Attorneys are often confused as to whether the trial court or probate court has jurisdiction for a personal injury settlement in which the Plaintiff is a minor, legally incapacitated individual or deceased estate. Let’s help clarify the manner in which to handle a pre-suit settlement and a post-suit settlement.

Pre-Suit Settlement: MCR 2.420

If the settlement is pre-suit (no cause of action filed), the probate court has exclusive jurisdiction over the claim by the minor, legally incapacitated individual, or decedent estate. A hearing pursuant to MCR 2.420 must be set in the probate court to approve the settlement, distribution of proceeds, reimbursement of costs, and payment of attorney fees. MCR 2.420 sets forth the specific rules for these proceedings.

Let’s take a closer look at MCR 2.420.

The settlement must be approved by the court. If the claim settles before a lawsuit has been filed, the probate code applies. MCR 2.420(A).

  • MCR 2.420(B) provides that the judge must pass upon the fairness of the proposal. .
  • If the claim is for damages involving personal injury then the injured person must appear before the court, unless excused for good cause; and the judge may require medical testimony, in court or by deposition. MCR 2.420(B)(1).
  • If the next friend, guardian, or conservator will share in the settlement, a guardian ad litem shall be appointed. MCR 2.420(B)(2).
    • If a guardian or conservator has been appointed by a probate court:
      • there must be determination if the payment arrangement is in the best interests of the minor or legally incapacitated individual. MCR 2.420(B)(3).
      • and the court should not enter the judgment or dismissal until receiving written verification that bond has been approved by and filed with the probate court. MCR 2.420(B)(3).
  • For a minor, a settlement that does not require payment of more than $5,000 in any single year can be paid as provided by MCL 700.5102. Otherwise, a conservator must be appointed before the entry of judgment or dismissal. MCR 2.420(B)(4).
  • If the settlement includes the creation of a trust, the court must determine the amount to be paid to the trust. MCR 2.420(B)(5). And, the trust must be approved before it can be funded.

Post-Suit Settlement

If the settlement is post-suit and the cause of action has not been dismissed by the trial court, the attorney has the choice of settling in either the trial court or the probate court. However, if the matter is approved in the trial court, the probate court must still pass on the sufficiency of the bond for the fiduciary prior to entering the order.

MCL 600.2922 and MCL 700.3924 set forth the procedures for pursuing and settling a wrongful death action.  MCL 700.3067 permits the probate court to place restrictions on the personal representative’s Letters of Authority which may require both trial court approval and probate court approval.


The Probate Pro can assist you in evaluating the most advantageous procedure. Call The Probate Pro at 1(833)PROBATE