Opinion
99-62.
July 18, 2000.
On order of the Court, this Court has previously given notice of the proposed changes and provided an opportunity for comment in writing and at a public hearing. After reviewing the comments received, the Court is considering further proposals, indicated below. Before determining whether the further proposals should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposals. We welcome the views of all who wish to address the proposals or who wish to suggest alternatives. Before adoption or rejection, these proposals will be considered at a public hearing before the Court. The original proposals, published at 461 Mich. 1230-1273, continue to have interim effect.
As whenever this Court publishes administrative proposals for comment, we emphasize that publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
[The language given interim effect and published at 461 Mich. 1230 — 1273 would be amended as indicated below.]
Rule 2.420 Settlements for Minors and Incompetent Persons
(A) Applicability. This rule governs the procedure to be followed for the entry of a consent judgment, a settlement, or a dismissal pursuant to settlement in an action brought for a minor or an incompetent person by a next friend, guardian, or conservator. Before an action is commenced, the settlement of a claim on behalf of a minor or an incompetent person is governed by the Estates and Protected Individuals Code Revised Probate Code. A settlement resulting in creation of a trust or structured settlement involving payments to be made more than one year beyond the effective date of the agreement is also subject to MCR 5.410.
(B) [unchanged]
CHAPTER 5 PROBATE COURT
COMMENT: The Probate Rules Committee of the Michigan Probate Judges Association assisted the Probate Rules Committee of the Probate and Estate Planning Section of the State Bar of Michigan in its review of chapter 5 of the Michigan Court Rules and drafting of proposals for updating the rules in light of the Estates and Protected Individuals Code, MCL 700.1101 et seq,; MSA 27.11101 et seq.
Rule 5.101 Form and Commencement of Action
(A) — (B) [unchanged]
(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) [unchanged]
(2) Any action complaint filed by a claimant after notice that the claim has been disallowed.
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) — (c) [unchanged]
(3) In decedent estates subrule (A)(1) notwithstanding, no proof of service need be filed in connection with informal proceedings or unsupervised administration unless required by court rule.
(B) — (C) [unchanged]
COMMENT: Subrule (A)(3) indicates that proofs of service are not required in unsupervised administration except where a rule specifically requires it. See, for instance, MCR 5.309(C)(3).
Rule 5.105 Manner and Method of Service
(A) Manner of Service.
(1) — (2) [unchanged]
(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 proceedingsseeking a determination of a presumption of death based on absence pursuant to MCL 700.1208(2); MSA 27.11208(2) affecting the estate of a disappeared person or an absent apparent beneficiary, 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) [unchanged]
(B) — (C) [unchanged]
(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 which affects the ward or protected individual must be served on that ward or protected individual. In all other matters, service 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, a 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) — (5) [unchanged]
(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) [unchanged]
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); MSA 27.11208(2) involving the estate of a disappeared person or the estate of an absent apparent beneficiary must be made once a month for 4 consecutive months before the hearing.
(B) — (E) [unchanged]
COMMENT: An example of the other notice referred to in subrule (A) is found in MCR 5.309(C)(2).
Rule 5.107 Other Papers Required to be Served
(A) Other Papers to be Served. In addition to filing other papers required to be served by statute or court rule, the 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. The demandant must serve on interested persons a copy of a demand for notice filed after a proceeding has been commenced.
(B) Exceptions.
(1) Service of the papers listed in subrule (A) paper provided in this rule 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) [unchanged]
Rule 5.108 Time of Service
(A) — (D) [unchanged]
(E) Responses. A written response or objection Responses and objections may be served at any time before the hearing or at a time set by the court.
Rule 5.114 Signing and Authentication of Papers
(A) Signing of Papers.
(1) — (2) [unchanged]
(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) [unchanged]
Rule 5.121 Guardian Ad Litem; Visitor
(A) — (E) [unchanged]
COMMENT: The 24 hour notice provision of this rule contains an exception that the court might specify another time for filing a report in an emergency.
