to document that consent in writing. There is a specific SCAO Probate Court form for “waiver/consents”, that interested persons will be required to sign, to document their consent. I have included this form, and a number of others, below.
Proof of Service –
Since we know that the law requires certain types of interested persons to be served, in connection with different types of petitions, it makes sense that you will need to be able to prove to the judge, that you served those interested persons. Here again, there is a specific SCAO form that you will be required to fill out, and to submit to the court, to attest to your service of the Petition and the Notice of Hearing, on the interested persons. I make it a practice to get a file stamped copy of the proofs of service that I file with courts, so that the judge, or his/her staff cannot surprise me on the date of the hearing, and claim I did not serve all persons entitled by law to receive notice.
Sometimes, interested persons cannot be located, and accordingly, courts have set up a mechanism by which you can be deemed to give notice to persons who cannot be physically located. Usually, the local legal newspaper of record (e.g., in Detroit, the “Detroit Legal News”, or “Macomb Legal News”, etc.) will publish the notice for a fee.
While it seems odd to expect that Aunt Gladys or Uncle Skeezix will pick up a copy of the pertinent legal newspaper for any reason whatsoever, the online versions of these publications are routinely scoured by companies specializing in the collection of debts left in this world, by the recently deceased. Perhaps these companies’ ability to “raise dead credit from the grave” like Lazarus, contributes to the reliance of Probate Courts on legal newspapers, for the purpose of giving notice. In any event, it does enable petitions to go forward, that otherwise would not.
A person appointed by a probate court, to make personal, medical, housing and educational decisions for another person, because of that other person’s mental or physical incapacity, or because they are under the age of legal majority. There are minimum standards for conduct by a Guardian, including minimums for visiting the ward, etc. A person appointed Guardian will have to file an Annual Report on the Condition of the Ward; there is an SCAO form for this purpose. Also, some proof of the person’s disability will need to be submitted, along with the Petition to Appoint Guardian, to satisfy the Judge that a guardian is truly needed.
A person appointed by a probate court, to make financial, business, or legal decisions for another person, because of that other person’s mental or physical incapacity, or because they are under the age of legal majority. Usually, the standard for needing a conservator is the same as the one for needing a Guardian. Also, some proof of the person’s disability will need to be submitted, along with the Petition to Appoint Conservator, to satisfy the Judge that a Conservator is truly needed.
A single handy-dandy convenient word that encompasses different types of representatives, e.g., Guardian, Conservator, or Estate Personal Representative (Michigan term for “executor” of an estate; sometimes referred to as an "Estate PR"). Aside from its convenience as one word that could describe any of these representative capacities, the word “fiduciary” is important, because it implies a certain set of standards of ethical conduct, care, and loyalty, that fiduciaries owe to their wards or beneficiaries. Sometimes, the word “fiduciary” is used outside the probate context, to describe the higher duty of care owed by some (e.g., lawyers, accountants, insurers, etc) to others.
Public Administrator –
I refer to “public administrators” as fiduciaries of last resort. Sometimes, there is nobody who can or will step up, to serve as Guardian, Conservator, Estate Personal Representative, etc. Sometimes, there is a tactical reason to suggest the appointment of a Public Administrator. In any event, these persons are appointed by the Governor, on a county-by-county basis, and are usually pretty knowledgeable about probate law and procedure. If a matter were then to come up in a local probate court, requiring the Probate Judge to appoint a fiduciary, and there were no other candidates willing or available to serve, that Judge might well appoint a Public Administrator to serve. In many of these cases, the ward (the person being protected) is indigent, and these cases often pay little or nothing. However, there will be cases in which a Public Administrator is appointed, and the ward has sufficient assets to pay the Public Administrator, who then bills the ward (with those bills then being subject to the approval of the Probate Judge). As a matter of business economics, public administrators have to subsidize the "indigent" assignments they get, and they do this, by billing; they do not typically bill outrageously, but they do bill, and being in control of the assets, they get paid, too.
Annual Report on Condition of Ward –
The annual report the Guardian is required by the probate court to file about, yes, the physical and medical condition of the ward. If this report is not filed timely, it may result in the removal of the Guardian by the court, and the appointment in his/her place, of a Public Administrator. In turn, this could be expensive, and quite avoidable.
The person whose death triggers the opening of a decedent’s estate. Naturally, a death certificate will need to be filed to prove that this person has truly passed.
Children, grandchildren, great- grandchildren, etc.
