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Duties of an Appointed Personal Representative Part 1

Once appointed and qualified the power and duties of a personal representative appointed by either informal proceedings or formal proceedings are virtually the same. Letters of Authority For Personal Representative (PC 572) will be issued by the court or register once the personal representative qualifies by filing an Acceptance of Appointment (PC 571) and a bond if bond is required.

MCR 5.202(A) provides that letters of authority shall be issued after appointment and qualification of a fiduciary and unless ordered by the court, letters of authority will not have an expiration date. MCR 5.202(B) states that the court may restrict the powers of a fiduciary. Any restrictions imposed must appear on the letters of authority. The court may modify or remove the restrictions with or without a hearing. A register may not impose restrictions in the letters of authority.

MCL 700.3601 contains special provisions to protect a personal representative when there may be estate property which is contaminated. When the personal representative files the statement of acceptance, the personal representative may exclude from the scope of the personal representative's responsibility, for a period of not to exceed 91 days, real estate or an ownership interest in a business if the personal representative reasonably believes the real estate or business is or may be contaminated.

If a personal representative believes that the estate may have a problem with contaminated property, he or she should consult an attorney and follow the advice of the attorney as to how to proceed.

The personal representative is under a duty to settle and distribute the estate "as expeditiously and efficiently as is consistent with the best interests of the estate" and "except as otherwise specified or ordered in regard to a supervised personal representative, without adjudication, order or direction of the court." Essentially, the personal representative engages in unsupervised administration until the estate is completed or until an interested person including a personal representative files a petition in a formal proceeding asking that the court to enter an order to resolve some issue involving the estate. Such independent petitions to the court are authorized by MCL 700.3415. The default method of administration is unsupervised.

Notice of Appointment

The personal representative is required to give notice of appointment by MCL 700.3705. This is accomplished by serving interested persons with Notice of Appointment and Duties of Personal Representative (PC 573). MCR 5.304 additionally requires that the agreement and Notice Regarding Attorney Fees (PC 576) required by MCR 5.313(D) be served upon the same persons. The rule requires the personal representative to make service not later than 14 days after appointment. The notices must be served on the following:

1. Decedent's heirs

2. Decedent's devisees, including, if there has been no formal testacy proceeding and if the personal representative is appointed on the assumption that the decedent died intestate, the devisees in a will mentioned in the application for appointment of a personal representative.

3. Trustee of a trust described in MCL 700.7501(1) (this is a trust over which the decedent had a right at his or her death, either alone or with someone else, to revoke the trust and reinvest principal in himself or herself).

4. Michigan Attorney General, Public Administration Division if no known heirs.

If the estate is commenced by an informal proceeding, additionally copies of the Application for Informal Probate and/or Appointment of Personal Representative (Testate/Intestate) (PC 558), a copy of the will, if any, and and Testimony to Identify Heirs and Devisee Heirs (PC 565) and Supplemental Testimony to Identify Nonheir Devisees (Testate Estate) (PC 566) must also be served on the above persons. See MCL 700.3705(1)(d)(i) and MCR 5.107(A). No time is set for service of these documents. It is suggested that they be served at the same time as the Notice of Appointment and Duties of Personal Representative.

If the address or identity of a person to receive notice is unknown, service by publication will be necessary. MCR 5.304(B) prescribes how such publication is accomplished. It provides that the published notice of appointment is sufficient if it includes:

1. Statements that the estate proceedings have been commenced, giving the name and address of the court, and, if applicable, that a will has been admitted to probate.

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 administration may be to bar or affect that person's interest in the estate.

3. The name and address of the person appointed personal representative, and the name and address of the court. MCR 5.304(C) and MCR 5.105(A)(3) limit the requirement to serve an interested person by publication to the first such notice.

MCR 5.304(C) provides that after an interested person has once been served by publication, notice of appointment is only required if that person's address is known or becomes known during the proceedings. MCR 5.105.(A)(3) is a general statement of this limitation which applies in other situations where service by publication may be required.

MCL 700.3306 deals with the rare situation where a will is informally admitted but there is no appointment of a personal representative. It requires that written notice of informal probate be given to the heirs, devisees, a person who demands it under MCL 700.3205 and other interested persons. The requirements of this section can be satisfied by using Notice of Informal Probate (PC 575).

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).

Notice to Creditors

The personal representative must publish, in a newspaper defined in 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. The notice need only be published once. If the creditor's address is unknown and cannot be ascertained after diligent inquiry, the notice must include the name of the creditor. Publication of notice to creditors may be accomplished by using Notice to Creditors Decedent's Estate (PC 574). MCR 5.306(A) requires that the notice include:

1. The name, and , if known, last known address, date of death, and date of birth of the decedent.

2. The name and address of the personal representative.

3. The name and address of the court where proceedings are filed.

4. A statement that claims will be forever barred unless presented to the personal representative, or to both the court and the personal representative, within 4 months after publication of the notice.

MCR 5.306(B) requires the personal representative must also serve notice personally or by mail on each known creditor of the estate and the trustee of a trust of which the decedent is settlor, as defined in MCL 700.7501(1) (this is a trust over which the decedent had a right at his or her death, either alone or with someone else, to revoke the trust and reinvest principal in himself or herself). A creditor is known to the personal representative if the personal representative has actual notice of the creditor or the creditor's existence is reasonably ascertainable based on an investigation of the decedent's available records for the 2 years immediately preceding death and the decedent's mail following death. The personal representative must give notice within the 4-month period following publication. However, if the personal representative first learns of the creditor within 28 days of the end of the 4-month period, the personal representative has 28 days from the time the personal representative first knows in which to give notice. Notice to known creditors may be accomplished by using Notice to Known Creditors (PC 578).

MCR 5.306(C) provides that no notice need be given to creditors in the following situations:

1. The estate has no assets.

2. The estate qualifies and is administered under MCL 700.3982 or MCL 700.3987 (these are sections dealing with summary distribution of small estates).

3. The decedent has been dead for more than 3 years.

4. Notice has been previously been given under MCL 700.7504 in the county where the decedent was domiciled in Michigan (this section deals with the duty of a trustee of a trust described in MCL 700.7501(1) to give notice to creditor of a settlor's estate).

5. Creditors whose claims have been presented and paid. Additional information concerning the claims process will be discussed in subsequent notes.

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