Rule 5.001 Applicability
(A) Applicability of Rules. Procedure in probate court is governed by the rules applicable to other civil proceedings, except as modified by the rules in this chapter.
(B) Terminology.
(1) References to the "clerk" in the Michigan Court Rules also apply to the register in probate court proceedings.
(2) References to "pleadings" in the Michigan Court Rules also apply to petitions, objections, and claims in probate court proceedings.
(Current as of 06/30/2006)
Rule 5.101 Form and Commencement of Action
(A) Form of Action. There are two forms of action, a "proceeding" and a "civil action."
(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) Any action filed by a claimant after notice that the claim has been disallowed.
(Current as of 06/30/2006)
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. 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.
(Current as of 06/30/2006)
Rule 5.103 Who May Serve
(A) Qualifications. Service may be made by any adult or emancipated minor, including an interested person.
(B) Service in a Governmental Institution. Personal service on a person in a governmental institution, hospital, or home must be made by the person in charge of the institution or a person designated by that person.
(Current as of 06/30/2006)
Rule 5.104 Proof of Service; Waiver and Consent; Unopposed Petition
(A) Proof of Service.
(1) Whenever service is required by statute or court rule, a proof of service must be filed promptly and at the latest before a hearing to which the paper relates or at the time the paper is required to be filed with the court if the paper does not relate to a hearing. The proof of service must include a description of the papers served, the date of service, the manner and method of service, and the person or persons served.
(2) Except as otherwise provided by rule, proof of service of a paper required or permitted to be served may be by
(a) a copy of the notice of hearing, if any;
(b) copies of other papers served with the notice of hearing, with a description of the papers in the proof of service;
(c) authentication under MCR 5.114(B) of the person making service.
(3) Subrule (A)(1) notwithstanding, in decedent estates, no proof of service need be filed in connection with informal proceedings or unsupervised administration unless required by court rule.
(4) In unsupervised administration of a trust, subrule (A)(1) notwithstanding, no proof of service need be filed unless required by court rule.
(B) Waiver and Consent.
(1) Waiver. The right to notice of hearing may be waived. The waiver must
(a) be stated on the record at the hearing, or
(b) be in a writing, which is dated and signed by the interested person or someone authorized to consent on the interested person's behalf and specifies the hearing to which it applies.
(2) Consent. The relief requested in an application, petition, or motion may be granted by consent. An interested person 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) be stated on the record at the hearing, or
(b) be in a writing which is dated and signed by the interested person or someone authorized to consent on the interested person'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;
(b) by a person designated in these rules as eligible to be served on behalf of an interested person who is a legally disabled person; or
(c) on behalf of an interested person 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 have consented, the order may be entered immediately.
(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.
(Current as of 06/30/2006)
Rule 5.105 Manner and Method of Service
(A) Manner of Service.
(1) Service on an interested person 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 by registered, certified, or ordinary first-class mail. Foreign consul and the Attorney General may be served by mail.
(3) An interested person 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 could not be ascertained on diligent inquiry. Except in proceedings seeking a determination of a presumption of death based on absence pursuant to MCL 700.1208(2), after an interested person has once been served by publication, notice is only required on an interested person 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, or
(b) service cannot otherwise reasonably be made.
(B) Method of Service.
(1) Personal Service.
(a) On an Attorney. Personal service of a paper on an attorney must be made by
(i) handing it to the attorney personally;
(ii) leaving it at the attorney's office with a clerk or with some person in charge or, if no one is in charge or present, by leaving it in some conspicuous place there, or by electronically delivering a facsimile to the attorney's office;
(iii) if the office is closed or the attorney has no office, by leaving it at the attorney's usual residence with some person of suitable age and discretion residing there; or
(iv) sending the paper by registered mail or certified mail, return receipt requested, and delivery restricted to the addressee; but service is not made for purpose of this subrule until the attorney receives the paper.
(b) On Other Individuals. Personal service of a paper on an individual other than an attorney must be made by
(i) handing it to the individual personally;
(ii) leaving it at the person's usual residence with some person of suitable age and discretion residing there; or
(iii) sending the paper by registered mail or certified mail, return receipt requested, and delivery restricted to the addressee; but service is not made for purpose of this subrule until the individual receives the paper.
(c) On Persons Other Than Individuals. Service on an interested person other than an individual must be made in the manner provided in MCR 2.105(C)-(G).
