ICLE Homepage | Other New and Amended
MCRs
July 12, 2001
ADM 99-62
ADM 99-63
Amendments to MCR Subchapters
5.000, 5.100, 5.200, 5.300,
5.400, 5.500, 5.600, 5.700,
5.715, 5.720, 5.760, 5.780 and
5.800, MCR 2.420 and MCR 8.303
__________________________________
On order of the Court, on January 14, 2000, 461 Mich
1230, this Court advised the public that it was considering
amendments to MCR subchapters 5.000, 5.100, 5.200, 5.300, 5.400,
5.500, 5.600, 5.700, 5.715, 5.720, 5.760, 5.780 and 5.800, and
MCR 8.303, giving notice that the Court might implement the
amendments as interim rules. The Court gave interim effect to
the proposed amendments on March 24, 2000, held a public hearing
on the proposed amendments on June 15, 2000 and, on the basis of
comments received, advised the public on July 18, 2000 that it
was considering further amendments to the above rules and MCR
2.420. On May 18, 2000, the Court advised the public that it was
considering amendments to MCR 5.405, 5.407, 5.409 and 5.784 and
held a public hearing on these proposals on November 30, 2000.
The Court has received and considered comments from the public.
We hereby adopt, effective January 1, 2002, the following rules.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
CHAPTER 5 PROBATE COURT
COMMENT: The Estates and Protected Individuals Code (EPIC), MCL
700.1101 et seq., effective April 1, 2000, changed many of the
procedures and much terminology relating to estates, trusts and
protected individuals. The Probate Rules Committee of the
Probate and Estate Planning Section of the State Bar of Michigan,
assisted by the Probate Rules Committee of the Michigan Probate
Judges Association, reviewed subchapters 5.000 through 5.780 of
the Michigan Court rules and made proposals to harmonize the
rules with EPIC. The committee drafted comments to many of the
rules, briefly summarizing the purpose of the changes and
pointing the reader to the relevant provisions in EPIC.
Rule 5.001 Applicability
Rule 5.001 Applicability
(A) Applicability of Rules. Procedure in probate court is
governed by the rules applicable to other civil proceedings,
except as modified by the rules in this chapter.
(B) Terminology.
(1) References to the "clerk" in the Michigan Court Rules
also apply to the register in probate court proceedings.
(2) References to "pleadings" in the Michigan Court Rules
also apply to petitions, objections, and claims in probate court
proceedings.
SUBCHAPTER 5.100 GENERAL RULES OF PLEADING AND PRACTICE
Rule 5.101 Form and Commencement of Action
(A) Form of Action. There are two forms of action, a
"proceeding" and a "civil action."
(B) Commencement of Proceeding. A proceeding is commenced by
filing an application or a petition with the court.
(C) Civil Actions, Commencement, Governing Rules. The following
actions, must be titled civil actions, commenced by filing a
complaint and governed by the rules which are applicable to civil
actions in circuit court:
(1) Any action against another filed by a fiduciary, and
(2) Any action[ complaint] filed by a
claimant after notice that the claim has been disallowed.
Rule 5.102 Notice of Hearing
A petitioner, fiduciary, or other moving party must cause to
be prepared, served, and filed, a notice of hearing for all
matters requiring notification of interested persons. It must
state the time and date, the place, and the nature of the
hearing. Hearings must be noticed for and held at times
previously approved by the court.
Rule 5.103 Who May Serve
(A) Qualifications. Service may be made by any adult or
emancipated minor, including an interested person.
(B) Service in a Governmental Institution. Personal service on
a person in a governmental institution, hospital, or home must be
made by the person in charge of the institution or a person
designated by that person.
Rule 5.104 Proof of Service; Waiver and Consent; Unopposed
Petition
(A) Proof of Service.
(1) Whenever service is required by statute or court rule,
a proof of service must be filed promptly and at the latest
before a hearing to which the paper relates or at the time the
paper is required to be filed with the court if the paper does
not relate to a hearing. The proof of service must include a
description of the papers served, the date of service, the manner
and method of service and the person or persons served.
(2) Except as otherwise provided by rule, proof of
service of a paper required or permitted to be served may
be by
(a) a copy of the notice of hearing, if any;
(b) copies of other papers served with the notice of
hearing, with a description of the papers in the proof of
service;
(c) authentication under MCR 5.114(B) of the person
making service.
(3) Subrule (A)(1) notwithstanding, in decedent
estates, no proof of service need be filed in connection with
informal proceedings or unsupervised administration unless
required by court rule.
(B) Waiver and Consent.
(1) Waiver. The right to notice of hearing may be waived.
The waiver must
(a) be stated on the record at the hearing, or
(b) be in a writing, which is dated and signed by the
interested person[ party] or someone authorized to
consent on the interested person's[ party's] behalf
and specifies the hearing to which it applies.
(2) Consent. The relief requested in an application,
petition or motion may be granted by consent. An interested
person who consents to an application, petition or motion does
not have to be served with or waive notice of hearing on the
application, petition or motion. The consent must
(a) be stated on the record at the hearing, or
(b) be in a writing which is dated and signed by the
interested person or someone authorized to consent on the
interested person's behalf and must contain a declaration that
the person signing has received a copy of the application,
petition or motion.
(3) Who May Waive and Consent. A waiver and a consent may
be made
(a) by a legally competent interested person;
(b) by a person designated in these rules as eligible
to be served on behalf of an interested person who is a legally
disabled person; or
(c) on behalf of an interested person whether
competent or legally disabled, by an attorney who has previously
filed a written appearance.
However, a guardian, conservator, or trustee cannot
waive or consent with regard to petitions, motions, accounts, or
reports made by that person as guardian, conservator or trustee.
(4) Order. If all interested persons have consented, the
order may be entered immediately.
(C) Unopposed Petition. If a petition is unopposed at the time
set for the hearing, the court may either grant the petition on
the basis of the recitations in the petition or conduct a
hearing. However, an order determining heirs based on an
uncontested petition to determine heirs may only be entered on
the basis of sworn testimony or a sworn testimony form. An order
granting a petition to appoint a guardian may only be entered on
the basis of testimony at a hearing.
COMMENT: Subrule (A)(3) is new. It indicates that proofs of
service are not required in unsupervised administration except
where a rule specifically requires it. See, for instance, MCR
5.309(C)(3). The last clause of subrule (B)(4) is deleted. See
MCR 5.308(B)(1). New subrule (C) creates a procedure for
granting unopposed petitions without a hearing.
Rule 5.105 Manner and Method of Service
(A) Manner of Service.
(1) Service on an interested person may be by personal
service within or without the State of Michigan.
(2) Unless another method of service is required by
statute, court rule, or special order of a probate court, service
may be made to the current address of an interested person by
registered, certified, or ordinary first-class mail. Foreign
consul and the Attorney General may be served by mail.
(3) An interested person whose address or whereabouts is
not known may be served by publication, if an affidavit or
declaration under MCR 5.114(B) is filed with the court, showing
that the address or whereabouts of the interested person could
not be ascertained on diligent inquiry. Except in proceedings
seeking a determination of a presumption of death based on
absence pursuant to MCL 700.1208(2)[ affecting the estate
of a disappeared person or an absent apparent beneficiary],
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.
(4) The court, for good cause on ex parte petition, may
direct the manner of service if
(a) no statute or court rule provides for the manner
of service on an interested person, or
(b) service cannot otherwise reasonably be made.
(B) Method of Service.
(1) Personal Service.
(a) On an Attorney. Personal service of a paper on an
attorney must be made by
(i) handing it to the attorney personally;
(ii) leaving it at the attorney's office with a
clerk or with some person in charge or, if no one is in charge or
present, by leaving it in some conspicuous place there, or by
electronically delivering a facsimile to the attorney's office;
(iii) if the office is closed or the attorney
has no office, by leaving it at the attorney's usual residence
with some person of suitable age and discretion residing there;
or
(iv) sending the paper by registered mail or
certified mail, return receipt requested, and delivery restricted
to the addressee; but service is not made for purpose of this
subrule until the attorney receives the paper.
(b) On Other Individuals. Personal service of a paper
on an individual other than an attorney must be made by
(i) handing it to the individual personally;
(ii) leaving it at the person's usual residence
with some person of suitable age and discretion residing there;
or
(iii) sending the paper by registered mail or
certified mail, return receipt requested, and delivery restricted
to the addressee; but service is not made for purpose of this
subrule until the individual receives the paper.
(c) On Persons Other Than Individuals. Service on an
interested person other than an individual must be made in the
manner provided in MCR 2.105(C)-(G).
(2) Mailing. Mailing of a copy under this rule means
enclosing it in a sealed envelope with first-class postage fully
prepaid, addressed to the person to be served, and depositing the
envelope and its contents in the United States mail. Service by
mail is complete at the time of mailing.
(3) Publication. Service by publication must be made in the
manner provided in MCR 5.106.
(C) Petitioner, Service Not Required. For service of notice of
hearing on a petition, the petitioner, although otherwise an
interested person, is presumed to have waived notice and
consented to the petition, unless the petition expressly
indicates that the petitioner does not waive notice and does not
consent to the granting of the requested prayers without a
hearing. Although a petitioner or a fiduciary may in fact be an
interested person, the petitioner need not indicate, either by
written waiver or proof of service, that the petitioner has
received a copy of any paper required by these rules to be served
on interested persons.
(D) Service on Persons Under Legal Disability or Otherwise
Legally Represented. In a guardianship or conservatorship
proceeding, a petition or notice of hearing asking for an order
that affects the ward or protected individual must be served on
that ward or protected individual. In all other matters,
service [ Service] on an interested person under legal
disability or otherwise legally represented may be made instead
on the following:
(1) The guardian of an adult, conservator, or
guardian ad litem of a minor or other legally disabled
person, except with respect to:
(a) a petition for commitment or
(b) a petition, account, inventory or report
made as the guardian, conservator, or guardian ad litem.
(2) The trustee of a trust with respect to a beneficiary of
the trust, except that the trustee may not be served on behalf of
the beneficiary on petitions, accounts, or reports made by the
trustee as trustee or as personal representative of the
settlor's estate.
(3) The guardian ad litem of any unascertained or unborn
person.
(4) 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.
(5) The attorney for an interested person who has filed a
written appearance in the proceeding. If the appearance is in
the name of the office of the United States attorney, the counsel
for the Veterans' Administration, the Attorney General, the
prosecuting attorney, or the county or municipal corporation
counsel, by a specifically designated attorney, service must be
directed to the attention of the designated attorney at the
address stated in the written appearance.
(6) The agent of an interested person under an unrevoked
power of attorney filed with the court. A power of attorney is
deemed unrevoked until written revocation is filed or it is
revoked by operation of law.
For purposes of service, an emancipated minor without a
guardian or conservator is not deemed to be under legal
disability.
(E) Service on Beneficiaries of Future Interests. A notice that
must be served on unborn or unascertained interested persons not
represented by a fiduciary or guardian ad litem is considered
served on the unborn or unascertained interested persons if it is
served as provided in this subrule.
(1) If an interest is limited to persons in being and the
same interest is further limited to the happening of a future
event to unascertained or unborn persons, notice and papers must
be served on the persons to whom the interest is first limited.
(2) If an interest is limited to persons whose existence as
a class is conditioned on some future event, notice and papers
must be served on the persons in being who would comprise the
class if the required event had taken place immediately before
the time when the papers are served.
(3) If a case is not covered by subrule (E)(1) or (2),
notice and papers must be served on all known persons whose
interests are substantially identical to those of the
unascertained or unborn interested persons.
COMMENT: Notice of a petition to appoint a guardian or
conservator must be served on the prospective ward or individual
to be protected. In addition, MCL 700.5219(2) and 700.5405(2)
require service on a minor ward or a protected individual of
petitions or orders after the fiduciary's appointment. However,
the fiduciary may be served on behalf of these individuals under
MCR 2.105(B)(3) in a civil action or a proceeding other than the
protective proceeding relating to that individual.
Rule 5.106 Publication of Notice of Hearing
(A) Requirements. A notice of hearing or other notice
required to be made by publication must be published in a
newspaper as defined by MCR 2.106(F) one time at least 14 days
before the date of the hearing, except that publication of a
notice seeking a determination of a presumption of death based
on absence pursuant to MCL 700.1208(2)[ involving the
estate of a disappeared person or the estate of an absent
apparent beneficiary] must be made once a month for 4
consecutive months before the hearing.
(B) Contents of Published Notice. If notice is given to a
person by publication because the person's address or whereabouts
is not known and cannot be ascertained after diligent inquiry,
the published notice 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 the person's interest in the
matter.
(C) Affidavit of 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 stating
(1) the facts that establish the qualifications of the
newspaper, and
(2) the date or dates the notice was published.
(D) Service of Notice. A copy of the notice:
(1) must be mailed to an interested person at his or her
last known address if the person's present address is not known
and cannot be ascertained by diligent inquiry;
(2) need not be mailed to an interested person if an
address cannot be ascertained by diligent inquiry.
(E) Location of Publication. Publication must be in the county
where the court is located unless a different county is specified
by statute, court rule, or order of the court.
COMMENT: An example of the other notice referred to in subrule
(A) is found in MCR 5.309(C)(2).
Rule 5.107 Other Papers Required to be Served
(A) Other Papers to be Served. [In addition to filing other
papers required to be served, the ]The person filing a
petition, an application, a sworn testimony form,
supplemental sworn testimony form, a motion, a response or
objection, an instrument offered or admitted to probate, an
accounting or a sworn closing statement with the court
must serve a copy of that document on interested persons. The
person who obtains an order from the court must serve a copy of
the order on interested persons.[ The demandant must serve on
interested persons a copy of a demand for notice filed after a
proceeding has been commenced.]
