A personal representative is the person in charge of overseeing and distributing the property owned solely by a deceased person, or decedent, at their death through the probate process. (Property owned jointly with others, or held in a trust, does not need to go through probate.) Who can be appointed a representative in a probate case?
Before we talk about who can be a personal representative, and the process of being appointed, a quick note about terminology: you may have heard the terms “executor,” “administrator”, and “personal representative” in connection with a probate estate, and wonder what the difference is between them—or if there is a difference. “Executor” typically refers to the person named in a will to administer a probate estate. If there is no will, the person chosen by the court to administer the estate is generally called the “administrator.” The term “personal representative” encompasses both those terms, so that’s what we will use going forward.
There is an order of priority for appointment of a personal representative. In Michigan, a personal representative will be appointed as follows: the person named in the decedent’s will as personal representative. If there is no representative named in the will, or the person named is not able to serve, the surviving spouse has next priority, if he or she is a beneficiary under the will. If the surviving spouse is not a beneficiary, other beneficiaries under the will are next in line to serve as personal representative.
Further down the list, in order, are a surviving spouse of the decedent who is not a beneficiary under the will and other heirs of the decedent. If a personal representative has not been appointed by the probate court just 42 days after the decedent’s death, a creditor of the decedent can petition the court to open a probate case and appoint a representative of their choosing. And if a probate case has not been opened 63 days after the death, or sooner if the court decides there are “exigent circumstances,” the court may appoint a public administrator as personal representative of the estate in certain circumstances.
Forty two days is not a long time! If you do not want a stranger, who likely does not have your family’s best interests at heart, to oversee your loved one’s estate, be sure to open a probate estate as soon as reasonably possible after the death.
What happens if two people with equal priority both want to serve as personal representative? For instance, imagine a situation in which a widow or widower with two adult children named in their will passes away. Both want to serve as personal representative. In this case, they would petition the court, a hearing would be set, notice of the hearing would have to be served on interested parties, and the court would appoint a representative after a hearing. The court could appoint both heirs as co-personal representatives if it believed they could work together in the interest of the estate.
One more note about priority: just because someone who wants to serve as personal representative has higher priority under Michigan law than another person, that does not guarantee that they will be appointed. The court may find them unsuitable for some reason (see below).
There are few limitations as to who can serve as personal representative of a decedent’s estate in Michigan. The probate court will not appoint anyone under the age of 18; a representative must be a legal adult. And the court may refuse to appoint anyone it finds unsuitable. The relevant statute does not give examples of what might make someone unsuitable, but anything that would make a person unable to act in the best interests of the estate might fall under that umbrella. That could include anything from the beginnings of dementia, to open hostility toward other heirs, to a history of gambling or drug addiction that might lead the person to misappropriate estate assets.
You may be reading this article and wondering who will, or who should, serve as personal representative of your estate when the time comes. You will save your family a good deal of stress if you create an estate plan including a will that names a representative (and a successor, in case your first choice is unable to serve). You will want to name someone who is honest, competent, and will have the time to devote to administering your estate. It is not necessary to name someone who lives in Michigan; an experienced local probate attorney can provide the necessary assistance for personal representatives within and outside Michigan.
If you have questions about Michigan probate or about who can be appointed a personal representative in a probate case, please contact Suzanne R. Fanning PLLC to schedule a consultation.