Administering a Decedent's Estate

When is it necessary to open an estate for a decedent?
What are the different types of estates?
How is a personal representative appointed?
What are the duties of a personal representative?
When may a personal representative be removed?
Do I have to serve as personal representative if I am nominated in the decedent's will?
Can I receive payment for serving as personal representative?
Can I hire a lawyer or other professionals to help me administer the estate?
Do I need an attorney?

An estate must be opened if a person dies with property in their name alone (not joint), or owns an insurance policy or retirement benefits and has not named anyone as a beneficiary or has made the money payable to the estate.  A personal representative is appointed by the Court to handle the administration of the decedent’s estate.

What are the different types of estates?

     Estate UNDER $19,000:   

• Small Estate - Probate can be used if the estate is worth $19,000.00 or less.  If a Newaygo County resident died leaving property in their name only, and the property is under $19,000, the closest relative or person who paid the funeral bill may bring the death certificate and paid funeral bill to the Probate Court.  The cost is $36, plus an inventory fee.  This can be done in one day.

     Estate OVER $19,000:

• If a Newaygo County resident has died leaving property in their name only and the property is over $19,000, the closest relative or person named in the will may file a petition to have the estate probated.  The filing fee is $150.  It may take a while to process the forms.  There are two types of estates over $19,000:

1. Supervised Administration requires the Court to review and approve the actions of the personal representative.
    

2. In Unsupervised Administration, the Court is only involved at the beginning and the end unless requested by an interested person or the personal representative.

How is a personal representative appointed?

A personal representative may be formally appointed by a Probate Judge after a petition is filed in the Probate Court.  The petition can be filed by an interested person to the decedent’s estate.  When the petition is filed, unless waivers and consents from all interested persons are attached, a hearing will be held.  The person who files the petition has the responsibility to properly notify the persons who have a right to know about the hearing.  On the date of the hearing, the petitioner and anyone else who wants to take part goes before the Judge and explains the need for a personal representative.

A personal representative may be appointed informally by filing an application directed to the Probate Register.  An applicant seeking appointment in an informal proceeding must give notice and a copy of the application 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.  A proof of service must also be filed with the Court.

The person appointed personal representative is required to file an Acceptance of Appointment and possibly a Bond to protect the estate’s assets.  After filing the Acceptance of Appointment and Bond (if ordered), Letters of Authority will be issued to the personal representative.  The Letters of Authority give the personal representative the right to perform the following duties, unless the Court restricts their authority.

What are the duties of a personal representative?

1. To determine if the decedent had a will.  If they did, copies must be given to the beneficiaries.  A hearing must be conducted so the Judge can determine whether the will is valid.
    

2. Gather the estate’s assets and determine what they are worth.  This includes checking the decedent’s safety deposit box; determining what, if any, insurance, social security, pension, veterans or other benefits are payable to the estate or its beneficiaries; and obtaining appraisals, if necessary.
   
   Within 91 days of being appointed, the personal representative in supervised administration is required to file an Inventory with the Court listing all the decedent’s assets.  For unsupervised administration, the personal representative must provide all interested persons with an Inventory within 91 days.
    

3. Give notice to the decedent’s creditors.  This must be published in a legal newspaper; if you know of particular creditors of the decedent, they must be given actual notice.  You must determine what creditors’ claims, if any, should be paid.
    

4. The estate’s assets must be preserved and distributed to the heirs according to the will, or if none, by the laws of intestate succession.  If you improperly distribute assets without leaving enough in the estate to pay taxes, you may be personally responsible for coming up with the difference.
    

5. The personal representative must keep careful records of all income of the estate and all disbursements of the estate’s funds.  The personal representative must keep the estate’s assets separate and never “borrow” from them.

6. In supervised administration, file an annual Account each year within 56 days of the anniversary date of the personal representative’s appointment and a Final Account when the estate is closed.
   
   The Account must list receipts (monies in) and disbursements (monies out).  Save your receipts; one must be presented to the Court for each disbursement.  In unsupervised administration the Accounts do not have to be filed with the Court, but they must still be served on interested persons.
    

