ICLE Homepage | Other Proposed Amendments to the MCRs
January 14, 2000
99-62
Proposed 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
_________________________________
On order of the Court, this is to advise that the Court
is considering amendments of MCR 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. Before determining whether the proposals should
be adopted, changed before adoption, or rejected, this notice is
given to afford any interested person the opportunity to comment
on the form or the merits of the proposals. We welcome the views
of all who wish to address the proposals or who wish to suggest
alternatives. Before adoption or rejection, these proposals will
be considered at a public hearing by the Court. The Clerk of the
Court will publish a schedule of future public hearings.
As whenever this Court publishes administrative
proposals for comment, we emphasize that publication of these
proposals does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposals in
their present form. The Court may implement these rules as
interim rules prior to April 1, 2000.
[The present language would be amended as indicated below.]
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.; MSA 27.11101 et seq., effective April 1, 2000,
changes 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 reviewed subchapters 5.000 through 5.780 of the
Michigan Court rules and made proposals to harmonize the rules
with EPIC. The committee has drafted comments to many of the
rules, briefly summarizing the purpose of the changes and
pointing the reader to the relevant provisions in EPIC.
In general, EPIC significantly reduces court involvement in
trusts and estates. Most estates will be administered by
personal representatives without court involvement except at the
opening and closing of the estate. EPIC does not provide
terminology for this regular, unsupervised administration and
these comments will use the term "unsupervised administration."
Under EPIC, unsupervised administration may commence either
through informal probate and appointment proceedings involving
filing certain papers to be reviewed by the probate register, MCL
700.3301 through 700.3311; MSA 27.13301 through 27.13311 or
through formal testacy and appointment proceedings, resulting in
orders from the judge of probate, MCL 700.3401 through 700.3414;
MSA 27.13401 through 27.13414. Similarly, closing unsupervised
administration may be through filing a closing statement and
register's certificate, MCL 700.3954 and 700.3958; MSA 27.13954
and 27.13958 or through formal proceedings resulting in orders of
the court, MCL 700.3952 and 700.3953; MSA 27.13952 and 27.13953.
EPIC provides for requests to the court for rulings on matters
which may arise during the administration, MCL 700.3415; MSA
27.13415. EPIC also contains provisions allowing administration
under continuing court supervision, MCL 700.3501 through
700.3505; MSA 27.13501 through 27.13505, but that will be the
exception.
The proposed amendments affect every rule in chapter 5
except for subchapters 5.000 (applicability), 5.730 (mental
health rules), 5.750 (adoption), and 5.900 (proceedings in
juvenile division). Rules formerly in subchapters 5.200 through
5.600 have been renumbered and placed in subchapter 5.100
(general rules of pleading and practice). To the maximum extent
possible, these rules have been renumbered so that the last two
digits of the new rule number match the prior subchapter number
and final digit. Thus, new MCR 5.121 deals with the
subject matter of prior MCR 5.201; new MCR
5.125, with the subject matter of prior MCR
5.205 and so forth. Other renumbering is as
follows: subchapter 5.715 (provisions common to multiple types
of fiduciaries is moved to subchapter 5.200; subchapter 5.700
(proceedings in decedent estates), to subchapter 5.300;
subchapter 5.760 (guardianship, conservatorship, and protective
order proceedings), to subchapter 5.400; and subchapter 5.720
(trust proceedings), to subchapter 5.500. Miscellaneous
proceedings remain as subchapter 5.780; and appeals as subchapter
5.800. Where a new rule substantially duplicates an old rule,
the changes are shown in the order of the Supreme Court
publishing the proposals for comment. Prior rules so shown are
to be amended as shown. All other prior rules in the affected
subchapters are repealed.
Rule 5.001 Applicability [Unchanged.]
SUBCHAPTER 5.100 GENERAL RULES OF PLEADING AND
PRACTICE[ FORM OF ACTION; NOTICE; SERVICE; FORM OF PAPERS;
APPEARANCE]
Rule 5.101 Form and Commencement of Action
(A) [Unchanged.]
(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[ or trustee], and
(2) A complaint[ petition] 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
[parties]. 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 [party].
(B) [Unchanged.]
Rule 5.104 Proof of Service; Waiver and Consent; Unopposed
Petition
(A) Proof of Service.
(1)-(2) [Unchanged.]
(3) In decedent estates, no proof of service need be
filed unless required by court rule.
(B) Waiver and Consent.
(1) [Unchanged.]
(2) Consent. The relief requested in an
application, petition or motion may be granted by
consent. An interested person[ party]
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) [Unchanged.]
(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 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[ party];
(b) by a person designated in these rules as eligible
to be served on behalf of an interested
person[ party] who is a legally
disabled person; or
(c) on behalf of an interested person[
party] 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[
parties] have consented, the order may be entered
immediately[, except that an order determining heirs
may not be entered before the published date of the
hearing].
(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
8.303. 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[ party]
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[ party] by registered,
certified, or ordinary first-class mail. Foreign
consul and the Attorney General may be served by mail.
(3) An interested person[ party] 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[ party] could not be ascertained
on diligent inquiry. Except in proceedings affecting
the estate of a disappeared person or an absent
apparent beneficiary, after an interested
person[ party] has once been served by
publication, notice is only required on an interested
person[ party] 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[
party], or
(b) service cannot otherwise reasonably be made.
(B) Method of Service.
(1) Personal Service.
(a) - (b) [Unchanged.]
(c) On Persons[ Parties] Other Than
Individuals. Service on an interested
person[ party] other than an
individual must be made in the manner provided in
MCR 2.105(C)-(G).
(2) - (3) [Unchanged.]
