Information Gathering and Commencement of Proceedings Information Gathering and Commencement of Proceedings
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Information Gathering and Commencement of Proceedings
Amy N. Morrissey, Westerman & Morrissey PC
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Materials by
Amy N. Morrissey

I. Purpose of Estate Administration

A. Identify, Collect, Manage/Preserve and Appraise Assets

In order to properly transfer assets of the estate to the beneficiaries, the Personal Representative must identify, collect, manage and preserve and determine the value of estate assets.

What is an estate? See MCL 700.1104(b). The definition of “estate” includes the property of the decedent, trust, or other person whose affairs are subject to this act as the property is originally constituted and as it exists throughout administration. Estate also includes the rights described in sections 3805, 3922, and 7502 to collect from others amounts necessary to pay claims, allowances, and taxes.

Identification of estate assets is discussed under Part VII below.

Collecting, managing and preserving assets may involve changing mailing addresses with financial institutions, obtaining hazard insurance, moving valuable tangible personal property to storage, securing vacant property, making investment decisions, making health insurance claims.

Appraising assets requires seeking qualified appraisers to determine the value of estate assets and submit written documentation of their assessment.

The initial process of identifying and collecting the estate assets may identify a need to raise cash in the estate to pay debts of the decedent or administrative expenses.

It’s important to identify any issues that need immediate attention (such as real estate to be secured, mortgages that may be “under water,” required minimum distributions to be distributed on account of the decedent).

B. Pay Debts of Decedent

Identifying the Debts. Places to look:

  • Ask the person who has been paying the decedent’s bills, if someone other than decedent.
  • Check mail for several months
  • Check email account of decedent
  • Review decedent’s check registers or bank statements for the past year

Advise the Personal Representative not to pay creditors until a determination is made whether the decedent has a solvent estate and which debts have priority; if the estate is determined to be insolvent, there is a priority for payment of creditors to be discussed in a separate presentation of this estate administration course.

Notification to Creditors. Notification to creditors of the decedent is required in most probate administration procedures. MCR 5.306(C) identifies some small estate procedures in which notification is not required.

Determining Source of Payments. There are several types of expenses that need to be paid during estate administration, including but not limited to debts of the decedent’ prior to death, funeral and burial expenses, administrative expenses, and income and estate taxes, real estate expenses such as mortgages, property taxes and insurance. The Personal Representative should explore the various sources of payment for these debts and expenses such as homeowners’ insurance, medical insurance, mortgage insurance, burial contracts, social security benefits, VA burial benefits, and the decedent’s revocable living trust if the estate is insolvent.

C. Distribute Assets

Beneficiaries of an estate may receive assets in various forms (eg. in cash or in kind) or in various methods (in trust or outright). During estate administration, the Personal Representative must position the estate assets to distribute them in the proper manner. Look to the governing instrument first for instructions. Then, look to state law.

Partial distributions may be made. Specific bequests may be required within a specific time frame. Make sure the assets are inventoried and appraised, and you know your estate is solvent before you advise the Personal Representative to begin distributing assets.

Identify the beneficiaries. Identifying the beneficiaries of the estate will involve looking at a multitude of documents to determine who receives each asset and in what manner (i.e., outright vs. in trust). It may even involve publication if certain beneficiaries cannot be found. If there are conflicting documents or ambiguities, court involvement may be necessary to identify a beneficiary.

Example 1: Decedent leaves bequest in will to Charity X, but Charity X is not in existence at the time of decedent’s death.

Example 2: Decedent has child support order requiring, upon death of decedent, payment of life insurance to minor children or to trust for their benefit which will direct Trustees to continue payment of child support after death, but Trust is silent on payment of child support.

Also be aware of rights of the spouse and dependents of the decedent that may impact the amount of distributions to named beneficiaries.

Obtain full names, addresses, and social security numbers for each of the beneficiaries. Antilapse Statutes. The Personal Representative may need to consider state antilapse statutes where there is a beneficiary named in a will who has predeceased the decedent. See MCL 700.2603 and MCL 700.2709. Also see In re Estate of Alice J. Raymond, Deceased, 276 Mich App 22 (2007). Affirmed; In re Estate of Raymond, 483 Mich 48 (2009).

