June 7, 2005, Introduced by Reps. Caswell, Taub, Stahl, Condino and Plakas and referred to the Committee on Judiciary.
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 2000 PA 54 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. Except when used in the term "probate estate",
estate includes the right of an estate described in section 7502 to
proceed against a recipient of a nonprobate transfer on death and
against a trust subject to a power of revocation as necessary to
enable the estate to discharge claims and family allowances.
(c) "Exempt property" means property of a decedent's estate
that is described in section 2404.
(d) "Family allowance" is 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 to possess a decedent's
body and the power to make decisions about funeral arrangements for
or the handling, disposition, or disinterment of the body,
including, but not limited to, decisions about cremation and the
disposal of cremated remains.
(2) The individuals with the following relationships to a
decedent, if they survive the decedent and are 18 years of age or
older, have the rights and powers under subsection (1) in the
following order of priority:
(a) The spouse.
(b) A child.
(c) A parent.
(d) A grandchild.
(e) A sibling.
(f) A grandparent.
(g) A child of a deceased sibling.
(h) An aunt or uncle.
(i) A first cousin.
(3) If the individual or individuals with the highest priority
as determined under subsection (2) and this subsection do not
exercise their rights or powers under subsection (1) or cannot be
located after a good-faith effort to contact them at their last
known addresses, the rights and powers under subsection (1) may be
exercised by the individual or individuals in the next order of
priority.
(4) If there are 2 or more individuals in a level of priority
under subsection (2), the rights and powers under subsection (1)
shall be exercised as decided by a majority of individuals in that
level of priority. If a majority cannot agree, any individual
specified in subsection (2) may file a petition under section 3207.
(5) If no individual described in subsection (2) exists,
exercises the rights or powers under subsection (1), or can be
located after a sufficient attempt as described in subsection (9),
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 subsection (2) exists,
exercises the rights or powers under subsection (1), or can be
located as described in subsection (9), 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), the medical
examiner or the county public administrator for the county where
the decedent was domiciled at the time of his or her death shall
exercise the rights and powers.
(8) The court, in a proceeding brought under section 3207, may
order that an individual who had a closer personal relationship to
the decedent than an individual with priority under subsections (2)
and (3) may exercise the rights and powers under subsection (1).
(9) An attempt to locate a person described in subsection (2)
is sufficient for the purposes of subsections (5) and (6) if the
attempt is made in good faith to contact the person at his or her
last known address. If there is a personal representative or
nominated personal representative of the decedent's estate, the
attempt to locate the person shall be made by the personal
representative or nominated personal representative.
(10) 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.
(11) 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) One 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 priority as determined under section
3206(2) and (3).
(b) A funeral establishment that has custody of the decedent's
body.
(c) If there is a disagreement as described in section
3206(4), any individual described in section 3206(2).
(d) An individual who alleges that he or she had a closer
personal relationship to the deceased than the individual or
individuals with priority as determined under section 3206(2) and
(3).
(2) A petition under subsection (1) may be filed with the
court for 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 good-faith effort has been
made to contact the individual at his or her last known address,
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 decedent's estate, or another person as ordered by the
court, shall reimburse the funeral establishment for all costs
incurred in bringing the proceeding, including attorney fees.
(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
other persons.
(b) The nature of the personal relationship to the deceased of
the person bringing the action.
(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) If there is disagreement among individuals with priority
as determined under section 3206(2) and (3) about the exercise of
powers under section 3206(1), a funeral establishment is not
required to accept the deceased's body or to inter or otherwise
dispose of the body until the funeral establishment receives a
court order or a writing signed by the individuals in disagreement
that resolves the disagreement. A funeral establishment shall
comply with a court order served upon the funeral establishment.
(3) The order of priority in section 3206(2) 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.
(4) A funeral establishment that in good faith and after
reasonable diligence attempts to comply with this section is not
civilly liable in connection with the funeral arrangements provided
or the handling or disposition 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.
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) Senate Bill No.____ or House Bill No. 4890(request no.
00385'05 a *).
(b) Senate Bill No.____ or House Bill No. 4891(request no.
00385'05 b *).