SB-0387, As Passed Senate, April 2, 2009
March 17, 2009, Introduced by Senator CROPSEY and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 1103, 1104, 1105, 1106, 1107, 1201, 1209,
1210, 1212, 1214, 1308, 1403, 1507, 2501, 2504, 2511, 2519, 2705,
2722, 2901, 2904, 2907, 3104, 3403, 3703, 3705, 3713, 3715, 3801,
3803, 3805, 3914, 3915, 5407, 5421, 6101, 7101, 7102, 7103, 7104,
7105, 7201, 7202, 7203, 7204, 7205, 7206, 7207, 7301, 7302, 7303,
7304, 7305, 7401, 7402, 7403, 7404, 7405, 7406, 7407, 7410, 7501,
7502, 7503, 7504, 7505, 7506, 7507, and 7508 (MCL 700.1103,
700.1104, 700.1105, 700.1106, 700.1107, 700.1201, 700.1209,
700.1210, 700.1212, 700.1214, 700.1308, 700.1403, 700.1507,
700.2501, 700.2504, 700.2511, 700.2519, 700.2705, 700.2722,
700.2901, 700.2904, 700.2907, 700.3104, 700.3403, 700.3703,
700.3705, 700.3713, 700.3715, 700.3801, 700.3803, 700.3805,
700.3914, 700.3915, 700.5407, 700.5421, 700.6101, 700.7101,
700.7102, 700.7103, 700.7104, 700.7105, 700.7201, 700.7202,
700.7203, 700.7204, 700.7205, 700.7206, 700.7207, 700.7301,
700.7302, 700.7303, 700.7304, 700.7305, 700.7401, 700.7402,
700.7403, 700.7404, 700.7405, 700.7406, 700.7407, 700.7410,
700.7501, 700.7502, 700.7503, 700.7504, 700.7505, 700.7506,
700.7507, and 700.7508), sections 1103 and 7503 as amended by
2000 PA 177, section 1104 as amended by 2006 PA 299, sections
1105, 3803, 7303, and 7406 as amended and section 7410 as added
by 2004 PA 314, section 1106 as amended by 2004 PA 532, sections
1107, 1214, 2504, 7206, 7501, and 7507 as amended by 2000 PA 54,
sections 2519, 3715, 7401, 7502, and 7508 as amended by 2005 PA
204, section 3705 as amended by 2004 PA 481, and section 3805 as
amended by 2007 PA 73, by amending the heading of article VII and
the headings of parts 1, 2, 3, 4, and 5 of article VII, by adding
sections 7107, 7108, 7109, 7110, 7111, 7112, 7113, 7208, 7209,
7210, 7211, 7411, 7412, 7413, 7414, 7415, 7416, 7417, 8201, 8202,
8204, and 8206, and by adding parts 6, 7, 8, and 9 to article
VII; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1103. As used in this act:
2 (a) "Agent" includes, but is not limited to, an attorney-in-
3 fact under a durable or nondurable power of attorney and an
4 individual authorized to make decisions as a patient advocate
5 concerning another's health care.
6 (b) "Application" means a written request to the probate
7 register for an order of informal probate or informal appointment
1 under part 3 of article III.
2 (c) "Attorney" means, if appointed to represent a child
3 under the provisions referenced in section 5213, an attorney
4 serving as the child's legal advocate in the manner defined and
5 described in section 13a of chapter XIIA of the probate code of
6 1939, 1939 PA 288, MCL 712A.13a.
7 (d) "Beneficiary" includes, but is not limited to, the
8 following:
9 (i) In relation to a trust, beneficiary,
a person that is an
10 interested a trust beneficiary as defined in section 7103.
11 (ii) In relation to a charitable trust, a person that is
12 entitled to enforce the trust.
13 (iii) In relation to a beneficiary of a beneficiary
14 designation, a person that is a beneficiary of an insurance or
15 annuity policy, of an account with POD designation, of a security
16 registered in beneficiary form (TOD), of a pension, profit-
17 sharing, retirement, or similar benefit plan, or of another
18 nonprobate transfer at death.
19 (iv) In relation to a beneficiary designated in a governing
20 instrument, a person that is a grantee of a deed, devisee, trust
21 beneficiary, beneficiary of a beneficiary designation, donee,
22 appointee, taker in default of a power of appointment, or person
23 in whose favor a power of attorney or power held in an
24 individual, fiduciary, or representative capacity is exercised.
25 (e) "Beneficiary designation" means the naming in a
26 governing instrument of a beneficiary of an insurance or annuity
27 policy, of an account with POD designation, of a security
1 registered in beneficiary form (TOD), of a pension, profit-
2 sharing, retirement, or similar benefit plan, or of another
3 nonprobate transfer at death.
4 (f) "Child" includes, but is not limited to, an individual
5 entitled to take as a child under this act by intestate
6 succession from the parent whose relationship is involved. Child
7 does not include an individual who is only a stepchild, a foster
8 child, or a grandchild or more remote descendant.
9 (g) "Claim" includes, but is not limited to, in respect to a
10 decedent's or protected individual's estate, a liability of the
11 decedent or protected individual, whether arising in contract,
12 tort, or otherwise, and a liability of the estate that arises at
13 or after the decedent's death or after a conservator's
14 appointment, including funeral and burial expenses and costs and
15 expenses of administration. Claim does not include an estate or
16 inheritance tax, or a demand or dispute regarding a decedent's or
17 protected individual's title to specific property alleged to be
18 included in the estate.
19 (h) "Conservator" means a person appointed by a court to
20 manage a protected individual's estate.
21 (i) "Cost-of-living adjustment factor" means a fraction, the
22 numerator of which is the United States consumer price index for
23 the prior calendar year and the denominator of which is the
24 United States consumer price index for 1997. As used in this
25 subdivision, "United States consumer price index" means the
26 annual average of the United States consumer price index for all
27 urban consumers as defined and reported by the United States
1 department of labor, bureau of labor statistics, or its successor
2 agency, and as certified by the state treasurer.
3 (j) "Court" means the probate court or, when applicable, the
4 family division of circuit court.
5 (k) "Current trust beneficiary" means a beneficiary
about
6 which either of the following is true:
7 (i) The
beneficiary has a current right to receive all or a
8 portion of the income, if any, of the trust property.
9 (ii) The
beneficiary is currently eligible to receive all or
10 a portion of a mandatory or discretionary distribution of income
11 or principal.
12 (k) (l) "Descendant" means, in relation to an
individual, all
13 of his or her descendants of all generations, with the
14 relationship of parent and child at each generation being
15 determined by the definitions of child and parent contained in
16 this act.
17 (l) (m) "Devise" means, when used as a noun, a
testamentary
18 disposition of real or personal property and, when used as a
19 verb, to dispose of real or personal property by will.
20 (m) (n) "Devisee"
means a person designated in a will to
21 receive a devise. For the purposes of article II, for a devise to
22 a trustee of an existing trust or to a trustee under a will, the
23 trustee is a devisee and a beneficiary is not.
24 (n) (o) "Disability"
means cause for a protective order as
25 described in section 5401.
26 (o) (p) "Distributee"
means a person that receives a
27 decedent's property from the decedent's personal representative
1 or trust property from the trustee other than as a creditor or
2 purchaser. A testamentary trustee of a trust created by will is
a
3 distributee only to the extent that distributed property or an
4 increment of the distributed property remains in the trustee's
5 hands. A testamentary trust beneficiary of a trust created by
6 will to whom the trustee distributes property received from a
7 personal representative is a distributee of the personal
8 representative. For the purposes of this subdivision,
9 "testamentary trustee" "trustee of a trust created by will"
10 includes a trustee to whom property is transferred by will to the
11 extent of the devised property.
12 Sec. 1104. As used in this act:
13 (a) "Environmental law" means a federal, state, or local
14 law, rule, regulation, or ordinance that relates to the
15 protection of the environment or human health.
16 (b) "Estate" includes the property of the decedent, trust,
17 or other person whose affairs are subject to this act as the
18 property is originally constituted and as it exists throughout
19 administration. Estate also includes the rights described in
20 sections 3805, 3922, and 7502 7606 to collect from others
amounts
21 necessary to pay claims, allowances, and taxes.
22 (c) "Exempt property" means property of a decedent's estate
23 that is described in section 2404.
24 (d) "Family allowance" means the allowance prescribed in
25 section 2403.
26 (e) "Fiduciary" includes, but is not limited to, a personal
27 representative, guardian, conservator, trustee, plenary or
1
guardian, partial guardian, appointed
as provided in chapter 6 of
2 the mental health code, 1974 PA 258, MCL 330.1600 to 330.1644,
3 and successor fiduciary.
4 (f) "Financial institution" means an organization authorized
5 to do business under state or federal laws relating to a
6 financial institution and includes, but is not limited to, a
7 bank, trust company, savings bank, building and loan association,
8 savings and loan company or association, and credit union,
9 insurance company, and entity that offers mutual fund, securities
10 brokerage, money market, or retail investment accounts.
11 (g) "Foreign personal representative" means a personal
12 representative appointed by another jurisdiction.
13 (h) "Formal proceedings" means proceedings conducted before
14 a judge with notice to interested persons.
15 (i) "Funeral establishment" means that term as defined in
16 section 1801 of the occupational code, 1980 PA 299, MCL 339.1801,
17 and the owners, employees, and agents of the funeral
18 establishment.
19 (j) "General personal representative" means a personal
20 representative other than a special personal representative.
21 (k) "Governing instrument" means a deed; will; trust;
22 insurance or annuity policy; account with POD designation;
23 security registered in beneficiary form (TOD); pension, profit-
24 sharing, retirement, or similar benefit plan; instrument creating
25 or exercising a power of appointment or a power of attorney; or
26 dispositive, appointive, or nominative instrument of any similar
27 type.
