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Proposed Amendments to MCRs
December 28, 2006
ADM File No. 2005-37
Proposed Amendment of
Rules 5.101, 5.105, 5.113,
5.125, 5.206, 5.302, 5.306,
5.307, 5.309, and 5.403
of the Michigan Court Rules
Proposed Adoption of
Rules 5.410 and 5.411 of the
Michigan Court Rules
________________________
On order of the Court, this is to advise that the Court is considering amendments of
Rules 5.101, 5.105, 5.113, 5.125, 5.206, 5.302, 5.306, 5.307, 5.309, and 5.403 and adoption
of new Rules 5.410 and 5.411 of the Michigan Court Rules. Before determining whether the
proposal should be adopted, changed before adoption, or rejected, this notice is given to afford
interested persons the opportunity to comment on the form or the merits of the proposal, or
to suggest alternatives. The Court welcomes the views of all. This matter will be considered
at a public hearing by the Court before final adoption or rejection. The schedule and agendas
for public hearings are posted on the Court's website, www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below
by strikeouts and underlining.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been deleted.
Bold text indicates new text.
Rule 5.101 Form and Commencement of Action
(A)-(B)[Unchanged.]
(C) Civil Actions, Commencement, Governing Rules. The following actions[,] must
be titled civil actions, must be commenced by filing a complaint, and
are governed by the rules which are applicable to civil actions in circuit court:
(1) Any action against [another] a nonfiduciary filed by a fiduciary,
and
(2) Any action filed by a claimant after notice that the claim has been disallowed.
Rule 5.105 Manner and Method of Service
(A)-(C)[Unchanged.]
(D) Service on Persons Under Legal Disability or Otherwise Legally Represented. In a
guardianship or conservatorship proceeding, a petition or notice of hearing asking for
an order that affects the ward or protected individual must be served on that ward or
protected individual if he or she is 14 years of age or older. In all other
matters, service on an interested person under legal disability or otherwise legally
represented may be made instead on the following:
(1) The guardian of an adult, conservator, or guardian ad litem of a minor or other
legally [disabled person] incapacitated individual, except with
respect to:
(a) a petition for commitment or
(b) a petition, account, inventory, or report made as the guardian,
conservator, or guardian ad litem.
(2) The trustee of a trust with respect to a beneficiary of the trust, except that the
trustee may not be served on behalf of the beneficiary on petitions, accounts, or
reports made by the trustee as trustee or as personal representative of the
settlor's estate.
(3) The guardian ad litem of any unascertained or unborn person.
(4) A parent of a minor with whom the minor resides, provided the interest of the
parent in the outcome of the hearing is not in conflict with the interest of the
minor and provided the parent has filed an appearance on behalf of the minor.
(5) The attorney for an interested person who has filed a written appearance in the
proceeding. If the appearance is in the name of the office of the United States
attorney, the counsel for the Veterans' Administration, the Attorney General, the
prosecuting attorney, or the county or municipal corporation counsel, by a
specifically designated attorney, service must be directed to the attention of the
designated attorney at the address stated in the written appearance.
(6) The agent of an interested person under an unrevoked power of attorney filed
with the court. A power of attorney is deemed unrevoked until written
revocation is filed or it is revoked by operation of law.
For purposes of service, an emancipated minor without a guardian or conservator is not
deemed to be under legal disability.
(E) [Unchanged.]
Rule 5.113 Papers; Form and Filing
(A) Form of Papers Generally.
(1) An application, petition, motion, inventory, report, account, or other paper in a
proceeding must
(a) be legibly typewritten or printed in ink in the English language, and
(b) include the
(i) name of the court and title of the proceeding in which it is filed;
(ii) case number, if any, including a prefix of the year filed and a two-
letter suffix for the case-type code [(see] pursuant to
MCR 8.117[)] and according to the
principal subject matter of the proceeding[, and if the case is
filed under the juvenile code, the petition number which also
includes a prefix of the year filed and a two-letter suffix for the
case-type code];
(iii) character of the paper; and
(iv) name, address, and telephone number of the attorney, if any,
appearing for the person filing the paper[,]; and
(c) be substantially in the form approved by the State Court Administrator,
if a form has been approved for the use.
