HB-4870, As Passed House, May 4, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 4870

     A bill to amend 1998 PA 386, entitled

"Estates and protected individuals code,"

by amending sections 1104 and 3614 (MCL 700.1104 and 700.3614),

section 1104 as amended by 2005 PA 204 and section 3614 as amended

by 2004 PA 343, and by adding sections 3206, 3207, and 3208.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1104. As used in this act:

     (a) "Environmental law" means a federal, state, or local law,

rule, regulation, or ordinance that relates to the protection of

the environment or human health.

     (b) "Estate" includes the property of the decedent, trust, or

other person whose affairs are subject to this act as the property

is originally constituted and as it exists throughout

administration. Estate also includes the rights described in

sections 3805, 3922, and 7502 to collect from others amounts

necessary to pay claims, allowances, and taxes.

     (c) "Exempt property" means property of a decedent's estate

that is described in section 2404.

     (d) "Family allowance" means the allowance prescribed in

section 2403.

     (e) "Fiduciary" includes, but is not limited to, a personal

representative, guardian, conservator, trustee, plenary or partial

guardian appointed as provided in chapter 6 of the mental health

code, 1974 PA 258, MCL 330.1600 to 330.1644, and successor

fiduciary.

     (f) "Financial institution" means an organization authorized

to do business under state or federal laws relating to a financial

institution and includes, but is not limited to, a bank, trust

company, savings bank, building and loan association, savings and

loan company or association, and credit union.

     (g) "Foreign personal representative" means a personal

representative appointed by another jurisdiction.

     (h) "Formal proceedings" means proceedings conducted before a

judge with notice to interested persons.

     (i) "Funeral establishment" means that term as defined in

section 1801 of the occupational code, 1980 PA 299, MCL 339.1801,

and the owners, employees, and agents of the funeral establishment.

(j)  (i) "General personal representative" means a personal

representative other than a special personal representative.

(k)  (j) "Governing instrument" means a deed; will; trust;

insurance or annuity policy; account with POD designation; security

registered in beneficiary form (TOD); pension, profit-sharing,

retirement, or similar benefit plan; instrument creating or

exercising a power of appointment or a power of attorney; or

dispositive, appointive, or nominative instrument of any similar

type.

(l)  (k) "Guardian" means a person who has qualified as a

guardian of a minor or a legally incapacitated individual under a

parental or spousal nomination or a court appointment and includes

a limited guardian as described in sections 5205, 5206, and 5306.

Guardian does not include a guardian ad litem.

(m)  (l) "Hazardous substance" means a substance defined as

hazardous or toxic or otherwise regulated by an environmental law.

(n)  (m) "Heir" means, except as controlled by section 2720,

a person, including the surviving spouse or the state, that is

entitled under the statutes of intestate succession to a decedent's

property.

(o)  (n) "Homestead allowance" means the allowance prescribed

in section 2402.

     Sec. 3206. (1) Subject to 1953 PA 181, MCL 52.201 to 52.216,

and to part 28 and article 10 of the public health code, 1978 PA

368, MCL 333.2801 to 333.2899 and 333.10101 to 333.11101, a person

with priority under subsections (2) to (4) or acting under

subsection (5), (6), or (7) has the right and power to make

decisions about funeral arrangements and the handling, disposition,

or disinterment of a decedent's body, including, but not limited

to, decisions about cremation, and the right to possess cremated

remains of the decedent. The handling, disposition, or disinterment

of a body shall be under the supervision of a person licensed to

practice mortuary science in this state.

     (2) The surviving spouse or, if there is no surviving spouse,

the individual or individuals 18 years of age or older, in the

highest order of priority under section 2103, and related to the

decedent in the closest degree of consanguinity, have the rights

and powers under subsection (1).

     (3) If the surviving spouse or the individual or individuals

with the highest priority as determined under subsection (2) do not

exercise their rights or powers under subsection (1) or cannot be

located after a good-faith effort to contact them, the rights and

powers under subsection (1) may be exercised by the individual or

individuals in the same order of priority under section 2103 who

are related to the decedent in the next closest degree of

consanguinity. If the individual or each of the individuals in an

order of priority as determined under this subsection similarly

does not exercise his or her rights or powers or cannot be located,

the rights or powers under subsection (1) pass to the next order of

priority, with the order of priority being determined by first

taking the individuals in the highest order of priority under

section 2103 and then taking the individuals related to the

decedent in the closest or, as applicable, next closest degree of

consanguinity in that order of priority.

     (4) If 2 or more individuals share the rights and powers

described in subsection (1) as determined under subsection (2) or

(3), the rights and powers shall be exercised as decided by a

majority of the individuals. If a majority cannot agree, any of the

individuals may file a petition under section 3207.

     (5) If no individual described in subsections (2) and (3)

exists, exercises the rights or powers under subsection (1), or can

be located after a sufficient attempt as described in subsection

(8), then the personal representative or nominated personal

representative may exercise the rights and powers under subsection

(1), either before or after his or her appointment.

     (6) If no individual described in subsections (2) and (3)

exists, exercises the rights or powers under subsection (1), or can

be located after a sufficient attempt as described in subsection

(8), and if the decedent died intestate, a special personal

representative appointed under section 3614(c) may exercise the

rights and powers under subsection (1).

     (7) If there is no person under subsections (2) to (6) to

exercise the rights and powers under subsection (1), 1 of the

following, as applicable, shall exercise the rights and powers

under subsection (1):

     (a) Unless subdivision (b) applies, the county public

administrator, if willing, or the medical examiner for the county

where the decedent was domiciled at the time of his or her death.