(B) Exceptions.
(1) Service of the papers listed in subrule (A)[
paper provided in this rule] is not required to be made on an
interested person whose address or whereabouts, on diligent
inquiry, is unknown, or on an unascertained or unborn person.
The court may excuse service on an interested person for good
cause.
(2) Service is not required for a small estate filed under
MCL 700.3982.
Rule 5.108 Time of Service
(A) Personal. Personal service of a petition or motion must be
made at least 7 days before the date set for hearing, or an
adjourned date, unless a different period is provided or
permitted by court rule. This subrule applies regardless of
conflicting statutory provisions.
(B) Mail. Service by mail of a petition or motion must be made
at least 14 days before the date set for hearing, or an adjourned
date.
(C) Exception: Foreign Consul. This rule does not affect the
manner and time for service on foreign consul provided by law.
(D) Computation of Time. MCR 1.108 governs computation of time
in probate proceedings.
(E) Responses. A written response or objection[
Responses and objections] may be served at any time before
the hearing or at a time set by the court.
Rule 5.112 Prior Proceedings Affecting the Person of a Minor
Prior Proceedings Affecting the Person of a Minor
Proceedings affecting the person of a minor subject to the prior
continuing jurisdiction of another court of record are governed
by MCR 3.205, including the requirement that petitions in such
proceedings must contain allegations with respect to the prior
proceedings.
Rule 5.113 Papers; Form and Filing
(A) Forms of Papers Generally
(1) An application, petition, motion, inventory, report,
account, or other paper in a proceeding must
(a) be legibly typewritten or printed in ink in the
English language, and
(b) include the
(i) name of the court and title of the proceeding
in which it is filed;
(ii) case number, if any, including a prefix of
the year filed and a two-letter suffix for the case-type code
(see MCR 8.117) according to the principal subject matter of the
proceeding, and if the case is filed under the juvenile code, the
petition number which also includes a prefix of the year filed
and a two-letter suffix for the case-type code.
(iii)character of the paper; and
(iv) name, address, and telephone number of the
attorney, if any, appearing for the person filing the paper, and
(c) be substantially in the form approved by the State
Court Administrator, if a form has been approved for the use.
(2) A judge or register shall not receive and file a
nonconforming paper.
(B) Contents of Petitions.
(1) A petition must include allegations and representations
sufficient to justify the relief sought and must:
(a) identify the petitioner, and the petitioner's
interest in proceedings, and qualification to petition;
(b) include allegations as to residence, domicile, or
property situs essential to establishing court jurisdiction;
(c) identify and incorporate, directly or by
reference, any documents to be admitted, construed, or
interpreted;
(d) include any additional allegations required by law
or court rule;
(e) except when ex parte relief is sought, include a
current list of interested parties, indicate the existence and
form of incapacity of any of them, the mailing addresses of the
parties or their representatives, the nature of representation
and the need, if any, for special representation.
(2) The petition may incorporate by reference papers and
lists of interested parties previously filed with the court if
changes in the papers or lists are set forth in the incorporating
petition
(C) Filing by Registered Mail. Any document required by law to
be filed in or delivered to the court by registered mail, may be
filed or delivered by certified mail, return receipt requested.
(D) Filing Additional Papers. The court in its discretion may
receive for filing a paper not required to be filed.
COMMENT: Former subrule (C) is deleted because the matter is
covered in MCR 8.119(C). New subrule (C) allows a person
otherwise required to file a document with the court by
registered mail, to use certified mail, return receipt requested.
New subrule (D) gives the court discretion to regulate the
practice of filing papers in addition to those required to be
filed.
Rule 5.114 Signing and Authentication of Papers
(A) Signing of Papers.
(1) The provisions of MCR 2.114 regarding the signing of
papers apply in probate proceedings except as provided in this
subrule.
(2) When a person is represented by an attorney, the
signature of the attorney is required on any paper filed in a
form approved by the State Court Administrator only if the form
includes a place for a signature.
(3) An application, petition or other paper may be signed
by the attorney for the petitioner, except that an inventory,
account, acceptance of appointment, and sworn
closing statement must be signed by the fiduciary or trustee. A
receipt for assets must be signed by the person entitled to the
assets.
(B) Authentication by Verification or Declaration.
(1) An application, petition, inventory, accounting, proof
of claim, or proof of service must be either authenticated by
verification under oath by the person making it, or, in the
alternative, contain a statement immediately above the date and
signature of the maker: "I declare under the penalties of perjury
that this _________ has been examined by me and that its contents
are true to the best of my information, knowledge, and belief."
Any requirement of law that a document filed with the court must
be sworn may be met by this declaration.
(2) In addition to the sanctions provided by MCR 2.114(E),
a person who knowingly makes a false declaration under subrule
(B)(1) is in contempt of court.
COMMENT: Subrule (B)(1) is amended to correspond with MCL
600.852.
Rule 5.117 Appearance by Attorneys
(A) Representation of Fiduciary. An attorney filing an
appearance on behalf of a fiduciary shall represent the
fiduciary.
(B) Appearance.
(1) In General. An attorney may appear by an act
indicating that the attorney represents an interested person in
the proceeding. An appearance by an attorney for an interested
person is deemed an appearance by the interested person. Unless
a particular rule indicates otherwise, any act required to be
performed by an interested person may be performed by the
attorney representing the interested person.
(2) Notice of Appearance. If an appearance is made in a
manner not involving the filing of a paper served with the court
or if the appearance is made by filing a paper which is not
served on the interested persons, the attorney must promptly file
a written appearance and serve it on the interested persons whose
addresses are known and on the fiduciary. The attorney's address
and telephone number must be included in the appearance.
(3) Appearance by Law Firm.
(a) A pleading, appearance, motion, or other paper
filed by a law firm on behalf of a client is deemed the
appearance of the individual attorney first filing a paper in the
action. All notices required by these rules may be served on
that individual. That attorney's appearance continues until an
order of substitution or withdrawal is entered. This subrule is
not intended to prohibit other attorneys in the law firm from
appearing in the action on behalf of the client.
(b) The appearance of an attorney is deemed to be the
appearance of every member of the law firm. Any attorney in the
firm may be required by the court to conduct a court-ordered
conference or trial.
(C) Duration of Appearance by Attorney.
(1) In General. Unless otherwise stated in the appearance
or ordered by the court, an attorney's appearance applies only in
the court in which it is made or to which the action is
transferred and only for the proceeding in which it is filed.
(2) Appearance on Behalf of Fiduciary. An appearance on
behalf of a fiduciary applies until the proceedings are
completed, the client is discharged, or an order terminating the
appearance is entered.
(3) Termination of Appearance on Behalf of a Personal
Representative. In unsupervised administration, the probate
register may enter an order terminating an appearance on behalf
of a personal representative if the personal representative
consents in writing to the termination.
(4) Other Appearance. An appearance on behalf of a client
other than a fiduciary applies until a final order is entered
disposing of all claims by or against the client, or an order
terminating the appearance is entered.
(5) Substitution of Attorneys. In the case of a
substitution of attorneys, the court in a supervised
administration or the probate register in unsupervised
administration may enter an order permitting the substitution
without prior notice to the interested persons or fiduciary. If
the order is entered, the substituted attorney must give notice
of the substitution to all interested persons and the fiduciary.
(D) Right to Determination of Compensation. An attorney whose
services are terminated retains the right to have compensation
determined before the proceeding is closed.
Rule 5.118 Amending or Supplementing Papers
(A) Papers Subject to Hearing. A person who has filed a paper
that is subject to a hearing may amend or supplement the paper
(1) before a hearing if notice is given pursuant to these
rules, or
(2) at the hearing without new notice of hearing if the
court determines that material prejudice would not result to the
substantial rights of the person to whom the notice should have
been directed.
(B) Papers not Subject to Hearing. A person who has filed a
paper that is not subject to a hearing may amend or supplement
the paper if service is made pursuant to these rules.
Rule 5.119 Additional Petitions; Objections; Hearing Practices
(A) Right to Hearing, New Matter. An interested person may,
within the period allowed by law or these rules, file a petition
and obtain a hearing with respect to the petition. The
petitioner must serve copies of the petition and notice of
hearing on the fiduciary and other interested persons whose
addresses are known.
(B) Objection to Pending Matter. An interested person may
object to a pending petition orally at the hearing or by filing
and serving a paper which conforms with MCR 5.113. The court may
adjourn a hearing based on an oral objection and require that a
proper written objection be filed and served.
(C) Adjournment. A petition that is not heard on the day for
which it is noticed, in the absence of a special order, stands
adjourned from day to day or until a day certain.
(D) Briefs; Argument. The court may require that briefs of law
and fact and proposed orders be filed as a condition precedent to
oral argument. The court may limit oral argument.
Rule 5.120 Action by Fiduciary in Contested Matter; Notice to
Interested Persons; Failure to Intervene
The fiduciary[] represents the interested persons in
a contested matter. The fiduciary must give notice to all
interested persons whose addresses are known that a contested
matter has been commenced and must keep such interested persons
reasonably informed of the fiduciary's actions concerning the
matter. The fiduciary must inform the interested persons that
they may file a petition to intervene in the matter and that
failure to intervene shall result in their being bound by the
actions of the fiduciary[]. The interested person shall
be bound by the actions of the fiduciary after such notice and
until the interested person notifies the fiduciary that the
interested person has filed with the court a petition to
intervene.
Rule 5.121 Guardian Ad Litem; Visitor
(A) Appointment.
(1) Guardian Ad Litem. The court shall appoint a guardian
ad litem when required by law. If it deems necessary, the court
may appoint a guardian ad litem to appear for and represent the
interests of any person in any proceeding. The court shall state
the purpose of the appointment in the order of appointment. The
order may be entered with or without notice.
(2) Visitor. The court may appoint a visitor when
authorized by law.
(B) Revocation. If it deems necessary, the court may revoke the
appointment and appoint another guardian ad litem or visitor.
(C) Duties. Before the date set for hearing, the guardian ad
litem or visitor shall conduct an investigation and shall make a
report in open court or file a written report of the
investigation and recommendations. The guardian ad litem or
visitor need not appear personally at the hearing unless required
by law or directed by the court. Any written report must be
filed with the court at least 24 hours before the hearing or such
other time specified by the court.
(D) Evidence.
(1) Reports, Admission into Evidence. Oral and written
reports of a guardian ad litem or visitor may be received by the
court and may be relied on to the extent of their probative
value, even though such evidence may not be admissible under the
Michigan Rules of Evidence.
(2) Reports, Review and Cross-Examination.
(a) Any interested person shall be afforded an
opportunity to examine and controvert reports received into
evidence.
(b) The person who is the subject of a report received
under subrule (D)(1) shall be permitted to cross-examine the
individual making the report if the person requests such an
opportunity.
(c) Other interested persons may cross-examine the
individual making a report on the contents of the report, if the
individual is reasonably available. The court may limit cross-
examination for good cause.
(E) Attorney-Client Privilege.
(1) During Appointment of Guardian Ad Litem. When the
guardian ad litem appointed to represent the interest of a person
is an attorney, that appointment does not create an
attorney-client relationship. Communications between that person
and the guardian ad litem are not subject to the attorney-client
privilege. The guardian ad litem must inform the person whose
interests are represented of this lack of privilege as soon as
practicable after appointment. The guardian ad litem may report
or testify about any communication with the person whose
interests are represented.
(2) Later Appointment as Attorney. If the appointment of
the guardian ad litem is terminated and the same individual is
appointed attorney, the appointment as attorney creates an
attorney-client relationship. The attorney client privilege
relates back to the date of the appointment of the guardian ad
litem.
COMMENT: This rule was MCR 5.201. Subrule(C) is amended by
adding a requirement that a guardian ad litem file any written
report with the court 24 hours before a hearing. This will
provide the court and interested persons with some notice of the
contents of the report. Any more notice would often be
impractical. The 24 hour provision contains an exception that
the court might specify another time for filing a report in an
emergency.
Rule 5.125 Interested Persons Defined
(A) Special Persons. In addition to persons named in subrule
(C) with respect to specific proceedings, the following persons
must be served:
(1) The Attorney General must be served if required by law
or court rule. The Attorney General must be served in the
specific proceedings enumerated in subrule (C) when the decedent
is not survived by any known heirs, or the protected person has
no known presumptive heirs.
(2) A foreign consul must be served if required by MCL
700.1401(4)[ law] or court rule. An attorney who has
filed an appearance for a foreign consul must be served when
required by subrule (A)(5).
(3) On a petition for the appointment of a guardian or
conservator of a person on whose account benefits are payable by
the Veterans' Administration, the Administrator of Veterans'
Affairs must be served through the administrator's Michigan
district counsel.
(4) 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, except as provided by
MCR 5.105(D)(1).
(5) An attorney who has filed an appearance must be served
notice of proceedings concerning which the attorney's client is
an interested person.
(6) A special fiduciary appointed under MCL 700.1309.
(7) A person who filed a demand for notice under MCL
700.3205 or a request for notice under MCL 700.5104 if the
demand or request has not been withdrawn, expired, or
terminated by court order.
(B) Special Conditions for Interested Persons.
(1) Claimant. Only a claimant who files a claim with the
court, with a personal representative, or with a trustee of a
trust required to give notice to creditors pursuant to MCL
700.7504, and whose claim remains undetermined or unpaid need be
notified of specific proceedings under subrule (C).
(2) Devisee. Only a devisee whose devise remains
unsatisfied need be notified of specific proceedings under
subrule (C).
(3) Trust as Devisee. If either a trust or a trustee is a
devisee, the trustee is the interested person. If no trustee has
qualified, the interested persons are the current trust
beneficiaries and the nominated trustee, if any.