D. Carry Out Burial Instructions of the Decedent

MCL 700.3206–.3209 and MCL 700.3614 establish priority and procedure for decisions concerning the disposal of a decedent’s body. The Personal Representative may need to make decisions concerning funeral and burial if there are no other individuals with priority.

II. Who Is the Client

A. Relationship to the Decedent

It’s important that you know from the minute that the client walks in the door what the person who has come to your office wants you to accomplish and what is that person’s relationship to the decedent. That knowledge will allow you to define the extent of your client’s rights in and to the estate and duties to the decedent.

The Purported Fiduciary. If your client is the fiduciary (i.e., the Personal Representative), your client will need to establish his or her priority as Personal Representative of the Estate, as discussed in the following presentation, and determine whether that person is serving as sole fiduciary or as a co-fiduciary.

An Heir or Other Beneficiary. Quite often, you may find that your client is not only the fiduciary but a beneficiary of the Estate as well. You must set forth early in your representation that you will be representing the Fiduciary in that capacity only, and not as an individual beneficiary of the Estate. If the client, as a beneficiary, has issues to be resolved with the Estate, the client should obtain the services of other counsel to represent those interests. Sometimes, a person’s own desires as a beneficiary may cause such a conflict with his duties as Personal Representative that a Special Personal Representative may need to fulfill the duties that the Personal Representative ethically cannot.

B. Representing the Fiduciary

After you have established that your client is the Personal Representative of the Estate, you need to define your relationship and what services you will be performing in connection with that relationship. Remember that the beneficiaries of the Estate are not your clients, so while your client, the Personal Representative, may be required to give the beneficiaries certain information, and you may be assisting the client in execution of those duties, you may only disclose other client information to the extent permitted by MRPC 1.6.

There are a number of ethics opinions on representing the fiduciary and your duties as counsel. See the State Bar of Michigan website for the published ethics opinions. www.michbar.org/opinions/ethics

The lawyer for a personal representative may follow the instructions of the personal representative to advocate a position which favors some, but not all beneficiaries, as long as the position is not frivolous or “illegal or fraudulent.” The weight of authority, although not unanimous, holds that the personal representative of the estate is the lawyer’s client. See ethics opinion RI-85

A personal representative may employ an attorney to perform necessary legal services or to advise or assist the personal representative in the performance of administrative duties even if the attorney is associated with the personal representative and can act without independent investigation upon the attorney’s recommendation. MCL 700.3715

Representing Multiple Fiduciaries. On occasion, a decedent will nominate Co-Personal Representatives to serve. You may often find that it is easiest to represent both of these fiduciaries so there is not a duplication of efforts, and generally, representation of both fiduciaries will reduce costs to the estate and provide greater efficiency. As long as both fiduciaries are in concurrence, this representation should not be a problem. However, your clients should be aware that there is potential for conflict and the potential conflict should be explained and agreed upon in writing.

A lawyer hired by co-personal representatives of a decedent’s estate is the lawyer for the co-personal representatives and not the estate. See ethics opinion RI-80.

Engagement Letter. A sample engagement letter is attached as Form 1.1, which clarifies that the fiduciary, in that capacity, is the client. Additional language is also provided to address situations in which there are multiple beneficiaries.

C. Representing a Beneficiary

The focus of these materials is on representing the fiduciary of the Estate and a multitude of issues that are beyond the scope of these materials arise when representing a beneficiary.

III. First Meeting

A. What Client Should Bring to Initial Meeting

Death Certificates. It is a good idea to have multiple certified copies of the Certificate of Death. While not all financial institutions require a certified copy, you should be prepared to send them one upon request. The Certificate of Death will have most of the pertinent information regarding the decedent necessary to complete the background information on the court forms to initiate probate administration.

It is important that you establish where decedent was domiciled at the time of death as this will dictate the nature and place of probate administration, where estate/inheritance and other tax returns are filed, the laws of intestate succession (and definition of heirs). The death certificate is one strong indicator of the decedent’s domicile at death.