(2) A judge or register shall not receive and file a nonconforming paper.
(B)-(D)[Unchanged.]
Rule 5.125 Interested Persons Defined
(A) [Unchanged.]
(B) Special Conditions for Interested Persons.
(1) Claimant. Only a claimant who has properly presented a claim pursuant to
MCR 5.306(D) and whose claim has not been disallowed and remains
[files a claim with the court, with a personal representative, or with a
trustee of a trust required to give notice to creditors pursuant to MCL
700.7504, and whose claim remains undetermined or ]unpaid need be
notified of specific proceedings under subrule (C).
(2) Devisee. Only a devisee whose devise remains unsatisfied need be notified of
specific proceedings under subrule (C).
(3) Trust as Devisee. If either a trust or a trustee is a devisee, the trustee is the
interested person. If no trustee has qualified, the interested persons are the
current trust beneficiaries and the nominated trustee, if any.
(4) Father of a Child Born out of Wedlock. Except as otherwise provided by law,
the natural father of a child born out of wedlock need not be served notice of
proceedings in which the child's parents are interested persons unless his
paternity has been determined in a manner provided by law.
(5) Decedent as Interested Person. If a decedent is an interested person,
the personal representative of the decedent's estate is the interested person. If
there is no personal representative, the interested persons are the known heirs
of the estate of the decedent, the known devisees, and the Attorney General.
(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)-(2) [Unchanged.]
(3) The persons interested in a petition to determine the heirs of a decedent are the
presumptive heirs.
(4)-(5) [Unchanged.]
(6) The persons interested in a proceeding for examination of an account of a
fiduciary are the
(a) devisees of a testate estate, and if one of the devisees is a trustee or a
trust, the persons referred to in MCR 5.125(B)(3),
(b) heirs of an intestate estate,
(c) protected person and presumptive heirs of the protected person in a
conservatorship,
(d) ward and presumptive heirs of the ward in a guardianship,
[(d)](e) claimants,
[(e)](f) current trust beneficiaries in a trust accounting, and
[(f)](g) [such ]other persons whose interests would
be adversely affected by the relief requested, including insurers and
sureties who might be subject to financial obligations as the result of the
approval of the account.
(7)–(25) [Unchanged.]
(26) The persons interested in a petition by a conservator for instructions or approval
of sale of real estate or other assets are
(a) the protected individual and
(b) those persons listed in subrule (C)([23]24) who will be
affected by the instructions or order.
(27) The persons interested in receiving a copy of an inventory or account of a
conservator or of a guardian are:
(a) the protected individual or ward, if he or she is 14 years of age
or older and can be located,
(b) the presumptive heirs of the protected individual or ward,
[and
]
(c) the claimants[.], and
(d) the guardian ad litem.
(28)–(31) [Unchanged.]
(32) The persons interested in a proceeding affecting a trust other than those
already covered by subrules (C)(6) and (C)(28) are:
(a) the trust beneficiaries affected by the relief requested,
(b) the current trustee,
(c) the proposed successor trustee, if any, and
(d) other persons whose interests are affected by the relief
requested.
(D)-(E)[Unchanged.]
Rule 5.206 Duty to Complete Administration
A fiduciary and an attorney for a fiduciary must take all actions reasonably necessary to
regularly administer an estate and close administration of an estate. If the fiduciary
or the attorney fails to take such actions, the court may act to regularly close the estate and
assess costs against the fiduciary or attorney personally.
Rule 5.302 Commencement of Decedent Estates
(A) [Unchanged.]
(B) Sworn Testimony Form. One or more [A ]sworn testimony
forms sufficient to establish the identity of [interested persons]
heirs and devisees must be submitted with the application or petition that
commences proceedings. [The ]A sworn testimony form must be
executed before a person authorized to administer oaths.
(C)-(D)[Unchanged.]
Rule 5.306 Notice to Creditors, Presentment of Claims
(A)-(C)[Unchanged.]
(D) Presentment of Claims. A claim shall [may] be presented to the
personal representative by mailing or delivering the claim to the personal
representative or the personal representative's attorney. A claim is presented
(1) on mailing, if addressed to the personal representative[,] or the
personal representative's attorney[ or the court], or
(2) in all other cases, when received by the personal representative or the
personal representative's attorney [court].