(4) Father of a Child Born out of Wedlock. Except as
otherwise provided by law, the natural father of a child born out
of wedlock need not be served notice of proceedings in which the
child's parents are interested persons unless his paternity has
been determined in a manner provided by law.
(C) Specific Proceedings. Subject to subrules (A) and (B) and
MCR 5.105(E), the following provisions apply. When a single
petition requests multiple forms of relief, the petitioner must
give notice to all persons interested in each type of relief:
(1) The persons interested in an application or a petition
to probate a will are the
(a) devisees,
(b) nominated trustee and current trust beneficiaries
of a trust under the will,
(c) heirs,
(d) nominated personal representative, and
(e) trustee of a revocable trust described in MCL
700.7501(1).
(2) The persons interested in an application or a petition
to appoint a personal representative, other than a special
personal representative, of an intestate estate are the
(a) heirs,
(b) nominated personal representative, and
(c) trustee of a revocable trust described in MCL
700.7501(1).
(3) The persons interested in a petition to determine the
heirs of a decedent are the heirs.
(4) The persons interested in a petition of surety for
discharge from further liability are the
(a) principal on the bond,
(b) co-surety,
(c) devisees of a testate estate,
(d) heirs of an intestate estate,
(e) protected person and presumptive heirs of the
protected person in a conservatorship, and
(f) claimants.
(5) The persons interested in a proceeding for spouse's
allowance are the
(a) devisees of a testate estate,
(b) heirs of an intestate estate,
(c) claimants,
(d) spouse, and
(e) the personal representative, if the spouse is not
the personal representative.
(6) The persons interested in a proceeding for examination
of an account of a fiduciary are the
(a) devisees of a testate estate, and if one of the
devisees is a trustee or a trust, the persons referred to in MCR
5.125(B)(3),
(b) heirs of an intestate estate,
(c) protected person and presumptive heirs of the
protected person in a conservatorship,
(d) claimants, and
(e) current trust beneficiaries in[] a trust
accounting.
(7) The persons interested in a proceeding for partial
distribution of the estate of a decedent are the
(a) devisees of a testate estate entitled to share
in the residue,
(b) heirs of an intestate estate,
(c) claimants, and
(d) any other person whose unsatisfied interests in
the estate may be affected by such assignment.
(8) The persons interested in a petition for an order of
complete estate settlement under MCL 700.3952 or a petition for
discharge under MCR 5.311(B)(3) are the
(a) devisees of a testate estate,
(b) heirs unless there has been an adjudication that
decedent died testate[ or if there is a pending request for
determination of heirs],
(c) claimants, and
(d) such other persons whose interests are affected by
the relief requested.
(9) The persons interested in a proceeding for an estate
settlement order pursuant to MCL 700.3953 are the
(a) personal representative,
(b) devisees,
(c) claimants, and
(d) such other persons whose interests are affected by
the relief requested.
(10) The persons[] interested in a proceeding for
assignment and distribution of the share of an absent apparent
heir or devisee in the estate of a decedent are the
(a) devisees of the will of the decedent,
(b) heirs of the decedent if the decedent did not
leave a will,
(c) devisees of the will of the absent person, and
(d) presumptive heirs of the absent person.
(11) The persons interested in a petition for supervised
administration after an estate has been commenced are the
(a) devisees, unless the court has previously found
decedent died intestate,
(b) heirs, unless the court has previously found
decedent died testate,
(c) personal representative, and
(d) claimants.
(12) The persons interested in an independent request for
adjudication under MCL 700.3415 and a petition for an interim
order under MCL 700.3505 are the
(a) personal representative, and
(b) other persons who will be affected by the
adjudication.
(13) The persons interested in a petition for settlement of
a wrongful-death action or distribution of wrongful-death
proceeds are the
(a) heirs of the decedent,
(b) other persons who may be entitled to distribution
of wrongful-death proceeds, and
(c) claimants whose interests are affected.
(14) The persons interested in a will contest settlement
proceeding are the
(a) heirs of the decedent and
(b) devisees affected by settlement.
(15) The persons interested in a partition proceeding where
the property has not been assigned to a trust under the will are
the
(a) heirs in an intestate estate or
(b) devisees affected by partition.
(16) The persons interested in a partition proceeding where
the property has been assigned to a trust under the will are the
(a) trustee and
(b) beneficiaries affected by the partition.
(17) The persons interested in a petition to establish the
cause and date of death in an accident or disaster case under MCL
700.1208 are the heirs of the presumed decedent.
(18) The persons interested in a proceeding under the Mental
Health Code that may result in an individual receiving
involuntary mental health treatment or judicial admission of an
individual with a developmental disability to a center are the
(a) individual,
(b) individual's attorney,
(c) petitioner,
(d) prosecuting attorney or petitioner's attorney,
(e) director of any hospital or center to which the
individual has been admitted,
(f) the individual's spouse, if the spouse's
whereabouts are known,
(g) the individual's guardian, if any,
(h) in a proceeding for judicial admission to a
center, the community mental health program, and
(i) such other relatives or persons as the court may
determine.
(19) The persons interested in a petition for appointment of
a guardian for a minor are:
(a) the minor, if 14 years of age or older;[]
(b) if known by the petitioner, each person who had
the principal care and custody of the minor during the
63[ 60] days preceding the filing of the petition;
(c) the parents of the minor or, if neither of them is
living, any grandparents and the adult presumptive heirs of the
minor, and
(d) the nominated guardian.
(20) The persons interested in the acceptance of parental
appointment of the guardian of a minor under MCL 700.5202 are:
(a) the minor, if 14 years of age or older,
(b) the person having the minor's care, and
(c) each grandparent and the adult presumptive heirs
of the minor.
(21) The persons interested in a 7-day notice of acceptance
of appointment as guardian of an incapacitated individual under
MCL 700.5301 are the
(a) incapacitated individual,
(b) person having the care of the incapacitated
individual, and
(c) presumptive heirs of the incapacitated individual.
(22) The persons interested in a petition for appointment of
a guardian of an alleged incapacitated individual are
(a) the alleged incapacitated individual,
(b) if known, a person named as attorney in fact under
a durable power of attorney,
(c) the alleged incapacitated individual's spouse,
(d) the alleged incapacitated individual's children
or, if no adult child is living, the individual's parents,
(e) if no spouse, child, or parent is living, the
presumptive heirs of the individual,
(f) the person who has the care and custody of the
alleged incapacitated individual, and
(g) the nominated guardian.
(23) The persons interested in a petition for the
appointment of a conservator or for a protective order are:
(a) the individual to be protected if 14 years of age
or older,
(b) the presumptive heirs of the individual to be
protected,
(c) if known, a person named as attorney in fact under
a durable power of attorney,
(d) the nominated conservator, and
(e) a governmental agency paying benefits to the
individual to be protected or before which an application for
benefits is pending.
(24) The persons interested in a petition for the
modification or termination of a guardianship or conservatorship
or for the removal of a guardian or a conservator are
(a) those interested in a petition for appointment
under subrule (C)(19), (21), (22), or (23) as the case may be,
and
(b) the guardian or conservator.
(25) The persons interested in a petition by a conservator
for instructions or approval of sale of an asset are
(a) the protected individual and
(b) those persons listed in subrule (C)(23) who will
be affected by the instructions or order.
(26) The persons interested in a petition for approval
of a trust under MCR 2.420 are
(a) the protected individual if 14 years of age or
older,
(b) the presumptive heirs of the protected individual,
(c) if there is no conservator, a person named as
attorney in fact under a durable power of attorney,
(d) the nominated trustee, and
(e) a governmental agency paying benefits to the
individual to be protected or before which an application for
benefits is pending.
(27[26]) The persons interested in a
petition for treatment of infectious disease are
(a) the petitioner and
(b) the respondent.
(28[27]) The persons interested in a
petition for emancipation of a minor are
(a) the minor,
(b) parents of the minor,
(c) the affiant on an affidavit supporting
emancipation, and
(d) any guardian or conservator.
(29[28]) Interested persons for any
proceeding concerning a durable power of attorney for health care
are:
(a) the patient;
(b) the patient's advocate;
(c) the patient's spouse;
(d) the patient's adult children;
(e) the patient's parents if the patient has no adult
children;
(f) if the patient has no spouse, adult children or
parents, the patient's minor children, or, if there are none, the
presumptive heirs whose addresses are known;
(g) the patient's guardian and conservator, if any;
and
(h) the patient's guardian ad litem.
(30[29]) The persons interested in various
adoption proceedings are as found at MCL 710.24a except as
follows:
Petition to terminate rights of a noncustodial parent.
The interested persons in a petition to terminate the rights of
the noncustodial parent pursuant to MCL 710.51(6) are:
(a) the petitioner;
(b) the adoptee, if over 14 years of age; and
(c) the noncustodial parent.
(31[30]) Persons interested in a proceeding
to require, hear, or settle an accounting of an agent under a
power of attorney are:
(a) the principal,
(b) the attorney in fact or agent,
(c) any fiduciary of the principal,
(d) the principal's guardian ad litem or attorney, if
any, and
(e) the principal's presumptive heirs.
(D) The court shall make a specific determination of the
interested persons if they are not defined by statute or court
rule.
(E) In the interest of justice, the court may require additional
persons be served.
COMMENT: This rule was MCR 5.205. The proceedings described in
subrules (C)(27), (28), and (30) have been transferred to the
exclusive jurisdiction of the family division of the circuit
court. However, the subrules are left in place temporarily until
development of rules for family division.
Rule 5.126 Demand or Request for Notice
(A) Applicability. For purposes of this rule "demand" means a
demand or request. This rule governs the procedures to be
followed regarding a person who files a demand for notice[
(referred to as a "demandant")] pursuant to MCL 700.3205 or
MCL 700.5104. This person under both sections is referred to
as a "demandant."
(B) Procedure.
(1) Obligation to Provide Notice or Copies of Documents.
Except in small estates under MCL 700.3982 and MCL 700.3983, the
person responsible for serving a paper in a decedent estate,
guardianship, or conservatorship in which a demand for notice is
filed is responsible for providing copies of any orders and
filings pertaining to the proceeding in which the demandant has
requested notification. If no proceeding is pending at the time
the demand is filed, the court must notify the petitioner or
applicant at the time of filing that a demand for notice has been
filed and of the responsibility to provide notice to the
demandant.
(2) Rights and Obligations of Demandant.
(a) The demandant must serve on interested persons a
copy of a demand for notice filed after a proceeding has been
commenced.
(b) Unless the demand for notice is limited to a
specified class of papers, the demandant is entitled to receive
copies of all orders and filings subsequent to the filing of the
demand. The copies must be mailed to the address specified in
the demand. If the address becomes invalid and the demandant
does not provide a new address, no further copies of papers need
be provided to the demandant.
(C) Termination, Withdrawal.
(1) Termination on Disqualification of Demandant. The
fiduciary or an interested person may petition the court to
determine that a person who filed a demand for notice does not
meet the requirements of statute or court rule to receive
notification. The court on its own motion may require the
demandant to show cause why the demand should not be stricken.
(2) Expiration of Demand When no Proceeding is Opened. If
a proceeding is not opened, the demand expires three years from
the date the demand is filed.
(3) Withdrawal. The demandant may withdraw the demand at
any time by communicating the withdrawal in writing to the
fiduciary.
COMMENT: This rule is new. It deals with the demand for notice
in MCL 700.3205 and the request for notice in MCL 700.5104.
Rule 5.127 Venue of Certain Actions
(A) Defendant Found Incompetent to Stand Trial. When a criminal
defendant is found mentally incompetent to stand trial and is
referred to the probate court for admission to a treating
facility,
(1) if the defendant is a Michigan resident, venue is
proper in the county where the defendant resides;
(2) if the defendant is not a Michigan resident, venue is
proper in the county of the referring criminal court.
(B) Guardian of Property of Nonresident With a Developmental
Disability. If an individual with a developmental disability is
a nonresident of Michigan and needs a guardian for Michigan
property under the Mental Health Code, venue is proper in the
probate court of the county where any of the property is located.
(C) Guardian of Individual With a Developmental Disability Who
is in a Facility. If venue for a proceeding to appoint a
guardian for an individual with a developmental disability who is
in a facility is questioned, and it appears that the convenience
of the individual with a developmental disability or guardian
would not be served by proceeding in the county where the
individual with a developmental disability was found, venue is
proper in the county where the individual with a developmental
disability most likely would reside if not disabled. In making
its decision, the court shall consider the situs of the property
of the individual with a developmental disability and the
residence of relatives or others who have provided care.
COMMENT: This rule was MCR 5.220.
Rule 5.128 Change of Venue
(A) Reasons for Change. On petition by an interested person or
on the court's own initiative, the venue of a proceeding may be
changed to another county by court order for the convenience of
the parties and witnesses, for convenience of the attorneys, or
if an impartial trial cannot be had in the county where the
action is pending.
(B) Procedure. If venue is changed
(1) the court must send to the transferee court, without
charge, copies of necessary documents on file as requested by the
parties or the transferee court and the original of an unadmitted
will or a certified copy of an admitted will; and
(2) except as provided in MCR 5.306(A)[
5.706(A)] or unless the court directs otherwise, notices
required to be published must be published in the county to which
venue was changed.
COMMENT: This rule was MCR 5.221.
Rule 5.131 Discovery Generally
(A) The general discovery rules apply in probate proceedings.
(B) Scope of Discovery in Probate Proceedings. Discovery in a
probate proceeding is limited to matters raised in any petitions
or objections pending before the court. Discovery for civil
actions in probate court is governed by subchapter 2.300.
