Commencing Administration with Informal Proceedings (Chapter 3 of Informal Estate Proceedings in Michigan)
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Chapter 3: Commencing Administration with Informal Proceedings
Nancy L. Little, Buhl Little Lynwood & Harris PLC
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CONTENTS
Priorities for Appointmentas Personal Representative
Bond for the Personal Representative
Acceptance of Appointment
Letters of Authority
Ancillary Proceedings
Filing Fee

I.   Application for Informal Proceedings

A. Time for Filing the Application

§3.1   EPIC requires no delay after death before the register may issue a written statement of informal probate or appoint a personal representative or both, except for certain nonresidents. MCL 700.3302, .3307(1). Please see the discussion in §3.14. UPC §§3-302 and 3-307 require a delay of 120 hours after the decedent’s death before informal probate or informal appointment of a personal representative can be granted. The RPC did not require this 120-hour delay, and over 20 years of experience showed the delay was unnecessary. The result is that special administration is almost never needed if informal proceedings are used. EPIC has one other departure from the UPC as to timing. UPC §3-108 prohibits, with few exceptions, either informal or formal probate or appointment proceedings commenced more than three years after the decedent’s death. EPIC omits UPC §3-108. An unfortunate result of this omission is the loss of UPC §3-108(a)(3), which requires will contests to be commenced within the later of 12 months from informal probate or 3 years from the decedent’s death.

B. Procedure for Filing the Application

§3.2   The application for informal probate or appointment, or both, may be mailed to the register. It need not be filed personally. The written testimony form or forms (please see §3.9) must be filed with the application.

However, the custodian or the person having possession of a will or codicil must with “reasonable promptness” either deliver it personally or send it to the court by registered mail. MCL 700.2516. This provision is different from UPC §2-516 and was taken verbatim from RPC §142(4). MCR 5.113(C) permits the use of certified mail, return receipt requested, to file or deliver to the court any document required by law to be sent by registered mail.

The names and addresses of registers are published in Michigan Probate Sourcebook (ICLE 3d ed) and in the annual directory issue (April) of the Michigan Bar Journal.

C. Persons Who May Apply

1. Testate Estates

§3.3   The applicant must be an interested person. MCL 700.3301(1). An interested person includes, but is not limited to, an heir, a devisee, a child, a spouse, a creditor, and a person with priority for appointment as personal representative (e.g., the personal representative named in the will). MCL 700.1105(c). The application for probate almost always will also request appointment of the personal representative. Since letters of authority may not be issued until the personal representative files a statement of acceptance with the court (which can be included in the application), it will be convenient to have the named personal representative sign as the applicant. MCL 700.3601(1).

2. Intestate Estates

§3.4   The applicant must be an interested person, as set out in §3.3, but, of course, there will be no eligible devisee.

D. Contents of the Application

1. Requirements of Statute and Court Rule

§3.5   MCL 700.3301(1) requires that an application for informal probate or informal appointment be directed to the register and contain the following information:

  1. the applicant’s interest (e.g., heir, devisee)
  2. the decedent’s name, date of death, and age; the county and state of domicile at death; and the names and addresses of the spouse, children, devisees, and heirs with the ages of any minors
  3. if the decedent was not domiciled in Michigan, a statement showing venue (please see the discussion in §3.34)
  4. the name and address of the decedent’s personal representative, appointed in Michigan or elsewhere, whose appointment has not been terminated

In an application for informal probate, the application must also state that

  1. the decedent’s will is in the court’s possession or the will or an authenticated copy of the will probated elsewhere accompanies the application;
  2. to the best of the applicant’s knowledge, the will was validly executed; and
  3. after the exercise of reasonable diligence, the applicant is unaware of an instrument revoking the will and the applicant believes the will is the decedent’s last will.

In an application for informal appointment of a personal representative to administer an estate under a will, the application must also contain the following:

  1. the date of the will’s execution
  2. the time and place of probate or the pending application for probate
  3. a statement adopting the statements in the application for probate
  4. the name, address, and priority for appointment of the person whose appointment is sought

In an application for informal appointment of a personal representative in intestacy, in addition to items 1–4 above, the application must contain the following two items:

  1. After the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property of the decedent who was domiciled in Michigan or, if the decedent was a nonresident, property located in Michigan or coming into the control of the fiduciary subject to Michigan laws. If the applicant is aware of any such instrument, the applicant must state why it is not being probated.
  2. The priority of the person whose appointment is sought and the names of other persons having a prior or equal right to appointment.

