July 12, 2001

ADM 99-62

Proposed Amendments to MCR 3.403,
5.104, 5.113, 5.125, 5.202, 5.207,
5.302, 5.307, 5.308, 5.310, 5.311,
5.312, 5.404, 5.407, 5.409, 5.501, 
5.503, 5.740, and 7.101
__________________________________

     On order of the Court, this is to advise that the Court is
considering amendments to Rules 3.403, 5.104, 5.113, 5.125,
5.202, 5.207, 5.302, 5.307, 5.308, 5.310, 5.311, 5.312, 5.404,
5.407, 5.409, 5.501, 5.503, 5.740, and 7.101 of the Michigan
Court Rules.  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 and 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.

     Publication of these proposals do not mean that the Court
will issue an order on the subject, nor does it imply probable
adoption of the proposals in present form.

     [The present language would be amended as indicated below.]

RULE 3.403  Sale of Premises and Division of Proceeds as
Substitute for Partition

(A)  [unchanged]
(B)  Specific Procedures and Requirements of Sale.
     (1)  [unchanged]
     (2)  Neither the person conducting the sale nor anyone
acting in his or her behalf may directly or indirectly purchase
or be interested in the purchase of the premises sold.  The
conservator of a minor or legally incapacitated
individual[ person] may not purchase or be interested
in the purchase of lands that are the subject of the proceedings,
except for the benefit of the ward.  Sales made contrary to this
provision are voidable, except as provided by MCL
700.5421[ 700.482].
     (3) – (7)  [unchanged]
(C)  [unchanged]
(D)  Distribution of Proceeds of Sale.
     (1) – (2)  [unchanged]
     (3)  The proceeds of a sale, after deducting the costs, must
be divided among the parties whose rights and interests have been
sold, in proportion to their respective rights in the premises.
          (a)  [unchanged]
          (b)  The court may direct that the share of a minor or
legally incapacitated individual [ person] be paid
to his or her conservator or be invested in interest-bearing
accounts insured by an agency of the United States government in
the name and for  the benefit of the minor or legally
incapacitated individual[ person].
          (c)  [unchanged]
     (4) – (5)  [unchanged]


Rule 5.104  Proof of Service; Waiver and Consent; Unopposed
Petition

(A)  Proof of Service.
     (1) - (3)  [unchanged]
  (4)  In unsupervised administration of a trust subrule
(A)(1) notwithstanding, no proof of service need be filed unless
required by court rule.
(B) - (C)  [unchanged]


Rule 5.113  Papers; Form and Filing

(A)  Forms of Papers Generally
     (1) - (2)  [unchanged]
(B)  Contents of Petitions.
     (1)  A petition must include allegations and representations
sufficient to justify the relief sought and must:
          (a) - (d)  [unchanged]
          (e)  except when ex parte relief is sought, include a
current list of interested persons[ parties],
indicate the existence and form of incapacity of any of them, the
mailing addresses of the persons[ parties] or their
representatives, the nature of representation and the need, if
any, for special representation.
     (2)  The petition may incorporate by reference papers and
lists of interested persons[ parties] previously
filed with the court if changes in the papers or lists are set
forth in the incorporating petition
(C) - (D)  [unchanged]


Rule 5.125  Interested Persons Defined

(A) - (B)  [unchanged]


(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) - (22)  [unchanged]
     (23) The persons interested in receiving a copy of the
report of a guardian of a legally incapacitated individual on the
condition of a ward are:
          (a)  the ward,
          (b)  the person who has principal care and custody of
the ward, and 
          (c)  the spouse and adult children or, if no adult
children are living, the presumptive heirs of the individual.
 (23) - (24)    [redesignated as (24) - (25) but otherwise
unchanged]
     (26[5])    The persons interested in a
petition by a conservator for instructions or approval of sale
of real estate or other[ an] asset are 
          (a)  the protected individual and 
          (b)  those persons listed in subrule (C)(23) who will
be affected by the instructions or order.
     (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 14 years of
age or older and can be located,
          (b)  the presumptive heirs of the protected individual
or ward and
          (c)  claimants.
     (26) - (30)    [redesignated as (28) - (32) but otherwise
unchanged]
(D) - (E)  [unchanged]


Rule 5.202  Letters of Authority 

(A)  [unchanged]
(B)  []Restrictions and Limitations.  The court may
restrict or limit the powers of a fiduciary.  The restrictions
and limitations imposed must appear[ conspicuously] on the
letters of authority.  The court may modify or remove the
restrictions and limitations with or without a hearing.  
(C)  [unchanged]


Rule 5.207  Sale of Real Estate
[text of rule unchanged]



COMMENT:  This rule is new.  Interested persons to be served
notice of hearing on a sale of real estate are listed in MCR
5.125(C)(12) and (26)[ (25)] for decedent estates
and conservatorships, respectively.