7. Ensure that all taxes on the estate are paid.  You must also see that the decedent’s final federal, state and city income taxes are paid and the returns filed.

When may a personal representative be removed?

If the personal representative does not timely perform their duties, any interested person or the Court itself may start proceedings to remove the personal representative or to force them to take action.  The personal representative may be held liable for losses caused by his or her mistakes or for failing to act quickly and sensibly.

Do I have to serve as personal representative if I am nominated in the decedent's will?

No.  You can decline to serve as personal representative.  If you decline, the Court will appoint someone else.  Once you are appointed, you cannot resign without the Court’s permission.

Can I receive payment for serving as personal representative?

Yes.  The amount must be reasonable and is subject to review by the Court.  The fees cannot be taken until the administration of the estate is completed.

Can I hire a lawyer or other professionals to help me administer the estate?

Yes.  You can use attorneys, accountants, investment advisors or other professionals to help assist in estate administration.  The fees of these professionals are subject to review of the Court, and if reasonable, can be paid from the estate.  Even if you hire experts, as personal representative, you are still responsible for the estate’s administration.

Do I need an attorney?

If you have questions, please seek legal advice from an attorney.  By law, court employees are not permitted to give legal advice.

 Administrative Closings of Probate Cases

In accordance with MCL 700.3951 and MCR 5.144, the Newaygo County Probate Court may administratively close a probate file. The Newaygo County Probate Court has implemented the following procedures to reopen an administratively closed file: 

To reopen an administratively closed decedent’s estate, the fiduciary or any interested person must file an Application/Petition to Reopen Estate PC607, and pay the filing fee of $150.00. If the former fiduciary is reappointed, they may be ordered to file any missing documents (e.g. Account, Inventory, Notice of Continued Administration).

To reopen an administratively closed guardianship or conservatorship case, the fiduciary or any interested person must file a new Petition to Appoint Guardian or Petition to Appoint Conservator, and pay the filing fee of $150.00. If the former Guardian or Conservator is reappointed, they may be ordered to file any missing documents (e.g. Annual Report on Condition of Ward, Account). 

ATTORNEY GENERAL ADDRESS – NO KNOWN HEIRS

MCR 5.125(A)(1) requires that the Michigan Attorney General must be served in specific probate proceedings when the decedent is not survived by any known heirs, or the protected individual has no known presumptive heirs.  These notices should be sent to the following address: 

Brenda Turner – Assistant Attorney General
State Public Administrator
P.O. Box 30736
Lansing, MI 48909

Guardianship/Conservatorship for Minors

When may a guardian or conservator be necessary for a minor?
What is the difference between a guardian and a conservator?
How are guardians and conservators appointed?
What are the duties of a guardian?
What are the duties of a conservator?
When may a guardianship or conservatorship be terminated?
Do I need an attorney?

When may a guardian or conservator be necessary for a minor?

When a minor does not have a responsible parent or adult to make daily living decisions for him or her, then that minor may be in need of a guardian.  When a minor owns property or needs representation in a legal action, then that minor may need a conservator.

What is the difference between a guardian and a conservator?

Generally, it can be said that the guardian makes decisions about the person, such as medical or housing decisions, and the conservator makes decisions about the property or the finances of the minor.  A guardian and a conservator can be the same person or institution or they may be different.  For example, a guardian could be a person and a conservator could be a trust company or bank.

How are guardians and conservators appointed?

A guardian or conservator may be appointed by a Probate Judge after a petition is filed in the Probate Court.  The petition may be filed by anyone interested in the well being of the minor, except that one type of guardianship (limited) may only be requested by a parent having custody or by both parents if both parents have custody.  For a limited guardianship, the Court must approve a placement plan for the minor, including how long the guardianship is to last. 