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) [unchanged]
(2) A foreign consul must be served if required by MCL 700.1401(4); MSA 27.11401(4) law or court rule. An attorney who has filed an appearance for a foreign consul must be served when required by subrule (A)(5).
(3) — (6) [unchanged]
(7) A person who filed a demand for notice under MCL 700.3205; MSA 27.13205 or a request for notice under MCL 700.5104; MSA 27.15104 if the demand or request has not been withdrawn, expired, or terminated by court order.
(B) [unchanged]
(C) Specific Proceedings. Subject to subrules (A) and (B) and MCR 5.105(E), the following provisions apply. When a single petition requests multiple forms of relief, the petitioner must give notice to all persons interested in each type of relief:
(1) — (5) [unchanged]
(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, and
(e) current trust beneficiaries in a trust accounting.
(7) The persons interested in a proceeding for partial distribution of the estate of a decedent are the
(a) devisees of in a testate estate entitled to share in the residue,
(b) heirs of in an intestate estate,
(c) — (d) [unchanged]
(8) The persons interested in a petition for an order of complete estate settlement under MCL 700.3952; MSA 27.13952 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 or if there is a pending request for determination of heirs,
(c) — (d) [unchanged]
(9) — (11) [unchanged]
(12) The persons interested in an independent request for adjudication under MCL 700.3415; MSA 27.13415 and a petition for an interim order under MCL 700.3505; MSA 27.13505 are the
(a) — (b) [unchanged]
(13) — (18) [unchanged]
(19) The persons interested in a petition for appointment of a guardian for a minor are:
(a) [unchanged]
(b) if known by the petitioner, each person who had the principal care and custody of the minor during the 63 60 days preceding the filing of the petition;
(c) — (d) [unchanged]
(20) — (24) [unchanged]
(25) The persons interested in a petition by a conservator for instructions or approval of sale of an asset are
(a) the protected individual and
(b) those persons listed in subrule (C)(23) who will be affected by the instructions or order.
(26) The persons interested in a petition for approval of a trust or structured settlement under MCR 5.410 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, if any, and
(e) a governmental agency paying benefits to the individual to be protected or before which an application for benefits is pending.
(26) — (29) [redesignated (27) — (30) but otherwise unchanged]
(31 0) Persons interested in a proceeding to require, hear, or settle an accounting of an agent under a power of attorney are:
(a) — (d) [unchanged]
(e) the principal's presumptive's heirs.
(D) — (E) [unchanged]
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 (referred to as a "demandant") pursuant to MCL 700.3205; MSA 27.13205 or MCL 700.5104; MSA 27.15104. 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; MSA 27.13982 and MCL 700.3983; MSA 27.13983, 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 andinform the petitioner of the responsibility to provide notice to the demandant.
(2) [unchanged]
(C) [unchanged]
COMMENT: This rule deals with the demand for notice in MCL 700.3205; MSA 27.13205 and the request for notice in MCL 700.5104; MSA 27.15204.
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); MSA 27.13951(3) or
(2) for other reasons as provided by MCR 5.203(D) or, after notice and hearing, upon a finding of good cause.
(B) [unchanged]
Rule 5.201 Applicability Application
Rules in this subchapter contain requirements applicable to all fiduciaries except trustees and apply to all estates except trusts.
Rule 5.202 Letters of Authority
(A) [unchanged]
(B) Restrictions and Limitations. The court may restrict or limit the powers of a fiduciary. The restrictions imposed must appear conspicuously on the letters of authority. The court may modify or remove the restrictions and limitations with or without a hearing.
(C) [unchanged]
Rule 5.203 Follow-Up Procedures
Except in the instance of a personal representative who fails to timely comply with the requirements of MCL 700.3951(1); MSA 27.13951(1) if When it appears to the court that the fiduciary is not properly administering the estate, the court shall proceed as follows:
(A) — (C) [unchanged]
(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, 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 approved provided by the state court administrative office, any reports on the status of estates required by the state court administrator.