1 (l) "Guardian" means a person who has qualified as a guardian
2 of a minor or a legally incapacitated individual under a parental
3 or spousal nomination or a court appointment and includes a
4 limited guardian as described in sections 5205, 5206, and 5306.
5 Guardian does not include a guardian ad litem.
6 (m) "Hazardous substance" means a substance defined as
7 hazardous or toxic or otherwise regulated by an environmental
8 law.
9 (n) "Heir" means, except as controlled by section 2720, a
10 person, including the surviving spouse or the state, that is
11 entitled under the statutes of intestate succession to a
12 decedent's property.
13 (o) "Homestead allowance" means the allowance prescribed in
14 section 2402.
15 Sec. 1105. As used in this act:
16 (a) "Incapacitated individual" means an individual who is
17 impaired by reason of mental illness, mental deficiency, physical
18 illness or disability, chronic use of drugs, chronic
19 intoxication, or other cause, not including minority, to the
20 extent of lacking sufficient understanding or capacity to make or
21 communicate informed decisions.
22 (b) "Informal proceedings" means proceedings for probate of
23 a will or appointment of a personal representative conducted by
24 the probate register without notice to interested persons.
25 (c) "Interested person" or "person interested in an estate"
26 includes, but is not limited to, the incumbent fiduciary; an
27 heir, devisee, child, spouse, creditor, and beneficiary and any
1 other person that has a property right in or claim against a
2 trust estate or the estate of a decedent, ward, or protected
3 individual; a person that has priority for appointment as
4 personal representative; and a fiduciary representing an
5 interested person. Identification of interested persons may vary
6 from time to time and shall be determined according to the
7 particular purposes of, and matter involved in, a proceeding, and
8 by the supreme court rules.
9 (d) "Interested trust beneficiary" means a person that
has 1
10 or more of the following interests in the trust:
11 (i) Life
estate.
12 (ii)
Eligible recipient of a mandatory or discretionary
13 distribution by the trustee of income or principal.
14 (iii)
Eligible recipient of a mandatory or discretionary
15 distribution by the trustee of income or principal upon
16 termination of an interest of a person described in subparagraph
17 (i) or (ii).
18 (iv)
Presently exercisable or testamentary general or special
19 power of appointment.
20 (d) (e) "Issue"
means an individual's descendant.
21 (e) (f) "Joint
tenants with the right of survivorship"
22 includes, but is not limited to, co-owners or ownership of
23 property held under circumstances that entitle 1 or more to the
24 whole of the property on the death of the other or others, but
25 does not include forms of co-ownership registration in which the
26 underlying ownership of each party is in proportion to that
27 party's contribution.
1 (f) "Jurisdiction," with respect to a geographic area,
2 includes a county, state, or country.
3 (g) "Lawyer-guardian ad litem" means an attorney appointed
4 under section 5213 or 5219 who has the powers and duties
5 referenced by and provided in section 5213.
6 (h) "Lease" includes, but is not limited to, an oil, gas, or
7 other mineral lease.
8 (i) "Legally incapacitated individual" means an individual,
9 other than a minor, for whom a guardian is appointed under this
10 act or an individual, other than a minor, who has been adjudged
11 by a court to be an incapacitated individual.
12 (j) "Letters" includes, but is not limited to, letters
13 testamentary, letters of guardianship, letters of administration,
14 and letters of conservatorship.
15 Sec. 1106. As used in this act:
16 (a) "Mental health professional" means an individual who is
17 trained and experienced in the area of mental illness or
18 developmental disabilities and who is 1 of the following:
19 (i) A physician who is licensed to practice medicine or
20 osteopathic medicine and surgery in this state under article 15
21 of the public health code, 1978 PA 368, MCL 333.16101 to
22 333.18838.
23 (ii) A psychologist licensed to practice in this state under
24 article 15 of the public health code, 1978 PA 368, MCL 333.16101
25 to 333.18838.
26 (iii) A registered professional nurse licensed to practice in
27 this state under article 15 of the public health code, 1978 PA
1 368, MCL 333.16101 to 333.18838.
2 (iv) Until July 1, 2005, a social worker registered as a
3 certified social worker under article 15 of the public health
4 code, 1978 PA 368, MCL 333.16101 to 333.18838. Beginning July 1,
5 2005, a A licensed master's social worker licensed under
article
6 15 of the public health code, 1978 PA 368, MCL 333.16101 to
7 333.18838.
8 (v) A physician's assistant licensed to practice in this
9 state under article 15 of the public health code, 1978 PA 368,
10 MCL 333.16101 to 333.18838.
11 (vi) A licensed professional counselor licensed under part
12 181 of the public health code, 1978 PA 368, MCL 333.18101 to
13 333.18117.
14 (b) "Michigan prudent investor rule" means the fiduciary
15 investment and management rule prescribed by part 5 of this
16 article.
17 (c) "Minor" means an individual who is less than 18 years of
18 age.
19 (d) "Minor ward" means a minor for whom a guardian is
20 appointed solely because of minority.
21 (e) "Money" means legal tender or a note, draft, certificate
22 of deposit, stock, bond, check, or credit card.
23 (f) "Mortgage" means a conveyance, agreement, or arrangement
24 in which property is encumbered or used as security.
25 (g) "Nonresident decedent" means a decedent who was
26 domiciled in another jurisdiction at the time of his or her
27 death.
1 (h) "Organization" means a corporation, business trust,
2 estate, trust, partnership, limited liability company,
3
association, or joint venture; ,
association, limited liability
4 company, government, governmental
subdivision, or agency, or
5 instrumentality; public corporation; or another legal or
6 commercial entity.
7 (i) "Parent" includes, but is not limited to, an individual
8 entitled to take, or who would be entitled to take, as a parent
9 under this act by intestate succession from a child who dies
10 without a will and whose relationship is in question. Parent does
11 not include an individual who is only a stepparent, foster
12 parent, or grandparent.
13 (j) "Partial guardian" means that term as defined in section
14 600 of the mental health code, 1974 PA 258, MCL 330.1600.
15 (k) (j) "Patient
advocate" means an individual designated to
16 exercise powers concerning another individual's care, custody,
17 and medical or mental health treatment or authorized to make an
18 anatomical gift on behalf of another individual, or both, as
19 provided in section 5506.
20 (l) (k) "Patient advocate designation" means the
written
21 document executed and with the effect as described in sections
22 5506 to 5515.
23 (m) (l) "Payor" means a trustee, insurer, business
entity,
24 employer, government, governmental subdivision or agency, or
25 other person authorized or obligated by law or a governing
26 instrument to make payments.
27 (n) (m) "Person"
means an individual or an organization.
1 (o) (n) "Personal
representative" includes, but is not
2 limited to, an executor, administrator, successor personal
3 representative, and special personal representative, and any
4 other person, other than a trustee of a trust subject to article
5 VII, who performs substantially the same function under the law
6 governing that person's status.
7 (p) (o) "Petition"
means a written request to the court for
8 an order after notice.
9 (q) "Plenary guardian" means that term as defined in section
10 600 of the mental health code, 1974 PA 258, MCL 330.1600.
11 (r) (p) "Proceeding"
includes an application and a petition,
12 and may be an action at law or a suit in equity. A proceeding may
13 be denominated a civil action under court rules.
14 (s) (q) "Professional
conservator" means a person that
15 provides conservatorship services for a fee. Professional
16 conservator does not include a person who is an individual who is
17 related to all but 2 of the protected individuals for whom he or
18 she is appointed as conservator.
19 (t) (r) "Professional
guardian" means a person that provides
20 guardianship services for a fee. Professional guardian does not
21 include a person who is an individual who is related to all but 2
22 of the wards for whom he or she is appointed as guardian.
23 (u) (s) "Property"
means anything that may be the subject of
24 ownership, and includes both real and personal property or an
25 interest in real or personal property.
26 (v) (t) "Protected
individual" means a minor or other
27 individual for whom a conservator has been appointed or other
1 protective order has been made as provided in part 4 of article
2 V.
3 (w) (u) "Protective
proceeding" means a proceeding under the
4 provisions of part 4 of article V.
5 Sec. 1107. As used in this act:
6 (a) "Register" or "probate register" means the official of
7 the court designated to perform the functions of register as
8 provided in section 1304.
9 (b) "Revised judicature act of 1961" means the revised
10 judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9948
11 600.9947.
12 (c) "Security" includes, but is not limited to, a note,
13 stock, treasury stock, bond, debenture, evidence of indebtedness,
14 certificate of interest or participation in an oil, gas, or
15 mining title or lease or in payments out of production under such
16 a title or lease, collateral trust certificate, transferable
17 share, voting trust certificate, or interest in a regulated
18 investment company or other entity generally referred to as a
19 mutual fund or, in general, an interest or instrument commonly
20 known as a security, or a certificate of interest or
21 participation for, a temporary or interim certificate, receipt,
22 or certificate of deposit for, or any warrant or right to
23 subscribe to or purchase any of the items listed in this
24 subdivision.
25 (d) "Settlement" means, in reference to a decedent's estate,
26 the full process of administration, distribution, and closing.
27 (e) "Special personal representative" means a personal
1 representative as described by sections 3614 to 3618.
2 (f) "State" means a state of the United States, the District
3 of Columbia, the Commonwealth of Puerto Rico, or a territory or
4 insular possession subject to the jurisdiction of the United
5 States.
6 (g) "Successor" means a person, other than a creditor, who
7 is entitled to property of a decedent under the decedent's will
8 or this act.
9 (h) "Successor personal representative" means a personal
10 representative, other than a special personal representative, who
11 is appointed to succeed a previously appointed personal
12 representative.
13 (i) "Supervised administration" means the proceedings
14 described in part 5 of article III.
15 (j) "Survive" means that an individual neither predeceases
16 an event, including the death of another individual, nor is
17 considered to predecease an event under section 2104 or 2702.