(2) Mailing. Mailing of a copy under this rule means enclosing it in a sealed envelope with first-class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete at the time of mailing.
(3) Publication. Service by publication must be made in the manner provided in MCR 5.106.
(C) Petitioner, Service Not Required. For service of notice of hearing on a petition, the petitioner, although otherwise an interested person, 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, 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.
(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. 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, 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) 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 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 or unborn persons, notice and papers must be served on the persons to whom the interest is first limited.
(2) If an interest is limited to persons whose existence as a class is conditioned on some future event, notice and papers must be served on the persons in being who would comprise the class if the required event had taken place immediately before the time when the papers are served.
(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 or unborn interested persons.
(Current as of 06/30/2006)
Rule 5.106 Publication of Notice of Hearing
(A) Requirements. A notice of hearing or other notice required to be made by publication must be published in a newspaper as defined by MCR 2.106(F) one time at least 14 days before the date of the hearing, except that publication of a notice seeking a determination of a presumption of death based on absence pursuant to MCL 700.1208(2) must be made once a month for 4 consecutive months before the hearing.
(B) Contents of Published Notice. If notice is given to a person by publication because the person's address or whereabouts is not known and cannot be ascertained after diligent inquiry, the published notice must include the name of the person to whom the notice is given and a statement that the result of the hearing may be to bar or affect the person's interest in the matter.
(C) Affidavit of Publication. The person who orders the publication must cause to be filed with the court a copy of the publication notice and the publisher's 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 at his or her last known address if the person's present address is not known and cannot be ascertained by diligent inquiry;
(2) need not be mailed to an interested person if an address cannot be ascertained by diligent inquiry.
(E) Location of Publication. Publication must be in the county where the court is located unless a different county is specified by statute, court rule, or order of the court.
(Current as of 06/30/2006)
Rule 5.107 Other Papers Required to be Served
(A) Other Papers to be Served. The person filing a petition, an application, a sworn testimony form, supplemental sworn testimony form, a motion, a response or objection, an instrument offered or admitted to probate, an accounting, or a sworn closing statement with the court must serve a copy of that document on interested persons. The person who obtains an order from the court must serve a copy of the order on interested persons.
(B) Exceptions.
(1) Service of the papers listed in subrule (A) is not required to be made on an interested person whose address or whereabouts, on diligent inquiry, is unknown, or on an unascertained or unborn person. The court may excuse service on an interested person for good cause.
(2) Service is not required for a small estate filed under MCL 700.3982.
(Current as of 06/30/2006)
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) Exception: Foreign Consul. This rule does not affect the manner and time for service on foreign consul provided by law.
(D) Computation of Time. MCR 1.108 governs computation of time in probate proceedings.
(E) Responses. A written response or objection may be served at any time before the hearing or at a time set by the court.
(Current as of 06/30/2006)
Rule 5.112 Prior Proceedings Affecting the Person of a Minor
Proceedings affecting the person of a minor subject to the prior continuing jurisdiction of another court of record are governed by MCR 3.205, including the requirement that petitions in such proceedings must contain allegations with respect to the prior proceedings.
(Current as of 06/30/2006)
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) 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 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) 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) Contents of Petitions.
(1) A petition must include allegations and representations sufficient to justify the relief sought and must:
(a) identify the petitioner, and the petitioner's interest in proceedings, and qualification to petition;
(b) include allegations as to residence, domicile, or property situs essential to establishing court jurisdiction;
(c) identify and incorporate, directly or by reference, any documents to be admitted, construed, or interpreted;
(d) include any additional allegations required by law or court rule;
(e) except when ex parte relief is sought, include a current list of interested persons, indicate the existence and form of incapacity of any of them, the mailing addresses of the persons 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 previously filed with the court if changes in the papers or lists are set forth in the incorporating petition.
(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.
(Current as of 06/30/2006)
Rule 5.114 Signing and Authentication of Papers
(A) Signing of Papers.
(1) The provisions of MCR 2.114 regarding the signing of papers apply in probate proceedings except as provided in this subrule.
(2) When a person 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, acceptance of appointment, and sworn closing statement must be signed by the fiduciary or trustee. A receipt for assets must be signed by the person 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) In addition to the sanctions provided by MCR 2.114(E), a person who knowingly makes a false declaration under subrule (B)(1) is in contempt of court.
