An informal probate proceeding has several steps. An Application for Informal Probate is filed with the Probate Clerk along with the Will and Codicil of the decedent. In addition, several other forms must be filed: Testimony of Interested Persons, Supplemental Testimony of Interested Persons Testate Estate, Register’s Statement, Acceptance of Appointment and Letters of Authority for Personal Representative.
If all papers are properly filled out and the Probate Register is able to make the required findings, the Register will sign the Register’s Statement and issue Letters of Authority to the Personal Representative.
The Personal Representative must then:
- Prepare an Inventory
- Pay the Inventory fee
- Give notice to creditors
- Pay the taxes
- Pay the bills of the estate and claims against the estate
- Distribute the assets as appropriate
- File a Notice of Continuing Administration if the estate is open for more than a year
- File a Sworn Statement to Close the estate once the estate has been fully administered.
The Sworn Statement to Close requires that service be made on all interested parties. Once the Sworn Statement to Close has 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.
Opening an Informal Estate
The very first step is to determine in which county (venue) the estate proceedings should be filed. MCL 700.1302(a) defines proper venue as being the county where the decedent was domiciled (lived) at the time of death or, if the decedent was domiciled (lived) outside of Michigan, in a county where the decedent’s property was located at the time of death.
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:
- Nominated trustee and current trust beneficiaries of a trust under the will
- Nominated personal representative
- 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:
- Nominated personal representative
- 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.
Once the interested person files the necessary paperwork to open an informal estate they become the “petitioner.” When the petitioner has identified the proper Michigan County as having venue, the initial paperwork may be filed with the Court. 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.
- Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate) (PC 558) (PDF). This application may be for informal probate (informal admission of a will) or appointment of a personal representative or both. 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:
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
- The decedent’s surviving spouse if the spouse is a devisee of the decedent
- Other devisees of the decedent
- The decedent’s surviving spouse
- Other heirs of the decedent
- After 42 days following the decedent’s death, the nominee of a creditor if the court finds the nominee suitable.
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.
A person entitled to be appointed Personal Representative may nominate a qualified person to act as personal representative. A person may renounce his or her right to nominate or to an appointment by filing an appropriate writing with the court. If two (2) or more persons share a priority, those who do not renounce shall concur in nominating another to act for them or in applying for appointment.
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) (PDF) 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. If proper notice is given of the petitioner’s intent to be appointed Personal Representative MCL 700.1401, and nobody else seeks appointment or objects to the petitioner’s appointment, the petitioner may be appointed Personal Representative.
- Testimony of Interested Persons (PC 565) (PDF)
- Supplemental Testimony of Interested Persons Testate Estate (PC 566) (PDF). 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.
- Register’s Statement (PC 568) (PDF)
- Acceptance of Appointment (PC 571) (PDF)
- Letters of Authority for Personal Representative (PC 572) (PDF). Letters of Authority will be issued once the Court or Probate Register is satisfied that the petitioner is qualified to be named the personal representative and the petitioner has filed an Acceptance of Appointment (PC 571) (PDF) 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
Duties of Personal Representative
The Personal Representative acts primarily without the direct involvement of the Probate Court. Usually, the Personal Representative need not come to court to get permission or orders to transact the business of the informal decedent’s estate. After the initial paperwork is filed with the Court, the Personal Representative administers the estate and then submits a Sworn Statement to Close, the estate is closed and the Personal Representative is discharged. The following is an overview.
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 personal representative shall give the notice by personal service or by ordinary first-class mail to each interested person whose address is reasonably available to the personal representative.
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 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 statements that estate proceedings have been commenced, gives the name and address of the Court, and, if applicable, that a will has been admitted to probate, the name of any interested person whose name is known but whose address cannot be ascertained after diligent inquiry, a statement that the result of the administration may be to bar or affect that person’s interest in the estate, the name and address of the person appointed personal representative, and the name and address of the court. 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.
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) (PDF) provides for all of the required information which includes:
- The court will not supervise the personal representative
- Unless a person files a written objection to the appointment of the person named as personal representative in the notice or files a demand that bond or higher bond be posted, the person named in the notice is the personal representative without bond or with bond in the amount shown in the notice.
- The name and address of the person appointed as the estate’s personal representative
- During the course of administering the estate, the personal representative must provide all interested persons with a copy of the petition for the personal representative’s appointment, a copy of the will, if any, a copy of the inventory, a copy of the settlement petition or of the closing statement and, unless waived, a copy of the account.
- An interested person may petition the court for a court hearing on any matter at any time during the estate’s administration.
- Federal and Michigan estate taxes, if any, must be paid within 9 months after the date of the decedent’s death or another time period specified by law.
- If the estate is not settled within one year after the personal representative’s appointment, within 28 days after the anniversary of the appointment, the personal representative must file with the court and send to each interested person a notice that the estate remains under administration and must specify the reason for the continuation of settlement proceedings
- The identity and location of the court where papers relating to the estate are on file.
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) (PDF). 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 if notice is given pursuant to the court rule. 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.
Notice to Creditors
Unless the 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 four months after the publication of the notice. MCR 5.208 .
If a specific creditor is known to the personal representative, the 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 to each known creditor of the estate whose identity at the time of publication or during the 4 months following publication is known or can be reasonably ascertained.
Notice to a known creditor of the estate shall be given within four 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.
A creditor is known to the personal representative if the personal representative has actual notice of the creditor or the creditor’s existence is reasonably ascertainable based on an investigation of the decedent’s available records for the 2 years immediately preceding death and the decedent’s mail following death. Publication of notice to creditors may be accomplished by using Notice to Creditors Decedent’s Estate (PC 574).
MCR 5.306(B) requires that the personal representative must also serve notice personally or by mail on each known creditor of the estate and the trustee of a trust of which the decedent is settlor, as defined in MCL 700.7501(1).
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) (PDF) which lists all assets of the estate, the fair market value of each asset as of the date of death and any lien or encumbrance on each item. This Inventory must be sent to all presumptive distributees and other interested persons requesting it within 91 days following the appointment of the Personal Representative. MCL 700.3706. The Personal Representative must also submit “information necessary for computing the probate inventory fee,” which is usually accomplished by either showing or filing the Inventory with the probate court. The Probate Court will use the Inventory amount to calculate the Inventory fee which must be paid to the court as part of probate administration.
If the administration of the estate lasts more than one year from the date that the Personal Representative was appointed, the Personal Representative must file a Notice of Continued Administration (PC 587)(PDF) with the court and send copies to all interested persons within 28 days from the anniversary date of the Personal Representative’s appointment. The Court may administratively close the estate if a Notice of Continued Administration or a Sworn Statement to Close is not timely filed.
A Personal Representative may close an estate by filing with the court, no earlier than five months after the date of a general Personal Representative’s original appointment, a sworn statement that the Personal Representative or a previous Personal Representative has: determined that notice was published and the time for presentation of creditors claims has expired; fully administered the decedent’s estate by making payment, settlement, or other disposition of all claims that were presented; sent a copy of the statement to all estate distributees and to all creditors or other claimants of whom the Personal Representative is aware whose claims are neither paid nor barred and furnished a full account in writing of the Personal Representative’s administration to the distributees whose interests are affected by the administration. The account shall clearly state the amount paid out of the estate in fiduciary fees, attorney fees and other professional fees. MCL 700.3954.
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.