How do I open a Probate estate? Miniseries part 2/3
Miniseries part 1/3 discussed the basics of testate and intestate estates and some of the basics of unsupervised estates. In summary, if one dies without a valid will, trust or other instrument then one dies “Intestate” in the eyes of the law. Intestate comes from the Latin word “intestato” derived from ancient Roman law meaning “without a will”. In cases of Intestacy a certain set of statutory rules apply to the administration of the estate. See generally MCL 700.2101 & 700.3101 et al. To the contrary, if one has a will or codicil then they are deemed to have died “Testate”. Testate estates are governed by the terms of any valid will or codicil and follow a different set of statutory prerogatives. See generally MCL 700.2501 and MCL 700.3202 et al.
In this post I will talk briefly about what it means to have a ‘formal’ or ‘informal’ appointment and probate of an estate. An “informal” appointment of a personal representative (“PR”) is completed by the Probate Court Register and not by a judge. Conversely, a “formal” appointment is where a judge will, at a formal hearing, determine who shall be the PR to an estate, inter alia. A formal hearing may be required for other reasons such as determining heirs or if there is a contested battle for PR.
Regarding intestate and testate estates, whoever is applying to become PR may request an informal or formal appointment. Informal appointments require certain procedures be met, particularly determining heirs and those entitled to priority of appointment as PR. “For either formal or informal proceedings persons who are not disqualified 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 after the decedent’s death, the nominee of a creditor if the court finds the nominee suitable.
(g) The state or county public administrator if any of the following apply…”
In a testate estate, those nominated as “Executor” or “Personal Representative” in a will have the highest priority of appointment as PR. MCL 700.3202(1)(a). If said nominees are unable or unwilling to serve then the successor subsections of MCL 700.3202(1) are used. A Devisee per the statute is generally defined as a “recipient of property by will” or heir. Black’s Law Dictionary 8th edition, pg 484.
For there to be a successful informal appointment by the Probate Register, the applicant must have identified all heirs and all those who have priority to serve as PR pursuant to MCL 700.3202(1) et al. One requirement is that the applicant may send out a Notice of Intent to Request Informal Appointment (of PR) to anyone with equal or greater priority to be appointed. If anyone who was sent the Notice does not respond after 14 days then the Applicant may file. Or, if all equal or greatest in appointment waive their right to appointment, the applicant can have others sign a Renunciation of Right to Appointment, Nomination of Personal Representative and Waiver of Notice and expedite the process.
For part 3/3 of our miniseries, I will discuss issues relating to formal appointments and supervised estates.