COMMENT: This rule was MCR 5.301. New subrule (B) clarifies
that discovery in a probate proceeding is not available for the
subject matter of a prospective civil action before the filing of
such an action.
Rule 5.132 Proof of Wills
(A) Deposition of Witness to Will. If no written objection has
been filed to the admission to probate of a document purporting
to be the will of a decedent, the deposition of a witness to the
will or of other witnesses competent to testify at a proceeding
for the probate of the will may be taken and filed without
notice. However, the deposition is not admissible in evidence if
at the hearing on the petition for probate of the will an
interested person who was not given notice of the taking of the
deposition as provided by MCR 2.306(B) objects to its use.
(B) Use of Copy of Will. When proof of a will is required and a
deposition is to be taken, a copy of the original will or other
document made by photographic or similar process may be used at
the deposition.
COMMENT: This rule was MCR 5.302.
Rule 5.141 Pretrial Procedures; Conferences; Scheduling Orders
The procedures of MCR 2.401 shall apply in a contested
proceeding.
COMMENT: This rule was MCR 5.401.
Rule 5.142 Pretrial Motions in Contested Proceedings.
In a contested proceeding, pretrial motions are governed by the
rules that are applicable in civil actions in circuit court.
COMMENT: This rule was MCR 5.402.
Rule 5.143 Alternative Dispute Resolution.
(A) The court may submit to mediation, case evaluation, or other
alternative dispute resolution process one or more requests for
relief in any contested proceeding. MCR 2.410 applies to the
extent possible.
(B) If a dispute is submitted to case evaluation, MCR 2.403 and
2.404 shall apply to the extent feasible, except that sanctions
must not be awarded unless the subject matter of the case
evaluation involves money damages or division of property.
Rule 5.144 Administratively Closed File
(A) Administrative Closing. The court may administratively
close a file
(1) for failure to file a notice of continuing
administration as provided by MCL 700.3951(3) or
(2) for other reasons as provided by MCR 5.203(D)
or, after notice and hearing, upon a finding of good cause.
(B) Reopening Administratively Closed Estate. Upon petition by
an interested person, with or without notice as the court
directs, the court may order an administratively closed estate
reopened. The court may appoint the previously appointed
fiduciary, a successor fiduciary, a special fiduciary, or a
special personal representative, or the court may order
completion of the administration without appointing a fiduciary.
In a decedent estate, the court may order supervised
administration if it finds that supervised administration is
necessary under the circumstances.
COMMENT: This rule is new.
Rule 5.151 Jury Trial, Applicable Rules
Jury trials in probate proceedings shall be governed by MCR 2.508
through 2.516 except as modified by this subchapter or MCR 5.740
for mental health proceedings and MCR 5.911 for juvenile
proceedings.
COMMENT: This rule was MCR 5.501.
Rule 5.158 Jury Trial of Right in Contested Proceedings
(A) Demand. A party may demand a trial by jury of an issue for
which there is a right to trial by jury by filing in a manner
provided by these rules a written demand for a jury trial within
28 days after an issue is contested. However, if trial is
conducted within 28 days of the issue being joined, the jury
demand must be filed at least 4 days before trial. A party who
was not served with notice of the hearing at least 7 days before
the hearing or trial may demand a jury trial at any time before
the time set for the hearing. The court may adjourn the hearing
in order to impanel the jury. A party may include the demand in
a pleading if notice of the demand is included in the caption of
the pleading. The jury fee provided by law must be paid at the
time the demand is filed.
(B) Waiver. A party who fails to file a demand or pay the jury
fee as required by this rule waives trial by jury. A jury is
waived if trial or hearing is commenced without a demand being
filed.
COMMENT: This rule was MCR 5.508. It covers how a party with a
right to a jury trial may exercise that right. It does not
purport to grant a right to a jury trial where none exists
otherwise. Any such right is limited to a participant at the
trial.
Rule 5.162 Form and Signing of Judgments and Orders
(A) Form of Judgments and Orders. A proposed judgment or order
must include the name, address, and telephone number of the
attorney or party who prepared it. All judgments and orders of
the court must be typewritten or legibly printed in ink and
signed by the judge to whom the proceeding is assigned.
(B) Procedure for Entry of Judgments and Orders. In a contested
matter, the procedure for entry of judgments and orders is as
provided in MCR 2.602(B).
[]
COMMENT: This rule was MCR 5.602.
SUBCHAPTER 5.200 PROVISIONS COMMON TO MULTIPLE TYPES OF
FIDUCIARIES
Rule 5.201 Applicability[ Application]
Rules in this subchapter contain requirements applicable to all
fiduciaries except trustees and apply to all estates except
trusts.
COMMENT: This rule is new. It address the matters formerly
covered in MCR 5.715. The use of the term fiduciary in this
subchapter differs from that in the Estates and Protected
Individuals Code by excluding trustee. That exclusion is only
for convenience of this subchapter which does not apply to trusts
or trustees.
Rule 5.202 Letters of Authority
(A) Issuance. Letters of authority shall be issued after the
appointment and qualification of the fiduciary. Unless ordered
by the court, letters of authority will not have an expiration
date.
(B) []Restrictions and Limitations. The court may
restrict or limit the powers of a fiduciary. The
restrictions and limitations imposed must appear
conspicuously on the letters of authority. The court may modify
or remove the restrictions and limitations with or without
a hearing.
(C) Certification. A certification of the letters of authority
and a statement that on a given date the letters are in full
force and effect may appear on the face of copies furnished to
the fiduciary or interested persons[].
COMMENT: This rule was MCR 5.716. Former subrule (B) is deleted
because the subject matter is covered in MCL 700.3951. The
remaining subrules are redesignated. The register may not impose
restrictions in the letters of authority. One of the
restrictions imposed by the court may be a limit on the length of
time that the letters are effective. These rules use only the
term "letters of authority" but the Estates and Protected
Individuals Code uses other terms. See MCL 700.3504 and MCL
700.7504.
Rule 5.203 Follow-Up Procedures
Except in the instance of a personal representative who fails
to timely comply with the requirements of MCL 700.3951(1), if
[When ]it appears to the court that the fiduciary is
not properly administering the estate, the court shall proceed as
follows:
(A) Notice of Deficiency. The court must notify the fiduciary,
the attorney for the fiduciary, if any, and each of the sureties
for the fiduciary of the nature of the deficiency, together with
a notice to correct the deficiency within 28 days, or, in the
alternative, to appear before the court or an officer designated
by it at a time specified within 28 days for a conference
concerning the deficiency. Service is complete on mailing to the
last known address of the fiduciary.
(B) Conference, Memorandum. If a conference is held, the court
must prepare a written memorandum setting forth the date of the
conference, the persons present, and any steps required to be
taken to correct the deficiency. The steps must be taken within
the time set by the court but not to exceed 28 days from the date
of the conference. A copy of the memorandum must be given to
those present at the conference and, if the fiduciary is not
present at the conference, mailed to the fiduciary at the last
known address.
(C) Extension of Time. For good cause, the court may extend the
time for performance of required duties for a further reasonable
period or periods, but any extended period may not exceed 28 days
and shall only be extended to a day certain. The total period as
extended may not exceed 56 days.
(D) Suspension of Fiduciary, Appointment of Special Fiduciary.
If the fiduciary fails to perform the duties required within the
time allowed, the court may do any of the following: suspend
the powers of the dilatory fiduciary, appoint a special
fiduciary, and close the estate administration. If the court
suspends the powers of the dilatory fiduciary or closes the
estate administration, the court must notify the dilatory
fiduciary, the attorney of record for the dilatory fiduciary, the
sureties on any bond of the dilatory fiduciary that has been
filed, and the interested persons at their addresses shown in
the court file. This rule does not preclude contempt
proceedings as provided by law.
(E) Reports on the Status of Estates. The chief judge of each
probate court must file with the state court administrator, on
forms provided[ approved] by the state court
administrative office, any reports on the status of estates
required by the state court administrator.
COMMENT: This rule was MCR 5.717. It applies to any potential
improper administration of an estate, except for a failure to
timely file a notice of continuing administration which is
covered by MCL 700.3951.
Rule 5.204 Appointment of Special Fiduciary
(A) Appointment. The court may appoint a special fiduciary or
enjoin a person subject to the court's jurisdiction under MCL
700.1309 on its own initiative, on the notice it directs or
without notice in its discretion.
(B) Duties and Powers. The special fiduciary has all the duties
and powers specified in the order of the court appointing the
special fiduciary. Appointment of a special fiduciary suspends
the powers of the general fiduciary unless the order of
appointment provides otherwise. The appointment may be for a
specified time and the special fiduciary is an interested person
for all purposes in the proceeding until the appointment
terminates.
COMMENT: This rule was MCR 5.718. It is amended to give the
court maximum flexibility to use a special fiduciary to respond
to reports of problems concerning a general fiduciary. See MCL
700.1309. This rule does not apply to a special personal
representative under MCL 700.3614.
Rule 5.205 Address of Fiduciary
A fiduciary must keep the court and the interested persons
informed in writing within 7 days of any change in the
fiduciary's address. Any notice sent to the fiduciary by the
court by ordinary mail to the last address on file shall be
notice to the fiduciary.
COMMENT: This rule is new. The substance was formerly in MCR
5.707(B).
Rule 5.206 Duty to Complete Administration
A fiduciary and an attorney for a fiduciary must take all actions
reasonably necessary to regularly close administration of an
estate. If the fiduciary or the attorney fails to take such
actions, the court may act to regularly close the estate and
assess costs against the fiduciary or attorney personally.
COMMENT: This rule is new.
[Rule 5.206 Prior Approval of Certain Agreements Creating
Trusts and Structured Settlements
(A) Applicability. This rule defines the authority of a
fiduciary to enter into an agreement settling a claim of a minor,
incapacitated individual or protected individual when that
settlement results in the creation of a trust or structured
settlement.
(B) Authority.
(1) Personal Representative. A personal representative is
without power to enter into a settlement agreement on behalf of a
ward, incapacitated individual or protected individual.
(2) Other Fiduciary. A fiduciary may not consent on behalf
of the fiduciary's ward, incapacitated individual or protected
individual to a settlement agreement providing for creation of a
trust or involving payments to be made for more than one year
beyond the effective date of the settlement agreement without
prior approval of the probate court. Any such agreement and
trust must be in writing.
(C) Procedure.
(1) Petition, Notice. A fiduciary seeking court approval
for creation of a trust or structured settlement described in
subrule (B)(2) must file a petition seeking such approval along
with copies of the proposed agreement and trust, if any. The
petitioner must serve notice of hearing and copies of the
proposed agreement and trust, if any, on the interested persons
and file proof of service of those documents.
(2) Court Review. The probate court may approve the
proposed trust or structured settlement if it determines that it
is in the welfare of the ward, incapacitated individual or
protected individual.
(D) Exclusion. If the settlement or judgment does not require
payment to or on behalf of a minor of more than $5,000 a year
during minority or does not involve the creation of a trust or
payments extending beyond minority, the provisions of this rule
do not apply and the money may be paid in accordance with the
provisions of MCL 700.5102.
(E) Confidential Settlements. If the settlement provides that
the settlement must not be made public, the court may provide
that the papers concerning the trust or settlement may not be
subject to public inspection.]
COMMENT: Former interim rule 5.206 is deleted.
Rule 5.207 Sale of Real Estate
(A) Petition. Any petition to approve the sale of real estate
must contain the following:
(1) the terms and purpose of the sale,
(2) the legal description of the property, and
(3) the financial condition of the estate before the sale.
(B) Bond. The court may require a bond before
approving[ confirming] a sale of real estate in an
amount sufficient to protect the estate.
COMMENT: This rule is new. Interested persons to be served
notice of hearing on a sale of real estate are listed in MCR
5.125(C)(12) and (25) for decedent estates and conservatorships,
respectively.
SUBCHAPTER 5.300 PROCEEDINGS IN DECEDENT ESTATES
Rule 5.301 Applicability[ Application
]The rules in this subchapter apply to decedent estate
proceedings other than proceedings provided by law for small
estates under MCL 700.3982.
COMMENT: This rule was MCR 5.701. Former subrule (B) is deleted
because the term "temporary personal representative" has been
replaced in the Estates and Protected Individuals Code (EPIC) by
"special personal representative". The code defines special
personal representative. MCL 700.1107(e).
Rule 5.302 Commencement of Decedent Estates
(A) Methods of Commencement. A decedent estate may be commenced
by filing an application for an informal proceeding or a petition
for a formal testacy proceeding. A request for supervised
administration may be made in a petition for a formal testacy
proceeding.
(B) Sworn Testimony Form. A sworn testimony form sufficient to
establish the identity of interested persons must be submitted
with the application or petition that commences proceedings. The
form must be executed before a person authorized to administer
oaths.
(C) Preservation of Testimony. If a hearing is held, proofs
included as part of the record are deemed preserved for further
administration purposes.
COMMENT: This rule is new. It incorporates part of former MCR
5.702(A). See MCL 700.3301 for commencing an informal proceeding
by application and MCL 700.3401 for commencing a formal testacy
proceeding by petition. Provision for multiple requests in one
petition are found in MCL 700.3107(1)(b) and 700.3502(1). For
matters covered by former MCR 5.702(B), see MCL 700.3614-
700.3618. The term "informal proceedings" is defined in MCL
700.1105(b). These rules use the term "formal proceeding" to
refer to both a formal testacy proceeding defined in MCL 700.3401
and an independent request to the court authorized by MCL
700.3415.
Rule 5.304 Notice of Appointment
(A) Notice of Appointment. The personal representative must,
not later than 14 days after appointment, serve notice of
appointment as provided in MCL 700.3705 and the agreement and
notice relating to attorney fees required by MCR 5.313(D). No
notice of appointment need be served if the person[ who
is] serving as personal representative is the only person to
whom notice must be given.
