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WILLS/TRUSTS 16: Probate court noted that respondent chose to proceed without an attorney.

Petitioner and respondent are the children of the father. The father was the grantor of a revocable living trust (the trust) that named respondent as successor trustee. Relevant to this appeal, the father and mother transferred a house in Michigan (the house) to the trust in 2016 via quit claim deed. The mother died in 2016; the father died in 2018.

On February 22, 2018, petitioner filed a petition to invalidate the trust, alleging that the trust was invalid on several grounds. Along with that petition, petitioner filed a petition for injunction seeking to have the probate court enjoin respondent from selling the house (and from otherwise acting as successor trustee) and appoint her as a special personal representative in order to complete the sale of the house and distribute the proceeds.

The following day, a hearing was held on petitioner’s request for an injunction and appointment as special representative. Respondent informed the probate court that he had been served with the petition and notice of hearing around 10:00 p.m. the night before and had been unable to obtain legal representation.

Petitioner’s counsel and respondent spoke before the hearing and the attorney explained that respondent was absolutely entitled to representation, but that this was only a preliminary hearing for the purposes of kind of freezing things and seeing where we go from here. Respondent told the probate court that the house would be sold in three business days, and that he intended to give petitioner half of the proceeds from the sale.

Respondent later reiterated that he had the full intention of giving petitioner 50 percent of that money if he could complete the sale of the house. Petitioner’s attorney told the probate court that his client did not care who signed the closing papers, so long as petitioner received half of the proceeds from the sale of the house. Respondent again stated that he was willing to divide 50/50 on the sale immediately.

The probate court then asked petitioner’s counsel, if he were to do an order that confirmed the ownership of that house is in the trust, despite the questions of its validity, and there’s agreement to the beneficiaries of the trust that the proceeds of the sale be split equally between petitioner and respondent, that would be something that you would agree to? Petitioner’s counsel answered, Yes. Respondent agreed.

The probate court entered an order that authorized the sale of the real estate and that reflected the agreement the parties had made on the record at the hearing.

In March 2018, respondent, now represented by counsel, filed a motion for reconsideration or relief from the probate court’s order, arguing that the order inappropriately distributed trust assets before other issues in the action were resolved, and arguing further that respondent was prejudiced by his lack of notice and inability to retain counsel before the hearing. The probate court further noted that respondent chose to proceed without an attorney and made a statement under oath in court that petitioner gets half of the proceeds from the sale of the house.

A carefully drafted and properly executed estate plan can pass your property to your loved ones in the manner of your choosing. It can also help ensure that your children and other family members understand your wishes, thus minimizing the risk of disputes and litigation.

In addition to drafting wills, trusts and other estate planning instruments, Aldrich Legal Services can review your existing estate planning documents.

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