The probate court will require a copy of decedent’s death certificate in order to commence administration. MCR 5.302(A). If residence at death listed on the death certificate is not consistent with the domicile stated on the Application or Petition to commence administration, a hearing may be necessary to demonstrate domicile.

The court may not request personal information about the Personal Representative other than what is on the form.

Often the Personal Representative will obtain several certified death certificates from the funeral home because it’s most cost effective, but he or she may have to obtain additional copies at vital records office in the county in which the decedent died.

Legal Documents. Will, codicils, trusts, handwritten/typed lists of personal property, prenuptial/marital agreements, child support orders, life insurance policies, beneficiary designations, buy/sell agreements, operating agreements, land contracts, loan agreements, contracts/notes, deeds, title to automobiles, boats, etc. are documents you should request. In some instances, it is necessary to have the original document (eg. the Will, Codicil or handwritten list) because such document will be submitted to the court. In other instances, a copy may suffice (eg. the child support order, deed) simply to determine the extent of decedent’s obligations or ownership.

Financial Documents. Any information available to the client regarding decedent’s assets and liabilities (brokerage account statements, bank statements, copies of bonds, stocks, mortgages, corporate financials, check register), and a copy of decedent’s most recently filed Federal income tax return; balance sheet if available.

Names/Addresses/Relationships/Social Security Numbers of Beneficiaries. This information is necessary for preparation of the initial forms to commence the probate administration process, notice and distribution purposes, and for estate income tax returns.

See Form 1.2 for List of Items to be Brought to Initial Interview, which is an internal checklist for you to use but may be modified to give to the client prior to the initial interview.

Note Taking. During your initial interview with your client, it may be helpful to have with you (and complete as you progress) a copy of a Case Record worksheet and Supplemental Case Record worksheet, both of which are included as Forms 1.3 and 1.4 respectively. These intake worksheets help to remind you whether you have gathered all of the information you require to commence estate administration.

B. Who Is Present at Initial Meeting?

Often the client will request to bring other individuals to the initial meeting such as the trustee(s), accountant, stock broker, and sometimes beneficiaries, spouse/children of decedent. The client needs to know that the information discussed in the presence of such individuals is not confidential and to discuss all confidential information with you outside of that meeting. Often, it is beneficial to have other individuals at the initial meeting so that there is collaboration of efforts and a greater understanding of who is to complete what tasks in the administration process.

C. Agenda for Initial Meeting

See Form 1.5 for a sample Agenda of items that might be discussed at an initial meeting. Because there is so much information being transferred from the client to you and from you to the client, preparing an agenda for the initial meeting allows the client to know what topics you are going to discuss, helps the meeting to flow better, prevents important issues from being overlooked, and may prevent the client from having confusion about the process.

Review of Decedent’s Estate Planning Documents. If you do not have a copy of the decedent’s estate planning documents in your file, you might want to ask the client to provide you with a copy prior to the initial meeting so that you have the opportunity to review the documents and prepare to discuss their implications with the client at the time of the initial meeting.

Discussion of Time Frame and DEADLINES. It is extremely important that your client knows the deadlines that you expect him to keep and mandatory deadlines such as when the estate or income tax returns are due, and when probate notices, inventories, accountings are due.

Discussion of Special Issues. Is there real property in which the balance of the mortgage exceeds the value of property (i.e., “underwater” property)? Are there environmental issues? Are there beneficiaries who may contest the Will?

Miscellaneous items on Agenda. The Personal Representative may have a list of things that he needs to do promptly after the initial meeting. These may in certain cases involve:

  • Notify Social Security and other financial institutions holding decedent’s assets of death
  • Notify decedent’s employer of decedent’s death
  • Notify any pension or annuity companies of decedent’s death
  • Arrange to continue or discontinue insurance on real estate, automobiles, personal property.
  • Arrange for appraisals.
  • Arrange for collection of mail.
  • Arrange for storage of personal property
  • Applying for an Employer Identification Number for the Estate/Trust
  • Establish an estate checking account from which to pay final debts and administrative expenses.
  • File a Notice to Rescind Homeowner’s Principal Residence Exemption
  • Determine who is going to prepare decedent’s final personal income tax return (1040) and who will prepare fiduciary income tax returns for the estate (1041).

