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Powers of a Personal Representative

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 enter an order to resolve some issue involving the estate.

The Estates and Protected Individuals Code provides the personal representative with broad powers with which to accomplish settlement of estates without court involvement. MCL 700.3715 provides that except as restricted or otherwise provided by the will or by an order in a formal proceeding, and subject to the priorities stated in section 3902, a personal representative, acting reasonably for the benefit of interested persons, may properly do any of the following:

1. Retain property owned by the decedent pending distribution or liquidation including property in which the personal representative is personally interested or that is otherwise improper for trust investment.

2. Receive property from a fiduciary or another source.

3. Perform, compromise, or refuse performance of a contract of the decedent that continues as an estate obligation, as the personal representative determines under the circumstances. If the contract is for a conveyance of land and requires the giving of warranties, the personal representative shall include in the deed or other instrument of conveyance the required warranties.

The warranties are binding on the estate as though the decedent made them but do not bind the personal representative except in a fiduciary capacity. In performing an enforceable contract by the decedent to convey or lease land, the personal representative, among other possible courses of action, may do any of the following:

a. Execute and deliver a deed of conveyance for cash payment of the amount remaining due or for the purchaser’s note for the amount remaining due secured by a mortgage on the land.

b. Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the decedent’s successors, as designated in the escrow agreement.

4. If, in the judgment of the personal representative, the decedent would have wanted the pledge satisfied under the circumstances, satisfy a written charitable pledge of the decedent irrespective of whether the pledge constitutes a binding obligation of the decedent or is properly presented as a claim.

5. If funds are not needed to meet a debt or expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including funds received from the sale of other property in accordance with the Michigan prudent investor rule.

6. Acquire or dispose of property, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon estate property.

7. Make an ordinary or extraordinary repair or alteration in a building or other structure, demolish an improvement, or raze an existing or erect a new party wall or building.

8. Subdivide, develop, or dedicate land to public use, make or obtain the vacation of a plat or adjust a boundary, adjust a difference in valuation on exchange or partition by giving or receiving consideration, or dedicate an easement to public use without consideration.

9. Enter into a lease as lessor or lessee for any purpose, with or without an option to purchase or renew, for a term within or extending beyond the period of administration.

10. Enter into a lease or arrangement for exploration and removal of minerals or another natural resource, or enter into a pooling or unitization agreement.

11. Abandon property when, in the opinion of the personal representative, it is valueless, or is so encumbered or in such a condition as to be of no benefit to the estate.

12. Vote stocks or another security in person or by general or limited proxy.

13. Pay a call, assessment, or another amount chargeable or accruing against or on account of a security, unless barred by a provision relating to claims.

14. Hold a security in the name of a nominee or in other form without disclosure of the estate’s interest. However, the personal representative is liable for an act of the nominee in connection with the security so held.

15. Insure the estate property against damage, loss, and liability and insure the personal representative against liability as to third persons.

16. Borrow money with or without security to be repaid from the estate property or otherwise, and advance money for the estate’s protection.

17. Effect a fair and reasonable compromise with a debtor or obligor, or extend, renew, or in any manner modify the terms of an obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon another person’s property, the personal representative may, in lieu of foreclosure, accept a conveyance or transfer of encumbered property from the property’s owner in satisfaction of the indebtedness secured by lien.

18. Pay a tax, an assessment, the personal representative’s compensation, or another expense incident to the estate’s administration.

19. Sell or exercise a stock subscription or conversion right.

20. Consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.

21. Allocate items of income or expense to either estate income or principal, as permitted or provided by law.

22. Employ, and pay reasonable compensation for reasonably necessary services performed by, a person, including, but not limited to, an auditor, investment advisor, or agent, even if the person is associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act on such a person’s recommendations without independent investigation; and instead of acting personally, employ one or more agents to perform an act of administration, whether or not discretionary.

23. Employ an attorney to perform necessary legal services or to advise or assist the personal representative in the performance of the personal representative’s administrative duties. An attorney employed under this subdivision shall receive reasonable compensation for that employment.

24. Prosecute or defend a claim or proceeding in any jurisdiction for the protection of the estate and of the personal representative in the performance of the personal representative’s duties.

25. Sell, mortgage, or lease estate property or an interest in estate property for cash, credit, or part cash and part credit, and with or without security for unpaid balances.

26. Continue a business or venture in which the decedent was engaged at the time of death as a sole proprietor or a general partner, including continuation as a general partner by a personal representative that is a corporation in any of the following manners: a. In the same business form for a period of not more than four months after the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business, including goodwill. b. In the same business form for an additional period of time that may be approved by court order in a formal proceeding to which the persons interested in the estate are parties. c. Throughout the period of administration if the personal representative incorporates the business or converts the business to a limited liability company and if none of the probable distributees of the business who are competent adults object to its incorporation or conversion and its retention in the estate.

27. Change the form of a business or venture in which the decedent was engaged at the time of death through incorporation or formation as a limited liability company, or other entity offering protection against or limiting exposure to liabilities.

28. Provide for the personal representative’s exoneration from personal liability in a contract entered into on the estate’s behalf.

29. Respond to an environmental concern or hazard affecting estate property as provided in section 3722.

30. Satisfy and settle claims and distribute the estate as provided in this act.

31. Make tax elections that are appropriate in order to carry out the decedent’s estate planning objectives and to reduce the overall burden of taxation, both in the present and in the future. This authority includes, but is not limited to, all of the following:

a. Electing to take expenses as estate tax or income tax deductions.

b. Electing to allocate the exemption from the tax on generation skipping transfers among transfers subject to estate or gift tax.

c. Electing to have all or a portion of a transfer for a spouse’s benefit qualify for the marital deduction.

32. Divide portions of the estate, including portions to be allocated into trust, into two or more separate portions or trusts with substantially identical terms and conditions, and allocate property between them, in order to simplify administration for generation skipping transfer tax purposes, to segregate property for management purposes, or to meet another estate or trust objective. Generally, pursuant to MCL 700.3717 if 2 or more persons are appointed personal corepresentatives and unless the will provides otherwise, the concurrence of all is required on an act connected with the estate's administration or distribution. The section contemplates the ability of one personal representative to delegate tasks to a personal corepresentative though this should only be done in limited circumstances.

Pursuant to MCL 700.3718, unless the will provides otherwise, each power exercisable by personal corepresentatives may be exercised by the 1 or more remaining personal corepresentatives after the appointment of 1 or more is terminated. Unless the will provides otherwise, if 1 of 2 or more persons nominated as personal corepresentatives is not appointed, those or the 1 appointed may exercise all the powers incident to the office.

The personal representative's authority terminates by death or appointment of a conservator for the personal representative's estate pursuant to MCL 700.3609. The personal represenative's authority terminates when the court enters an order closing the estate under MCL 700.3952 or 700.3953 or 1 year after the filing of a sworn statement as provided in MCL 700.3954 pursuant to MCL 700.3610.

The personal representative's authority terminates by removal pursuant to MCL 700.3611. The personal representative's authority may terminate by voluntary resignation pursuant to MCL 700.3610. A personal representative may resign by giving the interested persons 14 days notice and filing a written statement of resignation with the register. If no one applies or petitions for appointment of a successor, the resignation is ineffective. It is only effective upon the appointment and qualification of a successor. A personal representative's authority may terminate due to a change in testacy status pursuant to MCL 700.3612.

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