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WILL/TRUST 27: Unsuitable Personal Representative

R executed a will that left the entirety of his estate to his son, C, who was a minor at the time. The will designated J to serve as the personal representative of the estate. After R’s death, C filed a petition for formal administration seeking, in relevant part, an order admitting R’s will to probate and appointing his mother, B, to serve as the personal representative of the estate.

Petition Hearing

At the hearing on C’s petition, his counsel presented several arguments regarding J’s unsuitability to serve as personal representative and B’ suitability. C’s counsel explained that R’s estate consisted solely of two pieces of real estate. Both parcels were residences and were encumbered by large loans that R had taken out shortly before he died. C had lived on one of the properties with R before his death, and C wished to continue living there. To do so, however, he would have to refinance the loans. B had already begun negotiating the refinancing of the loans with the bank, and she was willing to serve as personal representative without compensation.

Unsuitable Personal Representative

By contrast, J’s appointment as personal representative would create administrative fees that almost certainly would require the sale of at least one of the estate’s properties. J’s counsel argued that the probate court should honor R’s intent, as expressed in his will, and emphasized J’s priority of appointment under MCL 700.3203.

After hearing arguments from both sides, the probate court found J unsuitable and B suitable; and thus, it appointed B as personal representative of R’s estate.

Priority of Appointment

An individual designated as personal representative in a decedent’s will has priority of appointment unless he or she is disqualified or subject to a specified exception.

Formal Proceeding

J is correct that she would generally have priority under MCL 700.3203(1)(a) because in 2007, R designated her as personal representative in his will. She is incorrect, however, to the extent she argues that the probate court departed from the statute by considering her suitability for the appointment. An individual may be disqualified from serving as personal representative if a probate court finds that individual is unsuitable in formal proceedings.

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