D. Assignment of Tasks

It’s important that the client understand what his or her duties are and how you will assist in that process. It is helpful to send the client a summary of these assigned tasks after the initial meeting, such as listing what deliverables you still need from the client and what tasks to be completed by client. You need to remind the “do-it-yourself” client of the items that he or she promised to accomplish and set deadlines for those tasks.

E. Discussion of Fees

Like deadlines, discussion regarding fees must take place at the initial meeting so that there are no surprises. Will you be paid on an hourly basis or a set fee for the whole administration process? Because estate administration is so unique in every situation, hourly fees tend to provide the best compensation arrangement. Regardless of how you charge your fees, they must be reasonable pursuant to the factors listed in MRPC 1.5(a) and they must be substantiated. MCR 5.313. The following section discusses fee-related requirements.

You will want to discuss Personal Representative compensation as well. This is important to discuss at the outset of administration because the Personal Representative must maintain careful records of his or her time and activities in support of the compensation requested. The Probate & Estate Planning Section publishes a pamphlet on fiduciary compensation.

F. After the Initial Meeting - Putting the Information to Use

The Estate File. How many different files you create internally will depend on the nature and complexity of the estate itself. You may have the following files:

  • Probate file (See sample Probate File Index at Form 1.6)
  • Federal estate tax return (706) file (See sample Federal Estate Tax Return File Index at Form 1.7)
  • Fiduciary income tax return file

You may also find that you create separate files for sale of certain assets, real estate in particular or a separate file if there is ancillary administration of an assets decedent owned out of state. Often, it is necessary to create a separate file for annual accountings if the estate is expected to be open for more than 1 year or if your office is administering the estate checking account.

Docketing. To ensure that every component of the administration process, including tax filing, is completed in a timely fashion, every task and deadline should be entered into the attorney’s docket system as soon as the initial meeting is complete or such dates become known. Docketing is something that your legal assistant should be able to accomplish for you.

See Significant Date List for Unsupervised Administration attached as Form 1.8, Significant Date List for Supervised Administration attached as Form 1.9 and Significant Date List for Summary Administration attached as form 1.10 for probate and related administration deadlines. Use the Date List to enter relevant dates into the computer tickler system, if you have one, and/or keep a hard copy accessible in the file. It is important not only to enter relevant deadlines, but also notices and reminders prior to those deadlines so that the staff member responsible for completing the task has adequate time to meet the deadline.

There are many calendaring/docketing systems on the market. Search the archives of the listserv for the Probate and Estate Planning Section of the State Bar of Michigan at http://www.michbar.org/probate/listserv.cfm to see discussion on various systems. You have to be a Section member and join the listserv to search the archives.

IV. Written Fee Agreements

A. Court Rule Requirement for Written Fee Agreements

MCR 5.313(B) requires you and your client, the Personal Representative, to enter into a signed written fee agreement at the commencement of the representation. As mentioned above, fees should be discussed at the initial meeting so that there is an agreement as to how and how much you are going to be paid. You must provide the Personal Representative with a copy of this fee agreement.

B. Reasonable Attorney Fees

An attorney is entitled to receive reasonable compensation for legal services rendered on behalf of a personal representative, and to reimbursement for costs incurred in rendering those services. In determining the reasonableness of fees, the court must consider the factors listed in MRPC 1.5(a). The court may also take into account the failure to comply with this rule. MCR 5.313(A).

C. Notice Regarding Attorney Fees

Within 14 days of appointment of the Personal Representative or within 14 days of retention of the attorney, whichever is later, the beneficiaries of the estate must be served with a copy of the written fee agreement and a Notice Regarding Attorney Fees (SCAO Form PC 576). MCR 5.313(D)

D. Records

MCR 5.313(C) requires you to keep time records of your services that identifies the date of the services, the person performing the services, the amount of time spent and a brief description of the services, regardless of how your fee is computed.

Pursuant to MCR 5.313(E), your fees may be paid periodically by the Personal Representative without prior approval of the court as long as 1) a written fee agreement has been executed, 2) the written fee agreement has been sent to all Interested Persons whose interests are affected with the notice required in MCR 5.313(D), 3) the required time records are kept and fee statements are sent to the Personal Representative and each Interested Person who requests one, and 4) no objection is made. However, attorney fees remain subject to court approval.

