PROBATE 25: Daughter removed as personal representative of the estate.

In this dispute between siblings Daughter J and Daughter N over the administration of the estate of their father, Daughter J was removed as personal representative of the estate and the court appointed a successor personal representative.

Decedent died on March 13, 2017. In his will, dated October 12, 2016, the decedent nominated his daughter as personal representative of his estate, and he devised a bank account and investment account to her. According to Daughter J, this investment account consisted of three stocks. The decedent also devised his home to his daughter N. Daughter N had been living with the decedent in his home at the decedent’s request. Daughter N had been living in the home for several years. The remainder of the decedent’s estate was devised to both daughters in equal shares.

On May 8, 2017, Daughter J filed an application seeking informal probate of the will and to have herself appointed personal representative pursuant to the terms of the will. The decedent’s will was admitted to informal probate, and Daughter J was appointed personal representative.

During the course of administering the estate, Daughter J retained counsel and incurred substantial bills for legal services. There were also other expenses and creditors of the estate. The estate had limited liquid assets, and the estate’s most valuable asset was the house. Daughter J intended to sell the house if necessary, in order to pay the estate’s financial obligations. However, Daughter J’s attorney sent Daughter N a letter indicating that Daughter N would be able to keep the house if Daughter N personally paid over $20,000, which represented various financial obligations of the estate.

Daughter N subsequently petitioned to have Daughter J removed as the personal representative, claiming that Daughter J should be removed because (1) removal is in the best interests of the estate, (2) the person who sought appointment of the current personal representative intentionally misrepresented material facts, and (3) the personal representative mismanaged the estate.

Following an evidentiary hearing, the probate court removed Daughter J as personal representative and appointed a new personal representative.

The Estates and Protected Individuals Code (EPIC), provides the applicable standards for removing a personal representative for cause. MCL 700.3611 provides in pertinent part as follows:

(1) An interested person may petition for removal of a personal representative for cause at any time.

(2) The court may remove a personal representative under any of the following circumstances:

(a) Removal is in the best interests of the estate.

(b) It is shown that the personal representative or the person who sought   the personal representative’s appointment intentionally         misrepresented material facts in a proceeding leading to the  appointment.

(c) The personal representative did any of the following:

(i) Disregarded a court order.

(ii) Became incapable of discharging the duties of office.

(iii) Mismanaged the estate.

(iv) Failed to perform a duty pertaining to the office.

In this case, the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

Aldrich Legal Services represents clients in a wide range of probate litigation matters. Given the emotional nature of these disputes and their financial impact on all involved, it is critical that anyone involved in such a dispute retain highly qualified legal counsel.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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