The importance of having the highest priority as personal representative to appointment cannot be overstated. The person that serves as the personal representative is able to dictate the way, speed, and manner in which the estate is administered. The personal representative can hire an attorney and the fees associated with the hiring of the attorney can be paid from the estate rather than from the person’s own personal funds.
One of the most common reasons that disputes arise over the appointment of a personal representative is when two family members would like to hire different personal injury attorneys to pursue wrongful death claims. In these circumstances, it is important to understand who has the priority as personal representative.
Michigan’s probate code (called EPIC), §700.3203 addresses the appointment and priority as personal representative:
(1) For either formal or informal proceedings, persons who are not disqualified have priority for appointment as personal representative in the following order:
(a) The person with priority as determined by a probated will including a person nominated by a power conferred in a will.
(b) The decedent’s surviving spouse if the spouse is a devisee of the decedent.
(c) Other devisees of the decedent.
(d) The decedent’s surviving spouse.
(e) Other heirs of the decedent.
The order of priority is set forth in the statute. Of highest priority is the person representative named in the Will. Next, is the surviving spouse , if a devisee in the Will. Next, are other devisees listed in a Will. Next, is the surviving spouse. Last, are the other heirs of the estate.
In interpreting §700.3203(e) it is necessary to determine who is an “heir of the decedent.” MCL §700.1104 defines “heir” as a person that is entitled under the statutes of intestate succession to a decedent’s property. That means any person that would receive an inheritance if there is no Will.
So, then…What happens if the decedent dies with no Will, no spouse, and five children? Which child has the highest priority to serve as personal representative?
EPIC section §700.3203(2)(b) goes further stating in relevant part:
(b) If a devisee or heir who appears to have a substantial interest in the estate objects to the appointment of a person whose priority is not determined by will, the court may appoint a person who is acceptable to the devisees and heirs whose interest in the estate appear to be worth more than ½ of the probable distributable value …
In short, under §700.3203(2)(b), unless priority is determined by having been named in the decedent’s Will, the nominee of a majority of the devisees or a majority of the heirs is to be appointed as personal representative.
That means that if three of the heirs want one person to be appointed (representing 60% of the distributable value) and two of the heirs want another person appointed (representing 40% of the distributable value), the probate court should pick the person that is wanted by the majority.
The Probate Pro will fight so that the majority wins for priority as personal representative.