18 (k) "Terms of a trust" or "terms of the trust" means the
19 manifestation of the settlor's intent regarding a trust's
20 provisions as expressed in the trust instrument or as may be
21 established by other evidence that would be admissible in a
22 judicial proceeding.
23 (l) (k) "Testacy proceeding" means a proceeding to
establish
24 a will or determine intestacy.
25 (m) (l) "Testator" includes an individual of
either sex
26 gender.
27 (n) (m) "Trust"
includes, but is not limited to, an express
1 trust, private or charitable, with additions to the trust,
2 wherever and however created. Trust includes, but is not limited
3 to, a trust created or determined by judgment or decree under
4 which the trust is to be administered in the manner of an express
5 trust. Trust does not include a constructive trust or a resulting
6 trust, conservatorship, personal representative, custodial
7 arrangement under the Michigan uniform transfers to minors act,
8 1998 PA 433, MCL 554.521 to 554.552, business trust providing for
9 a certificate to be issued to a beneficiary, common trust fund,
10 voting trust, security arrangement, liquidation trust, or trust
11 for the primary purpose of paying debts, dividends, interest,
12 salaries, wages, profits, pensions, or employee benefits of any
13 kind, or another arrangement under which a person is a nominee or
14 escrowee for another.
15 (o) (n) "Trustee"
includes an original, additional, or
16 successor trustee, whether or not appointed or confirmed by the
17 court.
18 Sec. 1201. This act shall be liberally construed and applied
19 to promote its underlying purposes and policies, which include
20 all of the following:
21 (a) To simplify and clarify the law concerning the affairs
22 of decedents, missing individuals, protected individuals, minors,
23 and legally incapacitated individuals.
24 (b) To discover and make effective a decedent's intent in
25 distribution of the decedent's property.
26 (c) To promote a speedy and efficient system for liquidating
27 a decedent's estate and making distribution to the decedent's
1 successors.
2 (d) To facilitate use and enforcement of certain trusts.
3 (d) (e) To
make the law uniform among the various
4 jurisdictions, both within and outside of this state.
5 Sec. 1209. For the purpose of granting consent or approval
6 with regard to the acts or accounts of a personal representative,
7 or trustee, including
relief from liability or penalty for
8 failure to post bond , to register a trust, or to perform other
9 duties, the sole holder or all coholders of a presently
10 exercisable or testamentary general or special power of
11 appointment, including 1 in the form of a power of amendment or
12 revocation, are deemed to act for beneficiaries to the extent
13 their interests, as objects permissible appointees,
takers in
14 default, or otherwise, are subject to the power and to the extent
15 there is no conflict of interest between the holder and the
16
persons represented. For the
purpose, however, of granting
17 consent or approval to modification or termination of a trust or
18 to deviation from its terms, including consent or approval to
19 settlement agreements described in section 7207, only the holder
20 or holders of a presently exercisable or testamentary general
21 power of appointment are deemed to act for beneficiaries whose
22 interests are subject to the power.
23 Sec. 1210. (1) The specific dollar amounts stated in
24 sections 2102, 2402, 2404, 2405, and 3983 apply to decedents who
25 die before January 1, 2001. For decedents who die after December
26 31, 2000, these specific dollar amounts shall be multiplied by
27 the cost-of-living adjustment factor for the calendar year in
1 which the decedent dies.
2 (2) Before February 1, 2001, and annually after 2001, the
3 department of treasury shall publish the cost-of-living
4 adjustment factor to be applied to the specific dollar amounts
5 referred to in subsection (1) for decedents who die during that
6 calendar year and in section 7414 for trusts the value of the
7 property of which is insufficient to justify the cost of
8 administration. A product resulting from application of the cost-
9 of-living adjustment factor to a specific dollar amount must
10 shall be rounded to the nearest $1,000.00 amount.
11 Sec. 1212. (1) A fiduciary stands in a position of
12 confidence and trust with respect to each heir, devisee,
13 beneficiary, protected individual, or ward for whom the person is
14 a fiduciary. A fiduciary shall observe the standard of care
15 described in section 7302 7803 and shall discharge all
of the
16 duties and obligations of a confidential and fiduciary
17 relationship, including the duties of undivided loyalty;
18 impartiality between heirs, devisees, and beneficiaries; care and
19 prudence in actions; and segregation of assets held in the
20 fiduciary capacity. With respect to investments, a fiduciary
21 shall conform to the Michigan prudent investor rule.
22 (2) Except in response to legal process, in cases expressly
23 required by law, or in the necessary or proper administration of
24 the estate, a fiduciary shall not disclose facts or knowledge
25 pertaining to property in the fiduciary's possession or to the
26 affairs of those for whom the fiduciary is acting in any manner
27 without the consent of the heirs, devisees, beneficiaries,
1 protected individuals, or wards. The fiduciary of a minor or an
2 incapacitated individual may give this consent on behalf of that
3 individual. This subsection's restriction on disclosure does not
4 apply in an action or proceeding in which the fiduciary and the
5 fiduciary's heir, devisee, beneficiary, protected individual, or
6 ward are parties adverse to each other after the identity and
7 relationship is determined and established.
8 Sec. 1214. Unless the governing instrument expressly
9 authorizes such a transaction or investment, unless authorized by
10 the court, except as provided in section 3713, 5421, or 7802, or
11 except as provided in section 4405 of the banking code of 1999,
12 1999 PA 276, MCL 487.14405, a fiduciary in the fiduciary's
13 personal capacity shall not engage in a transaction with the
14 estate that the fiduciary represents and shall not invest estate
15 money in a company, corporation, or association with which the
16 fiduciary is affiliated, other than as a bondholder or minority
17 stockholder. A fiduciary in the fiduciary's personal capacity
18 shall not personally derive a profit from the purchase, sale, or
19 transfer of the estate's property. A fiduciary's deposit of money
20 in a bank or trust company, in which the fiduciary is interested
21 as an officer, director, or stockholder, does not constitute a
22 violation of this section.
23 Sec. 1308. (1) A fiduciary is liable for a loss to an estate
24 that arises from embezzlement by the fiduciary; for a loss
25 through commingling estate money with the fiduciary's money; for
26 negligence in the handling of an estate; for wanton and willful
27 mishandling of an estate; for loss through self-dealing; for
1 failure to account for an estate; for failure to terminate the
2 estate when it is ready for termination; and for misfeasance,
3 malfeasance, nonfeasance, or other breach of duty.
4 (1) A violation by a fiduciary of a duty the fiduciary owes
5 to an heir, devisee, beneficiary, protected individual, or ward
6 for whom the person is a fiduciary is a breach of duty. To remedy
7 a breach of duty that has occurred or may occur, the court may do
8 any of the following:
9 (a) Compel the fiduciary to perform the fiduciary's duties.
10 (b) Enjoin the fiduciary from committing a breach of duty.
11 (c) Compel the fiduciary to redress a breach of duty by
12 paying money, restoring property, or other means.
13 (d) Order a fiduciary to account.
14 (e) Appoint a special fiduciary to take possession of the
15 estate's, ward's, protected individual's, or trust property and
16 administer the property.
17 (f) Suspend the fiduciary.
18 (g) Remove the fiduciary as provided in this act.
19 (h) For a fiduciary otherwise entitled to compensation,
20 reduce or deny compensation to the fiduciary.
21 (i) Subject to other provisions of this act protecting
22 persons dealing with a fiduciary, void an act of the fiduciary,
23 impose a lien or a constructive trust on property, or trace
24 property wrongfully disposed of and recover the property or its
25 proceeds.
26 (2) In response to an interested person's petition or on its
27 own motion, the court may at any time order a fiduciary of an
1 estate under its jurisdiction to file an accounting. After due
2 hearing on the accounting, the court shall enter an order that
3 agrees with the law and the facts of the case.
4 Sec. 1403. In a formal proceeding that involves a trust or
5 an estate of a decedent, minor, protected individual, or
6 incapacitated individual or in a judicially supervised settlement
7 relating to such matters, the following apply:
8 (a) An interest to be affected shall be described in
9 pleadings that give reasonable information to owners by name or
10 class, by reference to the instrument that creates the interests,
11 or in another appropriate manner.
12 (b) A person is bound by an order binding others in each of
13 the following cases:
14 (i) An order that binds the sole
holder or all coholders of a
15 power of revocation or amendment or a presently exercisable or
16 testamentary general or special power of appointment ,
including
17 one in the form of a power of amendment, binds another person to
18 the extent the person's interest, as an object a permissible
19 appointee, taker in default, or otherwise, is subject to the
20 power.
21 (ii) To the extent there is no conflict of interest between
22 the persons represented, an as follows:
23 (A) An order that binds a conservator, plenary guardian, or
24
partial guardian binds the person
whose estate that the
25 conservator, plenary
guardian, or partial guardian controls. ;
an
26 (B) An order that binds an agent under a durable power of
27 attorney having authority to act binds the principal if a
1 conservator, plenary guardian, or partial guardian has not been
2 appointed.
3 (C) An order that binds a guardian having authority to act
4
with respect to the matter binds the
ward if no a conservator of
5 the ward's estate has not been appointed and no agent under a
6
durable power of attorney has authority to act. ; an
7 (D) An order that binds a trustee binds beneficiaries of the
8 trust. in proceedings to probate a will, to establish
or add to a
9 trust, or to review an act or account of a prior fiduciary, or in
10 proceedings that involve a creditor or another third party; and
11 an
12 (E) An order that binds a personal representative binds a
13 person interested in the undistributed assets of a decedent's
14 estate in an action or proceeding by or against the estate. If
15 there is no conflict of interest and a conservator or guardian
16 has not been appointed, a parent may represent his or her minor
17 child.
18 (F) An order that binds a parent who represents his or her
19 minor or unborn child binds that minor or unborn child if a
20 conservator or plenary guardian has not been appointed.