(C) Petitioner, Service Not Required. For service of notice of
hearing on a petition, the petitioner, although otherwise an
interested person[ party], 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[ party], 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[
parties].
(D) Service on Persons[ Parties] Under Legal
Disability or Otherwise Legally Represented. Service on an
interested person[ party] under legal
disability or otherwise legally represented may be made
instead on the following:
(1) The guardian of an adult[, conservator,
personal representative] or guardian ad litem of a
minor or other legally disabled person, except
with respect to:
(a) a petition[s] for commitment
or
(b) a petition, account or report made as the
guardian or guardian ad litem.[ for the
appointment of a guardian of an adult and except
that a guardian, personal representative or
conservator may not be served on behalf of the
party represented on petitions, accounts, or
reports made by him or her as guardian,
conservator, or personal representative.]
(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.
(3) The guardian ad litem of any unascertained[,
unknown,] 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[ child] and provided the parent has
filed an appearance on behalf of the minor.
(5) The attorney for an interested person[
party] 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[ party]
under an unrevoked power of attorney filed with the
court. A power of attorney is deemed unrevoked until
written revocation is filed.
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[ trustee] 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[, unknown,] or
unborn persons, notice and papers must be served on the
persons to whom the interest is first limited.
(2) [Unchanged.]
(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[, unknown,] 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);
MSA 27.15219(2) and 27.15405(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) - (B) [Unchanged.]
(C) Affidavit of Publication. The person who orders the
publication[ publisher] must cause to be
filed with the court a copy of the publication notice
and the publisher's[ an] 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[
party] at his or her last known address if the
person's[ party's] present address is not
known and cannot be ascertained by diligent inquiry;
(2) need not be mailed to an interested person[
party] if an address cannot be ascertained by
diligent inquiry.
(E) [Unchanged.]
Rule 5.107 Other Papers Required to be Served
(A) Other Papers to be Served[ Petitions;
Responses; Wills and Codicils; Inventories;
Accountings]. In addition to filing other
papers required to be served by statute or court rule,
the person filing[ A copy of] a petition,
a sworn testimony form, supplemental sworn testimony
form, a motion, a response or objection, an
instrument offered or admitted to probate,[ to a
petition, purported will, purported codicil, inventory
and] an accounting or a closing
statement [filed] with the court must
serve a copy of that document[ be served]
on interested persons[ parties]. 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 paper provided in this rule
is not required to be made on an interested
person[ a party] whose address or
whereabouts, on diligent inquiry, is unknown, or on an
unascertained[, unknown], or unborn person. The
court may excuse service on an interested
person[ party] for good cause.
(2) Service is not required for a small estate
filed under MCL 700.3982; MSA 27.13982.
[(C) Independent Probate. This rule does not apply to
independent probate. Service and filing of documents
in independent probate are governed by MCR 5.709 and
article 3 of the Revised Probate Code. MCL
700.301-700.361; MSA 27.5301-27.5361.]
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) - (D) [Unchanged.]
(E) Responses. 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
[Unchanged.]
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) [Unchanged.]
(b) include the
(i) [Unchanged.]
(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) - (iv) [Unchanged.]
(c) [Unchanged.]
(2) [Unchanged.]
(B) [Unchanged.]
[(C) Filing. The court must endorse the date of receipt on
all papers filed.]
(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) [Unchanged.]
(2) When a person[ party] 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, and closing
statement must be signed by the fiduciary or
trustee. A receipt for assets must be signed by
the person[ party] 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) [Unhanged.]
COMMENT: Subrule (B)(1) is amended to correspond with MCL
600.852; MSA 27A.852.
Rule 5.117 Appearance by Attorneys
(A) Representation of Fiduciary[ or Trustee]. An
attorney filing an appearance on behalf of a fiduciary[
or trustee] shall represent the fiduciary[ or
trustee].
(B) Appearance.
(1) In General. An attorney may appear by an act
indicating that the attorney represents an interested
person[ party] in the proceeding. An
appearance by an attorney for an interested
person[ party] is deemed an appearance by
the interested person[ party]. Unless a
particular rule indicates otherwise, any act required
to be performed by an interested person[
party] may be performed by the attorney
representing the interested person[
party].
(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[ parties], the attorney must
promptly file a written appearance and serve it on the
interested persons whose addresses are known and on the
fiduciary[ or trustee]. 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[
party].
(b) [Unchanged.]
(C) Duration of Appearance by Attorney.
(1) [Unchanged.]
(2) Appearance on Behalf of Fiduciary[ or Trustee].
An appearance on behalf of a fiduciary[ or
trustee] 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 [an
Independent] Personal Representative. In
unsupervised administration[ independent
probate], the probate register may enter an order
terminating an appearance on behalf of a[n
independent] personal representative[ without
supervised proceedings] if the[ independent]
personal representative consents in writing to the
termination.
(4) Other Appearance. An appearance on behalf of a client
other than a fiduciary[ or trustee] 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[ proceeding] or the
probate register in unsupervised
administration[ independent probate] may
enter an order permitting the substitution without
prior notice to the interested persons or fiduciary[
or trustee]. If the order is entered, the
substituted attorney must give notice of the
substitution to all interested persons and the
fiduciary[ and trustee].
(D) [Unchanged.]
Rule 5.118 Amending or Supplementing Papers
(A) Papers Subject to Hearing. A person[ party]
who has filed a paper that[ which] is subject
to a hearing may amend or supplement the paper
(1) - (2) [Unchanged.]
(B) Papers not Subject to Hearing. A person[
party] 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[ party] 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[ or trustee] and
other interested persons[ parties] whose
addresses are known.