COMMENT: This rule applies to any potential improper administration of an estate, except for a failure to timely file a notice of continuing administration which is covered by MCL 700.3951; MSA 27.13951.
Rule 5.204 Appointment of Special Fiduciary
(A) — (B) [unchanged]
COMMENT: This rule gives the court maximum flexibility to use a special fiduciary to respond to reports of problems concerning a general fiduciary. See MCL 700.1309; MSA 27.11309. This rule does not apply to a special personal representative under MCL 700.3614; MSA 27.13614.
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.
COMMENT: This rule is new.
Rule 5.206 Prior Approval of Certain Agreements Creating Trusts and Structured Settlements (A) Applicability. This rule defines the authority of a fiduciary to enter into an agreement settling a claim of a minor, incapacitated individual or protected individual when that settlement results in the creation of a trust or structured settlement. (B) Authority. (1) Personal Representative. A personal representative is without power to enter into a settlement agreement on behalf of a ward, incapacitated individual or protected individual. (2) Other Fiduciary. A fiduciary may not consent on behalf of the fiduciary's ward, incapacitated individual or protected individual to a settlement agreement providing for creation of a trust or involving payments to be made for more than one year beyond the effective date of the settlement agreement without prior approval of the probate court. Any such agreement and trust must be in writing. (C) Procedure. (1) Petition, Notice. A fiduciary seeking court approval for creation of a trust or structured settlement described in subrule (B)(2) must file a petition seeking such approval along with copies of the proposed agreement and trust, if any. The petitioner must serve notice of hearing and copies of the proposed agreement and trust, if any, on the interested persons and file proof of service of those documents. (2) Court Review. The probate court may approve the proposed trust or structured settlement if it determines that it is in the welfare of the ward, incapacitated individual or protected individual. (D) Exclusion. If the settlement or judgment does not require payment to or on behalf of a minor of more than $5,000 a year during minority or does not involve the creation of a trust or payments extending beyond minority, the provisions of this rule do not apply and the money may be paid in accordance with the provisions of MCL 700.5102; MSA 27.15102. (E) Confidential Settlements. If the settlement provides that the settlement must not be made public, the court may provide that the papers concerning the trust or settlement may not be subject to public inspection.
COMMENT: The substance of interim MCR 5.206 has been moved to MCR 5.407(B).
Rule 5.207 Sale of Real Estate
(A) [unchanged]
(B) Bond. The court may require a bond before approving confirming a sale of real estate in an amount sufficient to protect the estate.
COMMENT: Interested persons to be served notice of a hearing on a sale of real estate are listed in MCR 5.125(C)(12) and (25) for decedent estates and conservatorships, respectively.
Rule 5.301 Applicability Application Application. The rules in this subchapter apply to decedent estate proceedings other than proceedings provided by law for small estates under MCL 700.3982; MSA 27.13982.
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.
(B) — (C) [unchanged]
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; MSA 27.13705 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 who is 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) [unchanged]
(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 administrationhearingmay be to bar or affect that person's interest in the estate, and
(3) [unchanged]
(C) [unchanged]
Rule 5.305 Notice to Spouse; Election
(A) — (C) [unchanged]
(D) Assignment of Dower. A petition for the assignment of dower under MCL 558.1- 558.29; MSA 26.221-26.245 must include:
(1) — (4) [unchanged]
If there is a minor or other person other than the widow under legal disability having no legal guardian or conservatorother than the widow, there may not be a hearing on the petition until after the appointment of a guardian ad litem for such person.
COMMENT: Subrule (B) overrides MCL 700.2202(4); MSA 27.12202(4).
