WASHTENAW COUNTY <br>TRIAL COURT

Probate Court
101 East Huron St. - Rm 314, PO Box 8645
Ann Arbor, MI 48107-8645
(734) 222-3072
probate@ewashtenaw.org  

 

Formal Estates

Probating a Decedent’s Estate -- Formal Proceedings

The State Court Administrative Office (SCAO) maintains the entire collection of SCAO approved forms required for most filings in the Trial Court. Both the Trial Court forms and the SCAO forms are in PDF format.

I. Overview

Unsupervised administration of an estate may be conducted using informal or formal proceedings. While very similar to informal proceedings, probating a decedent’s estate using formal proceedings provides the security of a court order deciding issues within the estate. Formal proceedings are conducted by a judge, rather than the probate register, with notice given to interested parties. Formal proceedings may be used to begin the administration of an estate or they may be used at any time during the administration of an informal estate to have issues within the estate decided by court order.

II. Opening a Formal Estate

The very first step is determining in which county the estate proceedings should be filed. This is referred to as the proper venue for a proceeding. MCL 700.1302(a) defines proper venue as being the county where the decedent was domiciled at the time of death or, if the decedent was domiciled outside of Michigan, in a county where the decedent’s property was located at the time of death. Venue provisions for formal proceedings are identical to those for informal proceedings.

Michigan law provides that only an “interested person” may petition the court to begin an informal probate of an estate. According to MCR 5.125(C)(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

According to MCR 5.125 (C) (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

A “devisee” is a person given property in the decedent’s will. An “heir” is a person who is entitled to receive property from the decedent under the statute of intestate succession if the decedent died without a will.

When the petitioner has identified the proper Michigan County as having venue, the initial paperwork may be filed with the court. Once the interested person files the necessary paperwork to open an informal estate they become the “petitioner”. Filing may be made in person or by mail. Along with the court forms discussed below, the petitioner should also file the will and codicil of the decedent, if any, a death certificate, and must pay a filing fee of $175 and a $12 certification fee that must be paid when the petition is filed. The Probate Court accepts payment by cash, check, money order or credit card.

Before filing a petition please read How to File a Petition in Probate Court.  The forms which must be filed with or presented to the Probate Court to commence a formal proceeding are:

A. Petition for Probate and/or Appointment of Personal Representative (Testate/Intestate)(PC 559).  This multi-purpose petition is used to request formal probate proceedings for a variety of reasons, as stated above. Typically, the petitioner nominates him/herself to be appointed the Personal Representative of the estate.

A person may be appointed Personal Representative if they are over 18 years of age and do not have a guardian or conservator appointed for them.

Qualified persons have priority for appointment as personal representative in the following order:

(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
(b) The decedent's surviving spouse if the spouse is a devisee of the decedent.
(c) Other devisees of the decedent.
(d) The decedent's surviving spouse.
(e) Other heirs of the decedent.
(f) After 42 days following the decedent's death, the nominee of a creditor if the court finds the nominee suitable.
(g) The state or county public administrator if no interested person applied or petitioned for appointment of a personal representative within 42 days after the decedent's death; the decedent died apparently leaving no known heirs; there is no spouse, heir, or beneficiary under a will who is a United States resident and is entitled to a distributive share in the decedent's estate. MCL 700.3203.

A person who does not have top priority to be appointed Personal Representative for a given estate may send the form Notice of Intent to Request Informal Appointment of Personal Representative (PC 557) before filing the application for probate to those people who have equal or greater priority. If the address of a person with equal or greater priority to be Personal Representative is unknown the notice must be published.

B. Testimony of Interested Persons (PC 565).

C. Supplemental Testimony of Interested Persons Testate Estate (PC 566).  This form is only filed if decedent left a will and some of the devisees named in the will and codicils are not heirs of the testator.

D. Acceptance of Appointment (PC 571).

E. Letters of Authority for Personal Representative (PC 572). Letters of Authority will be issued once the Court is satisfied that the petitioner is qualified to be named the personal representative and the petitioner has filed an Acceptance of Appointment (PC 571) and a bond if bond is required.  The Letters of Authority shall not have an expiration date but if the estate is not closed within one year the Personal Representative must file a Notice of Continuing Administration. MCR 5.202

The court will issue an Order of Formal Proceedings (PC 569) following a hearing, if needed, which officially begins the probate administration process. The court must determine the decedent’s heirs in all formal proceedings. MCL 700.3409. The surviving spouse is an heir as are the children of the decedent and the parents or the children of the decedents parents. The formal proceedings continue as unsupervised unless a formal proceeding is started or supervised administration is ordered.