(B) Objection to Pending Matter. An interested
person[ party] 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) - (D) [Unchanged.]
Rule 5.120 Action by Fiduciary[ or Trustee] in Contested
Matter; Notice to Interested Persons[ Parties];
Failure to Intervene.
The fiduciary[ or trustee] represents the interested
persons[ parties] in a contested matter. The
fiduciary[ or trustee] must give notice to all interested
persons[ parties] whose addresses are known that a
contested matter has been commenced and must keep such interested
persons[ parties] reasonably informed of the
fiduciary's[ or trustee's] actions concerning the matter.
The fiduciary[ or trustee] must inform the interested
persons[ parties] 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[
or trustee]. The interested person[ party]
shall be bound by the actions of the fiduciary[ or
trustee] after such notice and until the interested
person[ party] notifies the fiduciary[ or
trustee] that the interested person[ party] has
filed with the court a petition to intervene.
Rule 5.121 Guardian Ad Litem; Visitor
(A) - (B) [Unchanged from former MCR 5.201(A)-(B).]
(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) [Unchanged from former MCR 5.201(D)(1).]
(2) Reports, Review and Cross-Examination.
(a) Any interested person[ party] shall
be afforded an opportunity to examine and
controvert reports received into evidence.
(b) [Unchanged from former MCR 5.201(D)(2)(b).]
(c) Other interested persons[ parties]
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) [Unchanged from former MCR 5.201(E).]
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.
Rule 5.125 Interested Persons[ Parties]
Defined
(A) Special Persons[ Parties]. In addition to
persons[ parties] named in subrule (C) with
respect to specific proceedings, the following
persons[ officers and representatives] must be
served[ when required by law or court rule, including but
not limited to the following]:
(1) -(3) [Unchanged from former MCR 5.205(A)(1)-(3).]
(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[ party], 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[ party].
(6) A special fiduciary appointed under MCL 700.1309;
MSA 27.11309.
(7) A person who filed a demand for notice under MCL
700.3205; MSA 27.13205 or MCL 700.5104; MSA 27.15104 if
the demand has not been withdrawn or terminated by
court order.
(B) Special Conditions for Interested Persons[
Parties].
(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; MSA 27.17504, and whose
claim remains undetermined or unpaid need be notified
of specific proceedings under subrule (C).
(2) [Unchanged from former MCR 5.205(B)(2).]
(3) Trust as Devisee. If either a trust or a trustee is
a devisee the trustee is the interested person.[
If the devisee is a trust, the interested party is the
trustee.] If no trustee has qualified[
been appointed], the interested persons[
parties] 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[ parties]
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[ parties] 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[ of the testator],[ and]
(d) nominated personal representative, and
(e) trustee of a revocable trust described in MCL
700.7501(1); MSA 27.17501(1).
(2) The persons[ parties] interested in an
application or a petition to appoint a personal
representative, other than a special[
temporary] personal representative, of an intestate
estate are the
(a) heirs,[ of the decedent and]
(b) nominated personal representative, and
(c) trustee of a revocable trust described in MCL
700.7501(1); MSA 27.17501(1).
(3) The persons[ parties] interested in a
petition to determine the heirs of a decedent are the
heirs[ of the decedent].
(4) The persons [parties] 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[ parties] interested in a
proceeding for spouse's allowance[ if the spouse is
the fiduciary] are the
(a) devisees of a testate estate,
(b) heirs of an intestate estate,[ and]
(c) claimants,
(d) spouse, and
(e) the personal representative, if the spouse is
not the personal representative.
(6) The persons[ parties] interested in a
proceeding for examination of an account of a
fiduciary[ or trustee] are the
(a) devisees of a testate estate,
(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[ presently vested]
beneficiaries[ of a trust].
(7[8]) The persons[ parties]
interested in a proceeding for partial
distribution[ assignment of all or part of the
residue] of the estate of a decedent are the
(a) devisees in[ of] a testate
estate[ entitled to share in the residue],
(b) heirs in[ of] an intestate estate,
(c) claimants, and
(d) any other person whose unsatisfied interests in
the estate may be affected by such assignment.
(8[7]) The persons[ parties]
interested in a petition for an order of complete
estate settlement under MCL 700.3952; MSA 27.13952 or a
petition for discharge under MCR 5.311(B)(3)[
proceeding for examination of a closing statement of an
independent personal representative] 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[
of an intestate estate],[ and]
(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; MSA
27.13953 are the
(a) personal representative
(b) devisees,
(c) claimants, and
(d) such other persons whose interests are
affected by the relief requested.
(10[9]) The persons [parties]
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[10]) The persons[ party]
interested in a petition for supervised
administration after an estate has been
commenced[ full or limited supervision relative
to independent probate is the independent personal
representative. If the party filing the petition is
the independent personal representative, the interested
parties] are the
(a) devisees, unless the court has previously found
decedent died intestate,[ in a testate
estate or]
(b) heirs, unless the court has previously found
decedent died testate,[ in an intestate
estate.]
(c) personal representative, and
(d) claimants.
(12[11]) The persons[ parties]
interested in an independent request for
adjudication under MCL 700.3415; MSA 27.13415[
petition for instructions on a matter relative to
independent probate] are the
(a)[ independent ]personal representative, and
(b) other persons who will be affected by the
adjudication[ instructions].
[(12) The parties interested in receiving notice of a
contested claim are:]
[(a) the devisees of a testate estate,]
[(b) the heirs of an intestate estate,]
[(c) the protected person and presumptive heirs of
the protected person in a conservatorship,
and]
[(d) claimants.]