When the petition is filed, a hearing will be scheduled as soon as possible (in some emergency cases, it may be possible to obtain an immediate temporary guardian before the hearing).  The person who files the petition has the responsibility to properly notify the persons who have a right to know about the hearing. IN GUARDIANSHIP CASES, IF A PARTY IS INCARCERATED UNDER THE JURISDICTION OF THE MICHIGAN DEPARTMENT OF CORRECTIONS, THEIR NAME, ADDRESS, AND PRISONER NUMBER MUST BE LISTED ON THE PETITION.  TO OBTAIN THIS INFORMATION, CALL (517) 373-0284 OR GO ON-LINE AT HTTP://WWW.STATE.MI.US/MDOC/ASP/OTS2.HTML. In addition, the Court may appoint a guardian ad litem to investigate the situation and make a recommendation to the Court prior to the hearing.

On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge and explains the need for a guardian or conservator.  The person who is appointed guardian is required to file an Acceptance of Appointment.  The person who is appointed conservator must file an Acceptance of Appointment and may also be required to file a Bond to protect the minor’s assets.  After filing the Acceptance of Appointment (and Bond, if required), Letters of Authority will be issued to the guardian or conservator.  The Letters of Authority give the guardian or conservator the right to perform the following duties, unless the Court restricts their authority.

What are the duties of a guardian?

1. The guardian generally has the same authority and responsibility as a parent for a minor except that a limited guardian cannot consent to a minor’s marriage or adoption.  A regular guardian cannot consent to a minor’s adoption without the Court’s permission.
    

2. The guardian is required to file every year an Annual Report of Guardian on Condition of Minor.  The report must be filed within 56 days of the anniversary date of the appointment.  The information contained in the report allows the Court to assess how the guardianship is working and whether it is still necessary.

The Court will also review a guardianship each year if the child is less than six years old, and for older children as it thinks necessary.

What are the duties of a conservator?

1. Within 56 days of being appointed, the conservator must file an Inventory.  The Inventory is a listing of all assets of the minor.  Assets may consist of real estate, stocks, bonds, certificates of deposit, savings and checking accounts and personal belongings and everything in which the minor has an interest. 
    

2. It is the duty of the conservator to care for and preserve all of the assets of the minor and to represent the minor in any legal proceeding.
    

3. The conservator must keep careful records of all income of the minor and all disbursements of the minor’s funds.  The conservator must keep the minor’s assets separate from his or her own and never “borrow” from the minor’s assets.
    

4. It is the duty of the conservator to file an Annual Account each year within 56 days after the anniversary date of the conservator’s appointment.
   
   The Account must list receipts (monies in) and disbursements (monies out).  Save your receipts; one must be presented to the Court for each disbursement.

When may a guardianship or conservatorship be terminated?

Anyone, including the minor who is at least 14 years of age, may file a petition to modify the guardianship or conservatorship or to have a different guardian or conservator appointed.  With the Court’s permission, the guardian may resign at any time.  When the minor reaches 18 years of age or dies, the Court should be notified so that the guardianship or conservatorship can be ended and the Court’s case closed.  Before the conservator can be discharged, a Final Account will have to be filed and approved by the Court and the Court will have to be satisfied that the minor (now adult) or his or her estate has received whatever assets remain.

Do I need an attorney?

If you have questions, please seek legal advice from an attorney.  By law, court employees are not permitted to give legal advice.

Guardianship/Conservatorship for Adults

When may a guardian or conservator be necessary for an adult?
What is the difference between a guardian and a conservator?
How are guardians and conservators appointed?
Can a guardian be appointed immediately in an emergency?
What are the duties of a guardian?
What are the duties of a conservator?
When may a guardianship or conservatorship be terminated?
Are there alternatives?
Do I need an attorney?

When may a guardian or conservator be necessary for an adult?

When an adult becomes unable to make responsible decisions, then that adult may be in need of a guardian, conservator, or other alternative.

The law states that a guardian may be appointed if a Court determines that a person is an incapacitated individual.  The law defines an incapacitated individual as:

 “…one who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.”

 A conservator may also be appointed if the person is unable to manage his or her property or finances effectively.

What is the difference between a guardian and a conservator?

Generally it can be said that the guardian makes decisions about the person, such as medical or housing decisions, and the conservator makes decisions about the property or the finances of the person.  A guardian and a conservator can be the same person or institution or they may be different.  For example, a guardian could be a person and a conservator could be a trust company or bank.