21 (iii) An unborn or
unascertained person who is not otherwise
22 represented is bound by an order to the extent the person's
23 interest is adequately represented by another party that has a
24 substantially identical interest in the proceeding. A minor,
25 incapacitated, or unborn individual or a person whose identity or
26 location is unknown and not reasonably ascertainable and who is
27 not otherwise represented is bound by an order that binds another
1 party that has a substantially identical interest in the
2 proceeding, but only to the extent there is no conflict of
3 interest between the representation and the person represented.
4 (c) Notice is required as follows:
5 (i) Notice as prescribed by section 1401 shall be given to
6 every interested person or to one who can bind an interested
7 person as described in subdivision (b)(i) or (ii). Notice may be
8 given both to a person and to another who may bind the person.
9 (ii) Notice is given to an unborn or unascertained person,
10 who is not represented under subdivision (b)(i) or (ii), by giving
11 notice to all known persons whose interests in the proceedings
12 are substantially identical to those of the unborn or
13 unascertained person.
14 (d) At any point in a proceeding, the court may appoint a
15 guardian ad litem to represent the interest of a minor, an
16 incapacitated individual, an unborn or unascertained person, or a
17 person whose identity or address is unknown, if the court
18 determines that representation of the interest otherwise would be
19 inadequate. If not precluded by a conflict of interest, a
20 guardian ad litem may be appointed to represent several persons
21 or interests. The court shall set out the reasons for appointing
22 a guardian ad litem as a part of the record of the proceeding. If
23 he or she accepts the appointment, the guardian ad litem shall
24 report of his or her investigation and recommendation concerning
25 the matters for which he or she is appointed in writing or
26 recorded testimony. In making recommendations, a guardian ad
27 litem may consider the general benefit accruing to living members
1 of the individual's family. After the attorney general files an
2 appearance as required by law in an estate proceeding on behalf
3 of an unknown or unascertained heir at law, the attorney general
4 represents the interest of the heir at law, and the court shall
5 not appoint a guardian ad litem. If a guardian ad litem was
6 previously appointed for the interest, the appointment of the
7 guardian ad litem terminates.
8 Sec. 1507. If a fiduciary estate has 2 or more
9 beneficiaries, the fiduciary shall act impartially in investing,
10 and managing, and distributing the fiduciary assets, and shall
11 take into account any differing interests of the beneficiaries.
12 Sec. 2501. (1) An individual 18 years of age or older who is
13 of sound mind has
sufficient mental capacity may make a
will.
14 (2) An individual has sufficient mental capacity to make a
15 will if all of the following requirements are met:
16 (a) The individual has the ability to understand that he or
17 she is providing for the disposition of his or her property after
18 death.
19 (b) The individual has the ability to know the nature and
20 extent of his or her property.
21 (c) The individual knows the natural objects of his or her
22 bounty.
23 (d) The individual has the ability to understand in a
24 reasonable manner the general nature and effect of his or her act
25 in signing the will.
26 Sec. 2504. (1) A will may be simultaneously executed,
27 attested, and made self-proved by acknowledgment of the will by
1 the testator and 2 witnesses' sworn statements, each made before
2 an officer authorized to administer oaths under the laws of the
3 state in which execution occurs and evidenced by the officer's
4 certificate, under official seal, in substantially the following
5 form:
|
6 |
I, ________________________, the testator, sign my name to |
|
7 |
this document on __________, _____. I have taken an oath, |
|
8 |
administered by the officer whose signature and seal appear on |
|
9 |
this document, swearing that the statements in this document |
|
10 |
are true. I declare to that officer that this document is my |
|
11 |
will; that I sign it willingly or willingly direct another to |
|
12 |
sign for me; that I execute it as my voluntary act for the |
|
13 |
purposes
expressed in this will; |
|
14 |
or
older |
|
15 |
influence; and that I have sufficient mental capacity to make |
|
16 |
this will. |
|
17 |
_________________________________ |
|
18 |
(Signature) Testator |
|
19 |
We, ________________________ and ________________________, |
|
20 |
the witnesses, sign our names to this document and have taken |
|
21 |
an oath, administered by the officer whose signature and seal |
|
22 |
appear on this document, to swear that all of the following |
|
23 |
statements are true: the individual signing this document as |
|
24 |
the testator executes the document as his or her will, signs it |
|
25 |
willingly or willingly directs another to sign for him or her, |
|
26 |
and executes it as his or her voluntary act for the purposes |
|
27 |
expressed in this will; each of us, in the testator's presence, |
|
28 |
signs this will as witness to the testator's signing; and, to |
|
29 |
the best of our knowledge, the testator is 18 years of age or |
|
30 |
older,
|
|
1 |
influence, and has sufficient mental capacity to make this will. |
|
2 |
_________________________________ |
|
3 |
(Signature) Witness |
|
4 |
_________________________________ |
|
5 |
(Signature) Witness |
|
6 |
The State of ________________________________ |
|
7 |
County of ___________________________________ |
|
8 |
Sworn to and signed in my presence by ______________, the |
|
9 |
testator, and sworn to and signed in my presence by |
|
10 |
___________________ and __________________ , witnesses, on |
|
11 |
____________, __________. |
|
12 |
month/day year |
|
13 |
____________________________________ |
|
14 |
(SEAL) Signed |
|
15 |
____________________________________ |
|
16 |
(official capacity of officer) |
17 (2) An attested will may be made self-proved at any time
18 after its execution by the acknowledgment of the will by the
19 testator and the sworn statements of the witnesses to the will,
20 each made before an officer authorized to administer oaths under
21 the laws of the state in which the acknowledgment occurs and
22 evidenced by the officer's certificate, under the official seal,
23 attached or annexed to the will in substantially the following
24 form:
|
25 |
The State of ________________________________ |
|
26 |
County of ___________________________________ |
|
27 |
We, ___________________, ___________________, and |
|
28 |
___________________, the testator and the witnesses, |
|
29 |
respectively, whose names are signed to the attached will, |
|
30 |
sign this document and have taken an oath, administered by the |
|
1 |
officer whose signature and seal appear on this document, to |
|
2 |
swear that all of the following statements are true: the |
|
3 |
individual signing this document as the will's testator |
|
4 |
executed the will as his or her will, signed it willingly or |
|
5 |
willingly directed another to sign for him or her, and executed |
|
6 |
it as his or her voluntary act for the purposes expressed in |
|
7 |
the will; each witness, in the testator's presence, signed the |
|
8 |
will as witness to the testator's signing; and, to the best of |
|
9 |
the witnesses' knowledge, the testator, at the time of the |
|
10 |
will's
execution, was 18 years of age or older, |
|
11 |
|
|
12 |
sufficient mental capacity to make this will. |
|
13 |
_________________________________ |
|
14 |
(Signature) Testator |
|
15 |
_________________________________ |
|
16 |
(Signature) Witness |
|
17 |
_________________________________ |
|
18 |
(Signature) Witness |
|
19 |
Sworn to and signed in my presence by ___________, the |
|
20 |
testator, and sworn to and signed in my presence by |
|
21 |
________________ and _______________ , witnesses, on |
|
22 |
____________, __________. |
|
23 |
month/day year |
|
24 |
____________________________________ |
|
25 |
(SEAL) Signed |
|
26 |
____________________________________ |
|
27 |
(official capacity of officer) |
28 (3) A codicil to a will may be simultaneously executed and
29 attested, and both the codicil and the original will made self-
30 proved, by acknowledgment of the codicil by the testator and by
31 witnesses' sworn statements, each made before an officer
32 authorized to administer oaths under the laws of the state in
1 which execution occurs and evidenced by the officer's
2 certificate, under official seal, in substantially the following
3 form:
|
4 |
I, _______________, the testator, sign my name to this |
|
5 |
document on __________, _____. I have taken an oath, |
|
6 |
administered by the officer whose signature and seal appear on |
|
7 |
this document, swearing that the statements in this document |
|
8 |
are true. I declare to that officer that this document is a |
|
9 |
codicil to my will; that I sign it willingly or willingly |
|
10 |
direct another to sign for me; that I execute it as my |
|
11 |
voluntary act for the purposes expressed in this codicil; and |
|
12 |
that
I am 18 years of age or older |
|
13 |
no constraint or undue influence; and that I have sufficient |
|
14 |
mental capacity to make this codicil. |
|
15 |
_________________________________ |
|
16 |
(Signature) Testator |
|
17 |
We, _______________ and _______________, the witnesses, |
|
18 |
sign our names to this document and have taken an oath, |
|
19 |
administered by the officer whose signature and seal appear on |
|
20 |
this document, to swear that all of the following statements |
|
21 |
are true: the individual signing this document as the testator |
|
22 |
executes the document as a codicil to his or her will, signs it |
|
23 |
willingly or willingly directs another to sign for him or her, |
|
24 |
and executes it as his or her voluntary act for the purposes |
|
25 |
expressed in this codicil; each of us, in the testator's |
|
26 |
presence, signs this codicil as witness to the testator's |
|
27 |
signing; and, to the best of our knowledge, the testator is |
|
28 |
18
years of age or older, |
|
29 |
constraint or undue influence, and has sufficient mental |
|
30 |
capacity to make this codicil. |
|
1 |
_________________________________ |
|
2 |
(Signature) Witness |
|
3 |
_________________________________ |
|
4 |
(Signature) Witness |
|
5 |
The State of ________________________________ |
|
6 |
County of ___________________________________ |
|
7 |
Sworn to and signed in my presence by ___________, the |
|
8 |
testator, and sworn to and signed in my presence by |
|
9 |
________________ and _______________ , witnesses, on |
|
10 |
____________, __________. |
|
11 |
month/day year |
|
12 |
____________________________________ |
|
13 |
(SEAL) Signed |
|
14 |
____________________________________ |
|
15 |
(official capacity of officer) |
16 (4) If necessary to prove the will's due execution, a
17 signature affixed to a self-proving sworn statement attached to a
18 will is considered a signature affixed to the will.
