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Informal
proceedings are commenced by filing an application directed to the
register. The application may be for informal probate (informal
admission of a will) or appointment of a personal representative
or both. Informal proceedings are defined in EPIC to mean
proceedings for probate of a will or appointment of a personal representative
conducted by the probate register without notice to interested persons.
This material will deal only with informal proceedings. Formal
proceedings or a request for supervised administration will be covered
in subsequent notes.
Only an "interested
person" may file an application for informal 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 register
to commence an informal proceeding are:
1. Application for Informal Probate and/or Appointment of
Personal Representative
(Testate/Intestate) (PC
558) and the filing fee of $150 plus $12 for certified letters.
The
application should be completely and carefully
filed out.
2. Will and codicil, if any.
3. Testimony Interested Persons (PC
565)
4. Supplemental Testimony Interested Persons Testate Esate
(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.
5. Register's Statement (PC
568).
6. Acceptance of Appointment (PC
571). A bond is not required unless the will requires
a bond or
bond is demanded under MCL 700.3605 (by
person having an interest in the estate worth in
excess of $2,500 or a creditor having a
claim against the estate in excess of $2,500).
7. Letters of Authority for Personal Representative (PC
572).
Persons who
are not disqualified have priority for appointment in the following
order pursuant to MCL 700.3203 (1):
1. The person with priority as determined by a probated will
including a person nominated by a
power conferred in a will.
2. The surviving spouse if the spouse is a devisee under the
will.
3. Other devisees.
4. The surviving spouse.
5. Other heirs.
6. After 42 days after the decedent's death, the nominee of
a creditor if the court determines the
nominee suitable.
7. State or county public administrator.
8. 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).
Under MCL 700.3310 an
applicant seeking appointment in an informal proceeding must give
notice to each person having a prior or equal right to appointment
who has not waived the right. Such a waiver may be accomplished
by filing a Waiver and Consent (PC
561). The applicant must also serve a copy of the application
on those persons pursuant to MCR 5.309(C). The notice and
service of the application must be made at least 14 days by mail
or publication or 7 days by personal service prior to appointment.
A proof of service must also be filed with the court pursuant to
MCR 5.309(C)(3).
In an informal
proceeding for original probate of a will, MCL 700.3303(1) requires
that the register shall determine whether all of the following are
true:
1. The application is complete.
2. The applicant has made oath or affirmation that the statements
contained in the application
are true to the best of the
applicant's knowledge and belief.
3. The applicant appears from the application to be an interested
person.
4. On the basis of the statements in the application, venue
is proper.
5. An original, properly executed, and apparently unrevoked
will is in the register's possession.
6. That the application is not within section 3304.
This section provides that the register shall
deny an application for informal
probate if the probate relates to 1 or more of a known series of
testamentary instruments, not
including a will and 1 or more codicils to that will, the latest
of
which instrument does not expressly
revoke the earlier.
In informal
appointment proceedings, MCL 700.3308(1) requires that the register
shall determine
whether all
of the following are true:
1. The application for the personal representative's informal
appointment is complete.
2. The applicant has made oath or affirmation that the statements
contained in the application
are true to the best
of the applicant's knowledge and belief.
3. The applicant appears from the application to be an interested
person.
4. On the basis of the statements in the application, venue
is proper.
5. A will to which the requested appointment relates has been
formally or informally probated.
This subdivision
does not apply to the appointment of a special personal representative.
6. The person whose appointment is sought has priority to
the appointment or the
requirements
of section 3310 (explained previously) have been satisfied.
If all papers
are in order and the register is able to make the required findings,
the register will sign the Register's Statement and immediately
issue Letters of Authority. If the register denies the application,
the register shall state the reason for the denial. The denial
is not an adjudication. There is no appeal from this denial.
Essentially, a denial will require that you begin probate by formal
proceedings.
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