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OVERVIEW OF PROBATE COURT JURISDICTION
By
Hon. Lawrence J. Paolucci Judge, Wayne County Probate Court
I. INTRODUCTION
II. JURISDICTION: SOME DEFINITIONS
III. PROBATE COURT JURISDICTION
A. IN GENERAL
B. DECEDENT’S ESTATES
C. TRUSTS
D. GUARDIANSHIPS
E. CONSERVATORSHIP AND PROTECTIVE PROCEEDINGS
F. FIDUCIARY ACCOUNTINGS
G. CONCURRENT JURISDICTION
H. MENTAL HEALTH CODE
IV. SPECIFIC SCENARIOS - JURISDICTIONAL ANALYSIS
A. WRONGFUL DEATH ACTIONS/GENERAL TORT JURISDICTION
B. WRONGFUL DEATH ACTIONS/JURISDICTION TO OPEN PROBATE ESTATE
C. USE OF SUBPOENA BY PERSONAL REPRESENTATIVE TO CONDUCT PRE-
LAWSUIT DISCOVERY REGARDING POTENTIAL WRONGFUL DEATH
LITIGATION
D. DISCOVERY IN PROBATE PROCEEDINGS\MANDATORY INITIAL
DISCLOSURES
E. LANDLORD/TENANT DISPUTES
F. GARNISHMENTS, EXECUTIONS, AND CREDITOR'S EXAMS
V. MCR 5.
VI. CONCLUSION
________________________________________________________________________________
I. INTRODUCTION
The Materials address the following topics:
A. Basis of Probate Court’s exclusive and concurrent jurisdiction.
B. Review of various scenarios to determine if the Probate Court would have jurisdiction.
C. Discussion of MCR 5.101 and its impact on Probate jurisdiction and Probate procedure.
D. Awareness of the scope of Probate Court jurisdiction will enable you to evaluate whether a proceeding can be brought in Probate Court.
II. JURISDICTION: SOME DEFINITIONS
JURISDICTION GENERALLY IS THE COURT’S POWER TO DECIDE A CASE OR
ISSUE A DECREE.
A. Subject matter jurisdiction is defined as jurisdiction over the nature of the case and the type of relief sought.
B. Exclusive Jurisdiction is a Court’s power to adjudicate an action or class of actions to the exclusion of other Courts.
C. Concurrent Jurisdiction is jurisdiction which may be exercised simultaneously by more than one Court over the same subject matter, with the parties having the right to choose the Court in which to file the action.
D. Equitable Jurisdiction is the power to hear and resolve a case according to equitable rules.
E. Venue – The proper or a possible place for the filing of an action/proceeding.
Practice Pointer: Jurisdiction/Venue Distinguished- Jurisdiction relates to the right of this Court to exercise power over a class of cases. Altman v. Nelson, 197 Mich. App. 467, 472; 495 NW2d 826 (1992). Venue conversely relates only to the geographical place of a proceeding or trial, not to a particular case before the Court. Gross v. GMC, 448 Mich. 147; 528 NW2d 707 (1995).
III. PROBATE COURT JURISDICTION
A. IN GENERAL
- Historically, probate court jurisdiction has been narrowly proscribed by Michigan jurisprudence. The Revised Probate Code (RPC), which became effective July 1, 1979, was designed in part to clarify the authority of the Probate court to adjudicate matters related to the settlement of an estate.
b. Estate administration, settlement, and distribution.
c. Declaration of rights involving estates, devisees, heirs, and fiduciaries.
d. Construction of a will.
e. Determination of heirs.
f. Determination of death of an accident or disaster victim under EPIC section 1208. ( MCL 700.1208 )
Note: Venue for estate proceedings for a decedent not domiciled in Michigan is in a county where property of the decedent was located at the time of death. MCL 700.3201(1)(b) This administration extends to all assets in Michigan, even if some items are located outside the county where probate proceedings were commenced.