19 (5) Instead of the testator and witnesses each making a
20 sworn statement before an officer authorized to administer oaths
21 as prescribed in subsections (1) to (3), a will or codicil may be
22 made self-proved by a written statement that is not a sworn
23 statement. This statement shall state, or incorporate by
24 reference to an attestation clause, the facts regarding the
25 testator and the formalities observed at the signing of the will
26 or codicil as prescribed in subsections (1) to (3). The testator
27 and witnesses shall sign the statement, which must include its
28 execution date and must begin with substantially the following
29 language: "I certify (or declare) under penalty for perjury under
30 the law of the state of Michigan that...".
1 Sec. 2511. (1) A will may validly devise property to the
2 trustee of a trust established or to be established in any of the
3 following manners:
4 (a) During the testator's lifetime by the testator, by the
5 testator and some other person, or by some other person,
6 including a funded or unfunded life insurance trust, although the
7 settlor has reserved any or all rights of ownership of the
8 insurance contracts.
9 (b) At the testator's death by the testator's devise to the
10 trustee, if the trust is identified in the testator's will and
11 its terms are set forth in a written instrument, other than a
12 will, executed before, concurrently with, or after the execution
13 of the testator's will or in another individual's will if that
14 other individual has predeceased the testator, regardless of the
15 existence, size, or character of the trust corpus.
16 (2) A devise described in subsection (1) is not invalid
17 because the trust is amendable or revocable, or because the trust
18 was amended after the execution of the will or the testator's
19 death. Unless the testator's will provides otherwise, property
20 devised to a trust described in subsection (1) is not held under
21 a testamentary trust created
by the will of the testator, but it
22 becomes a part of the trust to which it is devised, and shall be
23 administered and disposed of in accordance with the provisions of
24 the governing instrument setting forth the terms of the trust,
25 including an amendment to the trust made before or after the
26 testator's death.
27 (3) Unless the testator's will provides otherwise, a
1 revocation or termination of the trust before the testator's
2 death causes the devise to lapse.
3 Sec. 2519. (1) A will executed in the form prescribed by
4 subsection (2) and otherwise in compliance with the terms of the
5 Michigan statutory will form is a valid will. A person printing
6 and distributing the Michigan statutory will shall print and
7 distribute the form verbatim as it appears in subsection (2). The
8 notice provisions shall be printed in 10-point boldfaced type.
9 (2) The form of the Michigan statutory will is as follows:
|
10 |
MICHIGAN STATUTORY WILL NOTICE |
11 1. An individual age 18 or older and of sound mind who has
12
sufficient mental capacity may sign make a
will.
13 2. There are several kinds of wills. If you choose to
14 complete this form, you will have a Michigan statutory will. If
15 this will does not meet your wishes in any way, you should talk
16 with a lawyer before choosing a Michigan statutory will.
17 3. Warning! It is strongly recommended that you do not add
18 or cross out any words on this form except for filling in the
19 blanks because all or part of this will may not be valid if you
20 do so.
21 4. This will has no effect on jointly held assets, on
22 retirement plan benefits, or on life insurance on your life if
23 you have named a beneficiary who survives you.
24 5. This will is not designed to reduce estate taxes.
25 6. This will treats adopted children and children born
1 outside of wedlock who would inherit if their parent died without
2 a will the same way as children born or conceived during
3 marriage.
4 7. You should keep this will in your safe deposit box or
5 other safe place. By paying a small fee, you may file this will
6 in your county's probate court for safekeeping. You should tell
7 your family where the will is kept.
8 8. You may make and sign a new will at any time. If you
9 marry or divorce after you sign this will, you should make and
10 sign a new will.
|
11 |
INSTRUCTIONS: |
12 1. To have a Michigan statutory will, you must complete the
13 blanks on the will form. You may do this yourself, or direct
14 someone to do it for you. You must either sign the will or direct
15 someone else to sign it in your name and in your presence.
16 2. Read the entire Michigan statutory will carefully before
17 you begin filling in the blanks. If there is anything you do not
18 understand, you should ask a lawyer to explain it to you.
|
19 |
MICHIGAN STATUTORY WILL OF ________________________________ |
|
20 |
(Print or type your full name) |
|
21 |
ARTICLE 1. DECLARATIONS |
|
22 |
This is my will and I revoke any prior wills and codicils. |
|
23 |
I live in ___________________________ County, Michigan. |
|
24 |
My spouse is ___________________________________________. |
|
25 |
(Insert spouse's name or write "none") |
|
26 |
My children now living are: |
|
1 |
______________________ ______________________ |
|
2 |
______________________ ______________________ |
|
3 |
______________________ ______________________ |
|
4 |
(Insert names or write "none") |
|
5 |
ARTICLE 2. DISPOSITION OF MY ASSETS |
|
6 |
2.1 CASH GIFTS TO PERSONS OR CHARITIES. |
|
7 |
(Optional) |
8 I can leave no more than two (2) cash gifts. I make the
9 following cash gifts to the persons or charities in the amount
10 stated here. Any transfer tax due upon my death shall be paid
11 from the balance of my estate and not from these gifts. Full name
12 and address of person or charity to receive cash gift (name only
13 1 person or charity here):
|
14 |
____________________________________ |
|
15 |
(Insert name of person or charity) |
|
16 |
____________________________________ |
|
17 |
(Insert address) |
|
18 |
AMOUNT OF GIFT (In figures): $ ________________________________ |
|
19 |
AMOUNT OF GIFT (In words): ____________________________ Dollars |
|
20 |
____________________________________ |
|
21 |
(Your signature) |
|
22 |
Full name and address of person or charity to receive cash gift |
|
23 |
(Name only 1 person or charity): |
|
24 |
____________________________________ |
|
25 |
(Insert name of person or charity) |
|
26 |
____________________________________ |
|
27 |
(Insert address) |
|
28 |
AMOUNT OF GIFT (In figures): $ ________________________________ |
|
1 |
AMOUNT OF GIFT (In words): ____________________________ Dollars |
|
2 |
____________________________________ |
|
3 |
(Your signature) |
|
4 |
2.2 PERSONAL AND HOUSEHOLD ITEMS. |
5 I may leave a separate list or statement, either in my
6 handwriting or signed by me at the end, regarding gifts of
7 specific books, jewelry, clothing, automobiles, furniture, and
8 other personal and household items.
9 I give my spouse all my books, jewelry, clothing,
10 automobiles, furniture, and other personal and household items
11 not included on such a separate list or statement. If I am not
12 married at the time I sign this will or if my spouse dies before
13 me, my personal representative shall distribute those items, as
14 equally as possible, among my children who survive me. If no
15 children survive me, these items shall be distributed as set
16 forth in paragraph 2.3.
|
17 |
2.3 ALL OTHER ASSETS. |
18 I give everything else I own to my spouse. If I am not
19 married at the time I sign this will or if my spouse dies before
20 me, I give these assets to my children and the descendants of any
21 deceased child. If no spouse, children, or descendants of
22 children survive me, I choose 1 of the following distribution
23 clauses by signing my name on the line after that clause. If I
24 sign on both lines, if I fail to sign on either line, or if I am
1 not now married, these assets will go under distribution clause
2 (b).
3 Distribution clause, if no spouse, children, or descendants
4 of children survive me.
5 (Select only 1)
6 (a) One-half to be distributed to my heirs as if I did not
7 have a will, and one-half to be distributed to my spouse's heirs
8 as if my spouse had died just after me without a will.
|
9 |
_________________________________ |
|
10 |
(Your signature) |
11 (b) All to be distributed to my heirs as if I did not have a
12 will.
|
13 |
_________________________________ |
|
14 |
(Your signature) |
|
15 |
GUARDIAN, AND CONSERVATOR |
16 Personal representatives, guardians, and conservators have a
17 great deal of responsibility. The role of a personal
18 representative is to collect your assets, pay debts and taxes
19 from those assets, and distribute the remaining assets as
20 directed in the will. A guardian is a person who will look after
21 the physical well-being of a child. A conservator is a person who
22 will manage a child's assets and make payments from those assets
23 for the child's benefit. Select them carefully. Also, before you
24 select them, ask them whether they are willing and able to serve.
|
1 |
3.1 PERSONAL REPRESENTATIVE. |
|
2 |
(Name at least 1) |
|
3 |
I nominate _____________________________________________________ |
|
4 |
(Insert name of person or eligible financial institution) |
|
5 |
of _________________________to serve as personal representative. |
|
6 |
(Insert address) |
|
7 |
If my first choice does not serve, I nominate __________________ |
|
8 |
___________________________________________________________ |
|
9 |
(Insert name of person or eligible financial institution) |
|
10 |
of________________________ to serve as personal representative. |
|
11 |
(Insert address) |
|
12 |
3.2 GUARDIAN AND CONSERVATOR. |
13 Your spouse may die before you. Therefore, if you have a
14 child under age 18, name an individual as guardian of the child,
15 and an individual or eligible financial institution as
16 conservator of the child's assets. The guardian and the
17 conservator may, but need not be, the same person.
|
18 |
If a guardian or conservator is needed for a child of |
|
19 |
mine, I nominate _________________________________________ |
|
20 |
(Insert name of individual) |
|
21 |
of ____________________________________________ as guardian and |
|
22 |
(Insert address) |
|
23 |
________________________________________________________________ |
|
24 |
(Insert name of individual or eligible financial institution) |
|
25 |
of ____________________________________ to serve as conservator. |
|
26 |
(Insert address) |
|
27 |
If my first choice cannot serve, I nominate |
|
28 |
______________________________________________ |
|
1 |
(Insert name of individual) |
|
2 |
of ___________________________________________ as guardian and |
|
3 |
(Insert address) |
|
4 |
________________________________________________________________ |
|
5 |
(Insert name of individual or eligible financial institution) |
|
6 |
of ____________________________________ to serve as conservator. |
|
7 |
(Insert address) |
|
8 |
3.3 BOND. |
9 A bond is a form of insurance in case your personal
10 representative or a conservator performs improperly and
11 jeopardizes your assets. A bond is not required. You may choose
12 whether you wish to require your personal representative and any
13 conservator to serve with or without bond. Bond premiums would be
14 paid out of your assets. (Select only 1)
15 (a) My personal representative and any conservator I have
16 named shall serve with bond.
|
17 |
_________________________________ |
|
18 |
(Your signature) |
19 (b) My personal representative and any conservator I have
20 named shall serve without bond.
|
21 |
_________________________________ |
|
22 |
(Your signature) |
|
23 |
3.4 DEFINITIONS AND ADDITIONAL CLAUSES. |
24 Definitions and additional clauses found at the end of this
25 form are part of this will.