(B) Publication of Notice. If the address or identity of a
person who is to receive notice of appointment is not known and
cannot be ascertained with reasonable diligence, the notice of
appointment must be published one time in a newspaper, as defined
in MCR 2.106(F), in the county in which a resident decedent was
domiciled or in the county in which the proceedings with respect
to a nonresident were initiated. The published notice of
appointment is sufficient if it includes:
(1) statements that estate proceedings have been commenced,
giving the name and address of the court, and, if applicable,
that a will has been admitted to probate,
(2) the name of any interested person whose name is known
but whose address cannot be ascertained after diligent inquiry,
and a statement that the result of the administration[
hearing] may be to bar or affect that person's interest in
the estate, and
(3) the name and address of the person appointed personal
representative, and the name and address of the court.
(C) Prior Publication. After an interested person has once been
served by publication, notice of appointment is only required if
that person's address is known or becomes known during the
proceedings.
COMMENT: This rule is new. It and the two succeeding rules deal
with all the notices that a personal representative must give at
the commencement of administration, in addition to notice of
hearing. Subrule (C) limits the requirement to serve an
interested person by publication to the first such notice. Thus,
the publication required under subrule (B) will not have to be
made in formal proceedings if the notice of the petition for
formal testacy or appointment proceedings was already published.
Rule 5.305 Notice to Spouse; Election
(A) Notice to Spouse. In the estate of a decedent who was
domiciled in the state of Michigan at the time of death, the
personal representative, except a special personal
representative, must serve notice of the rights of election under
part 2 of article II of the Estates and Protected Individuals
Code, including the time for making the election and the rights
to exempt property and allowances under part 4 of article II of
the code, on the surviving spouse of the decedent within 28 days
after the personal representative's appointment. An election as
provided in subrule (C) may be filed in lieu of the notice. No
notice need be given if the surviving spouse is the personal
representative or one of several personal representatives or if
there is a waiver under MCL 700.2205.
(B) Proof of Service. The personal representative is not
required to file a proof of service of the notice of the rights
of election.
(C) Spouse's Election. If the surviving spouse exercises the
right of election, the spouse must serve a copy of the election
on the personal representative personally or by mail. The
election must be made within 63 days after the date for
presentment of claims or within 63 days after the service of the
inventory upon the surviving spouse, whichever is later. The
election may be filed with the court.
(D) Assignment of Dower. A petition for the assignment of dower
under MCL 558.1-558.29 must include:
(1) a full and accurate description of the land in Michigan
owned by a deceased husband and of which he died seized, from
which the petitioner asks to have the dower assigned;
(2) the name, age, and address of the widow and the names
and addresses of the other heirs;
(3) the date on which the husband died and his domicile on
the date of his death; and
(4) the fact that the widow's right to dower has not been
barred and that she or some other person interested in the land
wishes it set apart.
If there is a minor or other person other than the
widow under legal disability having no legal guardian or
conservator[ other than the widow], there may not be a
hearing on the petition until after the appointment of a guardian
ad litem for such person.
COMMENT: This rule is new. The topic was treated in former MCR
5.707(A)(2). See MCL 700.3705(5) on the duty of the personal
representative to provide the notice and MCL 700.2202 on the time
and manner for making the election. Subrule (B) overrides MCL
700.2202(4). Subrule (D) was former MCR 5.707(C).
Rule 5.306 Notice to Creditors, Presentment of Claims
(A) Publication of Notice to Creditors; Contents. Unless the
notice has already been given, the personal representative must
publish, and a special personal representative may publish, in a
newspaper, as defined by MCR 2.106(F), in a county in which a
resident decedent was domiciled or in which the proceeding as to
a nonresident was initiated, a notice to creditors as provided in
MCL 700.3801. The notice must include:
(1) The name, and, if known, last known address, date of
death, and date of birth[ social security number]
of the decedent;
(2) The name and address of the personal representative;
(3) The name and address of the court where proceedings are
filed; and
(4) A statement that[] claims will be forever barred
unless presented to the personal representative, or to both the
court and the personal representative within 4 months after the
publication of the notice.
(B) Notice to Known Creditors and Trustee.
A personal representative who has published notice must
cause a copy of the published notice or a similar notice to be
served personally or by mail on each known creditor of the estate
and to the trustee of a trust of which the decedent is settlor,
as defined in MCL 700.7501(1). Notice need not be served on the
trustee if the personal representative is the trustee.
(1) Within the time limits prescribed by law, the personal
representative must cause a copy of the published notice or a
similar notice to be served personally or by mail on each
creditor of the estate whose identity at the time of publication
or during the 4 months following publication is known to, or can
be reasonably ascertained by, the personal representative.
(2) If, at the time of publication, the address of a
creditor is unknown and cannot be ascertained after diligent
inquiry, the name of the creditor must be included in the
published notice.
(C) No Notice to Creditors. No notice need be given to
creditors in the following situations:
(1) The estate has no assets;
(2) The estate qualifies and is administered under MCL
700.3982, MCL 700.3983[] or MCL 700.3987;
(3) The decedent has been dead for more than 3 years;
(4) Notice has previously been given under MCL 700.7504 in
the county where the decedent was domiciled in Michigan.
Notice need not be given to a creditor whose claim has been
presented or paid.
(D) Presentment of Claims. A claim may be presented to the
personal representative by mailing or delivering the claim to the
personal representative's attorney. A claim is presented
(1) on mailing, if addressed to the personal
representative, the personal representative's attorney or the
court, or
(2) in all other cases, when received by the personal
representative or the court.
For purposes of this subrule, personal representative
includes a proposed personal representative.
COMMENT: This rule was MCR 5.706. The changes in the rule are
to comply with the provisions of the Estates and Protected
Individuals Code. The trust referred to in subrule (B) is a
trust described in MCL 700.7501(1), see MCL 700.3801(1). If a
claimant presents a claim by filing with the court, the claimant
must deliver or mail a copy of the claim to the personal
representative, MCL 700.3804(1)(a). Subrule (D) modifies MCL
700.3804 by allowing the timing of presentment to be the date of
mailing to the personal representative or the personal
representative's attorney. Otherwise, timing of presentment is
as provided in MCL 700.3804.
Rule 5.307 Requirements Applicable to all Decedent Estates
(A) Inventory Fee. Within 91 days of the date of the letters of
authority, the personal representative must [file with]
submit to the court the information necessary for
computation of the probate inventory fee. The inventory fee must
be paid no later than the filing of the petition for an order of
complete estate settlement under MCL 700.3952, the petition for
settlement order under MCL 700.3953, or the closing statement
under MCL 700.3954 or one year after appointment, whichever is
earlier.
(B) Notice to Personal Representative. At the time of
appointment, the court must provide the personal representative
with written notice of information to be provided to[
filed with] the court. The notice should be substantially in
the following form or in the form specified by MCR 5.310(E), if
applicable:
"Inventory Information: Within 91 days of the date of the
letters of authority, you must submit to[ file
with] the court the information necessary for computation of
the probate inventory fee.
"Change of Address: You must keep the court and all
interested persons informed in writing within 7 days of any
change in your address.
"Notice of Continued Administration: If you are unable to
complete the administration of the estate within one year of your
original appointment, you must file with the court and all
interested persons a notice that the estate remains under
administration, specifying the reason for the continuation of the
administration. You must give this notice within 28 days of the
first anniversary of your appointment and all subsequent
anniversaries during which the administration remains
uncompleted.
"Duty to Complete Administration of Estate: You must
complete the administration of the estate and file appropriate
closing papers with the court. Failure to do so may result in
personal assessment of costs."
(C) Claim by Personal Representative. A claim by a personal
representative against the estate for an obligation that arose
before the death of the decedent shall only be allowed in a
formal proceeding by order of the court.
(D) Requiring or Filing of Additional Papers. Except in formal
proceedings and supervised administration, the court may not
require the filing of any papers other than those required to be
filed by statute or court rule. However, additional papers may
be filed under MCR 5.113(D).
COMMENT: This rule is new. It deals with matters addressed in
former MCR 5.707, but it is substantially changed to comply with
the new provisions of the Estates and Protected Individuals Code.
Since the normal process occurs without court supervision or
monitoring, most of the provisions of the former rule have been
omitted or moved to the rules on supervised administration or
formal proceedings. Former MCR 5.707(C) on assignment of dower
has been moved to MCR 5.305(D). Subrule (C) supersedes the
notice and objection procedure of MCL 700.3804(3).
Rule 5.308 Formal Proceedings
(A) Accounts. Any account filed with the court must be in the
form required by MCR 5.310(C)(2)(c).
(B) Determination of Heirs.
(1) Determination During Estate Administration. Every
petition for formal probate of a will or for adjudication of
intestacy shall include a request for a determination of heirs
unless heirs were previously determined. No other petition for a
formal proceeding, including a petition to appoint a personal
representative which does not request formal probate of a will or
adjudication of intestacy, need contain a request for
determination of heirs. The personal representative or an
interested person may at any time file a petition for
determination of heirs. Heirs may only be determined in a formal
hearing.
(2) Determination Without Estate Administration.
(a) Petition and Testimony Form. Any person may
initiate a formal proceeding to determine intestacy and heirs
without appointment of a personal representative by filing a
petition and a sworn testimony form, executed before a person
authorized to administer oaths, sufficient to establish the
domicile of the decedent at the time of death and the identity of
the interested persons.
(b) Notice, Publication. The petitioner must serve
notice of hearing on all interested persons. If an interested
person's address or whereabouts is not known, the petitioner
shall serve notice on that person by publication as provided in
MCR 5.105(A)(3). The court may require other publication if it
deems necessary.
(c) Order. If notice and proofs are sufficient, the
[]court must enter an order determining the date of death,
the domicile of the decedent at the time of death, whether the
decedent died intestate, and the names of the heirs.
(d) Closing File. If there are no further requests
for relief and no appeal, the court may close its file.
[]COMMENT: This rule is new. Subrule (B) deals with the
matter covered by former MCR 5.708. Subrule (B)(1) summarizes
the requirements of the Estates and Protected Individuals Code on
when a petition for formal proceedings must include a request for
determination of heirs. Subrule (B)(2) changes the provisions of
the previous rule in light of the revision in the statutory
authorization for a court to determine heirs without further
proceedings, now found at MCL 700.3106 and 700.3402(2)(c).
Rule 5.309 Informal Proceedings
(A) Denial of Application. If the probate register denies the
application for informal probate or informal appointment, the
applicant may file a petition for a formal proceeding, which may
include a request for supervised administration.
(B) Effect of Form of Administration in Another State or
Country. The fact that any particular form of administration has
been initiated in the estate of a decedent in another state or
country does not preclude any other form of proceedings with
respect to that decedent in Michigan without regard to the form
of the proceeding in the other state or country.
(C) Notice of Intent to Seek Informal Appointment as Personal
Representative.
(1) A person who desires to be appointed personal
representative in informal proceedings must give notice of intent
to seek appointment and a copy of the application to each person
having a prior or equal right to appointment who does not waive
this right in writing before the appointment is made.
(2) Service of notice of intent to seek appointment and a
copy of the application must be made at least 14 days by mail or
7 days by personal service before appointment as personal
representative. If the address of one or more of the persons
having a prior or equal right to appointment is unknown and
cannot be ascertained after diligent inquiry, notice of the
intent to file the application must be published pursuant to MCR
5.106 at least 14 days prior to the appointment, but a copy of
the application need not be published.
(3) Proof of service must be filed with the court along
with the application for informal appointment as personal
representative.
(D) Publication. If the address of an heir, devisee, or other
interested person entitled to the information on the informal
probate under MCL 700.3306 is unknown and cannot be ascertained
after diligent inquiry, the information in MCL 700.3306(2) must
be provided by publication pursuant to MCR 5.106.
Publication of notice[ But there is no separate duty to
publish] under this rule is not required if a personal
representative has been appointed and provided notice under MCR
5.304.
COMMENT: This rule is new. Subrule (B) allows use of any of the
various forms of proceedings or administration—informal or
formal, unsupervised or supervised—in this state without regard
to the form which may have been used in another state or country
in the administration of the estate of the same decedent.
Subrule (C) deals with the notice of intent requirement of MCL
700.3310. See also MCL 700.1401.
Rule 5.310 Supervised Administration
(A) Applicability. The other rules applicable to decedent
estates apply to supervised administration unless they conflict
with this rule.
(B) Commencement of Supervised Administration. A request for
supervised administration in a decedent estate may be made in the
petition for formal testacy and appointment proceedings. A
petition for formal testacy and appointment proceedings including
a request for supervised administration may be filed at any time
during the estate proceedings if testacy has not previously been
adjudicated. If testacy and appointment have been previously
adjudicated, a separate petition for supervised administration
may be filed at any time during administration of the estate.
(C) Filing Papers With the Court. The personal representative
must file the following additional papers with the court and
serve copies on the interested persons:
(1) Inventory.
(a) Administration Commenced Supervised. If
supervised administration is ordered at the commencement of the
estate administration, the personal representative must file the
inventory within 91 days of the date of the letters of authority.
(b) Administration Commenced Without Supervision. If
supervised administration is ordered after a personal
representative has been appointed, the court must specify in the
order a time for that personal representative to file the
inventory.
(2) Accountings.
(a) Time for Filing. Unless the court designates a
shorter period, the personal representative must file accountings
within 56 days after the end of the accounting period. A final
account must be filed when the estate is ready for closing or on
removal of a personal representative. The court may order an
interim accounting at any time the court deems necessary.
