Formal proceedings are commenced by filing a petition with the court requesting a court order. The initial petition may ask for the admission of a will to probate or the appointment of a personal representative or both. The initial petition may also request that there be supervised administration. Formal proceedings are defined in EPIC to mean proceedings conducted before a judge with notice to interested persons. Formal proceedings may also be used at any time during the estate administration to decide issues regarding the estate by court order. Even if the estate was commenced by informal proceedings, a formal proceeding can be filed requesting formal testacy or formal appointment or both. This note will deal with formal proceedings used to begin an estate. Informal proceedings were discussed in an earlier note. Formal proceedings when used after the initial appointment will be discussed in subsequent notes.
Only an "interested person" may file a petition for formal probate or appointment or both. Interested person is defined very broadly by MCL 700.1105(a):
"interested person" includes, but is not limited to, an heir, devisee, child, spouse, creditor, and beneficiary and any other person that has a property right in or claim against a trust estate or the estate of a decedent, ward, or protected individual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested person.
There are two important terms that should probably be briefly defined now. Devisee is a person designated to receive property in a will. Heir is a person who is entitled under the statute of intestate succession to a decedent's property (this term will be more fully explained in subsequent notes).
The forms and documents which must be filed with or presented to the court to commence formal proceedings are:
Persons who are not disqualified have priority for appointment in the following order pursuant to MCL 700.3203(1):
A person with priority under 2 through 5 above may nominate a qualified person to serve as personal representative and that nominee has the priority of the nominator pursuant to MCL 700.3203(3).
Once a petition is filed the court will set a date and time for hearing. The petitioner must serve copies of the petition, will, testimony form (s) and Notice of Hearing ( PC 562) on the interested persons. See MCR 5.102 and MCR 5.107(A). Personal service must be made at least 7 days before the hearing and service by mail must be made at least 14 days before the hearing. A Proof of Service (PC 564) must be filed with the court pursuant to MCR 5.104(B).
Michigan Court Rule (MCR) 5.125(C)(1) provides that the persons interested in any application for probate of a will are:
MCR 5.125(C)(2) provides that the persons interested in an application for appointment of a personal representative of an intestate estate are:
There are additional persons that may have to be served depending on the circumstances of a specific proceeding. These are designated as special persons and are defined in part in MCR 5.125(A). They include the following:
Service of persons who are under legal disability or otherwise represented is accomplished by serving the notice of hearing on others pursuant to MCR 105(D) as follows:
Sometimes the name of an interested person is known but the address for that interested person is unknown. The petitioner may serve that interested person by 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 that it was published in a qualified newspaper and the date that the notice was published. To serve an interested person notice of hearing by Publication of Notice ( PC 563) the following must be done:
If all interested persons consent, the Order of Formal Proceedings may be entered immediately without a hearing pursuant to MCR 5.104(B). If a petition is unopposed, after the time expires for any required notice and after proof of service is filed, the court may either grant a hearing or grant the petition based on the recitations in the petition. However, an order determining heirs may only be entered based on sworn testimony or a sworn testimony form. See MCR 5.104(C). If any matters are contested, a hearing will be held and the Order of Formal Proceedings will be issued based upon the results of the hearing. The Order of Formal Proceedings may admit a will or codicil(s), determine intestacy, determine heirs, appoint a personal representative, or determine if the estate administration shall be supervised.
Kent County Courthouse
180 Ottawa Avenue NW, Suite 2500
Grand Rapids, MI 49503
Monday - Friday
8:00am - 5:00pm
Filings are accepted until 4:30pm
Judge David M. Murkowski
Chief Judge Probate Court
Susan B. Flakne, Register