1 I sign my name to this Michigan statutory will on
2 ______________ , 20_____.
|
3 |
_________________________________ |
|
4 |
(Your signature) |
|
5 |
NOTICE REGARDING WITNESSES |
6 You must use 2 adults as witnesses. It is preferable to have
7 3 adult witnesses. All the witnesses must observe you sign the
8 will, have you tell them you signed the will, or have you tell
9 them the will was signed at your direction in your presence.
|
10 |
STATEMENT OF WITNESSES |
11 We sign below as witnesses, declaring that the individual
12 who is making this will appears to be of sound mind have
13 sufficient mental capacity to make this will and appears to be
14 making this will freely, without duress, fraud, or undue
15 influence, and that the individual making this will acknowledges
16 that he or she has read the will, or has had it read to him or
17 her, and understands the contents of this will.
|
18 |
_____________________________________ |
|
19 |
(Print Name) |
|
20 |
_____________________________________ |
|
21 |
(Signature of witness) |
|
22 |
_____________________________________ |
|
23 |
(Address) |
|
24 |
_________________________________ ______ ______ |
|
1 |
(City) (State) (Zip) |
|
2 |
_____________________________________ |
|
3 |
(Print name) |
|
4 |
_____________________________________ |
|
5 |
(Signature of witness) |
|
6 |
_____________________________________ |
|
7 |
(Address) |
|
8 |
_________________________________ ______ ______ |
|
9 |
(City) (State) (Zip) |
|
10 |
_____________________________________ |
|
11 |
(Print name) |
|
12 |
_____________________________________ |
|
13 |
(Signature of witness) |
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14 |
_____________________________________ |
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15 |
(Address) |
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16 |
_________________________________ ______ ______ |
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17 |
(City) (State) (Zip) |
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18 |
DEFINITIONS |
19 The following definitions and rules of construction apply to
20 this Michigan statutory will:
21 (a) "Assets" means all types of property you can own, such
22 as real estate, stocks and bonds, bank accounts, business
23 interests, furniture, and automobiles.
24 (b) "Descendants" means your children, grandchildren, and
25 their descendants.
26 (c) "Descendants" or "children" includes individuals born or
27 conceived during marriage, individuals legally adopted, and
28 individuals born out of wedlock who would inherit if their parent
29 died without a will.
1 (d) "Jointly held assets" means those assets to which
2 ownership is transferred automatically upon the death of 1 of the
3 owners to the remaining owner or owners.
4 (e) "Spouse" means your husband or wife at the time you sign
5 this will.
6 (f) Whenever a distribution under a Michigan statutory will
7 is to be made to an individual's descendants, the assets are to
8 be divided into as many equal shares as there are then living
9 descendants of the nearest degree of living descendants and
10 deceased descendants of that same degree who leave living
11 descendants. Each living descendant of the nearest degree shall
12 receive 1 share. The remaining shares, if any, are combined and
13 then divided in the same manner among the surviving descendants
14 of the deceased descendants as if the surviving descendants who
15 were allocated a share and their surviving descendants had
16 predeceased the descendant. In this manner, all descendants who
17 are in the same generation will take an equal share.
18 (g) "Heirs" means those persons who would have received your
19 assets if you had died without a will, domiciled in Michigan,
20 under the laws that are then in effect.
21 (h) "Person" includes individuals and institutions.
22 (i) Plural and singular words include each other, where
23 appropriate.
24 (j) If a Michigan statutory will states that a person shall
25 perform an act, the person is required to perform that act. If a
26 Michigan statutory will states that a person may do an act, the
27 person's decision to do or not to do the act shall be made in
1 good faith exercise of the person's powers.
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2 |
ADDITIONAL CLAUSES |
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3 |
Powers of personal representative |
4 1. A personal representative has all powers of
5 administration given by Michigan law to personal representatives
6 and, to the extent funds are not needed to meet debts and
7 expenses currently payable and are not immediately distributable,
8 the power to invest and reinvest the estate from time to time in
9 accordance with the Michigan prudent investor rule. In dividing
10 and distributing the estate, the personal representative may
11 distribute partially or totally in kind, may determine the value
12 of distributions in kind without reference to income tax bases,
13 and may make non-pro rata distributions.
14 2. The personal representative may distribute estate assets
15 otherwise distributable to a minor beneficiary to the minor's
16 conservator or, in amounts not exceeding $5,000.00 per year,
17 either to the minor, if married; to a parent or another adult
18 with whom the minor resides and who has the care, custody, or
19 control of the minor; or to the guardian. The personal
20 representative is free of liability and is discharged from
21 further accountability for distributing assets in compliance with
22 the provisions of this paragraph.
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23 |
POWERS OF GUARDIAN AND CONSERVATOR |
24 A guardian named in this will has the same authority with
1 respect to the child as a parent having legal custody would have.
2 A conservator named in this will has all of the powers conferred
3 by law.
4 Sec. 2705. A The
meaning and legal effect of a governing
5 instrument's meaning and legal effect instrument other than a
6 trust are determined by the local law of the state selected in
7 the governing instrument, unless the application of that law is
8 contrary to the provisions relating to the elective share
9 described in part 2 of this article, the provisions relating to
10 exempt property and allowances described in part 4 of this
11 article, or another public policy of this state otherwise
12 applicable to the disposition.
13 Sec. 2722. (1) Subject Except as provided by another statute
14 and subject to subsection (3), if a trust is for a specific
15 lawful noncharitable purpose or for lawful noncharitable purposes
16 to be selected by the trustee, and if there is no definite or
17 definitely ascertainable beneficiary designated, the trust may be
18 performed by the trustee for 21 years, but no longer, whether or
19 not the terms of the trust contemplate a longer duration.
20 (2) Subject to this subsection and subsection (3), a trust
21 for the care of a designated domestic or pet animal is valid. The
22 trust terminates when no living animal is covered by the trust. A
23 governing instrument shall be liberally construed to bring the
24 transfer within this subsection, to presume against the merely
25 precatory or honorary nature of the disposition, and to carry out
26 the general intent of the transferor. Extrinsic evidence is
27 admissible in determining the transferor's intent.
1 (3) In addition to the provisions of subsection (1) or (2),
2 a trust covered by either of those subsections is subject to the
3 following provisions:
4 (a) Except as expressly provided otherwise in the trust
5 instrument terms of
the trust, no portion of the principal or
6 income may be converted to the use of the trustee or to a use
7 other than for the trust's purposes or for the benefit of a
8 covered animal.
9 (b) Upon termination, the trustee shall transfer the
10 unexpended trust property in the following order:
11 (i) As directed in the trust
instrument terms of the trust.
12 (ii) To the settlor, if then living.
13 (iii) (ii) If the
trust was created in a nonresiduary clause in
14 the transferor's will or in a codicil to the transferor's will,
15 under the residuary clause in the transferor's will.
16 (iv) (iii) If no
taker is produced by the application of
17 subparagraph (i), or
(ii), or
(iii), to
the transferor's heirs under
18 section 2720.
19 (c) For the purposes of sections 2714 to 2716, the residuary
20 clause is treated as creating a future interest under the terms
21 of a trust.
22 (d) The intended use of the principal or income can may be
23 enforced by an individual designated for that purpose in the
24 trust instrument terms
of the trust or, if none, by an
individual
25 appointed by a court upon petition to it by an individual. A
26 person having an interest in the welfare of the animal may
27 request the court to appoint a person to enforce the trust or
1 remove a person appointed.
2 (e) Except as ordered by the court or required by the trust
3 instrument terms of
the trust, no filing, report,
registration,
4 periodic accounting, separate maintenance of funds, appointment,
5 or fee is required by reason of the existence of the fiduciary
6 relationship of the trustee.
7 (f) The court may reduce the amount of the property
8 transferred if it determines that that amount substantially
9 exceeds the amount required for the intended use. The amount of
10 the reduction, if any, passes as unexpended trust property under
11 subdivision (b).
12 (g) If a trustee is not designated or no designated trustee
13 is willing or able to serve, the court shall name a trustee. The
14 court may order the transfer of the property to another trustee
15 if the transfer is necessary to ensure that the intended use is
16 carried out, and if a successor trustee is not designated in the
17 trust instrument terms
of the trust or if no designated
successor
18 trustee agrees to serve or is able to serve. The court may also
19 make other orders and determinations as are advisable to carry
20 out the intent of the transferor and the purpose of this section.
21 (h) The trust is not subject to the uniform statutory rule
22 against perpetuities, 1988 PA 418, MCL 554.71 to 554.78.
23 Sec. 2901. (1) This part shall be known and may be cited as
24 the "disclaimer of property interests law".
25 (2) As used in this part:
26 (a) "Agent" means an agent or attorney in fact acting under
27 a written power of attorney and within the scope of his, her, or
1 its authority.