2. Verification of the Application

§3.6   The applicant must swear that the application is accurate and complete to the best of the applicant’s knowledge and belief. MCL 700.3301(1). However, a formal oath or acknowledgment is unnecessary. Unless otherwise specifically provided in EPIC or by supreme court rule (e.g., a written testimony form; please see §3.9), every document, including an application, filed with the court under EPIC is considered to include an oath that the representations are true as far as the signer knows or is informed, under the penalties of perjury. MCL 700.1306.

3. Form for the Application

§3.7   To commence informal proceedings, use the Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate) (PC 558). For a sample filled-in form, please see form 3.1. The forms are available on the website of the Michigan State Court Administrative Office (SCAO) and, for ICLE partners, on the ICLE website. Attorneys may automate their production of these forms in Word format with EPIC SCAO Forms for Probate Court Using HotDocs®.

4. Asset Values on the Application

§3.8   PC 558, the Application, does not require a showing of the estimated value of real estate and personal estate. This recognized the obvious statutory purpose in EPIC, as in the UPC, to preserve privacy (e.g., the inventory may, but need not, be filed with the court as a public document; please see chapter 6).

E. The Written Testimony Form

§3.9   A written testimony form sufficient to establish the identity of heirs and devisees must be submitted with the application (or a petition in formal proceedings) to commence proceedings. Unlike the application, the testimony form must be executed before a person authorized to administer oaths (e.g., a judge, register, or notary public). MCR 5.302(B). Please see Testimony to Identify Heirs (PC 565) and Supplemental Testimony to Identify Nonheir Devisees (Testate Estate) (PC 566). For sample filled-in forms, please see forms 3.2 and 3.3.

F. Death Certificate

§3.10   When filing an application to commence a decedent estate, a copy of the death certificate must be included. If the death certificate is unavailable, the petitioner may supply alternative documentation. No further documentation, such as information about the proposed or appointed personal representative, may be required. MCR 5.302(A).

G. Findings Required to Grant Informal Probate

§3.11     The register (or deputy register if authorized by general order, see MCL 600.834) in an informal proceeding for original probate of a will must determine before granting probate that

  1. the application is complete;
  2. the applicant has made an oath or affirmation that the statements in the application are true to the best of the applicant’s knowledge and belief;
  3. the applicant appears to be an interested person;
  4. venue is proper;
  5. an original, properly executed, apparently unrevoked will is in the register’s possession; and
  6. the application is not within MCL 700.3304, relating to a “known series of testamentary instruments” (e.g., two wills, the later of which fails to revoke the earlier will, please see §2.4).
MCL 700.3303(1).

The will need not be a notarized, “self-proved” will under MCL 700.2504 to be admitted in informal proceedings. The Comment to UPC §3-303, from which MCL 700.3303 is taken, makes it clear that a will need not be notarized; and even if the will fails to contain a “proper recital by attesting witnesses,” it may be probated informally by using “an affidavit by a person who can say what occurred at the time of execution.”

H. Findings Required for Informal Appointment

§3.12   The register (or deputy register, as set out in §3.11) must determine the following before granting informal appointment of a personal representative:

  1. The application is complete.
  2. The applicant has made an oath or affirmation that the statements in the application are true to the best of the applicant’s knowledge and belief.
  3. The applicant appears to be an interested person.
  4. Venue is proper.
  5. A will (if any) to which the requested appointment relates has been informally or formally probated.
  6. The nominated personal representative has priority.
MCL 700.3308(1).

I. Denial or Delay of Informal Probate

1. Denial of Informal Probate

§3.13   The register must deny an application if it indicates a personal representative has been appointed in another Michigan county or, unless ancillary probate is sought, it appears this or another will has been the subject of a previous probate order. MCL 700.3302(2).

The register must also deny an application for informal probate that relates to one or more of a known series of testamentary instruments. MCL 700.3304. Please see the discussion in §2.4. Intent that a document constitutes a testator’s will can be established by extrinsic evidence, including portions of a holographic will that are not in the testator’s handwriting. MCL 700.2502(3); Korean New Hope Assembly of God v Haight  (In re Estate of Smith), 252 Mich App 120, 651 NW2d 153 (2002).

In addition to the above, the register may deny an application for informal probate “for another reason,” but in all cases of denial, must “clearly state the reason.” MCL 700.3305. Please see the discussion in §2.6.

2. Delay of Informal Appointment If the Decedent Is a Nonresident

§3.14   The register must delay an order for appointment of a personal representative for 28 days after the date of death if the decedent was a nonresident, unless the applicant is the domiciliary personal representative or the will directs that the estate be subject to Michigan law. MCL 700.3307(1). The reason for this delay is to permit initial proceedings in the domiciliary state. See Comment to UPC §3-307.

