Estate Formal Proceedings
Formal proceedings are commenced by filing a petition with the court requesting a court order. The initial petition may ask for the admission of a will to probate or the appointment of a personal representative or both. The initial petition may also request that there be supervised administration. Formal proceedings are defined in EPIC to mean proceedings conducted before a judge with notice to interested persons. Formal proceedings may also be used at any time during the estate administration to decide issues regarding the estate by court order. Even if the estate was commenced by informal proceedings, a formal proceeding can be filed requesting formal testacy or formal appointment or both. This note will deal with formal proceedings used to begin an estate. Informal proceedings were discussed in an earlier note. Formal proceedings when used after the initial appointment will be discussed in subsequent notes.
Only an "interested person" may file a petition for formal probate or appointment or both. Interested person is defined very broadly by MCL 700.1105(a):
"interested person" includes, but is not limited to, an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person.
There are two important terms that should probably be briefly defined now. Devisee is a person designated to receive property in a will. Heir is a person who is entitled under the statute of intestate succession to a decedent's property (this term will be more fully explained in subsequent notes).
The forms and documents which must be filed with or presented to the court to commence formal proceedings are:
- Petition for Probate and/or Appointment of Personal Representative (Testate/Intestate) ( PC 559) and the filing fee of $175. The Petition should be completely and carefully filled out.
- Will and codicil, if any.
- Testimony Interested Persons ( PC 565).
- Supplemental Testimony Interested Persons Testate Estate ( PC 566). This form is only filed if decedent left a will and some of the devisees named in the will and codicils are not heirs of the testator.
- Order of Formal Proceedings ( PC 569).
- Acceptance of Appointment ( PC 571). A bond is not required unless the will requires a bond or bond is demanded under MCL 700.3605 (by person having an interest in the estate worth in excess of $2,500 or a creditor having a claim against the estate in excess of $2,500).
- Letters of Authority for Personal Representative ( PC 572).
Persons who are not disqualified have priority for appointment in the following order pursuant to MCL 700.3203(1):
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will
- The surviving spouse if the spouse is a devisee under the will
- Other devisees
- The surviving spouse
- Other heirs
- After 42 days after the decedent's death, the nominee of a creditor if the court determines the nominee suitable
- State or county public administrator
A person with priority under 2 through 5 above may nominate a qualified person to serve as personal representative and that nominee has the priority of the nominator pursuant to MCL 700.3203(3).
Once a petition is filed the court will set a date and time for hearing. The petitioner must serve copies of the petition, will, testimony form (s) and Notice of Hearing ( PC 562) on the interested persons. See MCR 5.102 and MCR 5.107(A). Personal service must be made at least 7 days before the hearing and service by mail must be made at least 14 days before the hearing. A Proof of Service (PC 564) must be filed with the court pursuant to MCR 5.104(B).
Michigan Court Rule (MCR) 5.125(C)(1) provides that the persons interested in any application for probate of a will are:
- The devisees
- The nominated trustee and the current trust beneficiaries of a testamentary trust (trust created by will)
- The heirs
- The nominated personal representative
- The trustee of a revocable trust described in MCL 700.7501(1) (this is a trust over which the decedent had a right at his or her death, either alone or with someone else, to revoke the trust and reinvest principal in himself or herself)
MCR 5.125(C)(2) provides that the persons interested in an application for appointment of a personal representative of an intestate estate are:
- The heirs
- The nominated personal representative
- The trustee of a revocable trust described in MCL 700.7501(1)
There are additional persons that may have to be served depending on the circumstances of a specific proceeding. These are designated as special persons and are defined in part in MCR 5.125(A). They include the following:
- When the decedent is not survived by any known heirs, the Michigan Attorney General.
- When the heirs or devisees are residents of a foreign country, foreign consul for that country.
- If a charitable trust is established in the will or if there is a gift to charity of the residue of the estate except for a church, governmental subdivision or United Way type charity, the Michigan Attorney General, Charitable Trust Division.
- A guardian, conservator, or guardian ad litem of a person must be served with notice of proceedings as to which the represented person is an interested person.
- An attorney who has filed an appearance must be served notice of proceedings concerning which the attorney's client is an interested person.
- A special fiduciary appointed under MCL 700.1309.
- A person who filed a demand for notice under MCL 700.3205 if the demand has not been withdrawn or terminated by court order.
Service of persons who are under legal disability or otherwise represented is accomplished by serving the notice of hearing on others pursuant to MCR 105(D) as follows:
- The guardian of an adult or guardian ad litem of a minor or other legally disabled person.
- The trustee of a trust with respect to a beneficiary of the trust.
- The guardian ad litem of any unascertained or unborn person.
- A parent of a minor with whom the minor resides, provided the interest of the parent in the outcome of the hearing is not in conflict with the interest of the minor and provided the parent has filed an appearance on behalf of the minor.
- The attorney for an interested person who has filed a written appearance in the proceeding.
- The agent of an interested person under an unrevoked power of attorney filed with the court.
Sometimes the name of an interested person is known but the address for that interested person is unknown. The petitioner may serve that interested person by publication. The person who orders the publication must cause to be filed with the court a copy of the publication notice and the publisher's affidavit that it was published in a qualified newspaper and the date that the notice was published. To serve an interested person notice of hearing by Publication of Notice ( PC 563) the following must be done:
- Petitioner must include the name of the person to whom the notice is given and a statement that the result of the hearing may be to bar or affect that person's interest.
- A copy of the notice must be mailed to an interested person at his or her last known address unless an address cannot be ascertained by diligent inquiry.
- Petitioner must file an affidavit or declaration under penalty of contempt showing that the address or whereabouts of the person can not be ascertained by diligent inquiry.
- Petitioner must publish one time at least 14 days before the hearing.
- The publication notice may include the publication for claims.
- Pursuant to MCR 5.105(A)(3) after an interested person has once been served by publication, notice is only required on an interested person whose address is known or becomes known during the proceedings.
If all interested persons consent, the Order of Formal Proceedings may be entered immediately without a hearing pursuant to MCR 5.104(B). If a petition is unopposed, after the time expires for any required notice and after proof of service is filed, the court may either grant a hearing or grant the petition based on the recitations in the petition. However, an order determining heirs may only be entered based on sworn testimony or a sworn testimony form. See MCR 5.104(C). If any matters are contested, a hearing will be held and the Order of Formal Proceedings will be issued based upon the results of the hearing. The Order of Formal Proceedings may admit a will or codicil(s), determine intestacy, determine heirs, appoint a personal representative, or determine if the estate administration shall be supervised.