For purposes of this subrule, personal representative includes a proposed personal
representative.
Rule 5.307 Requirements Applicable to all Decedent Estates
(A) [Unchanged.]
(B) Notice of Continued Administration. If unable to complete estate
administration within one year of appointment, the personal representative 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. The
notice must be given within 28 days of the first anniversary of appointment and all
subsequent anniversaries during which the administration remains uncompleted.
[(B)-(D)] [Relettered (C)-(E) only.]
Rule 5.309 Informal Proceedings
(A)-(B)[Unchanged.]
(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 renounce [waive ]this right in writing before the
appointment is made.
(2)-(3) [Unchanged.]
(D) [Unchanged.]
Rule 5.403 Proceedings on Temporary Guardianship
(A)-(B)[Unchanged.]
(C) Temporary Guardian for Incapacitated Individual Where no Current Appointment;
Guardian ad Litem. A petition for a temporary guardian for an alleged
incapacitated individual shall specify in detail the emergency situation requiring the
temporary guardianship. For the purpose of an emergency hearing [for
appointment of a temporary guardian of an alleged incapacitated individual], the
court shall appoint a guardian ad litem unless such appointment would cause delay and
the alleged incapacitated individual would likely suffer serious harm if immediate
action is not taken. The duties of the guardian ad litem are to visit the alleged
incapacitated individual, report to the court and take such other action as directed by the
court. The requirement of MCL 700.5312(1) that the court hold the fully noticed
hearing within 28 days applies only when the court grants temporary relief.
(D) Temporary Guardian for Minor.
(1) [Prior to]Before Appointment of Guardian. If necessary during
proceedings for the appointment of a guardian for a minor, the court may
appoint a temporary guardian after a hearing at which testimony is taken.
The petition for a temporary guardian shall specify in detail the conditions
requiring a temporary guardianship. Where a petition for appointment of
a limited guardian had been filed, the court, before the appointment of a
temporary guardian, shall take into consideration the limited guardianship
placement plan in determining the powers and duties of the parties during the
temporary guardianship.
(2) [Unchanged.]
[
]Rule 5.410 Guardian ad Litem for Protected Individual [New Rule]
(A) Appointment. A guardian ad litem shall be appointed in every adult
conservatorship with unrestricted assets for the purposes of any hearing held unless the
protected individual is represented by his or her own attorney or is mentally competent
but aged or physically infirm. A guardian ad litem may be appointed in other
proceedings as ordered by the court. A guardian ad litem may be ordered to continue
to represent the protected individual during the period of the conservatorship.
(B) Duties. The duties of a guardian ad litem include but are not limited to the
following:
(1) A guardian ad litem shall represent the interest of the protected
individual at all times.
(2) A guardian ad litem shall review the inventory and accountings of a
conservator for accuracy and appropriateness.
(3) A guardian ad litem shall require documentation from a conservator
for income and disbursements that the guardian ad litem finds questionable on
the inventory or accounting.
(4) A guardian ad litem shall report to the court or file an objection with
the court if the inventory or accounting is not proper.
(5) A guardian ad litem shall determine if a conservator is properly
preserving any estate plan of the protected individual.
(6) A guardian ad litem shall perform such other duties as may be
required by statute, court rule or as may be required to protect the interest of the
protected individual.
Rule 5.411 Bond of Conservator [New Rule]
The court may require a bond in all conservatorships in which there are unrestricted assets in
the amount the court finds necessary to protect the estate or as required by statute. No bond
shall be required of trust companies organized under the laws of Michigan or a bank with trust
powers unless the court orders that a bond be required.
Staff Comment: These amendments are published in response to a proposal
submitted by the Michigan Probate Judges Association and the State Bar of Michigan's Probate
and Estate Planning Section. This was a joint effort to increase the oversight of guardianship
and conservatorship proceedings, as well as to improve other procedures in probate court.
The staff comment is not an authoritative construction 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 in writing or electronically by April
1, 2007, at P. O. Box 30052, Lansing, MI 48909, MSC_clerk@courts.mi.gov. When filing a
comment, please refer to ADM File No. 2005-37. Your comments and the comments of
others will be posted at www.courts.michigan.gov/supremecourt.