Do you have a loved one, who can no longer make housing, medical or other important decisions for themselves?
Are you responsible for the medical care for someone like this, but the doctors/hospital will not disclose any information, due to confidentiality rules? Do you or someone in your life want to make your wishes known, as far as a temporary medical condition, or “end of life care”?
Is there someone in your life who is vulnerable financially, due to advancing age, dementia, or mental illness? Has a young person, a minor in your life, come into money, due to a lawsuit or personal injury settlement? Maybe you are fortunate enough to be able to spend significant vacation time away from your home (especially during Michigan’s cold winters!), and need to have someone represent you – temporarily – while you are away.
Generally speaking, there are four different types of Michigan Courts. There are Circuit and District Courts, which hear the same types of cases; however, Circuit Courts generally hear higher value civil cases, and more severe criminal cases, while District Courts typically hear cases of lesser value and severity. You may have also heard of Small Claims Courts, which hear civil cases, with less than $2,500.00 at stake.
The fourth type of Michigan Court is the Probate Court, which hears matters involving Guardianships, Conservatorships, decedents’ estates, mental health commitment hearings, as well as hearings for developmentally disabled persons.
Frequently Asked Questions
No. Probate Court forms are designed to be easy enough to complete, and the Probate Court (perhaps more than other courts) is receptive to unrepresented parties, be they Petitioners or Respondents.
However, your rights will best be represented by having an experienced attorney like Jon Frank, representing you in your probate matter.
There are different classes of individuals and entities (such as governmental agencies and insurance companies) deemed to be interested in the outcome of a particular Probate Court petition. Who these interested persons are, will vary, depending on the particular type of probate court proceeding involved. The description of interested persons in approximately 35 different types of proceedings is set forth in Michigan Court Rule (MCR 5.125)
Yes. Understandably, Michigan law does not want to get in the middle of disputes between family members. In its administration of even-handed justice, the Judge does not know, nor can it possibly care about the merits of family disputes. The lack of relationship may or may not be relevant to distribution issues.
The requirement of notice to interested persons is to ensure that everyone is heard on the merits of distribution issues. It also helps to protect the fiduciary from a claim that they did not notify a particular potential beneficiary about an estate proceeding.
Yes. Understandably, Michigan law does not want to get in the middle of disputes between family members. In its administration of even-handed justice, the Judge does not know, nor can it possibly care about the merits of family disputes. The allegedly abusive relationship may or may not be relevant to distribution issues. The requirement of notice to interested persons is to ensure that everyone is heard on the merits of distribution issues. It also helps to protect the fiduciary from a claim that they did not notify a particular potential beneficiary about an estate proceeding.
A Guardian Ad Litem, or GAL, is not really a guardian, but is instead someone (usually an attorney) hired to be “the eyes and ears of the judge”. A GAL is appointed to protect the interests of vulnerable persons, such as the elderly, or minors, who may have an interest in a court proceeding. The GAL is usually required to visit at the home of that vulnerable person, to find out the true “on the ground” facts behind a Petition, and to report to the Probate Judge.
Because the Judge is not going to make that visit him/herself, they are likely to rely heavily on the GAL’s opinion. As a result, “the care and feeding” of a GAL is important. GAL’s must be handled with kid gloves, because they can sink your position, in front of the Probate Judge. I know how to handle GAL’s, when I represent Petitioners or Respondents in Probate matters, and in fact, I have served as a GAL in Wayne, Oakland and Macomb Counties, on many occasions.
One last thought about GAL’s: they have to be paid. While you did not request the appointment of a GAL, you will be relying on a favorable GAL report, in order to get the relief you want (or do not want, as the case may be). Accordingly, if you represent the Guardianship, Conservatorship, or Decedent’s Estate, you will have to keep in mind that you may be required to pay the GAL (no matter how unfavorable the GAL is to your position).
There is a procedure for trying to remove a fiduciary, but the important questions you will have to answer to the judge, are why you want to swap out the current fiduciary, has he/she done anything wrong, are they conducting themselves appropriately, and whether you might have an axe to grind in wanting the current fiduciary replaced. In my experience, the Probate Judges I have met and appeared in front of, are for the most part, “street smart” individuals, trained in the law, who want to do the right thing. They will see through a “Petition to Modify Estate” (the formal device used to replace a fiduciary) that is filed for less than appropriate reasons. If you are looking to replace the current fiduciary yourself, the question you will have to answer as well, is whether you have priority as appointment as a fiduciary.
MCLA §700.3203 sets up the following priority for appointment as Estate Personal representative, in order:
- The person nominated in the decedent’s will;
- the decedent’s surviving spouse, as long as he/she is a devisee of the decedent (in other words he/she has been named in the will as receiving property, upon the decedent’s death;
- Other devisees;
- The decedent’s surviving spouse (named twice on this list; in this category, the surviving spouse has priority after other devisees, even if he/she has not been named in the will;
- Other heirs of the decedent (in other words, intestate heirs, who have not been named in the will; this also applies where there is no will at all)
- A Public Administrator, as long as:
- No interested person has requested the appointment of an Estate PR within 42 days after the decedent’s death;
- The decedent died apparently leaving no known heirs; or
- There is no spouse, heir or beneficiary under a will, who is a US resident, and also entitled to participate in the decedent’s estate.
No probate judge in America will make you serve, if you do not want to. There are SCAO forms, by which you can renounce your priority for appointment as Estate PR. The worst case scenario is that you will have to show up to court, on the date set for your appointment as fiduciary, and tell the judge you do not want to serve. The judge may explain why you might want to change your mind, but if you are dead set against serving as Estate PR, no judge will force you to do so. The same applies, if you are nominated to serve as someone’s Guardian or Conservator, and if you do not want to serve.
Just as you can renounce your priority for appointment as fiduciary, so too, you can advise the Estate PR that you renounce any share you might get in a will, or by intestate succession. Indeed, it is the same SCAO form, called a “Renunciation”.
No, at least not by virtue of being the Estate PR. However, different facts, irrelevant to their appointment as fiduciary, may result in them getting all the money. Sometimes, the person named as Estate PR has paid for the funeral, and there is either not enough, or barely enough to reimburse them, for having paid for the funeral; funeral expense is a priority reimbursement under Michigan probate law. Another example, might be where a surviving spouse is named as Estate PR, and the amount to be distributed is less than the spousal intestate share, to which he/she is entitled.
Again, they will not simply “get the money” just because they are named as Conservator/Estate PR. Indeed, they will have to account to all interested persons for the monies that are taken, and a wise fiduciary, will always ask for a court order, allowing them to take the funds, e.g., in one of the two situations above, or in another situation, where they would take all, or most of the money in an estate.
Learn More about Michigan Probate Court Areas
Other Michigan Probate Court Matters
One thing that Guardianships, Conservatorships, and Decedents’ Estates have in common, is that periodic reporting is required. Guardians are required to report annually on the condition of the person under their care; Conservators and “Personal Representatives” of Decedents’ Estates are required to report annually on the intake and disposition of funds & property. Failure to make these reports in a timely way, could result in your removal as “fiduciary”, a word that describes a Guardian, a Conservator, or a Personal Representative.