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; MSA 27.13801. The notice must include:
(1) The name, and, if known, last known address, date of death, and date of birthsocial security numberof the decedent;
(2) — (4) [unchanged]
(B) [unchanged]
(C) No Notice to Creditors. No notice need be given to creditors in the following situations:
(1) [unchanged]
(2) The estate qualifies and is administered under MCL 700.3982; MSA 27.13982, MCL 700.3983; MSA 27.24.13983 or MCL 700.3987; MSA 27.13987;
(3) — (4) [unchanged]
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.
COMMENT: Subrule (D) modifies MCL 700.3804; MSA 27.13804 by allowing the timing of presentment to be the date of mailing to the personal representative or the personal representative's attorney. Otherwise, timing of presentment is as provided in MCL 700.3804; MSA 27.13804. If a claimant presents a claim by filing with the court, the claimant must deliver or mail a copy of the claim to the personal representative, MCL 700.3804(1)(a); MSA 27.13804(1)(a).
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 file with the court the information necessary for computation of the probate inventory fee. The inventory fee must be paid no later than the filing of the petition for an order of complete estate settlement under MCL 700.3952; MSA 27.13952, the petition for settlement order under MCL 700.3953; MSA 27.13953, or the closing statement under MCL 700.3954; MSA 27.13954 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 filed with 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 tofile withthe 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) — (D) [unchanged]
Rule 5.309 Informal Proceedings
(A) — (B) [unchanged]
(C) Notice of Intent to Seek Informal Appointment as Personal Representative.
(1) [unchanged]
(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) [unchanged]
(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; MSA 27.13306 is unknown and cannot be ascertained after diligent inquiry, the information in MCL 700.3306(2); MSA 27.13306(2) must be provided by publication pursuant to MCR 5.106 . Publication of notice But there is no separate duty to publish under this rule is not required if a personal representative has been appointed and provided notice under MCR 5.304.
Rule 5.310 Supervised Administration
(A) — (B) [unchanged]
(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) — (5) [unchanged]
(6) Notice of continued administration.
(7) — (8) [redesignated as (6) and (7) but otherwise unchanged]
(D) Tax Information. The personal representative must file with the court
(1) [unchanged]
(2) in the case of an estate of a decedent dying after September 30, 1993, either
(a) [unchanged]
(b) if no federal estate tax return was required to be filed for the decedent, a statement that no Michigan estate tax is due to that effect.
(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) [unchanged]
(G) Order of Complete Estate Settlement. An estate being administered in supervised administration must be closed under MCL 700.3952; MSA 27.13952, using the procedures specified in MCR 5.311(B)(1) (A) .
COMMENT: Subrule (C) lists only those papers not required to be filed by some other rule or statute. The reader should not rely on subrule (C) as a complete list of papers which the personal representative must file with the court.
Rule 5.311 Closing Estate Administration
(A) Closing by Sworn Statement under MCL 700.3954; MSA 27.13954.In unsupervised administration, a A personal representative may close closing an estate by filing a sworn closing statement under MCL 700.3954; MSA 27.13954 or MCL 700.3988; MSA 27.13988 , must file a proof of service of the statement and of the account on all persons required to be served.
(B) Formal Proceedings.
(1) Requirements for Order of Complete Estate Settlement Administration under MCL 700.3952; MSA 27.13952. An estate being administered in supervised administration must be closed by an order for complete estate settlement under MCL 700.3952; MSA 27.13952. 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) — (5) [unchanged]
(C) Closing of Reopened Estate Administration. After completion of the reopened estate administration, the personal representative shall proceed to close the estate by filing a petition under MCL 700.3952; MSA 27.13952 or MCL 700.3953; MSA 27.13953 or a supplemental closing statement under MCL 700.3954; MSA 27.13954. If a supplemental closing statement is filed, the personal representative must serve a copy on each interested person and file a proof of service with the court. If an objection is not filed within 28 days, the personal representative is entitled to receive a supplemental certificate of completion.
