Being a fiduciary is a huge responsibility. When you serve as a fiduciary (personal representative, guardian, conservator or trustee) it is important to follow all of the requisite statutes and court rules. The fiduciary is expected to complete his or her duties within a reasonable period of time and within the timelines set forth by the court rules and statutes. If a deadline to complete a necessary task has passed, the probate court will send a notice of probate deficiency pursuant to MCR 5.203. The court must notify the fiduciary, the attorney for the fiduciary, if any, and each of the sureties for the fiduciary of the nature of the deficiency, together with a notice to correct the probate deficiency within 28 days.
Probate Notice of Deficiency
The following video explains the Notice of Deficiency process.
Probate Memorandum of Conference to Correct Deficiency
The probate Notice of Deficiency is sent to the fiduciary and his or her attorney requiring that the issue be corrected within 28 days or, in the alternative, appear for a conference with a court officer within 28 days. On good cause, the probate court can extend the time to complete a task up to 56 days from the original deadline. If the deficiencies are still not corrected, then the court can “suspend the powers of the dilatory fiduciary, appoint a special fiduciary, and close the estate administration.” In addition, the fiduciary can also be subject to contempt of court proceedings.
If a conference is held, the court must prepare a written memorandum setting forth the date of the conference, the persons present, and any steps required to be taken to correct the deficiency. The steps must be taken within the time set by the court but not to exceed 28 days from the date of the conference. A copy of the memorandum must be given to those present at the conference. If the fiduciary is not present at the conference, a copy of the memorandum must be mailed to the last known address of the fiduciary or served on the fiduciary under MCR 1.109(G)(6)(a).
The following video explains Memorandum of Conference to Correct Deficiency process.
Probate Deficiency Suspension
If the court suspends the powers of the dilatory fiduciary or closes the estate administration, the court must notify the dilatory fiduciary, the attorney of record for the dilatory fiduciary, the sureties on any bond of the dilatory fiduciary that has been filed, any financial institution listed on the most recent inventory or account where the fiduciary has deposited funds, any currently serving guardian ad litem, and the interested persons at their addresses shown in the court file. This rule does not preclude contempt proceedings as provided by law.
The court may appoint a special fiduciary or enjoin a person subject to the court’s jurisdiction under MCL 700.1309 on its own initiative, on the notice it directs, or without notice in its discretion.
The special fiduciary has all the duties and powers specified in the order of the court appointing the special fiduciary. Appointment of a special fiduciary suspends the powers of the general fiduciary unless the order of appointment provides otherwise. The appointment may be for a specified time and the special fiduciary is an interested person for all purposes in the proceeding until the appointment terminates.
The following video explains the Order Appointing Special Fiduciary and Suspension of Fiduciary process.
Probate Memorandum of Administrative Closing
MCR 5.206 provides that a fiduciary and an attorney for a fiduciary must take all actions reasonably necessary to regularly administer an estate and close administration of an estate. If the fiduciary or the attorney fails to take such actions, the court may act to regularly close the estate and assess costs against the fiduciary or attorney personally.
The following video explains the Memorandum of Administrative Closing process.
Request for Extension for Time for Compliance
For good cause, the court may extend the time for performance of required duties for a further reasonable period or periods, but any extended period may not exceed 28 days and shall only be extended to a day certain. The total period as extended may not exceed 56 days.