- Remember - Only those assets held in the decedent’s name alone are subject to probate.
a. Examples of assets that must be probated - items owned by the decedent alone:
Real estate.
Bank accounts.
Stocks/bonds.
Personal property (cars, furniture, jewelry, etc.).
b. Assets not subject to probate:
Jointly owned real estate.
Joint bank accounts.
Stocks/bonds owned jointly.
Life Insurance, if payable to a named beneficiary. If no beneficiary is designated or it is payable to the estate, it is subject to probate.
Retirement Plans (i.e., IRA, pension, etc.), if payable to a named beneficiary. If no beneficiary is designated or it is payable to the estate, it is subject to probate.
Practice Pointer: The personal representative is your client, not the estate.
c. MCR 5.117(A) provides that an attorney who files an appearance on behalf of a fiduciary represents the fiduciary, not the estate. Confusion caused by the recent Michigan Court of Appeals decision in Calvin v Graves, 2009 WL 4725753 (Mich. App #286674, December 3, 2009) , contradicting MCR 5.117(A) on this point of law was avoided when this opinion was ultimately unpublished by the Michigan Court of Appeals.
d. Heirs or devisees to an estate will often think that as the lawyer for the personal representative, you are actually working for them and will do whatever they ask.
e. Although you are serving the personal representative, you still have an obligation to remind them of their responsibility to perform their fiduciary duties. You must caution the fiduciary against using their position to advance their own personal agenda.
f. Remember as an attorney for the Personal Representative you might have to withdraw from a matter if there is a breakdown in your relationship with the Personal Representative. The attorney and fiduciary have an obligation to regularly administer and efficiently close the administration of an estate. Failure to do so may cause the court to assess costs against the fiduciary or attorney personally. See MCR 5.
C. TRUSTS
- Probate courts have exclusive legal and equitable jurisdiction over proceedings concerning the validity, internal affairs, and settlement of trusts. MCL 700.1302(b) and MCL 700.7203(1).
- Probate courts also have jurisdiction over the administration, distribution, modification, reformation, and termination of trusts, and the declaration of rights involving trusts, trustees, and beneficiaries of trusts.
- Jurisdiction includes, but is not limited to, the following proceedings:
a. Appoint or remove a trustee.
b. Review the fees of a trustee.
c. Require, hear, and settle interim or final accounts.
d. Ascertain beneficiaries.
e. Determine any question arising in the administration or distribution of any trust, including questions of construction of wills and trusts; instruct trustees, and determine relative thereto the existence or nonexistence of an immunity, power, privilege, duty or right.
f. Release registration of a trust.
g. Determine an action or proceeding involving settlement of an irrevocable trust.
See also MCL 700.7202- Jurisdiction over trustee and beneficiary
Practice Pointer: Venue for a Trust proceeding is where the Trust is registered. If the Trust was not registered venue is in the place where it could have been registered (i.e., where the decedent/original trustee’s estate was opened or where the current trustee has a principal place of business or where the records of the Trust are kept), MCL 700.7204. See also MCL 700.7209.
Example: A protective order must be obtained in order to receive approval for the sale of real estate in which a minor has an interest. A minor conservatorship must be established to hold and manage the proceeds until the ward reaches age 18.
- Venue- Proper venue in a Conservatorship proceeding is where the protected individual resides or if he or she is not a resident of Michigan, where the property to be protected is located. MCL 700..
F. FIDUCIARY ACCOUNTINGS
- Probate courts have exclusive jurisdiction over proceedings to review and settle all fiduciary accounts. MCL 700.1302(d).
- A person appointed fiduciary by the Probate Court who manages money (i.e., personal representative of a decedent’s estate, trustee, or conservator) must account each year for these funds.
- All accountings must be served on the interested persons.
- Accountings for conservatorships and supervised estates must also be filed with the probate court and approved by a Judge.