(Current as of 06/30/2006)
Rule 5.117 Appearance by Attorneys
(A) Representation of Fiduciary. An attorney filing an appearance on behalf of a fiduciary shall represent the fiduciary.
(B) Appearance.
(1) In General. An attorney may appear by an act indicating that the attorney represents an interested person in the proceeding. An appearance by an attorney for an interested person is deemed an appearance by the interested person. Unless a particular rule indicates otherwise, any act required to be performed by an interested person may be performed by the attorney representing the interested person.
(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, the attorney must promptly file a written appearance and serve it on the interested persons whose addresses are known and on the fiduciary. 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.
(b) The appearance of an attorney is deemed to be the appearance of every member of the law firm. Any attorney in the firm may be required by the court to conduct a court-ordered conference or trial.
(C) Duration of Appearance by Attorney.
(1) In General. Unless otherwise stated in the appearance or ordered by the court, an attorney's appearance applies only in the court in which it is made or to which the action is transferred and only for the proceeding in which it is filed.
(2) Appearance on Behalf of Fiduciary. An appearance on behalf of a fiduciary 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 a Personal Representative. In unsupervised administration, the probate register may enter an order terminating an appearance on behalf of a personal representative if the personal representative consents in writing to the termination.
(4) Other Appearance. An appearance on behalf of a client other than a fiduciary 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 or the probate register in an unsupervised administration may enter an order permitting the substitution without prior notice to the interested persons or fiduciary. If the order is entered, the substituted attorney must give notice of the substitution to all interested persons and the fiduciary.
(D) Right to Determination of Compensation. An attorney whose services are terminated retains the right to have compensation determined before the proceeding is closed.
(Current as of 06/30/2006)
Rule 5.118 Amending or Supplementing Papers
(A) Papers Subject to Hearing. A person who has filed a paper that is subject to a hearing may amend or supplement the paper
(1) before a hearing if notice is given pursuant to these rules, or
(2) at the hearing without new notice of hearing if the court determines that material prejudice would not result to the substantial rights of the person to whom the notice should have been directed.
(B) Papers Not Subject to Hearing. A person 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.
(Current as of 06/30/2006)
Rule 5.119 Additional Petitions; Objections; Hearing Practices
(A) Right to Hearing, New Matter. An interested person 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 and other interested persons whose addresses are known.
(B) Objection to Pending Matter. An interested person 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) Adjournment. A petition that is not heard on the day for which it is noticed, in the absence of a special order, stands adjourned from day to day or until a day certain.
(D) Briefs; Argument. The court may require that briefs of law and fact and proposed orders be filed as a condition precedent to oral argument. The court may limit oral argument.
(Current as of 06/30/2006)
Rule 5.120 Action by Fiduciary in Contested Matter; Notice to Interested Persons; Failure to Intervene
The fiduciary represents the interested persons in a contested matter. The fiduciary must give notice to all interested persons whose addresses are known that a contested matter has been commenced and must keep such interested persons reasonably informed of the fiduciary's actions concerning the matter. The fiduciary must inform the interested persons 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. The interested person shall be bound by the actions of the fiduciary after such notice and until the interested person notifies the fiduciary that the interested person has filed with the court a petition to intervene.
(Current as of 06/30/2006)
Rule 5.121 Guardian Ad Litem; Visitor
(A) Appointment.
(1) Guardian Ad Litem. The court shall appoint a guardian ad litem when required by law. If it deems necessary, the court may appoint a guardian ad litem to appear for and represent the interests of any person in any proceeding. The court shall state the purpose of the appointment in the order of appointment. The order may be entered with or without notice.
(2) Visitor. The court may appoint a visitor when authorized by law.
(B) Revocation. If it deems necessary, the court may revoke the appointment and appoint another guardian ad litem or visitor.
(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) Reports, Admission Into Evidence. Oral and written reports of a guardian ad litem or visitor may be received by the court and may be relied on to the extent of their probative value, even though such evidence may not be admissible under the Michigan Rules of Evidence.
(2) Reports, Review and Cross-Examination.
(a) Any interested person shall be afforded an opportunity to examine and controvert reports received into evidence.
(b) The person who is the subject of a report received under subrule (D)(1) shall be permitted to cross-examine the individual making the report if the person requests such an opportunity.
(c) Other interested persons 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) Attorney-Client Privilege.