MCL 700.3721 sets forth a procedure whereby an interested person may petition to have the court review the propriety of employment of a person by a personal representative, including, but not limited to, an attorney, accountant, investment advisor, or other specialized agent or assistant and the reasonableness of such a person’s compensation.

E. Sample Agreement

See Form 1.1 for a sample written fee agreement, which is also the engagement letter for estate administration.

V. Locating the Will

A. Where to Look and Who to Contact

Finding decedent’s will can be a significant task. If your client brings a will to you that is not very recent, you may want to inquire whether the decedent may have since updated her will, particularly if decedent had any significant life events, such as divorce, remarriage, birth of children, change in residence, major change in assets, after executing the will.

Will filed with the Court. Often, a decedent will have filed her will for safekeeping with the local probate court in the county of her residence at the time that the will was executed or may have retrieved the will upon moving to a new residence and deposited it for safekeeping her last county of residence.

Safe Deposit Box. Often, the decedent will have placed her will in a safe deposit box at the local (or not so local bank). Even if you are not aware of an existing box, it is prudent to call financial institutions where decedent held an account to ascertain whether decedent might have rented a safe deposit box.

Locating the will in a safe deposit box can present a particular problem where the decedent was the only name on the safe deposit box and no Personal Representative has been appointed by the court. In such instances, separate court authority is necessary to open the safe deposit box and view its contents and to search for the will.

Petition and Order to Open Safe Deposit Box to Locate Will or Burial Deed. Any interested person, as defined by MCL 700.1105(c), may petition the probate court to open a safe deposit box to look for a will or burial plot deed. A Petition and Order to Open Safe Deposit Box to Locate Will or Burial Deed (SCAO Form PC 551) form is used for this purpose. The Petition must be filed in the county in which the safe deposit box is located. Therefore, if you have a safe deposit box in a county other than the county in which decedent resided at the time of death, you must nevertheless file the Petition in the county where the safe deposit box is located and deliver any recovered will or burial deed to such county.

The court may grant the Order without notice after the filing fee has been paid. Once the Order is issued, the person having authority in the Order to open the safe deposit box may do so in the presence of an officer or other authorized employee of the bank. All those in attendance must sign the Safe Deposit Certificate and Receipt (SCAO Form PC 552) in which they certify whether a will or burial deed was found and that no other documents were removed from the safe deposit box. The person authorized by the Court to open the safe deposit box must deliver any will or burial deed to the probate register in the county in which the Order was issued to open the safe deposit box. The probate register will issue a receipt to the bank where the box was found.

Even if you have an Order to open the safe deposit box, also having a key to the safe deposit box is helpful so that the bank does not have to drill the box.

Home. Many individuals choose to keep their original wills at home, either in a lock box, a file cabinet or sometimes where you wouldn’t expect it to be.

Relative. Some individuals give their will to a relative for safekeeping, often the relative who is named in the will to serve as Personal Representative.

Attorney’s Office. If you were not the scrivener of decedent’s estate planning documents, you may need to contact a prior attorney’s office to determine location of the will. The attorney having possession of the will will likely respond by advising you that the will has been deposited with the probate court having jurisdiction over the decedent’s estate. Likewise, if you have the decedent’s original will in your possession, you are required to deliver it promptly after the decedent’s death to the court that has jurisdiction over the decedent’s estate MCL 700.2516.

B. Lost Will (What to Do if You Cannot Locate the Will)

If, after you have exhausted your search options outlined above, the original will cannot be found, but you have reason to believe that one existed (typically because you have a photocopy of it), the contents and execution of the will may be proved and the will probated in a formal testacy proceeding. The petition (SCAO Form PC 559) must state that the will is lost, destroyed, or otherwise unavailable. MCL 700.3402(1)(c).

If the will cannot be found, secure as much information regarding the will as possible, including its contents, names, addresses and current whereabouts of witnesses, names of individuals who have personal knowledge of the execution of the will. Pursuant to MCL 700.3407, the proponent of the lost will has the burden of proof concerning due execution of the will, although in uncontested will matters, a sworn statement by an attending witness may be sufficient to prove the due execution of the will.