How are guardians and conservators appointed?

A guardian or conservator may be appointed by a Probate Judge after a petition is filed in the Probate Court.  The petition may be filed by anyone interested in the well being of the adult. 

When the petition is filed, a hearing will be scheduled.  In addition, the Court may appoint a guardian ad litem to investigate the situation and make a recommendation to the Court prior to the hearing.

On the date of the hearing, the petitioner and anyone else who wants to take part in the hearing goes before the Judge and explains the need for a guardian or conservator.  The Judge will decide whether to appoint a guardian and/or a conservator.

The person who is appointed guardian is required to file an Acceptance of Appointment.  The person who is appointed conservator must also file an Acceptance of Appointment and may also be required to file a Bond to protect the adult’s assets.  After filing the Acceptance of Appointment (and Bond, if required), Letters of Authority will be issued to the guardian or conservator.  The Letters of Authority give the guardian or conservator the right to perform certain duties, unless the Court restricts their authority.

Can a guardian be appointed immediately in an emergency? 

If a life-threatening, medical emergency exists, the Judge may appoint a temporary guardian without a hearing unless the judge determines that a hearing is necessary. A letter from a doctor or social worker may be required to explain the nature of the emergency.   Please note that a second hearing is required.

What are the duties of a guardian?

1. The guardian generally has the same authority and responsibility for the adult as a parent has for a minor child.
    
2. The guardian is required to file every year an Annual Report of Guardian on Condition of Incapacitated Individual.  The report must be filed within 56 days of the anniversary date of the appointment.  They must also give a copy of the report to the adult and the persons listed on the guardianship petition.  The information contained in the report allows the Court to assess how the guardianship is working and whether it is still necessary.

The Court will also review a guardianship within a year of the guardian being appointed and at least once every three years afterwards.

1. You must visit the ward within 3 months of becoming guardian and at least once every 3 months after your last visit. 
    
2. The guardian may make routine medical decisions but may not consent to extraordinary medical procedures without a court order.
    
3.  A major goal of the guardian is always to try to restore the ward to independence.

What are the duties of a conservator?

1. Within 56 days of being appointed, the conservator must file an Inventory.  The Inventory is a listing of all assets of the adult.  Assets may consist of real estate, stocks, bonds, certificates of deposit, savings and checking accounts, and personal belongings and everything in which the adult has an interest.
    
2. It is the duty of the conservator to care for and preserve all of the assets of the adult and to represent the adult in any legal proceeding.
    
3. The conservator must keep careful records of all income of the adult and all disbursements of the adult’s funds.  The conservator must keep the adult’s assets separate from his or her own assets and never “borrow” from the adult’s assets.
    
4.  It is the duty of the conservator to file an Annual Account each year within 56 days after the anniversary date of the conservator’s appointment.  They must also give a copy of the account to the adult and the persons listed on the conservatorship petition. 

The account must list receipts (monies in) and disbursements (monies out).  Save your receipts; one must be presented to the Court for each disbursement.

When may a guardianship or conservatorship be terminated?

Anyone, including the adult, may file a petition to terminate the guardianship or conservatorship or to have a different guardian or conservator appointed.  With the Court’s permission, the guardian may resign at any time.  When the adult is no longer an incapacitated individual or dies, the Court should be notified immediately so that the guardianship or conservatorship can be ended and the Court’s case closed.  Before the conservator can be discharged, a Final Account will have to be filed and approved by the Court and the Court will have to be satisfied that the adult or his or her estate has received whatever assets remain.

Are there alternatives?

If you have any questions about what services or procedures may be available that might make guardianship or conservatorship unnecessary, you may call the Commission on Aging, Department of Community Mental Health, or Department of Human Services.

Do I need an attorney?

If you have questions, please seek legal advice from an attorney.  By law, court employees are not permitted to give legal advice.
 

HOW DO I OBTAIN THE MEDICAL RECORDS
 OF A DECEASED PERSON?

1092 Newell St.  PO Box 885
White Cloud, Michigan 49349
Phone: (231) 689-7270     Fax: (231) 689-7276
Email: kerrie@co.newaygo.mi.us