Note : In response to an interested person’s petition or on its own motion, the court may at any time order a fiduciary of an estate under its jurisdiction to file an accounting. After due hearing on the accounting, the court shall enter an order that agrees with the law and the facts of the case. MCL 700.1308(2)
G. CONCURRENT JURISDICTION
- Probate courts have concurrent legal and equitable jurisdiction over the following matters involving an estate of a decedent, protected individual, trust, or ward. MCL 700.
- To determine property rights and interests.
a. Example #1: Dispute over a joint bank account owned by a decedent.
b. Example #2: Dispute over title to real estate owned by a decedent.
c. Example #3: Dispute over who are the beneficiaries of life insurance owned by a decedent.
- Hear and decide contract disputes by or against an estate, ward, or trust.
Example: A company files suit for enforcement of a contract with the decedent to sell them crops from his farm.
- To authorize specific performance of a contract in a joint or mutual will or of a contract to leave property by will.
- Partition of property.
- Other matters over which probate courts have concurrent jurisdiction:
a. Ascertain survivorship of persons.
b. Bar an incapacitated or minor wife from her dower right.
c. Determine cy-pres, gifts, grants, bequests, and devises in trust or otherwise.
d. Hear and decide an action or proceeding against distributees of an estate fiduciary to enforce liability arising because the estate was liable upon some claim or demand before distribution of the estate.
e. To require, hear, and settle an accounting of an agent under a power of attorney.
f. To impose a constructive trust.
g. To hear and decide any claim by or against a fiduciary or trustee for the return of property. MCL 700.1303(1)
H. MENTAL HEALTH CODE
- Probate courts have jurisdiction over proceedings under the Mental Health Code. MCL 330.1100 et. seq.
- Civil Admission and Discharge Proceedings (Chapter 4)
Petitions of this type are filed in probate court. MCL 330.1401(1) defines a “person requiring treatment” under Mental Health Code. The amended Mental Health Code now focuses on capacity more than conduct. The traditional standard was immediate risk of harm to self or others. (suicide or violence). Now the standard has been expanded or broadened to include “substantial risk of harm due to impaired judgment”. MCL 330.1401(1)(c)
- Intellectual Disability Treatment (Chapter 5)
The criteria for Intellectual Disability Treatment include a person diagnosed with an intellectual (cognitive/developmental) disability who is also a person requiring treatment under the mental health code. See MCL 330.
Note: If a person meets the criteria for both an involuntary treatment order under Chapter 4 or intellectual disability treatment under Chapter 5 a petitioner has the option of filing either of these petitions.
- Guardianships for Individuals with Developmental Disabilities (DDs) MCL 330.1600(b) (Chapter 6)
a. Probate courts have jurisdiction over guardianship proceedings for individuals with developmental disabilities. MCL 330.1604(1).
b. Developmental disability is defined at MCL 330.1100a (21) as follows: “Developmental disability” means either of the following:
IV. SPECIFIC SCENARIOS - JURISDICTIONAL ANALYSIS
A. WRONGFUL DEATH ACTIONS/GENERAL TORT JURISDICTION
- Wrongful death and other general tort actions must be filed in circuit court. The Revised Judicature Act states:
"Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state." MCL 600.605.
- Neither the Michigan Constitution nor EPIC confer jurisdiction on the probate court to entertain wrongful death or general tort actions. As a result, these proceedings cannot be initiated in probate court.
- MCL 700.1303(1)(i) vests the Court with concurrent jurisdiction over contract proceedings by or against an estate, ward or trust. The failure to specifically enumerate tort actions is a clear indication of the legislature's intent to exclude them from the probate court's jurisdiction.
- Moreover, the Court of Appeals in York v Isabella Bank & Trust, 146 Mich App 1; 379 NW 2d 448 (1985) ruled that the probate court could not entertain an individual's action alleging intentional infliction of emotional distress as a result of the personal representative's administration of her deceased husband's estate. The court declared that this allegation was not a matter directly relating to the settlement of the estate. It examined MCL 700.22 ( the precursor to MCL 700.1303) and found that probate court also lacked concurrent jurisdiction to adjudicate this dispute.