III. Duties of Personal Representative

The Personal Representative acts primarily without the direct involvement of the Probate Court. After the initial paperwork is filed with the court, the Personal Representative administers the estate and then proceeds to close the estate. Among the duties of a Personal Representative:

A. Notice of Appointment

Michigan law requires that the Personal Representatives provide notice of their appointment to the “interested parties” in the decedent’s estate. MCL 700.3705. The personal representative, except a special personal representative, shall give notice of the appointment to the decedent's heirs and devisees, except those who have executed a written waiver of notice.

The notice required under this subsection must be in a form approved by the Michigan Supreme Court and must include very specific information. The form Notice of Appointment and Duties of Personal Representative (PC 573) provides for all of the required information. This is discussed in more detail in the informal proceedings section.

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 regarding the attorney fees. MCR 5.313. The form for this notice is Notice Regarding Attorney Fees (PC 576). Attorney fees must usually 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.

B. Notice to Creditors

Unless notice has already been given, the personal representative must publish a notice to creditors in a newspaper in a county in which a resident decedent was domiciled or in which the proceeding as to a nonresident was initiated. MCL 700.3801. The notice must include the name, and, if known, last known address, date of death, and date of birth of the decedent; the name and address of the personal representative; the name and address of the court where proceedings are filed; and 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. MCR 5.306(A) .

Notice to a known creditor of the estate shall be given within 4 months after the date of the publication of notice to creditors. If the personal representative first knows of an estate creditor less than 28 days before 4 months after the date of the publication, then notice shall be given within 28 days after the personal representative first knows of the creditor. MCL 700.3801. No notice need be given to creditors if the estate has no assets, the decedent has been dead for more than 3 years, notice has previously been given in the county where the decedent was domiciled in Michigan, or to a creditor whose claim has been presented or paid.

C. Administration of the Estate

The personal representative is responsible for identifying, valuing and protecting everything that the decedent owned at the time of death, which makes up the assets of the estate. The Personal Representative must prepare an Inventory (PC 577) which is described in more detail in the informal proceedings section.

One of the types of litigation found in formal proceedings is that to determine whether the decedent left a valid will. Any interested person is entitled to contest the probate of a will. MCL 700.3401. Various grounds exist for having a will declared invalid: the will was improperly executed, the decedent had a lack of testamentary capacity when the signed the will or that the decedent’s signature on the will was obtained through undue influence. The informal probate of a will lasts only until a subsequent order in a formal proceeding overturns it. A formal order of testacy, finding that the decedent did leave a valid will, is permanent once the 21 day appeal period has expired.

The Personal Representative may file a Sworn Statement to Close (PC 591) the estate along with a Certificate of Completion (PC 592), or they may file a petition for complete estate settlement which requires a hearing before the Judge.

Once the Sworn Statement to Close and Certificate of Completion have been filed the court must wait 28 days for any objections to be filed. If no objections are filed the register will sign the Certificate of Completion and close the estate. Alternatively, once proper notice to interested persons is given of the petition for complete estate settlement, and a hearing is held, the Judge may enter an Order for Complete Estate Settlement. Then, after the Personal Representative provides the court with proof of payment of claims and distributions, and the court is satisfied that the administration is complete, the Judge will issue an Order of Discharge which will close the estate and terminate the authority of the Personal Representative.

This petition for complete estate settlement is a formal proceeding which provides finality and certainty in the form of an order from the Judge determining all issues in the estate. The Personal Representative has a choice of two forms to use if they wish to petition for complete estate settlement: Complete Estate Settlement, Testacy Previously Adjudicated (PC 593) and Petition for Adjudication of Testacy and Complete Estate Settlement (PC 594) . If there is a request for adjudication of testacy there must also be a determination of heirs.

If the personal representative discovers assets belonging to the estate after an estate has been closed and the personal representative has been discharged or one year has expired after a sworn statement was filed, the court may appoint the original or a successor personal representative upon the petition of an interested person. MCL 700.3959.

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