Rule 5.302  Commencement of Decedent Estates

(A) - (C)  [unchanged]
(D)    Petition by Parent of Minor.  In the interest of
justice, the court may allow a custodial parent who has filed an
appearance to file a petition to commence proceedings in a
decedent estate on behalf of a minor child where the child is an
interested person in the estate.


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, the petition for settlement order under MCL
700.3953, or the sworn[ closing] statement under
MCL 700.3954 or one year after appointment, whichever is earlier.
(B) - (D)  [unchanged]


Rule 5.308  Formal Proceedings

(A)  [unchanged]
(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.  Determination of
heirs is also required whenever supervised administration is
requested.  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)  [unchanged]


Rule 5.310  Supervised Administration

(A)  [unchanged]
(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. 
Whenever supervised administration is requested, the court must
determine heirs unless heirs were previously determined, even if
supervised administration is denied.
(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)  [unchanged]
     (2)  Accountings.
          (a)- (b)  [unchanged]    
          (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)- (e)  [unchanged]
     (3) - (7)  [unchanged]
(D) - (F)  [unchanged]
(G)  Approval of compensation of an attorney must be sought
pursuant to MCR 5.313.  
(H)  Order of Complete Estate Settlement.  An estate being
administered in supervised administration must be closed under
MCL 700.3952, using the procedures specified in MCR 5.311(B)(1).


Rule 5.311  Closing Estate[ Administration]
[text of rule unchanged]


Rule 5.312  Reopening Decedent Estate

(A) - (B)  [unchanged]
(C)    Calculation of Due Dates.  For purposes of determining
when the inventory fee calculation, the inventory filing, the
inventory fee payment, and the notice of continuied
administration are due, a reopened decedent estate is to be
treated as a new case.


Rule 5.404  Guardianship of Minor

(A)  Limited Guardianship.
     (1)  Modification of Placement Plan.
          (a) - (b)  [unchanged]
          (c)  If the court approves the proposed modified plan,
the court shall endorse the modified plan and notify the
interested persons[ parties] of its approval.
          (d)  [unchanged]
     (2)  [unchanged]
(B)  [unchanged]
(C)  Evidence.
     (1)  [unchanged]
     (2)  Written Reports, Review and Cross-Examination. 
Interested persons[ parties] shall be afforded an
opportunity to examine and controvert written reports so received
and, in the court's discretion, may be allowed to cross-examine
individuals making reports when such individuals are reasonably
available.
     (3)  [unchanged]
(D) - (E)  [unchanged][]


Rule 5.407  Conservatorship;[ Confirmation of Sale of Real
Estate;] Settlements

[(A)   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
confirmation to sell, mortgage, or lease real property of the
protected person or any interest therein.
(B)  Settlements.] A conservator may not enter into a
settlement in any court on behalf of the protected person if the
conservator will share in the settlement unless a guardian ad
litem has been appointed to represent the protected person's
interest and has consented to such settlement in writing or on
the record or the court approves the settlement over any
objection.


Rule 5.409  Report of Guardian; Inventories and Accounts of
Conservators

(A)  Reports.  A guardian shall file a written report annually
within 56 days after the anniversary of appointment and at other
times as the court may order.  Reports must be substantially in
the form approved by the state court administrator.  The
guardian must serve the report on the persons listed in MCR
5.125(C)(23).
(B) - (F)  [unchanged]


Rule 5.501  Trust Proceedings in General

(A)  [unchanged]
(B)  Unsupervised[ 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.


Rule 5.503  Notice to Creditors by Trustee of Revocable Inter
Vivos Trust  

(A)  Place of Publication, Proof.  A notice that must be
published under MCL 700.7504 must be published in a newspaper as
defined by MCR 2.106(F) in the county in which the settlor was
domiciled at the time of death.  No proof of publication need
be filed in connection with unsupervised administration of a
trust.
(B)  [unchanged]




RULE 5.740  Jury Trial

(A)  Persons Permitted to Demand Jury Trial.  Notwithstanding
MCR 5.158(A)[ 5.508(A)], only an individual alleged
to be in need of involuntary mental health treatment or an
individual with mental retardation alleged to meet the criteria
for judicial admission may demand a jury trial in a civil
admission proceeding.
(B) – (D)  [unchanged]


RULE 7.101  Procedure Generally

(A) – (G)  [unchanged]
(H) Stay of Proceedings.
     (1)  [unchanged]
     (2) Probate Proceedings.
          (a)  [unchanged]
          (b)  A stay in an appeal from the probate court is
governed by MCL 600.867, [MCL 700.35,] and MCR 5.802(C).
     (3) – (5)  [unchanged]
(I) – (P)  [unchanged]



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 this proposal 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
this proposal may be sent to the Supreme Court clerk in writing
or electronically by November 1, 2001.  P.O. Box 30052, Lansing,
MI 48909, or MSC_clerk@jud.state.mi.us.  When filing a comment,
please refer to file 99-62.