SENATE BILL No. 1342

 

 

June 28, 2006, Introduced by Senator SWITALSKI and referred to the Committee on Judiciary.

 

 

 

     A bill to amend 1998 PA 386, entitled

 

"Estates and protected individuals code,"

 

by amending sections 1303, 2202, and 3807 (MCL 700.1303, 700.2202,

 

and 700.3807), sections 1303 and 2202 as amended by 2000 PA 54 and

 

section 3807 as amended by 2000 PA 177.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1303. (1) In addition to the jurisdiction conferred by

 

section 1302 and other laws, the court has concurrent legal and

 

equitable jurisdiction to do all of the following in regard to an

 

estate of a decedent, protected individual, ward, or trust:

 

     (a) Determine a property right or interest.

 

     (b) Authorize partition of property.

 

     (c) Authorize or compel specific performance of a contract in

 

a joint or mutual will or of a contract to leave property by will.

 


     (d) Ascertain if individuals have survived as provided in this

 

act.

 

     (e) Determine cy-pres or a gift, grant, bequest, or devise in

 

trust or otherwise as provided in 1915 PA 280, MCL 554.351 to

 

554.353.

 

     (f) Hear and decide an action or proceeding against a

 

distributee of a fiduciary of the estate to enforce liability that

 

arises because the estate was liable upon some claim or demand

 

before distribution of the estate.

 

     (g) Impose a constructive trust.

 

     (h) Hear and decide a claim by or against a fiduciary or

 

trustee for the return of property.

 

     (i) Hear and decide a contract proceeding or action by or

 

against an estate, trust, or ward.

 

     (j) Require, hear, or settle an accounting of an agent under a

 

power of attorney.

 

     (k) Bar an incapacitated or minor wife of her dower right.

 

     (2) If the probate court has concurrent jurisdiction of an

 

action or proceeding that is pending in another court, on the

 

motion of a party to the action or proceeding and after a finding

 

and order on the jurisdictional issue, the other court may order

 

removal of the action or proceeding to the probate court. If the

 

action or proceeding is removed to the probate court, the other

 

court shall forward to the probate court the original of all papers

 

in the action or proceeding. After that transfer, the other court

 

shall not hear the action or proceeding, except by appeal or review

 

as provided by law or supreme court rule, and the action or

 


proceeding shall be prosecuted in the probate court as a probate

 

court proceeding.

 

     (3) The underlying purpose and policy of this section is to

 

simplify the disposition of an action or proceeding involving a

 

decedent's, a protected individual's, a ward's, or a trust estate

 

by consolidating the probate and other related actions or

 

proceedings in the probate court.

 

     Sec. 2202. (1) The surviving widow of a decedent who was

 

domiciled in this state and who dies intestate may file with the

 

court an election in writing that she elects to take  1 of the

 

following:

 

     (a) Her  her intestate share under section 2102.

 

     (b) Her dower right under sections 1 to 29 of 1846 RS 66, MCL

 

558.1 to 558.29.

 

     (2) The surviving spouse of a decedent who was domiciled in

 

this state and who dies testate may file with the court an election

 

in writing that the spouse elects  1  either of the following:

 

     (a) That the spouse will abide by the terms of the will.

 

     (b) That the spouse will take 1/2 of the sum or share that

 

would have passed to the spouse had the testator died intestate,

 

reduced by 1/2 of the value of all property derived by the spouse

 

from the decedent by any means other than testate or intestate

 

succession upon the decedent's death.

 

     (c) If a widow, that she will take her dower right under

 

sections 1 to 29 of 1846 RS 66, MCL 558.1 to 558.29.

 

     (3)  The surviving spouse electing under subsection (1) is

 

limited to 1 choice.  Unless the testator's will plainly shows a

 


contrary intent, the surviving spouse electing under subsection (2)

 

is limited to 1 choice. The right of election of the surviving

 

spouse under this section must be exercised during the lifetime of

 

the surviving spouse. The election must be made within 63 days

 

after the date for presentment of claims or within 63 days after

 

service of the inventory upon the surviving spouse, whichever is

 

later.

 

     (4) Notice of right of election shall be served upon the

 

decedent's spouse, if any, as provided in section 3705(5), and

 

proof of that notice shall be filed with the court. An election as

 

provided by this section may be filed instead of service of notice

 

and filing of proof.

 

     (5) In the case of a legally incapacitated person, the right

 

of election may be exercised only by order of the court in which a

 

proceeding as to that person's property is pending, after finding

 

that exercise is necessary to provide adequate support for the

 

legally incapacitated person during that person's life expectancy.

 

     (6) The surviving spouse of a decedent who was not domiciled

 

in this state is entitled to election against the intestate estate

 

or against the will only as may be provided by the law of the place

 

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

 

     (7) As used in subsection (2), "property derived by the spouse

 

from the decedent" includes all of the following transfers:

 

     (a) A transfer made within 2 years before the decedent's death

 

to the extent that the transfer is subject to federal gift or

 

estate taxes.

 

     (b) A transfer made before the date of death subject to a

 


power retained by the decedent that would make the property, or a

 

portion of the property, subject to federal estate tax.

 

     (c) A transfer effectuated by the decedent's death through

 

joint ownership, tenancy by the entireties, insurance beneficiary,

 

or similar means.

 

     Sec. 3807. (1) Upon the expiration of 4 months after the

 

publication date of the notice to creditors, and after providing

 

for administration costs and expenses, for reasonable funeral and

 

burial expenses,  for dower,  for the homestead, family, and exempt

 

property allowances, for claims already presented that have not yet

 

been allowed or whose allowance has been appealed, and for unbarred

 

claims that may yet be presented, including costs and expenses of

 

administration, the personal representative shall pay the claims

 

allowed against the estate in the order of priority as provided in

 

this act. A claimant whose claim has been allowed, but not paid as

 

provided in this section, may petition the court to secure an order

 

directing the personal representative to pay the claim to the

 

extent that property of the estate is available for the payment.

 

     (2) The personal representative may pay a claim that is not

 

barred at any time, with or without formal presentation, but is

 

individually liable to another claimant whose claim is allowed and

 

who is injured by the payment if either of the following occurs:

 

     (a) Payment is made before the expiration of the time limit

 

stated in subsection (1) and the personal representative fails to

 

require the payee to give adequate security for the refund of any

 

of the payment necessary to pay another claimant.

 

     (b) Payment is made, due to the negligence or willful fault of

 


the personal representative, in a manner that deprives the injured

 

claimant of priority.

 

     (3) If a claim is allowed, but the claimant's whereabouts are

 

unknown at the time the personal representative attempts to pay the

 

claim, upon petition by the personal representative and after

 

notice that the court considers advisable, the court may disallow

 

the claim. If the court disallows a claim under this subsection,

 

the claim is barred.

 

     Enacting section 1.  This amendatory act does not take effect

 

unless Senate Bill No. 1343.                                 

 

          of the 93rd Legislature is enacted into law.