The personal representative is the person appointed by a probate court of appropriate jurisdiction in Michigan to administer and wrap up the final affairs of the deceased. In other states, this person may be known as the “executor” or “estate administrator”. But who exactly gets to be the personal representative? What happens if there is a disagreement among the family on who the personal representative is?
According to MCL 700.3204, a person is not qualified to serve as personal representative if the person is either under the age of 18 or is a person that the court finds unsuitable in formal proceedings. MCL 700.3203(1) states the order that persons may be appointed to become personal representative, starting with the person with the highest priority:
- The person with priority as determined by a probated will including a person nominated by a power conferred in a will. A last will and testament will frequently list the desired person that the decedent wishes to administer the estate and a list of successors if that person predeceases the decedent or is otherwise unable to serve. The will may also give a particular person to nominate a personal representative from appointment from a select group of people or anyone else of their choosing, including the nominator himself. These people named in the will or nominated pursuant to the will take precedence over anyone else provided that the will is valid and is admitted to probate.
- The decedent’s surviving spouse if the spouse is a devisee of the decedent. A “devisee” is any person or entity named in the will to inherit from the estate.
- Other devisees of the decedent.
- The decedent’s surviving spouse.
- Other heirs of the decedent. An “heir” is a person entitled to inherit from the estate under Michigan’s intestate laws in the absence of a will.
- After 42 days after the decedent’s death, the nominee of a creditor if the court finds the nominee suitable.
- The state or county public administrator if any of the following apply:
- No interested person applied or petitioned for appointment of a personal representative within 42 days after the decedent’s death.
- The decedent died apparently leaving no known heirs.
- There is no spouse, heir or beneficiary under a will who is a United States resident and is entitled to a distribution in the decedent’s estate.
The state public administrator and the county public administrators are persons appointed by the Michigan Attorney General’s Office to primarily serve as representatives of estates in which a deceased person has no known heirs. Effective May 18th, 2018, the state or county public administrator will not have any priority in an appointment as personal representative until at least 63 days after the decedent’s death or sooner if some other exigent circumstances can be shown. Also effective on May 18th, 2018, the state or county public administrator may only be appointed personal representative in a formal proceeding.
Any of the persons with priority above in Category #2 through Category #5 may nominate a qualified person to serve as personal representative. If two or more persons share a priority, those of them who do not renounce their right to nominate or be appointed must agree if nominating another to act for them or in applying for appointment.
A person seeking an appointment as personal representative whose right to appointment is either equal or subordinate to other persons must follow either of the following procedures:
- Serve a notice of intent to request informal appointment as personal representative upon each person with prior or equal appointment. The probate register will not act on the application until 14 days have passed since the notice was mailed to each person or until 7 days after the notice was personally served on each person, whichever happens sooner.
- Obtain a written renunciation of right to appointment as personal representative from each person with prior or equal appointment. These renunciations must be filed with the probate register during informal proceedings.
- File a petition for probate seeking appointment in formal proceedings. This procedure requires serving the petition and notice of a court hearing upon the heirs, the nominated personal representative and the trustee of the revocable trust (if applicable). A judge will appoint a personal representative after a formal hearing.
An objection to the appointment of a personal representative may be filed with the court and heard in formal proceedings before the judge. MCL 700.3203(2) states that, if an objection is made, the priorities to appointment as personal representative continue to apply for the next people in line except in EITHER of the following circumstances:
- “If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, on petition of creditors, the court may appoint any qualified person.”
- “If a devisee or heir who appears to have a substantial interest in the estate objects to the appointment of a person whose priority is not determined by will, the court may appoint a person who is acceptable to the devisees and heirs whose interests in the estate appear to be worth in total more than 1/2 of the probable distributable value or, if no person is acceptable to these devisees and heirs, any suitable person.” Under this section, the “majority” of the devisees (or “majority” of heirs if no valid will) is not determined per capita but rather by the percentage of the assets they would receive from the estate. For example, if two heirs due to inherit 60% of the estate collectively nominate one person and three heirs due to inherit 40% collectively nominate another person, the person picked by the group controlling 60% of the distributive value will have priority.
To avoid unnecessary controversy, it is highly recommended that everyone executes a last will and testament appointing a trusted person or persons to settle your final affairs. There is nothing that prohibits the appointment of two or more persons to serve as co-personal representatives of the estate, but the administration may become paralyzed if all the co-personal representatives cannot get along or agree on a course of action. If you are seeking the appointment as personal representative of a loved one’s estate, you should strongly consider the legal responsibilities and obligations that come with the job and your ability to carry them out.
If you have questions about serving as personal representative or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.