What Can I Do When the Personal Representative Named in the Will Fails to Start the Probate Process?

In Michigan, a personal representative named in a will has to apply and be appointed by the probate register or probate court in order to begin the probate process. While it does not happen frequently, there are situations in which the personal representative does not follow the required steps and fails to start the probate process. Michigan law provides a process that can be followed if that situation arises.

Regardless of the reason that the named personal representative fails to start the probate process, Michigan law allows other specific individuals to petition the court to get probate started and request appointment of a personal representative. If the named person fails to seek appointment, and you have a legal interest in an estate, you can petition the probate court to request appointment of a personal representative for the estate.

Who Can Petition the Probate Court?

Under Michigan law, an interested person is permitted to file a petition in probate court to begin formal proceedings and request appointment of a personal representative, if the interested person has a right or cause of action that cannot be enforced without appointment of a personal representative.

An interested person, as defined in the law, is an individual with a property right in or claim against the estate, including:

  • An heir, who is an individual entitled to inherit under Michigan’s laws of intestate succession
  • A devisee, who is a person designated to receive gifts under a will
  • A beneficiary and/or nominated trustee of a trust created under the will
  • The spouse of the decedent
  • A child of the decedent
  • A creditor
  • Any person who has a priority for appointment as personal representative
  • A fiduciary representing an interested person

What Happens After the Petition Is Filed?

The petitioner is responsible for providing notice to all interested persons (as defined by the law) after the petition is filed. The probate court then will hold a formal hearing, make a determination of who is entitled to appointment, and appoint a personal representative. In appointing the personal representative, the judge will follow the statutory order of priority and other rules in the statute.

Michigan law sets priorities for persons to be appointed as personal representative for an estate. The established order, from highest priority to lowest priority, is:

  • The person with priority as provided in a will, including a person nominated under a power conferred by a will
  • The decedent’s surviving spouse, if the spouse is a devisee
  • Other devisees
  • The decedent’s surviving spouse (if not a devisee)
  • Other heirs
  • Nominee of a creditor, after 42 days and if the court finds the nominee suitable
  • The state or county public administrator, after 42 days and if there is no heir or U.S. resident beneficiary under a will

The petition may be uncontested, or it may be contested if another interested person wishes to have a different person appointed as personal representative. In a contested petition, the rules for selecting a personal representative can be complicated, depending on the circumstances in a specific case.

Other than a person named as the personal representative in the will — who has the highest priority — individuals can nominate another person or renounce the priority right. If two or more individuals share a priority and do not renounce, they must agree in nominating another person or applying for appointment.

Except when the nominee’s priority is determined by a will — in which case the priority order applies — the court may appoint a person acceptable to the devisees and heirs with interests more than half the likely distributable value of the estate. If there is no acceptable person, the court may appoint any suitable person.

In all cases, the probate court judge has the authority to find the person with the highest priority unsuitable and appoint another person.

Our Michigan Probate Litigation Lawyers Are Here To Help

If you are have a legal interest in an estate, and the personal representative named in the will has not initiated probate within a reasonable amount of time, our probate litigation attorneys at BRMM are here to help. We will take the time to understand the situation, evaluate your options, and help you determine the best way to proceed.

In some Michigan counties, public administrators apply to be named as the personal representative for an estate after the statutory 42-day period expires. If you have an interest in an estate — whether or not there is a will — and no one has filed to be appointed as personal representative within several weeks after the death, it may be in your best interest to speak with an attorney to discuss your options.

For more than 40 years, we’ve been helping clients throughout southeastern Michigan, including Macomb County, Oakland County, Wayne County, and eastern Washtenaw County. Call us at (248) 494-4577 or complete our online form to set up a free initial consultation.

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