(1) During Appointment of Guardian Ad Litem. When the guardian ad litem appointed to represent the interest of a person is an attorney, that appointment does not create an attorney-client relationship. Communications between that person and the guardian ad litem are not subject to the attorney-client privilege. The guardian ad litem must inform the person whose interests are represented of this lack of privilege as soon as practicable after appointment. The guardian ad litem may report or testify about any communication with the person whose interests are represented.
(2) Later Appointment as Attorney. If the appointment of the guardian ad litem is terminated and the same individual is appointed attorney, the appointment as attorney creates an attorney-client relationship. The attorney-client privilege relates back to the date of the appointment of the guardian ad litem.
(Current as of 06/30/2006)
Rule 5.125 Interested Persons Defined
(A) Special Persons. In addition to persons named in subrule (C) with respect to specific proceedings, the following persons must be served:
(1) The Attorney General must be served if required by law or court rule. The Attorney General must be served in the specific proceedings enumerated in subrule (C) when the decedent is not survived by any known heirs, or the protected person has no known presumptive heirs.
(2) A foreign consul must be served if required by MCL 700.1401(4) or court rule. An attorney who has filed an appearance for a foreign consul must be served when required by subrule (A)(5).
(3) On a petition for the appointment of a guardian or conservator of a person on whose account benefits are payable by the Veterans' Administration, the Administrator of Veterans' Affairs must be served through the administrator's Michigan district counsel.
(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, 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.
(6) A special fiduciary appointed under MCL 700.1309.
(7) A person who filed a demand for notice under MCL 700.3205 or a request for notice under MCL 700.5104 if the demand or request has not been withdrawn, expired, or terminated by court order.
(B) Special Conditions for Interested Persons.
(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, 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.
(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 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,
(d) nominated personal representative, and
(e) trustee of a revocable trust described in MCL 700.7501(1).
(2) The persons interested in an application or a petition to appoint a personal representative, other than a special personal representative, of an intestate estate are the
(a) heirs,
(b) nominated personal representative, and
(c) trustee of a revocable trust described in MCL 700.7501(1).
(3) The persons interested in a petition to determine the heirs of a decedent are the heirs.
(4) The persons 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 interested in a proceeding for spouse's allowance are the
(a) devisees of a testate estate,
(b) heirs of an intestate estate,
(c) claimants,
(d) spouse, and
(e) the personal representative, if the spouse is not the personal representative.
(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) claimants,
(e) current trust beneficiaries in a trust accounting, and
(f) 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) The persons interested in a proceeding for partial distribution of the estate of a decedent are the
(a) devisees of a testate estate entitled to share in the residue,
(b) heirs of an intestate estate,
(c) claimants, and
(d) any other person whose unsatisfied interests in the estate may be affected by such assignment.
(8) The persons interested in a petition for an order of complete estate settlement under MCL 700.3952 or a petition for discharge under MCR 5.311(B)(3) are the
(a) devisees of a testate estate,
(b) heirs unless there has been an adjudication that decedent died testate,
(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 are the
(a) personal representative,
(b) devisees,
(c) claimants, and
(d) such other persons whose interests are affected by the relief requested.
(10) The persons 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) The persons interested in a petition for supervised administration after an estate has been commenced are the
(a) devisees, unless the court has previously found decedent died intestate,
(b) heirs, unless the court has previously found decedent died testate,
(c) personal representative, and
(d) claimants.
(12) The persons interested in an independent request for adjudication under MCL 700.3415 and a petition for an interim order under MCL 700.3505 are the
(a) personal representative, and
(b) other persons who will be affected by the adjudication.
(13) The persons 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.
(14) The persons interested in a will contest settlement proceeding are the
(a) heirs of the decedent and
(b) devisees affected by settlement.
(15) The persons 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) The persons 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) The persons interested in a petition to establish the cause and date of death in an accident or disaster case under MCL 700.1208 are the heirs of the presumed decedent.
(18) The persons 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 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) The persons interested in a petition for appointment of a guardian for a minor are
(a) the minor, if 14 years of age or older;
(b) if known by the petitioner, each person who had the principal care and custody of the minor during the 63 days preceding the filing of the petition;
(c) the parents of the minor or, if neither of them is living, any grandparents and the adult presumptive heirs of the minor, and
(d) the nominated guardian.