(b) Accounting Period. The accounting period ends on
the anniversary date of the issuance of the letters of authority
or, if applicable, on the anniversary date of the close of the
last period covered by an accounting. The personal
representative may elect to change the accounting period so that
it ends on a different date. If the personal representative
elects to make such a change, the first accounting period
thereafter shall not be more than a year. A notice of the change
must be filed with the court.
(c) Contents. All accountings must be itemized,
showing in detail receipts and disbursements during the
accounting period, unless itemization is waived by all interested
persons. Approval of compensation of an attorney must be sought
pursuant to MCR 8.303. A written description of services
performed must be included or appended regarding compensation
sought by a personal representative. This description need not
be duplicated in the order. The accounting must include notice
that (i) objections concerning the accounting must be brought to
the court's attention by an interested person because the court
does not normally review the accounting without an objection;
(ii) interested persons have a right to review proofs of income
and disbursements at a time reasonably convenient to the personal
representative and the interested person; (iii) interested
persons may object to all or part of an accounting by filing an
objection with the court before allowance of the accounting; and
(iv) if an objection is filed and not otherwise resolved, the
court will hear and determine the objection.
(d) Proof of Income and Disbursements. After filing
and before the allowance of an accounting, the personal
representative must make proofs of income and disbursements
reasonably available for examination by any interested person who
requests to see them or as required by the court. An interested
person, with or without examination of the proofs of income and
disbursements, may file an objection to an accounting with the
court. If an interested person files an objection without
examining the proofs and the court concludes that such an
examination would help resolve the objection, the court may order
the interested person to examine the proofs before the court
hears the objection.
(e) Deferral of Hearings on Accountings. Hearing on
each accounting may be deferred in the discretion of the court.
The court in any case at any time may require a hearing on an
accounting with or without a request by an interested person.
(3) Notice of appointment.
(4) Fees notice pursuant to MCR 8.303.
(5) Notice to spouse.[
(6) Notice of continued administration.]
(6[7]) Affidavit of any required
publication.
(7[8]) Such other papers as are ordered by
the court.
(D) Tax Information. The personal representative must
file with the court
(1) in the case of a decedent dying before October 1, 1993,
proof that all Michigan inheritance taxes have been paid or
(2) in the case of an estate of a decedent dying after
September 30, 1993, either
(a) if a federal estate tax return was required to be
filed for the decedent, proof from the Michigan Department of
Treasury that all Michigan estate taxes have been paid, or
(b) if no federal estate tax return was required to be
filed for the decedent, a statement that no Michigan estate
tax is due[ to that effect].
(E) Notice to Personal Representative. When supervised
administration is ordered, the court must serve a written notice
of duties on the personal representative. The notice must be
substantially as follows:
"Inventories: You are required to file an inventory of the
assets of the estate within 91 days of the date of your letters
of authority or as ordered by the court. The inventory must list
in reasonable detail all the property owned by the decedent at
the time of death, indicating, for each listed item, the fair
market value at the time of decedent's death and the type and
amount of any encumbrance. If the value of any item has been
obtained through an appraiser, the inventory should include the
appraiser's name and address with the item or items appraised by
that appraiser.
"Accountings: You are required to file annually, or more
often if the court directs, a complete itemized accounting of
your administration of the estate, showing in detail all the
receipts and disbursements and the property remaining in your
hands together with the form of the property. When the estate is
ready for closing, you are required to file a final accounting
and an itemized and complete list of all properties remaining.
Subsequent annual and final accountings must be filed within 56
days after the close of the accounting period.
"Change of Address: You are required to keep the court and
interested persons informed in writing within 7 days of any
change in your address.
"Notice of Continued Administration: If you are unable to
complete the administration of the estate within one year of your
original appointment, you must file with the court and all
interested persons a notice that the estate remains under
administration, specifying the reason for the continuation of the
administration. You must give this notice within 28 days of the
first anniversary of your appointment and all subsequent
anniversaries during which the administration remains
uncompleted.
"Duty to Complete Administration of Estate: You must
complete the administration of the estate and file appropriate
closing papers with the court. Failure to do so may result in
personal assessment of costs."
(F) Changing from Supervised to Unsupervised Administration. At
any time during supervised administration, any interested person
or the personal representative may petition the court to
terminate supervision of administration. The court may terminate
supervision unless the court finds that proceeding with
supervision is necessary under the circumstances. Termination of
supervision does not discharge the personal representative.
(G) Order of Complete Estate Settlement. An estate being
administered in supervised administration must be closed under
MCL 700.3952, using the procedures specified in MCR
5.311(B)(1)[(A)].
COMMENT: This rule is new, but the contents are modeled on the
former provisions of MCR 5.707. Papers required to be served on
interested persons are subject to MCR 5.104. Requirements
regarding the inventory are in MCL 700.3706 and MCL 700.3707.
Requirements regarding accountings are in MCL 700.3703(4).
Subrule (C) lists only those papers not required to be filed by
some other rule or statute. The reader should not rely on
subrule (C) as a complete list of papers which the personal
representative must file with the court Subrule (F) is modeled
on former MCR 5.709(H) and permits moving from supervised
administration to unsupervised administration. Determination of
whether continuing supervision is necessary should be guided by
MCL 700.3502(2) and (3).
Rule 5.311 Closing Estate Administration
(A) Closing by Sworn Statement[ under MCL 700.3954].
In unsupervised administration, a[ A] personal
representative may close[ closing] an estate by
filing a sworn closing statement under MCL 700.3954 or
MCL 700.3988[, must file a proof of service of the
statement and of the account on all persons required to be
served].
(B) Formal Proceedings.
(1) Requirements for Order of Complete Estate
Settlement[ Administration] under MCL 700.3952. An
estate being administered in supervised administration must be
closed by an order for complete estate settlement under MCL
700.3952. All other estates may be closed under that provision.
A petition for complete estate settlement must state the relief
requested. If the petitioner requests a determination of
testacy, the petitioner must comply with the requirements of the
statute and court rules dealing with a determination of testacy
in a formal proceeding.
(2) Requirements for Settlement Order under MCL 700.3953.
A personal representative or a devisee may file a petition for a
settlement order under MCL 700.3953; only in an estate being
administered under a will admitted to probate in an informal
proceeding. The petition may not contain a request for a
determination of the decedent testacy status in a formal
proceeding.
(3) Discharge. A personal representative may petition for
discharge from liability with notice to the interested persons.
A personal representative who files such a petition with the
court must also file the papers described in MCR 5.310(C) and
(D), as applicable, proofs of service of those papers that are
required to be served on interested persons, and such other
papers as the court may require. The court may order the
personal representative discharged if the court is satisfied that
the personal representative has properly administered the estate.
(4) Other Requests for Relief. With respect to other
requests for relief, the petitioner must file appropriate papers
to support the request for relief.
(5) Order. If the estate administration is completed, the
order entered under MCL 700.3952 or MCL 700.3953 shall, in
addition to any other relief, terminate the personal
representative's authority and close the estate.
(C) Closing of Reopened Estate[ Administration]. After
completion of the reopened estate administration, the personal
representative shall proceed to close the estate by filing a
petition under MCL 700.3952 or MCL 700.3953 or a supplemental
closing statement under MCL 700.3954. If a supplemental closing
statement is filed, the personal representative must serve a copy
on each interested person[ and file a proof of service with
the court]. If an objection is not filed within 28 days, the
personal representative is entitled to receive a supplemental
certificate of completion.
COMMENT: This rule is new. Use of a sworn statement to close an
estate is limited to situations specified in MCL 700.3954 and MCL
700.3988.
Rule 5.312 Reopening Decedent Estate[ Proceeding]
(A) Reopening by Application. If there is good
cause to reopen a previously administered estate, other than an
estate that was terminated in supervised administration, any
interested person may apply to the register to reopen the estate
and appoint the former personal representative or another person
who has priority. For good cause and without notice, the
register may reopen the estate, appoint the former personal
representative or a person who has priority, and issue letters of
authority with a specified termination date.
(B) Reopening by Petition. The previously appointed
personal representative or[ In all other cases,] an
interested person may file a petition with the court to reopen
the estate and appoint a personal representative under MCL
700.3959.
COMMENT: This rule is new. It is adapted from former MCR
5.709(J). It deals with reopening an estate after administration
has been closed. Note that in estates closed by closing
statement under MCL 700.3954, the appointment of the personal
representative continues for one year. In such estates, the
personal representative would have authority to act during that
period without being reappointed. There is no restriction, other
than with regard to supervised administration, against using
informal proceedings to reopen an estate that had been closed by
order.
Rule 5.313[ 8.303] Compensation of Attorneys
(A) Reasonable Fees and Costs. An attorney is entitled to
receive reasonable compensation for legal services rendered on
behalf of a personal representative, and to reimbursement for
costs incurred in rendering those services. In determining the
reasonableness of fees, the court must consider the factors
listed in MRPC 1.5(a). The court may also take into account the
failure to comply with this rule.
(B) Written Fee Agreement. At the commencement of the
representation, the attorney and the personal representative[
]or the proposed personal representative must enter into a
written fee agreement signed by them. A copy of the agreement
must be provided to the personal representative.
(C) Records. Regardless of the fee agreement, every attorney
who represents a personal representative must maintain time
records for services that must reflect the following information:
the identity of the person performing the services, the date the
services are performed, the amount of time expended in performing
the services, and a brief description of the services.
(D) Notice to Interested Persons. Within 14 days after the
appointment of a personal representative or the retention of an
attorney by a personal representative[], whichever is
later, the personal representative[ attorney] must
mail to the interested persons whose interests will be affected
by the payment of attorney fees, a notice in the form
substantially approved by the State Court Administrator and a
copy of the written fee agreement. The notice must state:
(1) the anticipated frequency of payment,
(2) that the person is entitled to a copy of each statement
for services or costs upon request,
(3) that the person may object to the fees at any time
prior to the allowance of fees by the court[ or within 28 days
after the filing of the closing statement, whichever is
earlier],
(4) that an objection may be made in writing or at a
hearing and that a written objection must be filed with the court
and a copy served on the personal representative or attorney.
(E) Payment of Fees. A personal representative make may,
and an attorney may accept, payments for services and costs, on a
periodic basis without prior court approval if prior to the time
of payment
(1) the attorney and personal representative have entered a
written fee agreement;
(2) copies of the fee agreement and the notice required by
subrule (D) have been sent to all interested persons who are
affected;
(3) a statement for services and costs (containing the
information required by subrule [C]) has been sent to the
personal representative and each interested person who has
requested a copy of such statement; and
(4) no written, unresolved objection to the fees, current
or past, has been served on the attorney and personal
representative.
In all other instances, attorney fees must be approved by
the court prior to payment. Costs may be paid without prior
court approval. Attorney fees and costs paid without prior court
approval remain subject to review by the court.
(F) Claims for Compensation, Required Information. Except when
the compensation is consented to by all the parties affected,
the personal representative[ fiduciary] must append
to an accounting, petition, or motion in which compensation is
claimed a statement containing the information required by
subrule (D[C]).
(G) Contingent Fee Agreements under MCR 8.121. Subrules (C),
(E) and (F) of this rule do not apply to a contingent fee
agreement between a personal representative[
fiduciary] and an attorney under MCR 8.121.
COMMENT: This rule was MCR 8.303. It is amended to limit its
applicability to attorneys representing personal representatives
and to reflect changes in practice and terminology by the Estates
and Protected Individuals Code, MCL 700.1101 et seq. The rule is
not intended to dictate the terms of a fee agreement. It
requires that any fee be reasonable and fairly disclosed to the
personal representative and interested persons.
SUBCHAPTER 5.400 GUARDIANSHIP, CONSERVATORSHIP AND PROTECTIVE
ORDER PROCEEDINGS
Rule 5.401 General Provisions
This subchapter governs guardianships, conservatorships, and
protective order proceedings. The other rules in chapter 5 also
apply to these proceedings unless they conflict with rules in
this subchapter. Except as modified in this subchapter,
proceedings for guardianships of adults and minors,
conservatorships and protective orders shall be in accordance
with the Estates and Protected Individuals Code, 1998 PA 386 and,
where applicable, the Mental Health Code, 1974 PA 258, as
amended.
COMMENT: This rule was MCR 5.761.
Rule 5.402 Common Provisions
(A) Petition; Multiple Prayers. A petition for the appointment
of a guardian or a conservator or for a protective order may
contain multiple prayers for relief.
(B) Petition by Minor. A petition and a nomination for the
appointment of a guardian or conservator of a minor may be
executed and made by a minor 14 years of age or older.
(C) Responsibility for Giving Notice; Manner of Service. The
petitioner is responsible for giving notice of hearing.
Regardless of statutory provisions, an interested person may be
served by mail, by personal service, or by publication when
necessary; however, if the person who is the subject of the
petition is 14 years of age or older, notice of the initial
hearing must be served on the person personally unless another
method of service is specifically permitted in the circumstances.
(D) Letters of Authority. On the filing of the acceptance of
appointment[ trust] or bond required by the order
appointing a fiduciary, the court shall issue letters of
authority on a form approved by the state court administrator.
Any restriction or limitation of the powers of a guardian or
conservator must be set forth in the letters of authority.
COMMENT: This rule was MCR 5.762. MCR 5.104(C) excludes a
petition to appoint a guardian from the unopposed petition
procedure of that subrule.
Rule 5.403 Proceedings on Temporary Guardianship
(A) Limitation. The court may appoint a temporary guardian only
in the course of a proceeding for permanent guardianship.
(B) Notice of Hearing, Minor. For good cause, the court may
shorten the period for notice of hearing or may dispense with
notice of a hearing for the appointment of a temporary guardian
of a minor, except that the minor shall always receive notice if
the minor is 14 years of age or older.