- Contrast York with Manning v Amerman, 229 Mich App 608; 582 NW2d 539 (1998) , where the Court of Appeals affirmed the dismissal of a circuit court lawsuit brought by trust beneficiaries alleging legal malpractice and emotional distress by a trustee’s attorney and the trustee due to lack of subject matter jurisdiction. It noted that pursuant to MCL 700.21(b)(v) ( the precursor to MCL 700.1302) , probate court has exclusive legal and equitable jurisdiction to determine any question arising in the administration and distribution of any trust. The Court in Manning stated that York was inapplicable, since the issue was whether plaintiffs’ claim concerns the administration of a trust under MCL 700.21(b)(v) , not whether it relates to the settlement of an estate under MCL 700.21(a).
- The difference between York and Manning is that York deals with an estate proceeding and Manning involves a trust. In Moss v UAW Legal Services, 2006 WL 375304 , Michigan Court of Appeals Docket #270,641 (rel’d 12\21\06), an heir sued his attorney for legal malpractice in Circuit Court for failing to serve injunctions upon certain banks to prevent distribution of assets. The injunctions were served on the surviving joint owner of the items, who defied the orders and disposed of all the joint property. The probate court subsequently determined that the assets in question belonged to the estate. The appellate panel noted that since the claims did not relate to
the settlement of an estate, they did not fall within the jurisdiction of the probate court. The following portion of Moss analyzes the jurisdictional provision for estates in contrast with trust proceedings:
“The statutory grant of jurisdiction for matters involving trusts, as interpreted by the court in Manning , is significantly broader than the grant of jurisdiction for matters involving estates. In contrast to the grant of exclusive jurisdiction for questions that arise in the administration of trusts, see MCL 700.1302(b)(v) , with regard to estates, probate courts only have exclusive jurisdiction over “[a] matter that relates to the settlement of a deceased individual’s estate…” MCL 700.1302(a). The use of “ relates ” indicates an intent to limit the exclusive jurisdiction to matters that actually affect the settlement of an estate. Further, as applied to a decedent’s estate, settlement is defined to mean “the full process of administration, distribution, and closing.” MCL 700.1107(d). Hence, in order to fall under the exclusive jurisdiction provided by MCL 700.1302(a) , the claim at issue must itself relate to the process of administering, distributing or closing the estate. The fact that a particular suit involves an estate or has some tangential connection to the administration or distribution of an estate will not by itself be sufficient to invoke the probate court’s exclusive jurisdiction.” (Emphasis added)
- See also the Michigan Court of Appeals unpublished decision of Was vs. Plante and OLHSA , Michigan Court of Appeals docket number 265270 and 266244 (June 22, 2006) , wherein the Michigan Court of Appeals citing Manning held a probate court had subject matter jurisdiction over tort claims which clearly arose out of inappropriate conduct of the fiduciaries as court appointed guardians/conservators. The complaint in this case alleged breach of fiduciary duty, tortuous inference with a contract and intentional infliction of emotional distress. Tort claims against guardians and conservators which are “inextricably intertwined” with a fiduciary’s duties or appointment as fiduciary are within the exclusive jurisdiction of the probate court.
- Allegations of tortious conduct are within the exclusive jurisdiction of the probate court when the allegations pertain to conduct related to the administration of the decedent’s estate. Adell Broad. Corp. v. Ehrlich , 299061, 2012 WL 468258 (Mich. Ct. App. Feb. 14, 2012).
B. WRONGFUL DEATH ACTIONS/JURISDICTION TO OPEN PROBATE ESTATE
- Although wrongful death and other tort actions must be filed in circuit court, a wrongful death cause of action constitutes an estate adequate to invoke probate court jurisdiction and open an estate in the county where the cause of action accrued.