Rule 5.312 Reopening Decedent Estate Proceeding (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 In all other cases, an interested person may file a petition with the court to reopen the estate and appoint a personal representative under MCL 700.3959; MSA 27.13959.
Rule 5.313 8.303 Compensation of Attorneys
(A) — (C) [unchanged from former MCR 8.303(A) — (C)]
(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 attorney 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) — (2) [unchanged from former MCR 8.303(D)(1) — (2)]
(3) that the person may object to the fees at any time prior to the allowance of fees by the court, or within 28 days after the filing of the closing statement, whichever is earlier,
(4) [unchanged from former MCR 8.303(D)(4)]
(E) [unchanged from former MCR 8.303(E)]
(F) Claims for Compensation, Required Information. Except when the compensation is consented to by all the parties affected, the fiduciary personal representative must append to an accounting, petition, or motion in which compensation is claimed a statement containing the information required by subrule (D C).
(G) [unchanged from former MCR 8.303(G)]
COMMENT: This rule is redesignated from MCR 8.303 to MCR 5.313.
Rule 5.402 Common Provisions
(A) — (C) [unchanged]
(D) Letters of Authority. On the filing of the acceptance of appointment trust 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.
Rule 5.403 Proceedings on Temporary Guardianship
(A) — (B) [unchanged]
(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); MSA 27.15312(1) the Estates and Protected Individuals Code that the court hold the fully noticed hearing within 28 days applies only when the court grants temporary relief.
(D) [unchanged]
Rule 5.404 Guardianship of Minor
(A) — (C) [unchanged]
(D) Review of Guardianship for Minor.
(1) — (3) [unchanged]
(4) Pending Cases. As soon as practical, but not later than one year after the effective date of this rule, the court shall conduct a review of all guardianships of minors in which the minor is under the age of 6. Thereafter, the court shall conduct an annual review until the minor reaches age 6.
(E) [unchanged]
Rule 5.405 Proceedings on Guardianship of Incapacitated Individual
(A) — (B) [unchanged]
(C) Testamentary Guardian of Incapacitated Individual Appointed by Will of Other Writing.
(1) Appointment. A testamentary guardian appointed by will or other writing under MCL 700.5301; MSA 27.15301 may qualify after the death or adjudicated incapacity of a parent or spouse who had been the guardian of an incapacitated individual by filing an acceptance of appointment trust with the court that has jurisdiction over the guardianship appointed the deceased parent or spouse as guardian. Unless the court finds the person unsuitable or incompetent for the trust, the court shall issue to the nominated testamentary guardian letters of guardianship equivalent to those that had been issued to the deceased guardian.
(2) [unchanged]
COMMENT: Subrule (C) is changed to reflect the nomination of a guardian by a writing other than a will in MCL 700.5301; MSA 27.15301. If there is a difference between the court designated by the rule for filing the acceptance of appointment and that designated by the statute, the nominated guardian should file in both courts.
Rule 5.406 Testamentary Guardian of Individual With Developmental Disabilities
(A) Appointment. If the court has not appointed a standby guardian, a testamentary guardian may qualify after the death of a parent who had been the guardian of an individual with developmental disabilities by filing an acceptance of appointment trust with the court that appointed the deceased parent as guardian. If the nominated person is to act as guardian of the estate of the ward, the guardian should also file a bond in the amount last required of the deceased guardian. Unless the court finds the person unsuitable or incompetent for the appointment trust, the court shall issue to the testamentary guardian letters of authority equivalent to those that had been issued to the deceased guardian.
(B) [unchanged]
Rule 5.408 Review and Modification of Guardianships of Legally Incapacitated Individuals
(A) Periodic Review of Guardianship.
(1) Periodic Review. The court shall commence a review of a guardianship of an legally incapacitated individual not later than 1 year after the appointment of the guardian and not later than every 3 years thereafter.