(C) Temporary Guardian for Incapacitated Individual Where no
Current Appointment; Guardian Ad Litem. For the purpose of an
emergency hearing for appointment of a temporary guardian of an
alleged incapacitated individual, the court shall appoint a
guardian ad litem unless such appointment would cause delay and
the alleged incapacitated individual would likely suffer serious
harm if immediate action is not taken. The duties of the
guardian ad litem are to visit the alleged incapacitated
individual, report to the court and take such other action as
directed by the court. The requirement of MCL
700.5312(1)[ the Estates and Protected Individuals
Code] that the court hold the fully noticed hearing within 28
days applies only when the court grants temporary relief.
(D) Temporary Guardian for Minor.
(1) Prior to Appointment of Guardian. If necessary during
proceedings for the appointment of a guardian for a minor, the
court may appoint a temporary guardian after a hearing at which
testimony is taken. Where a petition for appointment of a limited
guardian has been filed, the court, before the appointment of a
temporary guardian, shall take into consideration the limited
guardianship placement plan in determining the powers and duties
of the parties during the temporary guardianship.
(2) When Guardian Previously Appointed. If it comes to the
attention of the court that a guardian of a minor is not properly
performing the duties of a guardian, the court, after a hearing
at which testimony is taken, may appoint a temporary guardian for
a period not to exceed 6 months. The temporary guardian shall
have the authority of the previously appointed guardian whose
powers are suspended during the term of the temporary
guardianship. The temporary guardian shall determine whether a
petition to remove the guardian should be filed. If such a
petition is not filed, the temporary guardian shall report to
court with recommendations for action that the court should take
in order to protect the minor upon expiration of the term of the
temporary guardian. The report shall be filed within 1 month of
the date of the expiration of the temporary guardianship.
COMMENT: This rule was MCR 5.763.
Rule 5.404 Guardianship of Minor
(A) Limited Guardianship.
(1) Modification of Placement Plan.
(a) The parties to a limited guardianship placement
plan may file a proposed modification of the plan without filing
a petition. The proposed modification shall be substantially in
the form approved by the state court administrator.
(b) The court shall examine the proposed modified plan
and take further action under subrules (c) and (d) within 14 days
of the filing of the proposed modified plan.
(c) If the court approves the proposed modified plan,
the court shall endorse the modified plan and notify the
interested parties of its approval.
(d) If the court does not approve the modification,
the court either shall set the proposed modification plan for a
hearing or notify the parties of the objections of the court and
that they may schedule a hearing or submit another proposed
modified plan.
(2) Limited Guardianship of the Child of a Minor. On the
filing of a petition for appointment of a limited guardian for a
child whose parent is an unemancipated minor, the court shall
appoint a guardian ad litem to represent the minor parent. A
limited guardianship placement plan is not binding on the minor
parent until consented to by the guardian ad litem.
(B) Limited Guardianship Placement Plans and Court-Structured
Plans.
(1) All limited guardianship placement plans and
court-structured plans shall at least include provisions
concerning all of the following:
(a) visitation and contact with the minor by the
parent or parents sufficient to maintain a parent and child
relationship;
(b) the duration of the guardianship;
(c) financial support for the minor; and
(d) in a limited guardianship, the reason why the
parent or parents are requesting the court to appoint a limited
guardian for the minor.
(2) All limited guardianship placement plans and
court-structured plans may include the following:
(a) a schedule of services to be followed by the
parent or parents, child, and guardian and
(b) any other provisions that the court deems
necessary for the welfare of the child.
(C) Evidence.
(1) Reports, Admission into Evidence. At any hearing
concerning a guardianship of a minor, all relevant and material
evidence, including written reports, may be received by the court
and may be relied on to the extent of their probative value, even
though such evidence may not be admissible under the Michigan
Rules of Evidence.
(2) Written Reports, Review and Cross-Examination.
Interested parties shall be afforded an opportunity to examine
and controvert written reports so received and, in the court's
discretion, may be allowed to cross-examine individuals making
reports when such individuals are reasonably available.
(3) Privilege, Abrogation. No assertion of an evidentiary
privilege, other than the privilege between attorney and client,
shall prevent the receipt and use of materials prepared pursuant
to a court-ordered examination, interview, or course of
treatment.
(D) Review of Guardianship for Minor.
(1) Periodic Review. The court shall conduct a review of a
guardianship of a minor annually in each case where the minor is
under age 6 as of the anniversary of the qualification of the
guardian. The review shall be commenced within 63 days after the
anniversary date of the qualification of the guardian. The court
may at any time conduct a review of a guardianship as it deems
necessary.
(2) Investigation. The court shall appoint the Family
Independence Agency or any other person to conduct an
investigation of the guardianship of a minor. The investigator
shall file a written report with the court within 28 days of such
appointment. The report shall include a recommendation regarding
whether the guardianship should be continued or modified and
whether a hearing should be scheduled. If the report recommends
modification, the report shall state the nature of the
modification.
(3) Judicial Action. After informal review of the report,
the court shall enter an order continuing the guardianship or set
a date for a hearing to be held within 28 days. If a hearing is
set, an attorney may be appointed to represent the minor.[
(4) Pending Cases. As soon as practical, but not later
than one year after the effective date of this rule, the court
shall conduct a review of all guardianships of minors in which
the minor is under the age of 6. Thereafter, the court shall
conduct an annual review until the minor reaches age 6.]
(E) Termination of Guardianship.
(1) Necessity of Order. A guardianship may terminate
without order of the court on the minor's death, adoption,
marriage, or attainment of majority. No full, testamentary, or
limited guardianship shall otherwise terminate without an order
of the court.
(2) Continuation of Guardianship. When a court has
continued a guardianship for a period not exceeding one year, the
court shall hold the final hearing not less than 28 days before
the expiration of the period of continuance.
(3) Petition for Family Division of Circuit Court to Take
Jurisdiction. If the court appoints an attorney or the Family
Independence Agency to investigate whether to file a petition
with the family division of circuit court to take jurisdiction of
the minor, the attorney or Family Independence Agency shall,
within 21 days, report to the court that a petition has been
filed or why a petition has not been filed.
(a) If a petition is not filed with the family
division, the court shall take such further action as is
warranted, except the guardianship may not be continued for more
than one year after the hearing on the petition to terminate.
(b) If a petition is filed with the family division,
the guardianship shall terminate when the family division
authorizes the petition under MCL 712A.11, unless the family
division determines that continuation of such guardianship
pending disposition is necessary for the well-being of the child.
(4) Resignation of Limited Guardian. A petition by a
limited guardian to resign shall be treated as a petition for
termination of the limited guardianship. The parents or the sole
parent with the right to custody may file a petition for a new
limited guardianship. If the court does not approve the new
limited guardianship or if no petition is filed, the court may
proceed in the manner for termination of a guardianship under
section 5209 or 5219 of the Estates and Protected Individuals
Code, MCL 700.5209 or MCL 700.5219.
(5) Petition for Termination by a Party Other than a
Parent. If a petition for termination is filed by other than a
parent, the court may proceed in the manner for termination of a
guardianship under section 5209 of the Estates and Protected
Individuals Code, MCL 700.5209.
COMMENT: This rule was MCR 5.764.
Rule 5.405 Proceedings on Guardianship of Incapacitated
Individual
(A) Examination by Physician or Mental Health Professional.
(1) Admission of Report. The court may receive into
evidence without testimony a written report of a physician or
mental health professional who examined an individual alleged to
be incapacitated, provided that a copy of the report is filed
with the court five days before the hearing and that the report
is substantially in the form required by the state court
administrator. A party offering a report must promptly inform
the parties that the report is filed and available. The court
may issue on its own initiative, or any party may secure, a
subpoena to compel the preparer of the report to testify.
(2) Abrogation of Privilege. A report ordered by the court
may be used in guardianship proceedings without regard to any
privilege. Any privilege regarding a report made as part of an
independent evaluation at the request of a respondent is waived
if the respondent seeks to have the report considered in the
proceedings.
(3) Determination of Fee. As a condition of receiving
payment, the physician or mental health professional shall submit
an itemized statement of services and expenses for approval. In
reviewing a statement, the court shall consider the time required
for examination, evaluation, preparation of reports and court
appearances; the examiner's experience and training; and the
local fee for similar services.
(B) Hearings at Site Other Than Courtroom. When hearings are
not held in the courtroom where the court ordinarily sits, the
court shall ensure a quiet and dignified setting that permits an
undisturbed proceeding and inspires the participants' confidence
in the integrity of the judicial process.
(C) [Testamentary ]Guardian of Incapacitated
Individual Appointed by Will or Other Writing.
(1) Appointment. A[ testamentary] guardian
appointed by will or other writing under MCL 700.5301 may
qualify after the death or adjudicated incapacity of a
parent or spouse who had been the guardian of an incapacitated
individual by filing an acceptance of appointment[
trust] with the court that has jurisdiction over the
guardianship[ appointed the deceased parent or spouse as
guardian]. Unless the court finds the person unsuitable or
incompetent for the trust, the court shall issue to the
nominated[ testamentary] guardian letters of
guardianship equivalent to those that had been issued to the
deceased guardian.
(2) Notice, Revocation. The testamentary guardian shall
notify the court in which the testamentary instrument has been or
will be filed of the appointment as guardian. The probating
court shall notify the court having jurisdiction over the
guardianship if the will is denied probate, and the court having
the guardianship jurisdiction shall immediately revoke the
letters of guardianship.
COMMENT: This rule was MCR 5.765. Subrule (C) is changed to
reflect the nomination of a guardian by a writing other than a
will in MCL 700.5301. If there is a difference between the court
designated by the rule for filing the acceptance of appointment
and that designated by the statute, the nominated guardian should
file in both courts.
Rule 5.406 Testamentary Guardian of Individual With
Developmental Disabilities
(A) Appointment. If the court has not appointed a standby
guardian, a testamentary guardian may qualify after the death of
a parent who had been the guardian of an individual with
developmental disabilities by filing an acceptance of
appointment[ trust] with the court that appointed the
deceased parent as guardian. If the nominated person is to act
as guardian of the estate of the ward, the guardian should also
file a bond in the amount last required of the deceased guardian.
Unless the court finds the person unsuitable or incompetent for
the appointment[ trust], the court shall issue to
the testamentary guardian letters of authority equivalent to
those that had been issued to the deceased guardian.
(B) Notice, Revocation. The testamentary guardian must notify
the court in which the testamentary instrument has been or will
be filed of the appointment as guardian. The probating court
shall notify the court having jurisdiction over the guardianship
if the will is denied probate, and the court having the
guardianship jurisdiction shall immediately revoke the letters of
authority.
COMMENT: This rule was MCR 5.766.
Rule 5.407 Conservatorship; Approval of Sale of Real Estate;
Settlements
(A) Approval of Sale. Unless the court has otherwise restricted
the letters of authority, a conservator, acting reasonably in
efforts to accomplish the purpose for which the conservator was
appointed, may act without court authorization or approval to
sell, mortgage, or lease real property of the protected person or
any interest therein.
(B) Settlements. A conservator may not enter into a settlement
in any court on behalf of the protected person if the conservator
will share in the settlement unless a guardian ad litem has been
appointed to represent the protected person's interest and has
consented to such settlement in writing or on the record or the
court approves the settlement over any objection.
COMMENT: This rule was MCR 5.767.
Rule 5.408 Review and Modification of Guardianships of Legally
Incapacitated Individuals
(A) Periodic Review of Guardianship.
(1) Periodic Review. The court shall commence a review of
a guardianship of a[n] legally incapacitated
individual not later than 1 year after the appointment of the
guardian and not later than every 3 years thereafter.
(2) Investigation. The court shall appoint a person to
investigate the guardianship and report to the court by a date
set by the court. The person appointed must visit the
legally incapacitated individual or include in the report to
the court an explanation why a visit was not practical. The
report shall include a recommendation on whether the guardianship
should be modified.
(3) Judicial Action. After informal review of the report,
the court shall enter an order continuing the guardianship, or
enter an order appointing an attorney to represent the
legally incapacitated individual for the purpose of filing a
petition for modification of guardianship. In either case, the
court shall send a copy of the report and the order to the
legally incapacitated individual and the guardian.
(4) Petition for Modification. If an attorney is appointed
under subrule (A)(3), the attorney shall file proper pleadings
with the court within 14 days of the date of appointment.
(B) Petition for Modification; Appointment of Attorney or
Guardian Ad Litem.
(1) Petition by Legally Incapacitated Individual.
If a petition for modification or written request for
modification comes from the legally incapacitated
individual and that individual does not have an attorney, the
court shall immediately appoint an attorney.
(2) Petition by Person Other Than Legally
Incapacitated Individual. If a petition for modification or
written request for modification comes from some other party, the
court shall appoint a guardian ad litem. If the guardian ad
litem ascertains that the legally incapacitated individual
contests the relief requested, the court shall appoint an
attorney for the legally incapacitated individual and
terminate the appointment of the guardian ad litem.
COMMENT: This rule was MCR 5.768.
Rule 5.409 Report of Guardian; Inventories and Accounts of
Conservators
(A) Reports. A guardian shall file a written report annually
within 56 days after the anniversary of appointment and at other
times as the court may order. Reports must be substantially in
the form approved by the state court administrator.
(B) Inventories.
(1) Guardian. At the time of appointing a guardian, the
court shall determine whether there would be sufficient assets
under the control of the guardian to require the guardian to file
an inventory. If the court determines that there are sufficient
assets, the court shall order the guardian to file an inventory.
(2) Filing and Service. Within 56 days after appointment,
a conservator or, if ordered to do so, a guardian shall file with
the court a verified inventory of the estate of the protected
person, serve copies on the persons required by law or court rule
to be served, and file proof of service with the court.
