Race To The Courthouse? In the past months, The Probate Pro has been involved in a rash of probate litigation files in which a family member has attempted to gain control of a personal injury case in which they lacked appropriate priority to become the personal representative. These brazen attempts have been filed by family members at the behest of personal injury attorneys hoping to wrest control of the file from another attorney.
Race To The Courthouse:
The typical situation involves an intestate decedent who is survived by a parent and an infant child. The parent claims to have priority over the parent of the minor child to become the personal representative. Michigan’s probate code (EPIC) sets forth a priority for the appointment of a personal representative. MCL 700.3203 provides that if there is no will and no surviving spouse, then the heirs of the decedent have priority. In the example above, the parents of the decedent are not heirs because the decedent left a child. In each case, the courts have ruled that the minor child (through an appearance of parent) had priority over the parent of the decedent. We were able to secure control of each personal injury case to the chagrin of my opposition.
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.
In almost all circumstances, my office is able to obtain the appointment as personal representative of the person with the highest priority the same day we are contacted. We do this statewide. We recognize the importance of winning the race to the courthouse. And, we don’t like to finish second.
Most personal injury attorneys know that getting to the probate court first is often paramount in securing control of the file. Usually, my firm’s speed in which we raced to the courthouse is the difference maker. Speed of filing and creative strategies employed to become the fiduciary are my firm’s specialty.
When practicable, my firm will prepare and file the probate documents statewide within 24 hours. The quicker the information is provided to my firm the quicker it gets filed. We “drop everything” to win this race. The personal injury attorneys that have lost the race to the courthouse to my firm often become my firm’s next client.