If a lost or destroyed will is offered for probate, the proponent may have to rebut the presumption that if the original will was in the testator’s possession and cannot be located after death, it was destroyed with intent to revoke it. See Reporter’s Supplemental Comment to Section 3402 and 2507 of EPIC. See In re Estate of Smith, 145 Mich App 634, 378 NW2d 555 (1985); but also see In re Christoff Estate, 193 Mich App 468, 484 NW2d 743 (1992).

MCL 700.3402 (c) provides that if the original will does not accompany the petition (or is not already in the court’s possession), “the petition must also state the will’s contents and shall indicate that the will is lost, destroyed, or otherwise unavailable.” This section differs from the Revised Probate Code (RPC), under which Christoff was decided, which required the testimony of two reputable witnesses to establish that a will was executed and the contents thereof. If the contents of the will are challenged, then the petitioner bears the burden of proof. MCL 700.3407(1)(c). Therefore, the proponent of a will, under the Estates and Protected Individuals Code (EPIC), bears the burden of proving the document. With no specific burden of proof set forth in the statute, the burden appears to be preponderance of the evidence.

VI. Determination of Heirs and Interested Persons

Regardless of whether the decedent dies testate or intestate, heirs must be determined because the heirs and any devisees under the decedent’s will are the interested persons in a proceeding to probate a will. MCL 700.3705.

A determination of heirs by the court (i.e., order of a judge) is required only if the estate is opened in a formal proceeding. If probate administration is opened informally, the Testimony, Interested Persons (SCAO Form PC 565), which is a sworn statement that must be filed, will suffice to set forth all Interested Persons, including the heirs. The sworn testimony setting forth interested persons must be filed to commence administration informally or formally. MCR 5.302(B). Any person with knowledge of the facts may sign the Testimony.

The rules of intestate succession in MCL 700.2101–.2114 set forth the rules for determining who are the decedent’s heirs. An heir must survive the decedent by 120 hours. MCL 700.2104. Under MCL 700.1104(n), the State of Michigan is also an heir of the decedent if there are no other takers related to the decedent, in which case, the Attorney General would be an interested person. MCL 700.3403(2), MCL 700.3705(3).

A child born out of wedlock can be an heir when the father and the child have established a mutually acknowledged relationship of parent and child that began before the child reached age 18 and continued until terminated by the death of either. See MCL 700.2114.

The determination of heirs is to be governed by the statutes in effect at the time of death. In re Adolphson Estate, 403 Mich 590, 271 NW2d 511 (1978). Also see In re Jones Estate, 207 Mich App 544, 525 NW2d 493 (1994).

SCAO Form PC 559 entitled Petition for Probate and/or Appointment of a Personal Representative includes the “check the box” request for an order determining heirs. Therefore, heirs may be established at the same time that the petition for Probate and/or Appointment of a Personal Representative is filed.

MCR 5.125 defines Interested Persons for purposes of various probate matters. There are special service rules in 5.125(A) with respect notification to foreign counsel, the attorney general and others. There are the special conditions in MCR 5.125(B) under which certain persons may gain (or lose) status as Interested Persons. Finally, one should review the list of Interested Persons identified based on the type of proceeding in MCR 5.125 (C).

VII. Identification of Estate Assets

A. How Asset Information Is Used

Probate Inventory. The asset information obtained will be vital to preparation of the Inventory for the Probate estate which is due 91 days after appointment of the Personal Representative. MCL 700.3706

Trust Accounting. Similar to the probate Inventory, a Trustee will need to report assets to trust beneficiaries as may be required by the trust document or state law.

Federal Estate Tax Return. Although only some of the assets of the Estate may be subject to probate administration, if the decedent dies with a taxable estate1[1], a Federal estate tax return will need to be filed and the return necessitates obtaining detailed asset information.

Tax Elections or Other filings. There may be certain assets requiring local or state filings. There may be certain income tax elections available in connection with particular elections.