(2) Investigation. The court shall appoint a person to investigate the guardianship and report to the court by a date set by the court. The person appointed must visit the legally incapacitated individual or include in the report to the court an explanation why a visit was not practical. The report shall include a recommendation on whether the guardianship should be modified.
(3) Judicial Action. After informal review of the report, the court shall enter an order continuing the guardianship, or enter an order appointing an attorney to represent the legally incapacitated individual for the purpose of filing a petition for modification of guardianship. In either case, the court shall send a copy of the report and the order to the legally incapacitated individual and the guardian.
(4) [unchanged]
(B) Petition for Modification; Appointment of Attorney or Guardian Ad Litem.
(1) Petition by Legally Incapacitated Individual. If a petition for modification or written request for modification comes from the legally incapacitated individual and that individual does not have an attorney, the court shall immediately appoint an attorney.
(2) Petition by Person Other Than Legally Incapacitated Individual. If a petition for modification or written request for modification comes from some other party, the court shall appoint a guardian ad litem. If the guardian ad litem ascertains that thelegally incapacitated individual contests the relief requested, the court shall appoint an attorney for the legally incapacitated individual and terminate the appointment of the guardian ad litem.
Rule 5.409 Report of Guardian; Inventories and Accounts of Conservators
(A) [unchanged]
(B) Inventories.
(1) [unchanged]
(2) Filing and Service. Within 63 56 days after appointment, a conservator or, if ordered to do so, a guardian shall file with the court a verified inventory of the estate of the protected person, serve copies on the persons required by law or court rule to be served, and file proof of service with the court.
(C) — (F) [unchanged]
Rule 5.410 Prior Approval of Certain Agreements Creating Trusts and Structured Settlements
(A) Settlements. A fiduciary may not enter into an agreement settling a claim of a minor, legally incapacitated individual, or protected individual which creates a trust or structured settlement involving payments to be made more than one year beyond the effective date of the settlement agreement without prior approval of the probate court.
(B) Confidential Settlements. If the settlement provides that the settlement must not be made public, the court may provide that the papers concerning the trust or settlement may not be subject to public inspection.
COMMENT: This new rule is derived from interim MCR 5.206. It applies both to settlements of civil actions and to settlements of potential causes of action which have not been the subject of a civil action. It is both more extensive than MCR 2.420 in that it applies to settlement of any claim, even those that are not part of a civil action, and less extensive, since it only applies to settlement agreements creating trusts or installment payments, which are subject to the probate court's jurisdiction over guardianships and conservatorships.
Rule 5.501 Trust Proceedings in General
(A) — (C) [unchanged]
(D) Appointment of Trustee not Named in Creating Document. An interested person may petition the court for appointment of a trustee when the order, will, or other document creating a trust does not name a trustee or when the person named in the creating document is either not available or cannot be qualified as trustee. The petitioner must give notice of hearing on the petition to the interested persons. The court may issue an order appointing as trustee the person nominated in the petition or another person. The order must state whether the trustee must file a bond or execute an acceptanceof trust.
(E) — (F) [unchanged]
Rule 5.503 Notice to Creditors by Trustee of Revocable Inter Vivos Trust
(A) [unchanged]
(B) When Notice is not Required. The trustee of a revocable inter vivos trust is not required to give notice to creditors in the following situations:
(1) [unchanged]
(2) The settlor has been dead for more than 3 years.
Rule 5.802 Appellate Procedure; Stays Pending Appeal
(A) — (B) [unchanged]
(C) Stays Pending Appeals. An order removing a fiduciary; appointing a special personal representative or , a special fiduciary; granting a new trial or rehearing; granting an allowance to the spouse or children of a decedent; granting permission to sue on a fiduciary's bond; or suspending a fiduciary and appointing a special fiduciary, is not stayed pending appeal unless ordered by the court on motion for good cause.
Comment: The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated by the Court
A copy of this order will be given to the secretary of the State Bar and the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk by October 1, 2000. When filing a comment, please refer to our file No. 99-62.