[(13) The parties interested in a report of sale, lease,
or mortgage of an interest in real estate are the]
[(a) spouse of a decedent,]
[(b) devisees of a testate estate,]
[(c) heirs of an intestate estate,]
[(d) protected person and the protected person's
presumptive heirs in a conservatorship, and]
[(e) claimants.]
(13[14]) The persons[ parties]
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.
[(15) The parties interested in a petition for
appointment of a trustee under MCL 700.192(3); MSA
27.5192(3) are the]
[(a) proposed trustee and]
[(b) devisees.]
(14[16]) The persons[ parties]
interested in a will contest settlement proceeding are
the
(a) heirs of the decedent and
(b) devisees affected by settlement.
[(17) The parties interested in a will construction or
interpretation proceeding are the]
[(a) devisees and ]
[(b) other persons who may be affected by the
construction or interpretation.]
(15[18]) The persons[ parties]
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[19]) The persons[ parties]
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[20]) The persons[ parties]
interested in a petition to establish the cause and
date of death in an accident or disaster case under
MCL 700.1208; MSA 27.11208[ MCL 700.492a; MSA
27.5492(1)] are the heirs of the presumed
decedent.
(18[21]) The persons[ parties]
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[ a mentally retarded individual 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[22]) The persons[ parties]
interested in a petition for appointment of a guardian
for a minor are:
(a) the minor, if 14 years of age or older;
[(b) the person who has the principal care and
custody of the minor at the time of filing the
petition;]
(b[c]) if known by the petitioner,
each person who had the principal care and custody
of the minor during the 60 days preceding the
filing of the petition;
(c[d]) the parents of the minor or,
if neither of them is living, any grandparents
and the adult presumptive heirs of[ the
adult nearest of kin to] the minor, and
(d[e]) the nominated guardian.
(20) The persons interested in the acceptance of
parental appointment of the guardian of a minor under
MCL 700.5202; MSA 27.15202 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[23]) The persons[ parties]
interested in a 7-[ 5-]day notice of
acceptance of[ a testamentary] appointment as
guardian of an incapacitated individual under MCL
700.5301; MSA 27.15301 are the
(a)[ the legally] incapacitated
individual[ person],
(b) person having the care of the[ legally]
incapacitated individual[ person],
and
(c) presumptive heirs of the[ legall]y
incapacitated individual[ person].
(22[24]) The persons[ parties]
interested in a petition for appointment of a guardian
of an alleged[ legally] incapacitated
individual[ person] are
(a) the alleged [legally ]incapacitated
individual[ person],
(b) if known, a person named as attorney in fact under
a durable power of attorney,
(c) the alleged[ legally] incapacitated
individual's[ person's] spouse,
(d) the alleged[ legally] incapacitated
individual's[ person's] children or,
if no adult child is living, the
individual's[ person's] parents,
(e) if no spouse, child, or parent is living, the
presumptive heirs of the individual[
person],
(f) the person who has the care and custody of the
alleged[ legally] incapacitated
individual[ person], and
(g) the nominated guardian.
(23[25]) The persons[ parties]
interested in a petition for the appointment of a
conservator or for a protective order are:
(a) the individual[ person] to
be protected if 14 years of age or older,
(b) the presumptive heirs of the
individual[ person] to be protected,
(c) if known, a person named as attorney in fact under
a durable power of attorney,[ and]
(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[26]) The persons[ parties]
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),
(23)[, (24), or (25)], as the case may be,
and
(b) the guardian or conservator.
(25[27]) The persons[ parties]
interested in a petition by a conservator for
instructions are
(a) the protected individual[ person]
and
(b) those persons listed in subrule
(C)(23[25]) who will be affected by
the instructions.
(26[28]) The persons[ parties]
interested in a petition for treatment of infectious
disease are
(a) the petitioner and
(b) the respondent.
(27[29]) The persons[ parties]
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.
(28[30]) Interested persons[
parties] for any proceeding concerning a durable
power of attorney for health care are:
(a) - (h) [Unchanged from former MCR 5.205(C)(30)(a)-
(h).]
(29[31]) The persons[ parties]
interested in various adoption proceedings are as found
at MCL 710.24a; MSA 27.3178(555.24a) except as follows:
Petition to terminate rights of a
noncustodial parent. The interested persons[
parties] in a petition to terminate the rights of
the noncustodial parent pursuant to MCL 710.51(6); MSA
27.3178(555.51)(6) are:
(a) the petitioner;
(b) the adoptee, if over 14 years of age; and
(c) the noncustodial parent.
(30) Persons interested in a proceeding to require,
hear, or settle an accounting of a 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's heirs.
(D) The court shall make a specific determination of the
interested persons[ parties] if they are not
defined by statute or court rule.
(E) In the interest of justice, the court may require additional
persons[ parties] be served.
COMMENT: This rule was MCR 5.205. The proceedings described in
subrules (C)(26), (27), and (29) 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 for Notice.
(A) Applicability. 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; MSA
27.13205 or MCL 700.5104; MSA 27.15104.
(B) Procedure.
(1) Obligation to Provide Notice or Copies of
Documents. Except in small estates under MCL 700.3982;
MSA 27.13982 and MCL 700.3983; MSA 27.13983, 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 at the time of
filing that a demand for notice has been filed and
inform the petitioner 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
provided for in MCL 700.3205; MSA 27.13205 and MCL 700.5104; MSA
27.15104.
Rule 5.127 Venue of Certain Actions
(A) [Unchanged from former MCR 5.220(A).]