2 (b) "Disclaimable interest" includes, but is not limited to,
3 property, the right to receive or control property, and a power
4 of appointment. Disclaimable interest does not include an
5 interest retained by or conferred upon the disclaimant by the
6 disclaimant at the creation of the interest. For purposes of this
7 definition, the survivorship interest in joint property is not
8 considered to be an interest retained or conferred upon the
9 disclaimant even if the disclaimant created the joint property.
10 (c) "Effective date of a governing instrument other than a
11 will or testamentary trust created by will" means
the date on
12 which a property right vests or a contract right arises, even
13 though either right is subject to divestment.
14 (d) "Fiduciary" includes, but is not limited to, an agent, a
15 conservator, a guardian if no conservator has been appointed, a
16 guardian ad litem, a personal representative, a trustee, a
17 probate court acting through a protective order under this act,
18 and a temporary, successor, or foreign fiduciary.
19 (e) "Fiduciary power" means a management power relating to
20 the administration or management of assets similar to those
21 powers granted to a personal representative in section 3715 and a
22 trustee in section 7401 sections
7816 and 7817, and granted by
23 law to a fiduciary or conferred upon a fiduciary in a governing
24 instrument.
25 (f) "Governing instrument" means a deed, assignment, bill of
26 sale, will, trust, beneficiary designation, contract, instrument
27 creating or exercising a power of appointment or a power of
1 attorney, or another instrument under which property devolves, a
2 property right is created, or a contract right is created.
3 Governing instrument includes the provable terms of an oral
4 contract or arrangement under which property devolves or a
5 property right is created.
6 (g) "Joint property" means property that is owned by 2 or
7 more persons with rights of survivorship, and includes a tenancy
8 by the entireties in real property, a tenancy in personal
9 property as provided in section 1 of 1927 PA 212, MCL 557.151, a
10 joint tenancy, a joint tenancy with rights of survivorship, and a
11 joint life estate with contingent remainder in fee. For purposes
12 of this part, joint property is considered to consist of a
13 present interest and a future interest. The future interest is
14 the right of survivorship.
15 (h) "Person" includes an entity and an individual, but does
16 not include a fiduciary, an estate, or a trust.
17 (i) "Property" means anything that may be the subject of
18 ownership. Property includes both real and personal property and
19 an interest in property, including a present interest; a future
20 interest; a legal interest; an equitable interest; an interest
21 acquired by testate succession, by intestate or other statutory
22 succession, by succession to a disclaimed interest, or by lapse
23 or release of a power of appointment; or an interest that may be
24 otherwise acquired under a governing instrument.
25 (j) "Trust" means a fiduciary relationship with respect to
26 property that subjects the person who holds title to the property
27 to equitable duties to deal with the property for the benefit of
1 another person, which fiduciary relationship arises as a result
2 of a manifestation of an intention to create it. Trust includes
3 an express trust, private or charitable, with additions to the
4 trust, whether created by will or other than by will, and
5 includes a trust created by statute, judgment, or decree under
6 which the trust is to be administered in the manner of an express
7 trust. Trust does not include a constructive trust or a resulting
8 trust.
9 Sec. 2904. (1) Except as provided in section 2905, if a
10 disclaimed interest arises under a will or testamentary trust
11 created by will, or by the laws of intestacy, the disclaimer must
12 be delivered after the death of the owner of the property and
13 before any event described in section 2910. If a disclaimed
14 interest arises under a will or by the laws of intestacy, the
15 disclaimer must be delivered to the personal representative of
16 the deceased owner's estate. If a disclaimed interest arises
17 under a testamentary trust created by will, the
disclaimer must
18 be delivered to the trustee of the testamentary trust created by
19 will or, if a trustee has not been appointed, to the personal
20 representative of the deceased owner's estate.
21 (2) Except as provided in section 2905, if a disclaimed
22 interest arises under a governing instrument other than a will or
23 testamentary trust created by will, the disclaimer must be
24 delivered after the effective date of the governing instrument
25 and before any event described in section 2910. A disclaimer
26 under this subsection must be delivered in 1 of the following
27 manners:
1 (a) If the disclaimer is made by a beneficiary of a trust,
2 the disclaimer must be delivered to the trustee.
3 (b) If the disclaimer is made by a donee with respect to a
4 gift from a living donor, the disclaimer must be delivered to the
5 donor of the gift.
6 (c) If the disclaimer is made by a beneficiary under a
7 beneficiary designation, the disclaimer must be delivered to the
8 payor.
9 (d) If the disclaimer is made by a trustee with respect to a
10 separate trust that is or will be established under the governing
11 instrument, the disclaimer must be delivered to another incumbent
12 trustee of that trust who has not disclaimed or to all the
13 beneficiaries of that trust who are then living and whose
14 whereabouts are known or reasonably ascertainable.
15 Sec. 2907. (1) Except as otherwise provided in this section
16 and section 2908, if a disclaimed interest arises under a will or
17 testamentary a trust
created by will, or by the laws of
18 intestacy, and the decedent has not provided for another
19 disposition of that interest if it is disclaimed or for another
20 disposition of disclaimed or failed interests in general, the
21 disclaimed interest devolves as if the disclaimant had
22 predeceased the decedent. However, if by law, or under the will
23 or testamentary trust
created by will, the descendants of the
24 disclaimant would take the disclaimant's share by representation
25 if the disclaimant predeceased the decedent, then the disclaimed
26 interest passes by representation to the descendants of the
27 disclaimant who survive the decedent.
1 (2) A future interest that takes effect in possession or
2 enjoyment upon the termination of the disclaimed interest takes
3 effect as if the disclaimant had predeceased the decedent. A
4 future interest that is held by the disclaimant and that takes
5 effect at a time certain is not accelerated and takes effect at
6 the time certain.
7 (3) Except as otherwise provided in this section and section
8 2908, if the disclaimed interest arises under a governing
9 instrument other than a will or testamentary trust created by
10 will, and the governing instrument does not provide for another
11 disposition of that interest if it is disclaimed or for another
12 disposition of disclaimed or failed interests in general, the
13 disclaimed interest devolves as if the disclaimant had died
14 before the time when the interest was entitled to take effect in
15 possession or enjoyment. However, if by law or under the
16 governing instrument the descendants of the disclaimant would
17 take the disclaimant's share by representation if the disclaimant
18 predeceased the effective date of the instrument, then the
19 disclaimed interest passes by representation to the descendants
20 of the disclaimant who survive the effective date of the
21 instrument.
22 (4) A future interest that takes effect in possession or
23 enjoyment at or after the termination of the disclaimed interest
24 takes effect as if the disclaimant had died before the time when
25 the interest was entitled to take effect in possession or
26 enjoyment. A future interest that is held by the disclaimant and
27 that takes effect at a time certain is not accelerated and takes
1 effect at the time certain.
2 Sec. 3104. (1) Except as otherwise provided in subsection
3 (2), a proceeding to enforce a claim against a decedent's estate
4 or the decedent's successors shall not be revived or commenced
5 before the appointment of a personal representative. After the
6 appointment and until distribution, a proceeding or action to
7 enforce a claim against the estate is governed by the procedure
8 prescribed by this article. After distribution, a creditor whose
9 claim has not been barred may recover from the distributees as
10 provided in section 3955 or from a former personal representative
11 individually liable as provided in section 3956.
12 (2) This act does not apply to a proceeding by a secured
13 creditor of the decedent to enforce the creditor's right to the
14 creditor's security except as provided in part 8 of article III
15 and part 5 6 of article VII.
16 Sec. 3403. (1) Upon commencement of a formal testacy
17 proceeding, the court shall fix a time and place of hearing. The
18 petitioner shall give notice in the manner prescribed by section
19 1401 to each of the following persons:
20 (a) The decedent's heirs.
21 (b) The devisees and personal representatives named in a
22 will that is being, or has been, probated or offered for informal
23 or formal probate in the county, or that is known by the
24 petitioner to have been probated or offered for informal or
25 formal probate elsewhere.
26 (c) A personal representative of the decedent whose
27 appointment has not been terminated.
1 (d) A person who has filed a demand for notice under section
2 3205.
3 (e) The trustee of a trust described in section 7501(1)
4 7605(1) as to which the decedent was settlor.
5 (2) Notice may be given to other persons. In addition, the
6 petitioner shall give notice by publication to each unknown
7 person and to each known person whose address is unknown who has
8 an interest in the matters being litigated. If the proceeding
9 involves a request for appointment of a personal representative
10 and it appears that the deceased died intestate without leaving a
11 known heir, the petitioner shall give notice to the attorney
12 general, public administration division.
13 (3) If it appears by the petition or otherwise that the fact
14 of the decedent's death may be in doubt, or on the written demand
15 of an interested person, a copy of the notice of the hearing on
16 the petition shall be sent by registered mail to the alleged
17 decedent at his or her last known address. The court shall direct
18 the petitioner to report the results of, or make and report back
19 concerning, a reasonably diligent search for the alleged decedent
20 in any manner that may seem advisable, including by any of the
21 following methods:
22 (a) Inserting in 1 or more suitable periodicals a notice
23 requesting information from anyone having knowledge of the
24 alleged decedent's whereabouts.
25 (b) Notifying law enforcement officials and public welfare
26 agencies in appropriate locations of the alleged decedent's
27 disappearance.
1 (c) Engaging an investigator's services.
2 (4) The costs of a search conducted under subsection (3)
3 shall be paid by the petitioner if there is no administration or
4 by the decedent's estate if there is administration.
5 Sec. 3703. (1) A personal representative is a fiduciary who
6 shall observe the standard of care applicable to a trustee as
7 described by section 7302 7803. A personal
representative is
8 under a duty to settle and distribute the decedent's estate in
9 accordance with the terms of a probated and effective will and
10 this act, and as expeditiously and efficiently as is consistent
11 with the best interests of the estate. The personal
12 representative shall use the authority conferred by this act, the
13 terms of the will, if any, and an order in a proceeding to which
14 the personal representative is party for the best interests of
15 claimants whose claims have been allowed and of successors to the
16 estate.