By Representation –
The share that would have been gone to the pre-deceased child of an estate decedent. For example, Mr. Jones has three children, one of whom dies before he does. That pre-deceased child himself left three children. If Mr. Jones’ estate consisted of $300,000.00, his two surviving children would each get $100,000.00, and Mr. Jones’ three grandchildren, who were the children of the one who died before Mr. Jones, those three grandchildren would split the $100,000.00 their father would have received.
The law deems certain individuals to be heirs of a decedent, by virtue of their family relationship. The Michigan Estate & Protected Individuals Code identifies those persons, beginning at MCLA §700.2101
The rules for distributing the decedent's property, where there is either no will, or the will that does exist, does not legally distribute a particular item of personal or real property. There is an order, in which the property is distributed, depending on who survives the decedent, and how much property there is to distribute. It is possible, and indeed common, that some persons identified by the statute as intestate heirs, or intestate takers, may actually get nothing, because someone “higher on the list” took the rest of the property.
A written document by which one (called a “testator”) makes clear their wishes for how their property is to be distributed upon their death. A will must be executed by someone of sound mind, with testamentary capacity (they know what they own, and they can identify their heirs, or others to whom they might want to give their property). A will can be challenged for any number of reasons, such as the testator’s lack of mental capacity, or testamentary capacity, or that they were subject to fraud, undue influence or duress.
Even apart from those rare situations, e.g., where the person lacked capacity, or was being defrauded, etc, the important point to remember is that even an unchallenged will must be subjected to probate court supervision. THERE ARE LAWFUL/LEGAL WAYS TO AVOID PROBATE, and I would be glad to discuss some of them with you (and some do not even require you to hire a lawyer!!)
People who are given property in a will (sometimes called “bequests”).
Arrangements set up, under which property is managed by one person or entity for the benefit of another person. There are many purposes for trusts, many beyond the scope of this website. I often recommend the use of trusts to help clients make sure that their property goes to their family, or other chosen people, without the need for delay, cost or intrusion of probate. I use trusts to help those clients avoid probate, who want to do so; these are not devices to help people avoid debts or taxes, at least not in my practice.
Notice to Creditors –
An SCAO form by which notice is given to potential creditors, that a certain decedent has died, and that those creditors should take advantage of an opportunity to assert their claims for debts they claim were owed by the decedent before he/she died. The important consideration is that if no formal notice to creditors is given, creditors have three years after the decedent’s death, to bring a claim; by filing the formal notice to creditors, the time creditors have to make a claim, and to reduce the amount left for you and your family, is shortened to four months. See MCLA §700.3803.
A person chosen by another, to obtain benefits (usually property, or money) left in an insurance policy, a retirement account, a brokerage account, a will, a trust, or in some other type of similar arrangement.
A form from the SCAO which a fiduciary (either an Estate PR or a Conservator; see how handy it is to have one word for both?), informs the Probate Court of the value of the assets being managed; only “equity”, or the real ownership interest, is listed on the inventory form. Estate Personal Representatives have to file this document within 91 days of the appointment of an estate PR, under MCLA §700.3706; Conservators must do so, within 56 days of their appointment. Failure to file this report in a timely way, may give the Court reason to remove you, or some other family member who does not charge for being an estate personal representative, in favor of a Public Administrator – whose charges could be quite significant.
In the context of a decedent’s estate, it bears mentioning that the local court, where the Inventory is filed, will levy a tax (called an “Inventory Fee”), which is calculated as a percentage of the property being inventoried. The “inventory fee” schedule is set forth in MCLA §600.871. The local probate court might mention that this statute makes the imposition of this fee mandatory; that will not make it feel any better. Avoiding probate not only means preventing the delays and intrusions that come with probate court supervision of asset distribution, but also a means of lawfully avoiding this tax.
Every year after the initial inventory, an annual accounting must be filed, and the court must approve the accounting; notice of a hearing on a petition to approve the (1st, 2nd, 3rd, etc) annual account, as well as the accounting itself must be served on all interested persons. Those interested persons will be given an opportunity to object to the accounting, and if they do file objections (and yes, there is an SCAO form for that, too), the court will conduct a hearing on whether the accounting is true, fair and accurate, and whether the ward’s interests, or those of estate beneficiaries, has been adequately assured/protected, during the accounting period reflected in the filing.