(B) Guardian of Property of[ Developmentally Disabled]
Nonresident with a Developmental Disability. If
an individual with a developmental disability[ a
developmentally disabled person] 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[ Developmentally Disabled Person] Who
is in a Facility. If venue for a proceeding to appoint a
guardian for an individual with a developmental
disability[ a developmentally disabled person]
who is in a facility is questioned, and it appears that the
convenience of the individual with a developmental
disability[ developmentally disabled person] or
guardian would not be served by proceeding in the county
where the individual with a developmental
disability[ developmentally disabled person] was
found, venue is proper in the county where the individual
with a developmental disability[ developmentally
disabled person] 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[ developmentally disabled
person] 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[ party] 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) [Unchanged from former MCR 5.221(B)(2).]
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[s
have] 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[ party] who was not given notice of the
taking of the deposition as provided by MCR 2.306(B) objects
to its use.
(B) [Unchanged from former MCR 5.302(B).]
COMMENT: This rule was MCR 5.302.
Rule 5.141 Pretrial Procedures; Conferences; Scheduling
Orders.
[Unchanged from former MCR 5.401.]
COMMENT: This rule was MCR 5.401.
Rule 5.142 Pretrial Motions in Contested Proceedings.
[Unchanged from former MCR 5.402.]
COMMENT: This rule was MCR 5.402.
Rule 5.143 Mediation. [Unchanged from former MCR 5.403.]
COMMENT: This rule was MCR 5.403.
Rule 5.144 Administratively Closed File
(A) Administrative Closing. The court may administratively
close a file as provided by MCL 700.3951(3); MSA 27.13951(3)
or 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
[Unchanged from former MCR 5.501.]
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[n interested] 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) [Unchanged from former MCR 5.508(B).]
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
[Unchanged from former MCR 5.602.]
COMMENT: This rule was MCR 5.602.
SUBCHAPTER 5.200 PROVISIONS COMMON TO MULTIPLE TYPES OF
FIDUCIARIES
Rule 5.201 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[ The court shall issue
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)[ Time Limitation; Extensions; Liability. Letters may be
limited to a period of time, but the expiration date must
conspicuously appear in the letters. The court may extend
the date of expiration for a limited period. The expiration
of letters does not affect the continuing liability of a
fiduciary or surety until such person is discharged from
liability by order of the court.
(B)] Restrictions. The court may restrict the powers of
a fiduciary [impose restrictions in the letters of
authority]. The restrictions imposed must appear
conspicuously on the letters of authority. The court
may modify or remove the restrictions with or without a
hearing.
(C[D]) 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 [parties].
COMMENT: This rule was MCR 5.716. Former subrule (B) is deleted
because the subject matter is covered in MCL 700.3951; MSA
27.13951. 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;
MSA 27.13504 and MCL 700.7504; MSA 27.17504.
Rule 5.203 Follow-Up Procedures
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[ appoint a special fiduciary as
provided by MCR 5.718. If no person is available to act as
special fiduciary, the court shall suspend the powers of the
dilatory fiduciary until further order of the court, and
notify the fiduciary, the fiduciary's attorney of record, if
any, each of the fiduciary's sureties, and all interested
parties appearing of record] at their addresses shown in
the court file.[ This rule does not preclude contempt
proceedings as provided by law, or other proceedings
provided by this rule.]
[(E) Each probate judge, or the chief judge in a county or
probate court district having more than one probate judge,
on the first business day of January and July of each year,
must file with the state court administrator a report, on a
form established by the state court administrator,
identifying all proceedings then pending in the court in
which:]
[(1) except in independent probate proceedings, the
personal representative has not filed an inventory of
the estate within 56 days after the order of
appointment or issuance of the letters of authority and
the inventory remains unfiled at the time of the
report;]
[(2) except in independent probate proceedings, at the
time of the report the personal representative has not
filed an accounting within the proceeding 14
months;]
[(3) in independent probate proceedings, 15 months have
elapsed since the original appointment of an
independent personal representative without the filing
of either the closing statement provided by MCL
700.357(3); MSA 27.5357(3) or a detailed statement of
the estate's continuing pendency and reasons for the
delay in its closing and distribution provided by MCL
700.357(2); MSA 27.5357(2);]
[(4) there has been any other instance of noncompliance
with the requirements of these rules.]
[The report must state, as to each proceeding reported,
the nature and facts of the personal representative's
noncompliance and the follow-up procedures instituted by the
court as required by this rule, including any extensions of
time for performance of required duties granted pursuant to
subrule (C) and the reason for the extensions. If no such
procedures have been instituted or action taken, the report
must include the reasons.]
[(F) The judge specified in subrule (E) must file annually
with the state court administrator on forms provided by the
administrator a report of the status of estates that have
not previously been reported closed.]
COMMENT: This rule was MCR 5.717. It applies to any potential
improper administration of an estate, including a failure under
MCL 700.3951; MSA 27.13951. The provisions concerning reports to
the state court administrator are stricken because MCR 8.119(G)
provides sufficient authority to require reports.
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; MSA 27.11309 on its own initiative,
on the notice it directs or without notice in its
discretion[, in a proceeding pending before it in which
the fiduciary has been removed, has died, or has become
mentally incompetent in the court's opinion, or when the
fiduciary's whereabouts are unknown, or when for good and
sufficient cause the prompt and proper administration of an
estate requires].
(B) Duties and Powers. The [Upon qualification,
the] special fiduciary has all the duties and powers
specified in the order of the court appointing the
special fiduciary[ provided by law for a temporary
personal representative]. 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.[ On the
qualification of the special fiduciary, the powers of the
previous fiduciary are suspended. The special fiduciary is
an interested party for the purpose of filing a petition for
removal of the previous fiduciary and appointment of a
successor fiduciary, and the special fiduciary must file the
petition unless another interested party has done so. The
special fiduciary must also file an accounting, and, if the
estate is ready for closing, the court may proceed without
the necessity of appointing a successor fiduciary. The
court must immediately proceed with notice and hearing on
the petition and accounting in accordance with the law
applicable to the filing of original proceedings. ]
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
500.1309; MSA 27.11309. This rule does not apply to a special
personal representative under MCL 700.3614; MSA 27.13614.