(20) The persons interested in the acceptance of parental appointment of the guardian of a minor under MCL 700.5202 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) The persons interested in a 7-day notice of acceptance of appointment as guardian of an incapacitated individual under MCL 700.5301 are the
(a) incapacitated individual,
(b) person having the care of the incapacitated individual, and
(c) presumptive heirs of the incapacitated individual.
(22) The persons interested in a petition for appointment of a guardian of an alleged incapacitated individual are
(a) the alleged incapacitated individual,
(b) if known, a person named as attorney in fact under a durable power of attorney,
(c) the alleged incapacitated individual's spouse,
(d) the alleged incapacitated individual's children or, if no adult child is living, the individual's parents,
(e) if no spouse, child, or parent is living, the presumptive heirs of the individual,
(f) the person who has the care and custody of the alleged incapacitated individual, and
(g) the nominated guardian.
(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.
(24) The persons interested in a petition for the appointment of a conservator or for a protective order are
(a) the individual to be protected if 14 years of age or older,
(b) the presumptive heirs of the individual to be protected,
(c) if known, a person named as attorney in fact under a durable power of attorney,
(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.
(25) The persons 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), or (23) as the case may be, and
(b) the guardian or conservator.
(26) The persons interested in a petition by a conservator for instructions or approval of sale of real estate or other 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.
(28) The persons interested in a petition for approval of a trust under MCR 2.420 are
(a) the protected individual if 14 years of age or older,
(b) the presumptive heirs of the protected individual,
(c) if there is no conservator, a person named as attorney in fact under a durable power of attorney,
(d) the nominated trustee, and
(e) a governmental agency paying benefits to the individual to be protected or before which an application for benefits is pending.
(29) The persons 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.
(30) Interested persons for any proceeding concerning a durable power of attorney for health care are
(a) the patient,
(b) the patient's advocate,
(c) the patient's spouse,
(d) the patient's adult children,
(e) the patient's parents if the patient has no adult children,
(f) if the patient has no spouse, adult children, or parents, the patient's minor children, or, if there are none, the presumptive heirs whose addresses are known,
(g) the patient's guardian and conservator, if any, and
(h) the patient's guardian ad litem.
(31) Persons interested in a proceeding to require, hear, or settle an accounting of an 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 heirs.
(D) The court shall make a specific determination of the interested persons if they are not defined by statute or court rule.
(E) In the interest of justice, the court may require additional persons be served.
(Current as of 06/30/2006)
Rule 5.126 Demand or Request for Notice
(A) Applicability. For purposes of this rule "demand" means a demand or request. This rule governs the procedures to be followed regarding a person who files a demand for notice pursuant to MCL 700.3205 or MCL 700.5104. This person under both sections is referred to as a "demandant."
(B) Procedure.
(1) Obligation to Provide Notice or Copies of Documents. Except in small estates under MCL 700.3982 and MCL 700.3983, 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 or applicant at the time of filing that a demand for notice has been filed and 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.
(Current as of 06/30/2006)
Rule 5.127 Venue of Certain Actions
(A) Defendant Found Incompetent to Stand Trial. When a criminal defendant is found mentally incompetent to stand trial and is referred to the probate court for admission to a treating facility,
(1) if the defendant is a Michigan resident, venue is proper in the county where the defendant resides;
(2) if the defendant is not a Michigan resident, venue is proper in the county of the referring criminal court.
(B) Guardian of Property of Nonresident With a Developmental Disability. If an individual with a developmental disability 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 Who is in a Facility. If venue for a proceeding to appoint a guardian for an individual with a developmental disability who is in a facility is questioned, and it appears that the convenience of the individual with a developmental disability or guardian would not be served by proceeding in the county where the individual with a developmental disability was found, venue is proper in the county where the individual with a developmental disability 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 and the residence of relatives or others who have provided care.
(Current as of 06/30/2006)
Rule 5.128 Change of Venue
(A) Reasons for Change. On petition by an interested person 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) except as provided in MCR 5.306(A) or unless the court directs otherwise, notices required to be published must be published in the county to which venue was changed.
(Current as of 06/30/2006)
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.
(Current as of 06/30/2006)
Rule 5.132 Proof of Wills
(A) Deposition of Witness to Will. If no written objection 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 who was not given notice of the taking of the deposition as provided by MCR 2.306(B) objects to its use.
(B) Use of Copy of Will. When proof of a will is required and a deposition is to be taken, a copy of the original will or other document made by photographic or similar process may be used at the deposition.