B. Detail Required for Asset Information

Title. Are decedent’s assets titled in her sole name, joint name, revocable living trust name? Is there a beneficiary designation or TOD designation? Check for possible unrecorded governing instruments.

Proof of Title. You’ll have to let your client know that, although he might be quite certain how an asset is titled, you still require proof of title to protect him, as a fiduciary (your malpractice carrier will be happier).

  • Real estate—A title search may be necessary to establish proof of title, as well as any liens against the property.
  • Stocks/Bonds—If stocks/bonds are not in certificate form, a brokerage statement or letter from broker is necessary
  • Mortgages/Notes—A copy of the Mortgage/Note is necessary and an amortization schedule
  • Retirement Assets—(TIAA/CREF, IRA, 401(k), 403(b), profit-sharing plans, Keogh)—A Substitute Form 712 or letter from plan administrator/trustee/custodian is necessary.
  • Life Insurance—A Form 712 is required.

Federal Estate Tax Return. See the Instructions for IRS Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return. Even if you are handling an estate in which a Form 706 is not required, the instructions provide very useful information regarding what information should be obtained by the Personal Representative.

C. Method of Obtaining Asset Information

Asset Marshaling Worksheet. This worksheet, included at Form 1.11, is given to client at the initial meeting to alert the client as to the type of assets that may be found and typical places to find the asset or information required.

Income Tax Return. Requesting a copy of decedent’s most recently filed income tax return is a good way to identify decedent’s assets, particularly in a situation where the Personal Representative is someone who is not familiar with decedent’s assets.

Correspondence Requesting Values. A sample letter requesting values of brokerage account assets is provided at Form 1.12.

D. Hard to Find Assets

Some assets may be difficult to discover because they often do not manifest themselves in the form of regular monthly or quarterly statements. There may only be electronic records. Such assets may include:

  • Electronic brokerage accounts
  • Airline Miles
  • DRPs (dividend reinvestment plan shares)
  • Stocks held in certificate form
  • Savings Bonds
  • Limited partnership interests
  • Intra-family loan documents
  • Social media and other virtual assets

Make sure you ask the Personal Representative to search for these type of assets. Evidence of them may show up on previous income tax return.

E. Ancillary Probate

Michigan Resident with Out-of-state Property. It is important that you inquire whether decedent owned real estate in another state. If this is the case, you will likely need to align yourself with counsel in that state to handle the aspects of probate administration and related issues (eg. transfer taxes).

Non-Resident with Michigan Property. If decedent was not a Michigan resident, but held real property in Michigan, there is typically no need for local administration. If a Personal Representative has been appointed in the state of decedent’s domicile, the Personal Representative (referred to as the “Foreign Personal Representative”) can usually resolve estate issues without a separate appointment in Michigan, as long as there is not a local administration already pending. See MCL 700.4201 et. seq. MCL 700.4203(1) provides that if local administration, or an application or petition for local administration, is not pending in this state (Michigan), a domiciliary foreign personal representative may file with the court in this state, in a county in which property belonging to the decedent is located, authenticated copies of the representative’s appointment and any official bond the representative has given.

There is a form for Notice of Ancillary Administration Filing. It is PC 619. The form was created in response to the need of a foreign personal representative to file the documents required of MCL 700.4203 and certify that such section is applicable.

If a domiciliary foreign personal representative complies with MCL 700.4203(1), that domiciliary foreign personal representative may exercise the power of a local personal representative, including the execution and delivery of deeds.

Forms, Exhibits and Appendixes

Form 1.1
Engagement Letter

Form 1.2
List of Items to Be Brought to Initial Interview

Form 1.3
Case Record

Form 1.4
Supplemental Case Record

Form 1.5
Sample Agenda

Form 1.6
Index - Probate File

Form 1.7
Index - Federal Estate Tax Return File

Form 1.8
Significant Date List for Unsupervised Administration

Form 1.9
Significant Date List for Supervised Administration

Form 1.10
Significant Date List for Summary Administration

Form 1.11
Client Worksheet

Form 1.12
Letter Requesting Value of Securities in Brokerage Account

Footnote

1 Taxable estate as used in this context refers to the threshold set forth in Internal Revenue Code §2001.

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