(C) Accounts.
(1) Filing, Service. A conservator must file
an annual account unless ordered not to by the court. A guardian
must file an annual account if ordered by the court.[ A
conservator and guardian, if ordered by the court, shall file an
annual account unless otherwise ordered by the court.] The
copy of the account served on interested persons must include a
notice that any objections to the account should be filed with
the court and noticed for hearing. When required, an
accounting must be filed within 56 days after the end of the
accounting period.
(2) Accounting Period. The accounting
period ends on the anniversary date of the issuance of the
letters of authority, unless the conservator selects another
accounting period or unless the court orders otherwise. If the
conservator selects another accounting period, notice of that
selection shall be filed with the court. The accounting period
may be a calendar year or a fiscal year ending on the last day of
a month. The conservator may use the same accounting period as
that used for income tax reporting, and the first accounting
period may be less than a year but not longer than a year.
(3) Hearing. On filing, the account may
be set for hearing or the hearing may be deferred to a later
time.
(4) Exception, Conservatorship of Minor.
Unless otherwise ordered by the court, no accounting is required
in a minor conservatorship where the assets are restricted or in
a conservatorship where no assets have been received by the
conservator.
(5) Contents. The accounting is subject
to the provisions of MCR 5.310(C)(2)(c) and (d), except that
references to a personal representative shall be to a
conservator.
(6) Periodic Review. Unless accounts have
been allowed, the court shall review the accounts no less often
than once every three years.
(D) Service and Notice. A copy of the account must be sent to
the interested persons[ parties] as provided by
these rules. Notice of hearing to approve the account must be
given to interested persons[ parties] as provided
in subchapter 5.100 of these rules.
(E) Procedures. The procedures prescribed in MCR 5.203, 5.204
and 5.310(E) apply to guardianship and conservatorship
proceedings, except that references to a personal representative
shall be to a guardian or conservator, as the situation dictates.
(F) Death of Ward. If an individual who is subject to a
guardianship or conservatorship dies, the guardian or conservator
must give written notification to the court within 14 days of the
individual's date of death. If accounts are required to be filed
with the court, a final account must be filed within 56 days of
the date of death.
COMMENT: This rule was MCR 5.769. Subrule (C) is amended to
reflect that MCL 700.5418 requires annual accounting. Two
exceptions are added in subrule (C)(4) for situations where no
purpose would be served by an accounting. New subrule (C)(6)
requires court review of accounts no less often than once every
three years. The scope of the review is not defined, so as to
allow the court flexibility in choosing among methods such as
staff review, appointment of a guardian ad litem and other
methods which may be appropriate for specific files. However,
minimum levels of review should be consistent with standards to
be set by the State Court Administrator.
SUBCHAPTER 5.500 TRUST PROCEEDINGS
Rule 5.501 Trust Proceedings in General
(A) Applicability. This subchapter applies to all trusts
as defined in MCL 700.1107(m), including a trust established
under a will and a trust created by court order or a separate
document.
(B) Independent Administration of Trusts. Unless an interested
person invokes court jurisdiction, the administration of a trust
shall proceed expeditiously, consistent with the terms of the
trust, free of judicial intervention and without court order,
approval, or other court action. Neither registration nor a
proceeding concerning a trust results in continued supervisory
proceedings.
(C) Commencement of Trust Proceedings. A proceeding concerning
a trust is commenced by filing a petition in the court where the
trust is or could be properly registered. Registration of the
trust is not required for filing a petition.
(D) Appointment of Trustee not Named in Creating Document. An
interested person may petition the court for appointment of a
trustee when the order, will, or other document creating a trust
does not name a trustee or when the person named in the creating
document is either not available or cannot be qualified as
trustee. The petitioner must give notice of hearing on the
petition to the interested persons. The court may issue an order
appointing as trustee the person nominated in the petition or
another person. The order must state whether the trustee must
file a bond or execute an acceptance[ of trust].
(E) Qualification of Trustee. A trustee appointed by an order
of the court, nominated as a trustee in a will that has been
admitted to probate or nominated as a successor in a document
other than a will that created a trust shall qualify by executing
an acceptance indicating the nominee's willingness to serve. The
trustee must serve the acceptance and order, if any, on the then
known current trust beneficiaries and, in the case of a
testamentary trustee, on the personal representative of the
decedent estate, if one has been appointed. No letters of
trusteeship shall be issued by the court. The trustee or the
attorney for the trustee may establish the trustee's incumbency
by executing an affidavit to that effect, identifying the trustee
and the trust document and indicating that any required bond has
been filed with the court and is in force.
(F) Transitional Rule. A trustee of a trust under the
jurisdiction of the court before April 1, 2000, may request an
order of the court closing court supervision and the file. On
request by the trustee or on its own initiative, the court may
order the closing of supervision of the trust and close the file.
The trustee must give notice of the order to all current trust
beneficiaries. Closing supervision does not preclude any
interested trust beneficiary from later petitioning the court for
supervision. Without regard to whether the court file is closed,
all letters of authority for existing trusts are canceled as of
April 1, 2000, and the trustee's incumbency may be established in
the manner provided in subrule (E).
COMMENT: This rule is new. The Estates and Protected
Individuals Code provides that courts do not generally supervise
trusts. MCL 700.7201(2). Subrule (F) applies to trusts under
court supervision as of April 1, 2000, including those under
former MCR 5.722(E).
Rule 5.502 Supervision of Trusts
If, during a trust proceeding, the court orders supervision of
the trust, the court shall specify the terms of the supervision.
COMMENT: This rule is new.
Rule 5.503 Notice to Creditors by Trustee of Revocable Inter
Vivos Trust
(A) Place of Publication. A notice that must be published under
MCL 700.7504 must be published in a newspaper as defined by MCR
2.106(F) in the county in which the settlor was domiciled at the
time of death.
(B) When Notice is not Required. The trustee of a revocable
inter vivos trust is not required to give notice to creditors in
the following situations:
(1) The costs of trust administration equal or exceed the
value of the trust estate, or
(2) The settlor has been dead for more than 3 years.
COMMENT: This rule is new. The provisions on when a trustee of
a revocable inter vivos trust must give notice to creditors are
found at MCL 700.7504.
SUBCHAPTER 5.730 MENTAL HEALTH RULES [Unchanged.]
SUBCHAPTER 5.750 ADOPTION [Unchanged.]
COMMENT: The proceedings described in this subchapter have been
transferred to the exclusive jurisdiction of the family division
of the circuit court. However, the subchapter is left in place
temporarily until development of rules for family division.
SUBCHAPTER 5.780 MISCELLANEOUS PROCEEDINGS
Rule 5.781 Change of Name [Unchanged.]
COMMENT: The proceedings described in this rule have been
transferred to the exclusive jurisdiction of the family division
of the circuit court. However, the rule is left in place
temporarily until development of rules for family division.
Rule 5.782 Health Threats to Others [Unchanged.]
COMMENT: The proceedings described in this rule have been
transferred to the exclusive jurisdiction of the family division
of the circuit court. However, the rule is left in place
temporarily until development of rules for family division.
Rule 5.783 Parental Rights Restoration Act Proceedings
[Unchanged.]
COMMENT: The proceedings described in this rule have been
transferred to the exclusive jurisdiction of the family division
of the circuit court. However, the rule is left in place
temporarily until development of rules for family division.
Rule 5.784 Proceedings on a Durable Power of Attorney for Health
Care [Unchanged.]
SUBCHAPTER 5.800 APPEALS
Rule 5.801 Appeals to Other Courts
(A) Right to Appeal. An interested person aggrieved by an order
of the probate court may appeal as provided by this rule.
(B) Orders Appealable to Court of Appeals. Orders appealable of
right to the Court of Appeals are defined as and limited to the
following:
(1) []a final order affecting the rights or
interests of an interested person in a decedent estate, the
estate of a person who has disappeared or is missing, a
conservatorship or other protective proceeding, the estate of an
individual with developmental disabilities, or an inter vivos or
testamentary trust. These are defined as and limited to orders
resolving the following matters:
(a) - (bb) [Unchanged.]
(2) other appeals as may be hereafter provided by statute.
(C) Final Orders Appealable to Circuit Court. All final orders
not enumerated in subrule (B) are appealable of right to the
circuit court. These include, but are not limited to:
(1) a final order affecting the rights and interests of an
adult or a minor in a guardianship proceeding;
(2) a final order affecting the rights or interests of a
person under the Mental Health Code, except for a final order
affecting the rights or interests of a person in the estate of an
individual with developmental disabilities.
(D) Interlocutory Orders. An interlocutory order, such as an
order regarding discovery; ruling on evidence; appointing a
guardian ad litem; or suspending a fiduciary for failure to give
a new bond, to file an inventory, or to render an account, may be
appealed only to the circuit court and only by leave of that
court. The circuit court shall pay particular attention to an
application for leave to appeal an interlocutory order if the
probate court has certified that the order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal may materially
advance the termination of the litigation.
(E) Transfer of Appeals From Court of Appeals to Circuit Court.
If an appeal of right within the jurisdiction of the circuit
court is filed in the Court of Appeals, the Court of Appeals may
transfer the appeal to the circuit court, which shall hear the
appeal as if it had been filed in the circuit court.
(F) Appeals to Court of Appeals on Certification by Probate
Court. Instead of appealing to the circuit court, a party may
appeal directly to the Court of Appeals if the probate court
certifies that the order involves a controlling question of law
as to which there is substantial ground for difference of opinion
and that an appeal directly to the Court of Appeals may
materially advance the ultimate termination of the litigation.
An appeal to the Court of Appeals under this subrule is by leave
only under the provisions of MCR 7.205. In lieu of granting
leave to appeal, the Court of Appeals may remand the appeal to
the circuit court for consideration as on leave granted.
Rule 5.802 Appellate Procedure; Stays Pending Appeal
(A) Procedure. Except as modified by this subchapter, chapter 7
of these rules governs appeals from the probate court.
(B) Record.
(1) An appeal from the probate court is on the papers filed
and a written transcript of the proceedings in the probate court
or on a record settled and agreed to by the parties and approved
by the court. The appeal is not de novo.
(2) The probate register may transmit certified copies of
the necessary documents and papers in the file if the original
papers are needed for further proceedings in the probate court.
The parties shall not be required to pay for the copies as costs
or otherwise.
(C) Stays Pending Appeals. An order removing a fiduciary;
appointing a special personal representative or a special
fiduciary; granting a new trial or rehearing; granting an
allowance to the spouse or children of a decedent; granting
permission to sue on a fiduciary's bond; or suspending a
fiduciary and appointing a special fiduciary, is not stayed
pending appeal unless ordered by the court on motion for good
cause.
* * *
Rule 2.420 Settlements and Judgments for Minors
and Legally Incapacitated Individuals[ Incompetent
Persons]
(A) Applicability. This rule governs the procedure to be
followed for the entry of a consent judgment, a settlement, or a
dismissal pursuant to settlement in an action brought for a minor
or a legally incapacitated individual[ an incompetent
person] by a next friend, guardian, or conservator or
where a minor or a legally incapacitated individual is to receive
a distribution from a wrongful death claim. Before an action
is commenced, the settlement of a claim on behalf of a minor
or a legally incapacitated individual[ an incompetent
person] is governed by the Estates and Protected
Individuals Code[ Revised Probate Code].
(B) Procedure. In actions covered by this rule, a proposed
consent judgment, settlement, or dismissal pursuant to settlement
must be brought before the judge to whom the action is assigned
and the judge shall pass on the fairness of the proposal.
(1) If the claim is for damages because of personal injury
to the minor or legally incapacitated individual[
incompetent person],
(a) the minor or legally incapacitated
individual[ incompetent person] shall appear in court
personally to allow the judge an opportunity to observe the
nature of the injury unless, for good cause, the judge excuses
the minor's or legally incapacitated individual's[
incompetent person's] presence, and
(b) [unchanged]
(2) If the next friend, guardian, or conservator is a
person who has made a claim in the same action and will share in
the settlement or judgment of the minor or legally
incapacitated individual[ incompetent person], then a
guardian ad litem for the minor or legally incapacitated
individual[ incompetent person] must be appointed by
the judge before whom the action is pending to approve the
settlement or judgment.
(3) If a next friend, guardian or conservator for
the minor or legally incapacitated individual has been appointed
by a probate court[ and the amount of the proposed settlement
exceeds the amount of the guardian's or conservator's bond],
the terms of the proposed settlement or judgment may be approved
by the court in which the action is pending upon a finding
that the payment arrangement is in the best interests of the
minor or legally incapacitated individual, but no judgment or
dismissal may enter until the[ probate] court receives
written verification from the probate court that it has
passed on the sufficiency of the bond and the bond, if any,
has been filed with the probate court.
(4) The following provisions apply to settlements for
minors.
(a) [unchanged]
(b) If the settlement or judgment does not require
payment of more than $5,000 to the minor in any single year, the
money may be paid in accordance with the provisions of MCL
700.5102[ MCL 700.403].
(5) If a settlement or judgment provides for the
creation of a trust for the minor or legally incapacitated
individual, the circuit court shall determine the amount to be
paid to the trust, but the trust shall not be funded without
prior approval of the trust by the probate court pursuant to
notice to all interested persons and a hearing.
COMMENT: In evaluating whether the payment arrangement of a
structured settlement is in the best interests of a minor or
legally incapacitated individual, the court should consider the
age and life expectancy and current and anticipated financial
needs of the minor or individual, any income and estate tax
implications, any impact on eligibility for government benefits
and the present value of the proposed payment arrangement.
[Rule 8.303 Compensation of Attorneys] [rule deleted]
STAFF COMMENT: The above rules were adopted July 12, 2001,
effective January 1, 2002.