- This was the unanimous ruling by the Court of Appeals in Haque v Oakland Probate Judge, 237 Mich App 295; 602 NW2d 622 (1999). In Haque , Decedent’s wife filed a petition for commencement of proceedings in Oakland County Probate Court. The document declared the decedent was a resident of Columbus, Indiana and left an estate to be administered in Oakland County consisting of a wrongful death cause of action. The petition for commencement of proceedings was dismissed, with the probate court denying the request for judicial review to accept venue. Petitioner then filed a
- The scope of permissible discovery in purely probate proceedings has not changed. MCR 5.131(B)(3).
- Mandatory initial disclosures in probate proceedings are required only if by time of first hearing on petition initiating proceeding either:
a. Non-petitioner interested person files demand and properly serves all interested persons or
b. Interested person verbally or in writing objects\contests petition, properly serves any objection\response on interested persons, and judge determines mandatory initial disclosure appropriate. Except if court provides otherwise, when mandatory initial disclosures required, they must be provided by petitioner and demandant\objecting interested person.
MCR 5.131(B)(2)(a).
Observation: Allows Judge, in most circumstances, to determine whether to require mandatory initial disclosures. Court rule recognizes unique dynamics of probate proceedings vs. other civil cases.
- Court Order. On own interested person\own motion, court can require mandatory disclosures from designated interested person(s) or require additional interested persons to make disclosures. MCR 5.131(B)(2)(b).
- Time Requirements.
a. Petitioner must serve initial disclosures within 14 days after first hearing on petition subject to demand\objection.
b. Demandant\objector must serve initial disclosures within later of 14 days after petitioner’s disclosure due date or 28 days after demand\objection filed.
c. If mandatory disclosures ordered by court per objection by interested person (and determination disclosure appropriate), interested person’s disclosures due within 21 days of order.
MCR 5.131(B)(2)(c).
Note: For a copy of the new rule and a more detailed analysis the rule change, see Probate Discovery Court Rule Amendment & Analysis, which is found on the Court’s website in the 2020 Attorney Training Materials
E. LANDLORD/TENANT DISPUTES
- The probate court has no authority to adjudicate summary eviction proceedings or any other variety of landlord/tenant controversy involving either property owned by an estate or disputes in which the estate is a tenant.
- The legislature has explicitly given jurisdiction over summary proceedings to
district and municipal courts. MCL 600.5704 declares: "The district court, municipal courts and the common pleas court of Detroit have jurisdiction over summary proceedings to recover possession of premises under this chapter."
- Please remember however there is a distinction between trying title (ownership) and possession to property.
a. The District Court has exclusive jurisdiction under the Summary Proceedings Act (Eviction) as to the question of possession where there is a valid lease involving estate property.
b. The Probate Court however has concurrent jurisdiction with the Circuit Court to entertain Complaints and or Petitions to Quiet Title or ownership interests to estate property.
- In re Hroba Trust, 2007 WL 2935389 (October 9, 2007) (unpublished ), rev’d on other grounds, 480 Mich 1059; 743 NW2d 910 (2008), reconsidered 480 Mich 1191; 747 NW2d 266 (2008), aff’d in part, rev’d in part, and remanded, 2008 WL 4603584 (October 16, 2008) where the Michigan Court of Appeals concluded that MCL 700.1302(b)(v) did not divest another court, such as the District Court, of the ability to resolve questions of trust construction when necessary to determine a matter within their Court’s jurisdiction (an eviction).
- In re Estate of Anderson, 292036, 2010 WL 3718885 (Mich. Ct. App. Sept. 23, 2010), where the Michigan Court of Appeals held that the exclusive subject matter jurisdiction of a Probate Court under MCL 700.1302(c) over a guardianship and conservatorship proceedings encompassed the jurisdiction to order payment of rent and to authorize or to order a fiduciary to take the necessary steps to secure and preserve real property owned by a protected person, including, but not limited to, removing unauthorized persons from the property or authorizing the conservator or guardian to commence formal eviction proceedings in District Court.
