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WILLS AND TRUST 12: The court was not left with a definite and firm conviction that the probate court erred when it found that Appellant did not establish a persistent failure of Appellee to effectively administer the Trust.

Appellant’s father created the Trust in May 2008. The Trust was amended several times, including in May 2012, when it was declared that the Trust would become irrevocable upon decedent’s death. Decedent died in May 2015, and Appellant was the successor trustee.  In an April 2018 e-mail, Appellant indicated that she was “fine” with having Appellee act as successor trustee. As a result, Appellee executed an acceptance of trust, the probate court terminated Appellant as successor trustee, and Appellee was formally appointed trustee. In April 2019, Appellant petitioned the probate court to vacate Appellee’s appointment as successor trustee. Appellant contended that Appellee had violated his fiduciary duties by being unresponsive to Appellant’s various requests, failing to provide an accounting, failing to act as the contact person for the Trust’s accounts, making a distribution from the wrong account, and by failing to file tax returns. Following the evidentiary hearing, the probate court determined that Appellant had failed to prove that Appellee persistently mismanaged the Trust. The court noted that while Appellee had failed to file a tax return, the Trust’s accountant testified that the failure had not harmed the Trust because it likely did not have any taxable income.

SUCCESSOR TRUSTEE

Appellant argues, for a variety of reasons, that the probate court erred by appointing Appellee as successor trustee and by declining to remove him as trustee. This Court reviews de novo the interpretation and application of a statutory provision. We review a probate court’s findings of fact for clear error and its dispositional rulings for an abuse of discretion. The court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.  Appellant’s arguments that the probate court applied the wrong statute and legal standards are premised on her position that the court should not have appointed Appellee successor trustee because doing so was inconsistent with the material purposes of the Trust. The probate court ruled that Appellant had not established or even identified the Trust’s material purposes, much less show that appointing Appellee as successor trustee had violated the purposes   Each party has the burden to prove its own cause of action. When a party makes an allegation, the party has the burden to establish that allegation. When deciding Appellant’s petition to remove Appellee as trustee, the probate court stated that “it does not appear, and has not been argued[,] . . . that the material purpose of the trust had been violated nor was it argued that there was a termination or modification of the trust.” Appellant petitioned to vacate Appellee’s appointment as trustee on the basis that the appointment violated the material purposes of the Trust.  Appellant did not provide any evidence or arguments at the evidentiary hearing regarding the material purposes of the Trust. Appellant’s evidence and arguments at the hearing instead related solely to Appellee’s management of the Trust. We conclude that the probate court did not err when it ruled that Appellant had not established the basis of her claims.

Appellant also contends that the probate court should have removed Appellee as trustee because he violated his fiduciary duties by failing to file taxes, failing to respond to Appellant, and undertaking other actions contrary to his duties as trustee. Appellant’s arguments are without merit. At the evidentiary hearing, Appellant only proved that Appellee had failed to file taxes for the Trust. Because the Trust’s accountant testified that the Trust likely did not owe taxes in light of its significant expenses, the probate court’s rulings that the tax-filing failure had not harmed the Trust and that Appellant had not proven persistent failures were not clearly erroneous. Among other reasons, a probate court may remove a trustee when, “[b]ecause of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the purposes of the trust.” MCL 700.7706(2)(c). In this case, the probate court found that Appellant had not provided evidence that Appellee violated the duties of a trustee and that she had failed to present evidence that the Trust had been harmed or that Appellee failed to administer the Trust effectively. The probate court’s findings were not clearly erroneous. The Trust’s accountant testified that he had not received tax documents from Appellee for 2018, but it was fairly common for a trustee not to provide documents in a timely fashion.   We are not left with a definite and firm conviction that the probate court erred when it found that Appellant had not established a persistent failure of Appellee to effectively administer the Trust.

ASSISTANCE WITH WILL AND TRUST ISSUES

If you have lost a loved one, the last thing you should have to deal with at this time is the confusing and often frustrating process of probate.

Aldrich Legal Services offers comprehensive guidance throughout the probate process. We offer probate services for clients whose loved ones died with or without a will and trust.

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MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.

When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.

MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.

At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.

FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

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