Probate Court Matters
Probate
Friend/Loved One Who Cannot Care For Themselves? What To Do?
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.
Reporting Requirements
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.
Probate Guardianships & Conservatorships protect vulnerable persons.
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The next area of Probate Court jurisdiction, is that of decedents’ estates. These estates are handled differently, depending on how much, and what kind of assets are involved, whether Court supervision is required or desired, whether there is a will or not, and on other factors too numerous, and case-specific to list out here.
Property distributed by intestate succession, is distributed to intestate heirs, as described below, in the following order:
- First – To Surviving Spouse – according to amounts set forth in the statute; see MCLA §700.2102
- Second – To Descendants, by representation (see above for definition); See MCLA §700.2103(a)
- Next – If there are no descendants, then to the parents equally, if both survive, or to the surviving parent; see MCLA §700.2103(b)
- Next – If there are no surviving descendants or parents, then to the descendants of the decedent’s parents (usually, in English, this means brothers/sisters), or either of them by representation; See MCLA §700.2103(c);
- Next – If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by 1 or more grandparents or descendants of grandparents, 1/2 of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other 1/2 passes to the decedent’s maternal relatives in the same manner. If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the 1/2. See MCLA §700.2103(d)
Other Intestate Succession Rules
Survivors must survive decedent by at least 120 hours (=5 days). This is meant to cover situations in which numerous family members may be killed in one calamity, such as a car/airplane crash, or a criminal/terrorist incident. See MCLA §700.2104
The law eliminates the distinction between whole blood and half blood, e.g., where siblings share one, but not both parents. See MCLA §700.2107.
If there are no intestate heirs, property escheats to the state. See MCLA §700.2105.
As adults, we all make personal decisions for ourselves, like where we will live, what medical decisions we make, etc. When someone cannot make those decisions for themselves, they need someone to make those decisions for them; when that decision-maker is appointed by the court, they are referred to as a “Guardian”. The case is called a “Guardianship”, and the protected/legally disabled person is sometimes called a “ward”. ”. I am attaching here, some resources from one of the local courts (the rules are the same throughout the state, so it should make no difference that it is from the St Clair County court). [INSERT HYPERLINK TO ST CLAIR GUARDIANSHIP DOCUMENT]. I am also attaching (with permission) a handbook, authored by attorney Bradley Geller, on conservatorships. Between the two, you will have a greater understanding of Michigan’s guardianship rules.
When a person needs the help of another, in making business or financial decisions, and that helper is appointed by the court, we refer to that person as a “Conservator”, and the relationship as a “Conservatorship”. I am attaching here, some resources from one of the local courts (the rules are the same throughout the state, so it should make no difference that it is from the St Clair County court). [INSERT HYPERLINK TO ST CLAIR CONSERVATORSHIP DOCUMENT]. I am also attaching (again, with permission) a handbook, authored by attorney Bradley Geller, on conservatorships. Between the two, you will have a greater understanding of Michigan’s conservatorship rules.
Finally, when someone dies, their estate is referred to, pretty clearly, as a “Decedent’s Estate”, and in Michigan, the representative is formally called a “Personal Representative”. Other states refer to this representative as an “executor”, or “administrator”.
Each of these representatives has an obligation to the person, or to the estate they represent. They are obligated to put the interests of the person/estate, before their own interests, and they are required to account for all funds received and spent.
All three of these representatives, be they Guardians, Conservators, or Personal Representatives (or “Estate P.R.’s” for short), are referred to as “fiduciaries”. This is simply one word that describes all three persons, and as well, describes others who have a special duty of care, loyalty and honor to the persons they represent. Lawyers are also considered “fiduciaries” for their clients, whether in a probate context, or not.
In addition to these other duties (of care, loyalty & honor), another thing all of these fiduciaries have in common, is a duty to report. In Guardianships, there is an “Annual Report On The Condition of The Ward”, and in Conservatorships and Decedents’ Estates, there is an initial Inventory of assets, and annual accountings, which take place every year thereafter, until the Conservatorship/Decedent’s Estate is closed.
Decedents’ Estates protect your heirs & can help you be sure that your property passes to your heirs — or doesn’t — as you see fit.
Frequently Asked Questions. Honest Answers.
No, but you will probably want to do so. 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, because probate procedure can be downright baffling, 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.
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.