- In re Estate of Waller , No. 315950, 2015 WL 340120 (Mich. Ct. App. Jan. 27,
- District Court action for unlawful eviction did not divest the probate court of jurisdiction over personal representative’s petition for exclusive occupancy of the premises.
F. GARNISHMENTS, EXECUTIONS, AND CREDITOR'S EXAMS
- Probate Court has the implicit discretionary authority to order garnishments, executions and creditor exams to facilitate the enforcement of a party's judgment. MCL 600. provides:
“In the exercise of jurisdiction vested in the probate court by law, the probate court shall have the same powers as the circuit court to hear and determine any matter and make any proper orders to fully effectuate the probate court's jurisdiction and decisions." (Emphasis added)
This statute appears to confer considerable authority upon the probate court, including the ability to authorize the use of garnishments, executions and creditor exams to enforce its judgments.
229) , subpoenas for a creditor’s exam (MC 11) , writs of garnishment (MC 12-MC 16a) , requests to seize personal property (MC 19) and notices of judgment lien (MC 94) are to be used in probate court as well for this purpose.
V. MCR 5.101-CIVIL ACTIONS IN PROBATE COURT
RULE 5.101 - FORM AND COMMENCEMENT OF ACTION
A. In order to furnish additional guidance on the question of probate court jurisdiction in the wake of EPIC, MCR 5.101 was amended effective April 1, 2000 to read as follows:
(A) Form of Action. There are two forms of action, a “proceeding” and a “civil action.”
(B) Commencement of Proceeding. A proceeding is commenced by filing an application or a petition with the court.
(C) Civil Actions, Commencement, Governing Rules. The following actions, must be titled civil actions, commenced by filing a complaint and governed by the rules which are applicable to civil actions in circuit court:
(1) Any action against another filed by a fiduciary^1 , and
(2) Any action filed by a claimant after notice that the claim has been disallowed.
B. Note that MCR 5.001(A) provides that procedure in probate court is governed by the rules applicable to other civil proceedings, except as modified by the probate rules.
C. Examples:
- A successor personal representative discovers that the prior personal representative has taken money from the estate. He would file a petition in probate court to recover these funds. A petition to surcharge may be warranted.
- A contractor files a claim with an estate. He had built an addition to the Decedent’s home prior to death and has not been paid. The personal representative disallows the claim. The contractor could file a civil action in probate court to attempt to receive payment for the work performed.
- The daughter of a decedent believes that her brother fraudulently had his name placed on the decedent’s bank account, which caused it to pass to him as the surviving joint owner. She could file a petition to determine title to the bank account.
- Visa and American Express both file claims against a Decedent’s estate for unpaid balances of credit card accounts, which are subsequently disallowed by the personal representative of the Estate. The credit card companies must file a “civil action”, commenced with the filing of a summons and complaint in probate or circuit court.
- An Insurance company pays ERISA Life insurance benefits to an ex-spouse as the
(^1) A current fiduciary’s action versus a prior fiduciary is not a “civil action” (i.e., it is a Petition to Surcharge).
named beneficiary on the policy. The Estate, through the personal representative, must bring a civil action against the ex-spouse to bring any proceeds of this policy back into the estate.
Note: Remember that for civil actions filed in probate court, the circuit court procedural rules from Chapter 2 of the Michigan Court Rules apply (i.e., complaint, answer, default judgment provisions, time requirements, etc.). See MCR 5.101(C) and MCR 5.001(A)
VI. CONCLUSION
A. Hopefully, these materials will provide you with a better understanding of the probate court’s exclusive and concurrent jurisdiction.
B. Before you bring a matter in probate court, be sure to consider carefully whether the court possesses the adjudicative authority to entertain your action.
Rev. 7/24/