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 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;
MSA 27.15102.
(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: This rule is new. It covers creation, in settlement
agreements, of trusts or installment payments on behalf of wards,
incapacitated individuals and protected individuals. It is both
more extensive than MCR 2.420 in that it applies to settlement of
any claim, even those that are not part of a civil action, and
less extensive, since it only applies to settlement agreements
creating trusts or installment payments, which are subject to the
probate court's jurisdiction over guardianships and
conservatorships.
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 confirming a
sale of real estate in an amount sufficient to protect the
estate.
COMMENT: This rule is new. It permits, but does not require,
obtaining prior approval of a decision to sell.
SUBCHAPTER 5.300 PROCEEDINGS IN DECEDENT[S'] ESTATES
Rule 5.301 Application[; Definition
(A)] Application. The rules in this subchapter
[sections 5.701 through 5.709] apply to
decedent['s] estate proceedings other than
proceedings provided by law for small estates.
[(B) Definition. Unless the context dictates otherwise, the
term "personal representative" includes a temporary personal
representative.]
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); MSA 27.11107(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; MSA 27.13301 for commencing an
informal proceeding by application and MCL 700.3401; MSA 27.13401
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); MSA 27.13107(1)(b) and
27.13502(1). For matters covered by former MCR 5.702(B), see MCL
700.3614-700.3618; MSA 27.13614-27.13618. The term "informal
proceedings" is defined in MCL 700.1105(b); MSA 27.11105(b).
These rules use the term "formal proceeding" to refer to both a
formal testacy proceeding defined in MCL 700.3401; MSA 27.13401
and an independent request to the court authorized by MCL
700.3415; MSA 27.13415.
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; MSA 27.13705 and
the agreement and notice relating to attorney fees required
by MCR 8.303(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 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; MSA 27.12205.
(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; MSA 26.221-26.245 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 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); MSA 27.13705(5) on the duty of
the personal representative to provide the notice and MCL
700.2202; MSA 27.12202 on the time and manner for making the
election. Subrule (B) overrides MCL 700.2202(3); MSA
27.12202(3). Subrule (D) was former MCR 5.707(C).
Rule 5.306 Notice to Creditors[ Publication and
Claims]
(A) Publication of Notice to Creditors[ of
Administration of Estate]; Contents. Unless the notice
has already been given[ published by the
petitioner or temporary personal representative], 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; MSA 27.13801[ of
administration of the estate of a decedent or disappeared
person and presentment of claims]. The notice must
include:
(1) The name, and, if known, last known address, date of
death, and social security number of the decedent;
(2)[ That the estate will be assigned and distributed
to the persons entitled to it;]
[(3) In a testate estate, that one or more instruments
have been admitted or are proposed to be admitted to
probate, including the date or dates of execution;]
[(4)] The name and address of the personal
representative[, temporary personal representative,
or proposed personal representative]; [and]
(3) The name and address of the court where
proceedings are filed; and
(4[5]) A statement that [That]
claims will be forever barred unless presented
[within 4 months after the publication of the notice
]to the personal representative, [the temporary
personal representative or the proposed personal
representative,] or to both the court and the
personal representative[, temporary personal
representative or proposed 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); MSA
27.17501(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.
[(3) In the event no personal representative has been
appointed and qualified within 42 days after the date
of the publication of notice of administration, the
petitioner must file a request for appointment of a
temporary personal representative within 56 days after
the date of publication. If no request is filed, the
court may appoint a temporary personal representative
with or without a hearing. The temporary personal
representative must give notice as specified in subrule
(B)(1) to each creditor whose identity is known or can
be reasonably ascertained.]
[(4) No notice need be given to a creditor whose claim
has been presented or paid.]
(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; MSA 27.13982; MCL 700.3983; MSA 24.13983 or
MCL 700.3987; MSA 27.13987;
(3) The decedent has been dead for more than 3
years.
(4) Notice has previously been given under MCL
700.7504; MSA 27.17504 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.
[
(C) Small Estates. Such notices are not required if the estate
is without assets or qualifies as a small estate under MCL
700.101 or 700.102; MSA 27.5101 or 27.5102.]
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); MSA 27.17501(1), see MCL
700.3801(1); MSA 27.13801(1).
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 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; MSA 27.13952,
the petition for settlement order under MCL 700.3953; MSA
27.13953, or the closing statement under MCL 700.3954; MSA
27.13954 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
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 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."
(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 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); MSA
27.13804(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); MSA
27.13106 and 27.13402(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, 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; MSA 27.13306 is unknown
and cannot be ascertained after diligent inquiry, the
information in MCL 700.3306(2); MSA 27.13306(2) must be
provided by publication. But there is no separate duty to
publish under this rule 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 is 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; MSA 27.13310. See also MCL 700.1401; MSA 27.11401.
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.
1. Notice of appointment.
2. Fees notice pursuant to MCR 8.303.
3. Notice to spouse.
4. Notice of continued administration.
5. Affidavit of any required publication.
6. Such other papers as are ordered by the court.
(D) 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 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."
(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; MSA 27.13952, using the
procedures specified in MCR 5.311(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;
MSA 27.13706 and MCL 700.3707; MSA 27.13707. Requirements
regarding accountings are in MCL 700.3703(4); MSA
27.13703(4). 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), (3); MSA 27.13502(2), (3).