(Current as of 06/30/2006)
Rule 5.141 Pretrial Procedures; Conferences; Scheduling Orders
The procedures of MCR 2.401 shall apply in a contested proceeding.
(Current as of 06/30/2006)
Rule 5.142 Pretrial Motions in Contested Proceedings
In a contested proceeding, pretrial motions are governed by the rules that are applicable in civil actions in circuit court.
(Current as of 06/30/2006)
Rule 5.143 Alternative Dispute Resolution
(A) The court may submit to mediation, case evaluation, or other alternative dispute resolution process one or more requests for relief in any contested proceeding. MCR 2.410 applies to the extent possible.
(B) If a dispute is submitted to case evaluation, MCR 2.403 and 2.404 shall apply to the extent feasible, except that sanctions must not be awarded unless the subject matter of the case evaluation involves money damages or division of property.
(Current as of 06/30/2006)
Rule 5.144 Administratively Closed File
(A) Administrative Closing. The court may administratively close a file
(1) for failure to file a notice of continuing administration as provided by MCL 700.3951(3) or
(2) for other reasons as provided by MCR 5.203(D) or, after notice and hearing, upon a finding of good cause.
In a conservatorship, the court may administratively close a file only when there are insufficient assets in the estate to employ a successor or special fiduciary, or after notice and hearing upon a finding of good cause. If the court administratively closes the conservatorship, the court shall provide notice to the state court administrative office of the closure.
(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.
(Current as of 06/30/2006)
Rule 5.151 Jury Trial, Applicable Rules
Jury trials in probate proceedings shall be governed by MCR 2.508 through 2.516 except as modified by this subchapter or MCR 5.740 for mental health proceedings.
(Current as of 06/30/2006)
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 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) Waiver. A party who fails to file a demand or pay the jury fee as required by this rule waives trial by jury. A jury is waived if trial or hearing is commenced without a demand being filed.
(Current as of 06/30/2006)
Rule 5.162 Form and Signing of Judgments and Orders
(A) Form of Judgments and Orders. A proposed judgment or order must include the name, address, and telephone number of the attorney or party who prepared it. All judgments and orders of the court must be typewritten or legibly printed in ink and signed by the judge to whom the proceeding is assigned.
(B) Procedure for Entry of Judgments and Orders. In a contested matter, the procedure for entry of judgments and orders is as provided in MCR 2.602(B).
(Current as of 06/30/2006)
Rule 5.201 Applicability
Rules in this subchapter contain requirements applicable to all fiduciaries except trustees and apply to all estates except trusts.
(Current as of 06/30/2006)
Rule 5.202 Letters of Authority
(A) Issuance. 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) Restrictions and Limitations. The court may restrict or limit the powers of a fiduciary. The restrictions and limitations imposed must appear on the letters of authority. The court may modify or remove the restrictions and limitations with or without a hearing.
(C) 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.
(Current as of 06/30/2006)
Rule 5.203 Follow-Up Procedures
Except in the instance of a personal representative who fails to timely comply with the requirements of MCL 700.3951(1), if 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, any financial institution listed on the most recent inventory or account where the fiduciary has deposited funds, any currently serving guardian ad litem, and the interested persons at their addresses shown in the court file. This rule does not preclude contempt proceedings as provided by law.
(E) Reports on the Status of Estates. The chief judge of each probate court must file with the state court administrator, on forms provided by the state court administrative office, any reports on the status of estates required by the state court administrator.
(Current as of 06/30/2006)
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 on its own initiative, on the notice it directs, or without notice in its discretion.
(B) Duties and Powers. The special fiduciary has all the duties and powers specified in the order of the court appointing the special fiduciary. 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.
(Current as of 06/30/2006)
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.
(Current as of 06/30/2006)
Rule 5.206 Duty to Complete Administration
A fiduciary and an attorney for a fiduciary must take all actions reasonably necessary to regularly 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.
(Current as of 06/30/2006)
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,
(3) the financial condition of the estate before the sale, and
(4) an appended copy of the most recent assessor statement showing the state equalized value of the property. If the court is not satisfied that the evidence provides the fair market value, a written appraisal may be ordered.
(B) Bond. The court may require a bond before approving a sale of real estate in an amount sufficient to protect the estate.