17 (2) A personal representative shall not be surcharged for
18 acts of administration or distribution if the conduct in question
19 was authorized at the time. Subject to other obligations of
20 administration, an informally probated will is authority to
21 administer and distribute the estate according to the will's
22 terms. Whether issued in an informal or formal proceeding, an
23 order of appointment of a personal representative is authority to
24 distribute apparently intestate property to the decedent's heirs
25 if, at the time of distribution, the personal representative is
26 not aware of a pending testacy proceeding, a proceeding to vacate
27 an order entered in an earlier testacy proceeding, a formal
1 proceeding questioning the personal representative's appointment
2 or fitness to continue, or a supervised administration
3 proceeding. Nothing in this section affects the personal
4 representative's duty to administer and distribute the estate in
5 accordance with the rights of a claimant whose claim has been
6 allowed, the surviving spouse, a minor or dependent child, or a
7 pretermitted child of the decedent as described elsewhere in this
8 act.
9 (3) Except as to a proceeding that does not survive the
10 decedent's death, a personal representative of a decedent
11 domiciled in this state at death has the same standing to sue and
12 be sued in the courts of this state and the courts of another
13 jurisdiction as the decedent had immediately prior to death.
14 (4) The personal representative shall keep each presumptive
15 distributee informed of the estate settlement. Until a
16 beneficiary's share is fully distributed, the personal
17 representative shall annually, and upon completion of the estate
18 settlement, account to each beneficiary by supplying a statement
19 of the activities of the estate and of the personal
20 representative, specifying all receipts and disbursements and
21 identifying property belonging to the estate.
22 Sec. 3705. (1) Not later than 28 days after a personal
23 representative's appointment or other time specified by court
24 rule, the personal representative, except a special personal
25 representative, shall give notice of the appointment to the
26 decedent's heirs and devisees, except those who have executed a
27 written waiver of notice, including, if there has been no formal
1 testacy proceeding and if the personal representative is
2 appointed on the assumption that the decedent died intestate, the
3 devisees in a will mentioned in the application for appointment
4 of a personal representative and to the trustee of a trust
5 described in section 7501(1) 7605(1) as to which the
decedent was
6 settlor. The personal representative shall give the notice by
7 personal service or by ordinary first-class mail to each person
8 required to receive notice under this subsection whose address is
9 reasonably available to the personal representative. However, the
10 personal representative is not required to notify a person who
11 was adjudicated in a prior formal testacy proceeding to have no
12 interest in the estate. The notice required under this subsection
13 must be in a form approved by the supreme court and must include
14 all of the following information:
15 (a) That the court will not supervise the personal
16 representative. This statement shall not be included if the
17 appointment is made in a supervised proceeding under part 5 of
18 this article.
19 (b) That, unless a person files a written objection to the
20 appointment of the person named as personal representative in the
21 notice or files a demand that bond or higher bond be posted, the
22 person named in the notice is the personal representative without
23 bond or with bond in the amount shown in the notice. This
24 statement shall not be included if the personal representative is
25 appointed in a formal appointment proceeding.
26 (c) The name and address of the person appointed as the
27 estate's personal representative.
1 (d) That, during the course of administering the estate, the
2 personal representative must provide all interested persons with
3 all of the following:
4 (i) A copy of the petition for the personal representative's
5 appointment and a copy of the will, if any, with the notice.
6 (ii) A copy of the inventory.
7 (iii) A copy of the settlement petition or of the closing
8 statement.
9 (iv) Unless waived, a copy of the account, including, but not
10 limited to, fiduciary fees and attorney fees charged to the
11 estate.
12 (e) That an interested person may petition the court for a
13 court hearing on any matter at any time during the estate's
14 administration, including, but not limited to, distribution of
15 assets and expenses of administration.
16 (f) That federal and Michigan estate taxes, if any, must be
17 paid within 9 months after the date of the decedent's death or
18 another time period specified by law, to avoid penalties.
19 (g) That, if the estate is not settled within 1 year after
20 the personal representative's appointment, within 28 days after
21 the anniversary of the appointment, the personal representative
22 must file with the court and send to each interested person a
23 notice that the estate remains under administration and must
24 specify the reason for the continuation of settlement
25 proceedings. If such a notice is not received, an interested
26 person may petition the court for a hearing on the necessity for
27 continued administration or for closure of the estate.
1 (h) The identity and location of the court where papers
2 relating to the estate are on file.
3 (2) The personal representative's failure to give the
4 information required by subsection (1) is a breach of the
5 personal representative's duty to the persons concerned, but does
6 not affect the validity of the personal representative's
7 appointment, powers, or other duties. A personal representative
8 may inform other persons of the appointment by delivery or
9 ordinary first-class mail.
10 (3) A personal representative shall also give notice that
11 includes the information described in subsection (1) to the
12 attorney general, public administration division, under any of
13 the following circumstances:
14 (a) It appears from the petition that the decedent died
15 intestate without leaving a known heir.
16 (b) In the administration of an intestate estate, it appears
17 that the decedent did not leave a known heir.
18 (c) In the administration of a testate estate, it appears
19 that devisees of the purported will would not be entitled to
20 share in the estate but for the terms of the will and that the
21 decedent died without leaving a known heir.
22 (4) If notice is required to be given to the attorney
23 general under subsection (3), the attorney general, representing
24 the this state, has all the rights of an heir to be heard and
to
25 contest the validity of a claim, the appointment of a personal
26 representative, an action of the personal representative, an
27 order, an appointment, or an instrument purporting to be a
1 decedent's contract or will, and has all the rights granted or
2 accruing to an heir, representative, or creditor by a law
3 relating to the settlement of a testate or intestate estate in
4 court, or by way of rehearing or appeal.
5 (5) Within 28 days after the personal representative's
6 appointment or another time specified by court rule, the personal
7 representative, except a special personal representative, shall
8 notify the decedent's surviving spouse, if any, of the spouse's
9 right to election under part 2 of article II and of the time
10 within which the election must be exercised.
11 (6) Except as otherwise provided in this subsection, at the
12 same time the notice required by subsection (1) is given, the
13 personal representative shall give notice to the friend of the
14 court for the county in which the estate is being administered,
15 which notice identifies the decedent's surviving spouse and the
16 individuals who are, for a testate estate, the devisees or, for
17 an intestate estate, the heirs. The personal representative is
18 not required to notify the friend of the court of a devise to a
19 trustee of an existing trust or to a trustee under the will. A
20 personal representative incurs no obligation or liability to the
21 friend of the court or to another person for an error or omission
22 made in good faith compliance with this subsection.
23 Sec. 3713. (1) A sale, or encumbrance, to the personal
24 representative, the personal representative's spouse, agent, or
25 attorney, or a corporation or trust or other transaction
26 involving the investment or management of estate property in
27 which the personal representative has a substantial beneficial
1 interest , or a
transaction that is otherwise
affected by a
2 substantial conflict of interest on the part of the personal
3 representative, between
the personal representative's fiduciary
4
and personal interests is voidable by
an interested person except
5 a person who consents after fair disclosure, unless any of the
6 following are true:
7 (a) The will or a contract entered into by the decedent
8 expressly authorized the transaction.
9 (b) The transaction is approved by the court after notice to
10 interested persons.
11 (c) The transaction involves a contract entered into or
12 claim acquired by the personal representative before the person
13 became or contemplated becoming personal representative.
14 (d) (c) The
transaction is otherwise permitted by statute.
15 (2) A sale, encumbrance, or other transaction involving the
16 investment or management of estate property is presumed to be
17 affected by a conflict between personal and fiduciary interests
18 if it is entered into by the personal representative with any of
19 the following:
20 (a) The personal representative's spouse.
21 (b) The personal representative's descendant, sibling, or
22 parent or the spouse of the personal representative's descendant,
23 sibling, or parent.
24 (c) An agent or attorney of the personal representative.
25 (d) A corporation or other person or enterprise in which the
26 personal representative, or a person that owns a significant
27 interest in the personal representative, has an interest that
1 might affect the personal representative's best judgment.
2 (3) A transaction not concerning estate property in which
3 the personal representative engages in the personal
4 representative's individual capacity involves a conflict between
5 personal and fiduciary interests if the transaction concerns an
6 opportunity properly belonging to the estate.
7 (4) An investment by a personal representative in securities
8 of an investment company or investment trust to which the
9 personal representative, or its affiliate, provides services in a
10 capacity other than as personal representative is not presumed to
11 be affected by a conflict between personal and fiduciary
12 interests if the investment otherwise complies with the Michigan
13 prudent investor rule. In addition to its compensation for acting
14 as personal representative, the personal representative may be
15 compensated by the investment company or investment trust for
16 providing those services out of fees charged to the estate. If
17 the personal representative receives compensation from the
18 investment company or investment trust for providing investment
19 advisory or investment management services, the personal
20 representative shall at least annually notify the interested
21 persons of the rate and method by which that compensation was
22 determined.
23 (5) In voting shares of stock or in exercising powers of
24 control over similar interests in other forms of enterprise, the
25 personal representative shall act in the best interests of the
26 beneficiaries. If the estate is the sole owner of a corporation
27 or other form of enterprise, the personal representative shall
1 elect or appoint directors or other managers to manage the
2 corporation or enterprise in the best interest of the
3 beneficiaries.
4 (6) This section does not preclude the following
5 transactions, if fair to the beneficiaries:
6 (a) An agreement between the personal representative and the
7 interested persons relating to the compensation of the personal
8 representative.
9 (b) Payment of reasonable compensation to the personal
10 representative.
11 (c) A transaction between the estate and another trust or
12 conservatorship of which the personal representative is a
13 fiduciary or in which a beneficiary has an interest.
14 (d) A deposit of estate money in a financial institution
15 operated by or affiliated with the personal represen