     (b) If the decedent was incarcerated in a state correctional

facility at the time of his or her death, the director of the

department of corrections.

     (8) An attempt to locate a person described in subsection (2)

or (3) is sufficient if a reasonable attempt is made in good faith

by a family member, personal representative, or nominated personal

representative of the decedent to contact the person at his or her

last known address, telephone number, or electronic mail address.

     (9) This section does not void or otherwise affect a gift made

under part 101 of the public health code, 1978 PA 368, MCL

333.10101 to 333.10109.

     (10) As used in this section, "nominated personal

representative" means a person nominated to act as personal

representative in a will that the nominated person reasonably

believes to be the valid will of the decedent.

     Sec. 3207. (1) If there is a disagreement as described in

section 3206(4) or if 1 or more of the individuals described in

section 3206(2) or (3) cannot be located, 1 or more of the

following may petition the court to determine who has the authority

to exercise the rights and powers under section 3206(1):

     (a) An individual with the rights and powers under section

3206(1).

     (b) A funeral establishment that has custody of the decedent's

body.

     (2) Venue for a petition filed under subsection (1) is in the

county in which the decedent was domiciled at the time of death.

     (3) On receipt of a petition under this section, the court

shall set a date for a hearing on the petition. The hearing date

shall be as soon as possible, but not later than 7 business days

after the date the petition is filed. Notice of the petition and

the hearing shall be served not less than 2 days before the date of

the hearing on every individual who has highest priority as

determined under section 3206(2) and (3), unless the court orders

that service on every such individual is not required. Unless an

individual cannot be located after a reasonable good-faith effort

has been made to contact the individual, service shall be made on

the individual personally or in a manner reasonably designed to

give the individual notice. Notice of the hearing shall include

notice of the individual's right to appear at the hearing. An

individual served with notice of the hearing may waive his or her

rights. If written waivers from all persons entitled to notice are

filed, the court may immediately hear the petition. The court may

waive or modify the notice and hearing requirements of this

subsection if the decedent's body must be disposed of promptly to

accommodate the religious beliefs of the decedent or his or her

next of kin.

     (4) If a funeral establishment is the petitioner under this

section, the funeral establishment's actual costs and reasonable

attorney fees in bringing the proceeding shall be included in the

reasonable funeral and burial expenses under section 3805(b) or the

court may assess such costs and fees against 1 or more parties or

intervenors.

     (5) In deciding a petition brought under this section, the

court shall consider all of the following, in addition to other

relevant factors:

     (a) The reasonableness and practicality of the funeral

arrangements or the handling or disposition of the body proposed by

the person bringing the action in comparison with the funeral

arrangements or the handling or disposition of the body proposed by

1 or more individuals with the rights and powers under section

3206(1).

     (b) The nature of the personal relationship to the deceased of

the person bringing the action compared to other individuals with

the rights and powers under section 3206(1).

     (c) Whether the person bringing the action is ready, willing,

and able to pay the costs of the funeral arrangements or the

handling or disposition of the body.

     Sec. 3208. (1) A funeral establishment is not required to file

a petition under section 3207 and is not civilly liable for not

doing so.

     (2) The order of priority determined under section 3206(2) and

(3) may be relied upon by a funeral establishment. A funeral

establishment is not a guarantor that a person exercising the

rights and powers under section 3206(1) has the legal authority to

do so. A funeral establishment does not have the responsibility to

contact or independently investigate the existence of relatives of

the deceased, but may rely on information provided by family

members of the deceased.

     (3) A funeral establishment, holder of a license to practice

mortuary science issued by this state, cemetery, crematory, or an

officer or employee of a funeral establishment, holder of a license

to practice mortuary science issued by this state, cemetery, or

crematory that in good faith complies with sections 3206 and 3207

and this section and with the instructions of a person described in

section 3206(2) to (7) regarding funeral arrangements and the

handling, disposition, or disinterment of a decedent's body is not

civilly liable for the funeral or the handling, disposition, or

disinterment of the body.

     Sec. 3614. A special personal representative may be appointed

in any of the following circumstances:

     (a) Informally by the register on the application of an

interested person if necessary to protect the estate of a decedent

before the appointment of a general personal representative or if a

prior appointment is terminated as provided in section 3609.

     (b) By the court on its own motion or in a formal proceeding

by court order on the petition of an interested person if in either

case, after notice and hearing, the court finds that the

appointment is necessary to preserve the estate or to secure its

proper administration, including its administration in

circumstances in which a general personal representative cannot or

should not act. If it appears to the court that an emergency

exists, the court may order the appointment without notice.

     (c) By the court on its own motion or on petition by an

interested person to supervise the disposition of the body of a

decedent  who died intestate, without heirs, and with insufficient

assets to pay for a funeral or burial  if section 3206(6) applies.

The duties of a special personal representative appointed under

this subdivision shall be specified in the order of appointment and

may include making arrangements with a funeral home, securing a

burial plot if needed, obtaining veteran's or pauper's funding

where appropriate, and determining the disposition of the body by

burial or cremation. The court may waive the bond requirement under

section 3603(1)(a). The court may appoint the county public

administrator if the county public administrator is willing to

serve. If the court determines that it will not be necessary to

open an estate, the court may appoint a special fiduciary under

section 1309 instead of a special personal representative to

perform duties under this section.

     Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

     (a) House Bill No. 4891.

     (b) House Bill No. 5836.