One other thing about accountings, whether they are filed in Conservatorships or Estates, I want to mention. The beginning asset numbers on the 1st Annual Account must be the total inventory value, reflected on the inventory filed after the Conservatorship/Estate is set up. Then, items of income are added, and items of expense are subtracted, and they better add up to the total value of the assets reflected in statements (such as bank, brokerage statements, etc) that are then filed with the annual account. Don’t even try to get an accounting filed that does not add up, or is not substantiated by current statements from banks, brokerages, etc.
As with other important filings, one good way to get yourself removed as fiduciary, is to not file a timely accounting. Courts will give some minor amount of leeway on, e.g., inventory or accounting filings, but not a lot. Ultimately, if they feel they have to remove you from your post as fiduciary, they will, and they may well replace you with a Public Administrator, who will not be shy about charging the estate of a ward, or a decedent whom they do not know personally. I would be more than happy to assist you with these filings.
Personal Representative (or "PR")–
Michigan does not use the term “executor”; here in Michigan, we use the term “personal representative”.
“Automobile-Only Procedure” –
If a decedent leaves a vehicle or a number of vehicles with a total value of less than $60,000, the decedent’s heirs may obtain title from the Michigan Secretary of State's Office, without obtaining Letters of Authority. See MCLA §257.236.
“Paycheck-Only Procedure” –
There is a similar procedure when the decedent’s estate consists only of wages, fringe benefits. If the decedent’s employer offers a plan providing for the payment of fringe benefits upon the employee’s death, those benefits can be paid pursuant to plan. If the plan does not designate the payee, an estate will need to be set up, under Carpenter v City of Flint School District, 115 Mich App 683; 321 NW2d 772 (1982).
The “take home message” here: make sure that a beneficiary is designated in all that paperwork that most people have to fill out on their first day of work, that most people don’t pay attention to. You may want to pay closer attention to this stuff; it matters.
Personal Apparel Procedure –
Under MCLA §700.3981, cash less than $500 and wearing apparel held by a hospital, nursing home, morgue, or law enforcement agency can be delivered to the decedent’s spouse, child, or parent, upon identification, AND upon the signing of an affidavit attesting to the family relationship, and attesting to the fact that no application or petition for administration is pending. If an estate personal representative is later appointed, the recipient of the items may be accountable to that fiduciary.
Estates Can Be Set Up By Creditors –
Often family members would like nothing better than to distribute funds without accounting for debts left behind by the decedent. As an “interested person”, a creditor can actually open an estate for a deceased person whom the creditor believes owes money. See MCLA §700.3401 and MCLA §700.1105. However, that creditor will have to wait 42 days after the decedent's death to Petition, and the Court must find the creditor's nominee acceptable. MCLA §700.3202(1)(f).
CLAIMS AGAINST DECEASED NEGLIGENT PARTIES. The right a creditor has to open an estate can be particularly useful, where the deceased person is also someone who might be at fault in a motor vehicle accident, or any other type of claim. In the case of accidents, opening the estate may be the only way to reach insurance coverage the deceased negligent party may have had to cover your losses. Contact Jon Frank if this your issue; Jon has handled this issue numerous times.
Estates can be set up on a supervised or unsupervised basis. Naturally, a supervised estate is one in which the conduct and administration of the estate is done under the watchful supervision of the court. That supervision lasts until the court approves an order distributing the estate, and discharging the estate. The Court will order supervised administration, if a person's will directs that probate administration be supervised, or if the Probate Judge him/herself believes that supervised administration is necessary to protect the interests of interested persons. The judge may make that call, if there is any hint that the beneficiaries do not trust the Estate PR, or if any of the beneficiaries are themselves vulnerable persons. An estate can be changed from supervised to unsupervised, and vice versa, upon request, and upon the Judge finding that circumstances warrant the change.
In an unsupervised estate, most proceedings will be done informally, without resort to court order. However, there are some proceedings requiring the judge's input, such as the approval of accounts, or possibly the sale of a piece of real estate. Those are considered formal proceedings.
If your estate matter is relevant to the distribution of property in another state, it might be better to have supervised/formal estate administration here in Michigan. The reason is that, in unsupervised/informal estate proceedings, the orders are issued by a court officer referred to as a "Probate Register"; out-of-state courts, and deeds offices are far more likely to respect an order issued by a judge in Michigan, than they would that of a court officer, whose office they are unfamiliar with.
Testimony of Interested Persons -
Another SCAO form, by which you inform the court who the decedent's survivors are, and what their relationships are.
Under MCLA §700.2105, if there are no intestate takers, the intestate estate passes to the State of Michigan. The traditional term for this is "escheat" or "escheating".