Rule 5.311 Closing Estate Administration
(A) Closing by Sworn Statement under MCL 700.3954; MSA
27.13954. A personal representative closing an estate by
filing a sworn statement under MCL 700.3954; MSA 27.13954,
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
Administration under MCL 700.3952; MSA 27.13952. An
estate being administered in supervised administration
must be closed by an order for complete estate
settlement under MCL 700.3952; MSA 27.13952. 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; MSA 27.13953. A personal representative or a
devisee may file a petition for a settlement order
under MCL 700.3953; MSA 27.13953 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; MSA 27.13952 or
MCL 700.3953; MSA 27.13953 shall, in addition to any
other relief, terminate the personal representative's
authority and close the estate administration.
(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; MSA 27.13952 or MCL
700.3953; MSA 27.13953 or a supplemental closing statement
under MCL 700.3954; MSA 27.13954. 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.
Rule 5.312 Reopening Decedent Estate Proceeding.
Reopening. 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. In
all other cases, an interested person may file a petition
under MCL 700.3959; MSA 27.13959.
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; MSA 27.13954, 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.
SUBCHAPTER 5.400 GUARDIANSHIP, CONSERVATORSHIP AND
PROTECTIVE ORDER PROCEEDINGS
Rule 5.401 General Provisions
This subchapter[ Subchapter MCR 5.760]
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[ Revised Probate Code, 1978 PA 642,
as amended,] 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) - (B) [Unchanged from former MCR 5.762(A) - (B).]
(C) Responsibility for Giving Notice; Manner of
Service. The petitioner is responsible for giving
notice of hearing. Regardless of statutory provisions,
an interested person[ party] 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) [Unchanged from former MCR 5.762(D).]
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) - (B) [Unchanged from former MCR 5.763(A) - (B).]
(C) Temporary Guardian for[ Legall]y
Incapacitated Individual[ Person] Where
no Current Appointment; Guardian Ad Litem. For the
purpose of an emergency hearing for appointment of a
temporary guardian of an alleged[ legall]y
incapacitated individual[ person], the
court shall appoint a guardian ad litem unless such
appointment would cause delay and the alleged[
legally] incapacitated individual[
person] would likely suffer serious harm if
immediate action is not taken. The duties of the
guardian ad litem are to visit the alleged[
legally] incapacitated individual[
person], report to the court and take such other
action as directed by the court. The requirement of
the Estates and Protected Individuals Code[
Revised Probate Code] that the court hold the fully
noticed hearing within 28 days applies only when the
court grants temporary relief.
(D) [Unchanged from former MCR 5.763(D).]
COMMENT: This rule was MCR 5.763.
Rule 5.404 Guardianship of Minor
(A) - (C) [Unchanged from former MCR 5.764 (A)-(C).]
(D) Review of Guardianship for Minor.
(1) [Unchanged from former MCR 5.764(D)(1).]
(2) Investigation. The court shall appoint the
Family Independence Agency[ Department
of Social Services] 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) - (4) [Unchanged form former MCR 5.764(D)(3)-(4)]
(E) Termination of Guardianship.
(1) - (2) [Unchanged from former MCR 5.764(E)(1)-(2).]
(3) Petition for Family Division of Circuit
Court[ Juvenile Division] to Take
Jurisdiction. If the court appoints an attorney
or the Family Independence Agency[
Department of Social Services] to investigate
whether to file a petition with the
family[ juvenile] division of
circuit court to take jurisdiction of the
minor, the attorney or Family Independence
Agency[ Department of Social Services]
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[ juvenile] 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[ juvenile] division, the
guardianship shall terminate when the
family[ juvenile] division
authorizes the petition under MCL 712A.11;
MSA 27.3178(598.11), unless the
family[ juvenile] 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; MSA
27.15209 or MCL 700.5219; MSA 27.15219[
sections 424c or 437 of the Revised Probate Code,
MCL 700.424c, 700.437; MSA 27.5424(3),
27.5437].
(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; MSA
27.15209[ section 424c of the Revised
Probate Code].
COMMENT: This rule was MCR 5.764.
Rule 5.405 Proceedings on Guardianship of[ Legally]
Incapacitated Individual[ Person]
(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[ a person]
alleged to be[ legally] 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) - (3) [Unchanged from former MCR 5.765(A)(2)-(3).]
(B) [Unchanged from former MCR 5.765(B).]
(C) Testamentary Guardian of[ Legally]
Incapacitated Individual[ Person].
(1) Appointment. A testamentary guardian may qualify
after the death of a parent or spouse who had been
the guardian of an[ a legally]
incapacitated individual[ person] by
filing an acceptance of trust with the court that
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 testamentary guardian letters
of guardianship equivalent to those that had been
issued to the deceased guardian.
(2) [Unchanged from former MCR 5.765(C)(2).]
COMMENT: This rule was MCR 5.765.
Rule 5.406 Testamentary Guardian of Individual with
Developmental[ly] Disabilities[ Disabled
Person]
(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[ly]
disabilities[ disabled person] by filing
an acceptance of 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
trust, the court shall issue to the testamentary
guardian letters of authority equivalent to those that
had been issued to the deceased guardian.
(B) [Unchanged from former MCR 5.766(B).]
COMMENT: This rule was MCR 5.766.
Rule 5.407 Conservatorship; Approval[
Confirmation] of Sale of Real Estate; Settlements
(A) Approval[ Confirmation] 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[ confirmation]
to sell, mortgage, or lease real property of the
protected person or any interest therein.
(B) [Unchanged from former MCR 5.767.]
COMMENT: This rule was MCR 5.767.
Rule 5.408 Review and Modification of Guardianships of[
Legally] Incapacitated Individuals[
Persons]
(A) Periodic Review of Guardianship.