(Current as of 06/30/2006)
Rule 5.301 Applicability
The rules in this subchapter apply to decedent estate proceedings other than proceedings provided by law for small estates under MCL 700.3982.
(Current as of 06/30/2006)
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. When filing either an application or petition to commence a decedent estate, a copy of the death certificate must be attached. If the death certificate is not available, the petitioner may provide alternative documentation of the decedent's death. Requiring additional documentation, such as information about the proposed personal representative, is prohibited.
(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.
(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.
(Current as of 06/30/2006)
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 and the agreement and notice relating to attorney fees required by MCR 5.313(D). No notice of appointment need be served if the person 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 administration 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.
(Current as of 06/30/2006)
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.
(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 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 other than the widow under legal disability having no legal guardian or conservator, there may not be a hearing on the petition until after the appointment of a guardian ad litem for such person.
(Current as of 06/30/2006)
Rule 5.306 Notice to Creditors, Presentment of Claims
(A) Publication of Notice to Creditors; Contents. Unless the notice has already been given, 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. The notice must include:
(1) The name, and, if known, last known address, date of death, and date of birth of the decedent;
(2) The name and address of the personal representative;
(3) The name and address of the court where proceedings are filed; and
(4) A statement that claims will be forever barred unless presented to the personal representative, or to both the court and the 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). 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.
(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, MCL 700.3983, or MCL 700.3987;
(3) The decedent has been dead for more than 3 years;
(4) Notice has previously been given under MCL 700.7504 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.
(D) Presentment of Claims. A claim may be presented to the personal representative by mailing or delivering the claim to the personal representative's attorney. A claim is presented
(1) on mailing, if addressed to the personal representative, the personal representative's attorney, or the court, or
(2) in all other cases, when received by the personal representative or the court.
For purposes of this subrule, personal representative includes a proposed personal representative.
(Current as of 06/30/2006)
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 submit to the court the information necessary for computation of the probate inventory fee. In calculating the inventory fee, deductions shall be allowed for secured loans on property listed on the inventory, but no other deductions shall be allowed. 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 statement under MCL 700.3954, 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 provided to 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 submit to 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."
"Duty to Complete Administration of Estate: You must complete the administration of the estate and file appropriate closing papers with the court. Failure to do so may result in personal assessment of costs."
(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).
(Current as of 06/30/2006)
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. 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) 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.
(Current as of 06/30/2006)
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 at least 14 days prior to the appointment, 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 is unknown and cannot be ascertained after diligent inquiry, the information in MCL 700.3306(2) must be provided by publication pursuant to MCR 5.106. Publication of notice under this rule is not required if a personal representative has been appointed and provided notice under MCR 5.304.
(Current as of 06/30/2006)
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. 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) 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. 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.
(3) Notice of appointment.
(4) Fees notice pursuant to MCR 5.313.
(5) Notice to spouse.
(6) Affidavit of any required publication.
(7) Such other papers as are ordered by the court.
(D) Tax Information. 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 that no Michigan estate tax is due.
(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.
"Duty to Complete Administration of Estate: You must complete the administration of the estate and file appropriate closing papers with the court. Failure to do so may result in personal assessment of costs."
(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) 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).
(Current as of 06/30/2006)
Rule 5.311 Closing Estate
(A) Closing by Sworn Statement. In unsupervised administration, a personal representative may close an estate by filing a sworn closing statement under MCL 700.3954 or 700.3988.
(B) Formal Proceedings.
(1) Requirements for Order of Complete Estate Settlement under MCL 700.3952. An estate being administered in supervised administration must be closed by an order for complete estate settlement under MCL 700.3952. 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. A personal representative or a devisee may file a petition for a settlement order under MCL 700.3953; 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 or MCL 700.3953 shall, in addition to any other relief, terminate the personal representative's authority and close the estate.
(C) Closing of Reopened Estate. After completion of the reopened estate administration, the personal representative shall proceed to close the estate by filing a petition under MCL 700.3952 or MCL 700.3953 or a supplemental closing statement under MCL 700.3954. If a supplemental closing statement is filed, the personal representative must serve a copy on each interested person. If an objection is not filed within 28 days, the personal representative is entitled to receive a supplemental certificate of completion.
(Current as of 06/30/2006)
Rule 5.312 Reopening Decedent Estate
(A) Reopening by Application. 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.