3. Denial of Informal Appointment

§3.15   If the application indicates a personal representative who has not resigned was appointed in any Michigan county or if the applicant is not the incumbent domiciliary personal representative or his or her nominee of the state of a nonresident, the register must deny the application. MCL 700.3308(2).

If the application indicates the existence of a possible unrevoked testamentary instrument that may relate to Michigan property and is not filed for probate “in this court,” the register must deny the application. MCL 700.3311.

If the register is not satisfied that the application meets the required findings or “for another reason,” the register may deny the application but, again, must “clearly state the reason.” MCL 700.3309.

4. Denial Not an Adjudication

§3.16   A register’s denial of informal probate or appointment is not an adjudication and does not preclude formal probate or appointment proceedings. MCL 700.3305, .3309.

J. Informal Appointment and Statement of Probate

1. Informal Appointment

§3.17   After making the findings set out in §3.12, the register will appoint the personal representative; the appointment establishes the personal representative’s status, powers, and duties. MCL 700.3307(2).

2. Informal Probate

§3.18   In an informal proceeding, a will that appears to have the “required signatures” and that contains an attestation clause showing that the requirements of MCL 700.2502 and .2506 have been met must be probated “without further proof.” In other cases, the register may assume execution if the will “appears to have been properly executed” or may accept a sworn statement of the circumstances of execution from a person who need not have been a witness to the will. MCL 700.3303(3).

MCL 700.2506 provides that a will is valid if it is executed in compliance with (1) MCL 700.2502 and .2503; (2) the law at the time and place of execution; or (3) the law of the decedent’s domicile, place of abode, or nationality at the time of death.

MCL 700.2502 requires that a will be in writing, signed by or at the direction of the testator, and signed by at least two witnesses who signed within “a reasonable time” after witnessing the testator’s signature or acknowledgment of signing. A holographic will is valid without witnesses, if it is dated, signed, and has “material portions” in the testator’s handwriting.

MCL 700.2503 permits probate of a document or writing that was not executed in compliance with MCL 700.2502 if the proponent establishes “by clear and convincing evidence” that the decedent intended it to be a will, a partial or complete revocation of a will, an addition or alteration of a will, or a partial or complete revival of a formerly revoked will or portion of a will. See also Attia v Hassan  (In re Estate of Attia), No 327925, 2016 Mich App LEXIS 2075 (Nov 10, 2016). A formal proceeding is necessary to obtain a judge’s order that the document or writing is a valid will. Intent that a document constitutes a testator’s will can be established by extrinsic evidence, including portions of a holographic will that are not in the testator’s handwriting. MCL 700.2502(3); Korean New Hope Assembly of God v Haight  (In re Estate of Smith), 252 Mich App 120, 651 NW2d 153 (2002).

In addition to conventional wills and codicils and holographic wills, documents entitled to be the subject of informal probate include (1) statutory wills, MCL 700.2519; (2) international wills, MCL 700.2951–.2959; (3) writings in existence when a will is executed, incorporated by reference, MCL 700.2510; and (4) written statements or lists to dispose of items of tangible personal property other than money, MCL 700.2513.

EPIC clearly follows the UPC intent to ignore “harmless error” in the execution of documents and to adopt “substantial compliance” to validate documents purporting to be wills as often as possible. It is also significant that there is no requirement in informal probate for, or even a reference to, the elaborate “self-proving” will provisions of MCL 700.2504 (even including the notary using “the official seal”).

3. A Lost, Destroyed, or Unavailable Will

§3.19   Informal probate requires the register to have an original will or an authenticated copy of a will probated in another state. MCL 700.3303(1)(e), (4). Therefore, a lost, destroyed, or otherwise unavailable will must be the subject of formal proceedings. MCL 700.3402(1)(c).

4. Form of the Register’s Statement

§3.20   The register grants applications for informal appointment or probate or both (or denies them with a clear reason for the denial) on PC 568, Register’s Statement. For a sample filled-in form, please see form 3.4. A proposed register’s statement should be submitted with every application for informal appointment or probate.

Forms and Exhibits

Form 3.01 Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate) (PC 558)
Form 3.02 Testimony, Interested Persons (PC 565)
Form 3.03 Supplemental Testimony, Interested Persons, Testate Estate (PC 566)
Form 3.04 Register's Statement (PC 568)
Form 3.05 Renunciation of Right to Appointment, Nomination of Personal Representative, and Waiver of Notice (PC 567)
Form 3.06 Bond of Fiduciary (PC 570)
Form 3.07 Acceptance of Appointment (PC 571)
Form 3.08 Letters of Authority for Personal Representative (PC 572)
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