(1) Periodic Review. The court shall commence a
review of a guardianship of an[
legally] incapacitated individual[
person] 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[ person] 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[ person]
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[ person] and the
guardian.
(4) [Unchanged from former MCR 5.768(A)(4).]
[(5) Pending Cases. As soon as practical, but not
later than April 1, 1992, and every 3 years
thereafter, the court shall complete a review of
all guardianships in effect as of April 1,
1989.]
(B) Petition for Modification; Appointment of Attorney
or Guardian Ad Litem.
(1) Petition by[ Legally] Incapacitated
Individual[ Person]. If a petition
for modification or written request for
modification comes from the[ legally]
incapacitated individual[ person]
and that individual[ person] does
not have an attorney, the court shall immediately
appoint an attorney.
(2) Petition by Person Other Than[ Legally]
Incapacitated Individual[ Person].
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[
person] contests the relief requested, the
court shall appoint an attorney for the[
legally] incapacitated individual[
person] 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) - (B) [Unchanged from former MCR 5.769(A)-(B).]
(C) Accounts. A conservator and guardian, if ordered by
the court, shall file an annual account unless otherwise
ordered by the Court. When required, an accounting must be
filed within 56 days after the end of the 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. On
filing, the account may be set for hearing or the hearing
may be deferred to a later time. 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. The accounting is subject to the
provisions of MCR 5.310(C)(2)(c) and (d)[ MCR
5.707(A)(3)(b) and (c)], except that references to a
personal representative shall be to a conservator.
(D) [Unchanged from former MCR 5.769(D).]
(E) Procedures. The procedures prescribed in MCR 5.203,
204 and 5.310(E)[ MCR 5.707(B), 5.717, 5.718]
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; MSA 27.15418 requires annual
accounting. Two exceptions are added for situations where
no purpose would be served by an accounting.
SUBCHAPTER 5.500 TRUST PROCEEDINGS
Rule 5.501 Trust Proceedings in General
(A) This subchapter applies to all trusts as defined
in MCL 700.1107(m); MSA 27.11107(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); MSA 27.17201(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; MSA 27.17504 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 that 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; MSA 27.17504.
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[
party] 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)[ an order in an adoption proceeding;]
[(2) a final order in a condemnation proceeding
under the Drain Code, MCL 280.1-280.630; MSA
11.1001-11.1630;]
[(3)] a final order affecting the rights or
interests of an interested person in a
decedent['s] 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[ly] disabilities[
disabled person], or an inter vivos or
testamentary trust. These are defined as and
limited to orders resolving the following matters:
(a) - (bb) [Unchanged.]
(2[4]) [redesignated but otherwise
unchanged]
(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) [Unchanged.]
(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[ly]
disabilities[ disabled person].
(D) - (F) [Unchanged.]
Rule 5.802 Appellate Procedure; Stays Pending Appeal
(A) - (B) [Unchanged.]
(C) Stays Pending Appeals. An order removing a
fiduciary; appointing a special
[temporary] personal representative, a
special fiduciary[ temporary guardian, or a
temporary conservator]; 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 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[
fiduciary], 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[ fiduciary] or the proposed
personal representative[ fiduciary] must enter
into a written fee agreement signed by them. A copy of the
agreement must be provided to the personal
representative[ fiduciary].
(C) Records. Regardless of the fee agreement, every
attorney who represents a personal representative[
fiduciary] 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[ Parties]
Within 14[ 10] days after the appointment of a
personal representative[ fiduciary] or the
retention of an attorney by a personal
representative[ fiduciary], whichever is later,
the attorney must mail to the interested persons[
parties] 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[ party] is entitled to a
copy of each statement for services or costs upon
request,
(3) that the person[ party] 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[, in the case of
independent probate, before the Certificate of
Completion is issued], 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[ fiduciary] or attorney.
[A copy of the notice and a proof or service must be
filed with the court.]
(E) Payment of Fees. A personal representative[
fiduciary] 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[ fiduciary] 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[ parties] who are
affected;
(3) a statement for services and costs (containing the
information required by subrule [C]) has been sent
to the personal representative[
fiduciary] and each interested
person[ party] 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[
fiduciary].
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)[ Definition. For purposes of this rule,
"fiduciary" includes those fiduciaries described in MCL
700.5; MSA 27.5005 and a testamentary trustee.]
[(G)] Claims for Compensation, Required
Information. Except when the compensation is consented
to by all the parties affected, the fiduciary must
append to an accounting, petition, or motion in which
compensation is claimed a statement containing the
information required by subrule (C). [This subrule
does not apply to independent probate proceedings under
article 3 of the Revised Probate Code.]
(G[H]) Contingent Fee Agreements under MCR
8.121. Subrules (C), (E) and (F[G]) of
this rule do not apply to a contingent fee agreement
between a fiduciary and an attorney under MCR 8.121.
[(I) Application. This rule applies to representation
of fiduciaries appointed after the effective date of
this rule.]
COMMENT: This rule 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.; MSA
27.11101 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 fiduciary and
interested persons.
The staff comment is published only for the benefit of the
bench and bar and is not an authoritative construction by
the Court.
_____________________________________________
Publication of these proposals does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in its present form. Timely comments will be
substantively considered, and your assistance
is appreciated by the Court.
_______________________________________________
A copy of this order will be given to the
secretary of the State Bar and to the State Court
Administrator so that they can make the notifications
specified in MCR 1.201. Comments on these proposals may be
sent to the Supreme Court clerk within 30 days after it is
published in the Michigan Bar Journal. When filing a
comment, please refer to our file No. 99-62.