(B) Reopening by Petition. The previously appointed personal representative or an interested person may file a petition with the court to reopen the estate and appoint a personal representative under MCL 700.3959.
(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 continued administration are due, a reopened decedent estate is to be treated as a new case.
(Current as of 06/30/2006)
Rule 5.313 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, 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 or the proposed personal representative must enter into a written fee agreement signed by them. A copy of the agreement must be provided to the personal representative.
(C) Records. Regardless of the fee agreement, every attorney who represents a personal representative 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. Within 14 days after the appointment of a personal representative or the retention of an attorney by a personal representative, whichever is later, the personal representative must mail to the interested persons 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 is entitled to a copy of each statement for services or costs upon request,
(3) that the person may object to the fees at any time prior to the allowance of fees by the court,
(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 or attorney.
(E) Payment of Fees. A personal representative may make, 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 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 who are affected;
(3) a statement for services and costs (containing the information required by subrule [C]) has been sent to the personal representative and each interested person 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.
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) Claims for compensation, Required Information. Except when the compensation is consented to by all the parties affected, the personal representative must append to an accounting, petition, or motion in which compensation is claimed a statement containing the information required by subrule (C).
(G) Contingent Fee Agreements under MCR 8.121. Subrules (C), (E), and (F) of this rule do not apply to a contingent fee agreement between a personal representative and an attorney under MCR 8.121.
(Current as of 06/30/2006)
Rule 5.401 General Provisions
This subchapter 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 and, where applicable, the Mental Health Code, 1974 PA 258, as amended.
(Current as of 06/30/2006)
Rule 5.402 Common Provisions
(A) Petition; Multiple Prayers. A petition for the appointment of a guardian or a conservator or for a protective order may contain multiple prayers for relief.
(B) Petition by Minor. A petition and a nomination for the appointment of a guardian or conservator of a minor may be executed and made by a minor 14 years of age or older.
(C) Responsibility for Giving Notice; Manner of Service. The petitioner is responsible for giving notice of hearing. Regardless of statutory provisions, an interested person 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) Letters of Authority. On the filing of the acceptance of appointment or bond required by the order appointing a fiduciary, the court shall issue letters of authority on a form approved by the state court administrator. Any restriction or limitation of the powers of a guardian or conservator must be set forth in the letters of authority.
(Current as of 06/30/2006)
Rule 5.403 Proceedings on Temporary Guardianship
(A) Limitation. The court may appoint a temporary guardian only in the course of a proceeding for permanent guardianship.
(B) Notice of Hearing, Minor. For good cause, the court may shorten the period for notice of hearing or may dispense with notice of a hearing for the appointment of a temporary guardian of a minor, except that the minor shall always receive notice if the minor is 14 years of age or older.
(C) Temporary Guardian for Incapacitated Individual Where no Current Appointment; Guardian Ad Litem. 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 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. Where a petition for appointment of a limited guardian has 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) When Guardian Previously Appointed. If it comes to the attention of the court that a guardian of a minor is not properly performing the duties of a guardian, the court, after a hearing at which testimony is taken, may appoint a temporary guardian for a period not to exceed 6 months. The temporary guardian shall have the authority of the previously appointed guardian whose powers are suspended during the term of the temporary guardianship. The temporary guardian shall determine whether a petition to remove the guardian should be filed. If such a petition is not filed, the temporary guardian shall report to court with recommendations for action that the court should take in order to protect the minor upon expiration of the term of the temporary guardian. The report shall be filed within 1 month of the date of the expiration of the temporary guardianship.
(Current as of 06/30/2006)
Rule 5.404 Guardianship of Minor
(A) Petition for Guardianship of Minor. If the court requires the petitioner to file a social history before hearing a petition for guardianship of a minor, it shall do so on a form approved by the state court administrative office. The social history for minor guardianship is confidential, and it is not to be released, except on order of the court, to the parties or the attorneys for the parties.
(B) Limited Guardianship.
(1) Modification of Placement Plan.
(a) The parties to a limited guardianship placement plan may file a proposed modification of the plan without filing a petition. The proposed modification shall be substantially in the form approved by the state court administrator.
(b) The court shall examine the proposed modified plan and take further action under subrules (c) and (d) within 14 days of the filing of the proposed modified plan.
(c) If the court approves the proposed modified plan, the court shall endorse the modified plan and notify the interested persons of its approval.
(d) If the court does not approve the modification, t