Where Should You File Your Michigan Probate Matter? A Guide To Proper Venue

In Michigan, the Probate Court is a separate court system that supervises cases involving trusts and estates, as well as incapacitated and vulnerable individuals, and minors.  There are a number of different matters that have to be filed specifically in Probate Court.  When a family member dies, there is often a probate estate that needs to be filed to transfer assets from the deceased individual to his or her family.  Guardianships and Conservatorships of minors and incapacitated individuals also need to be filed in Probate Court.  Likewise, the Probate Court has exclusive jurisdiction over any trust or will contest or other conflict involving trusts and estates. 

Each of the 83 counties in Michigan has its own Probate Court.  When you have to file a matter in Probate Court, you need to file the case in the Probate Court in the correct Michigan county.  This is called the "venue" of the case.  The rules about where to file your case can be confusing so the following is a handy guide to help you file your Probate matter in the right Michigan Probate Court.

Probate Estates

There are two choices for where to open an estate in Michigan for a deceased person.  First, if the individual died in the State of Michigan, the estate must be opened in the Probate Court in the county in which the individual was domiciled at the time of his or her death.  Be careful, the place where the individual died is not necessarily the same as his or her domicile.  Domicile is the address that the individual treated as his or her permanent home, not just where they were staying when they died.  Say for example that an individual lived in Wayne County but died in a hospital or hospice in Washtenaw County.  The proper county to open an estate is Wayne County not Washtenaw County.

However, if the decedent died outside of Michigan, you can open a probate estate in any Michigan county in which the individual owned real property.  So, if the decedent owned a home in Grand Rapids and a cottage in Charlevoix, a probate estate could be opened in either Kent or Charlevoix county.

Adult Guardianships

A Guardian is a person appointed by the Probate Court to make medical and placement decisions for an incapacitated individual.  There are also several choices of venue when it comes to filing an adult Guardianship.  Under Michigan law, a Guardianship can be opened in a county in which the incapacitated individual resides or is present.  This means that a person who wants to petition for Guardianship over another individual may have a choice of where to file the Guardianship. 

One option is to file for Guardianship in the county where the individual has his or her home or permanent address.  However, a second option exists if the individual is in hospital, nursing care or hospice, or even visiting with a relative.  In that case, the Petitioner could file in one of those counties.  So, you could have a scenario where an elderly parent with dementia has a home in Houghton Lake but is at the VA hospital in Ann Arbor.  A family member living nearby in Ann Arbor could petition for Guardianship in Washtenaw County rather than having to file and attend a hearing hours away in Houghton County.  

It is also worth noting that there are often occasions when family members may have a dispute about filing Guardianship over another family member.  So in this case, one daughter who lives close to her father's home in Houghton County may want to be the Guardian. At the same time, her sister, who lives in Ann Arbor where her father is being treated, also wants to be appointed Guardian.  If both sisters file a Petition, the county in which the Petition filed first, will usually retain jurisdiction.  As such, there is a tactical advantage to knowing where you can file for Guardianship.

Conservatorships

A Conservator is a person appointed by the Probate Court with authority to make financial and legal decisions for an incapacitated individual.  Unlike Guardianships, a Petition for Conservatorship can only be filed in the county in which the individual resides.  This means that while you may have a choice of venue for filing a Guardianship, you do not have the same flexibility with a Conservatorship.  If you need to file both a Guardianship and Conservatorship of an incapacitated individual, you will likely file them both in the county in which the individual resides.  

Trusts

Trust matters are filed all the time in Probate Court.  A beneficiary may bring an action against a Trustee for more information about trust assets.  There may be a contest over changes to a trust or an amendment.  A beneficiary might try to remove a Trustee for failure to keep the beneficiaries informed or refusing to distribute assets.  The venue for trusts is governed by the Michigan Trust Code (MTC), which provides guidelines for where to file your Trust matter.

If the Trust is registered in a particular county, any trust matter must be filed in that county.   It used to be more common to register a Trust after it was executed that it is nowadays.  This means that if a husband and wife created a trust and lived in Oakland County, they could register the Trust in the Oakland County Probate Court. Registering a Trust essentially acts like filing a will.  The act of registering the Trust determines where any matter related to that Trust must be filed.  Accordingly, if a Trust is registered in a particular Probate Court, the matter must be filed in that county (MCLA 700.7204(1)(a).  Registering trusts is somewhat uncommon now given that people want the flexibility of moving their Trust with them.  As such, it is unlikely that you have a registered Trust.  

If the Trust is not registered, which is more likely, you can file a Trust matter in any place where the Trust properly could be registered (MCLA 700.7204(1)(b).   First, check the Trust document itself to see if there is a place of registration designated in the document.  If not, a Trust can be registered at the principal place of administration.  This is the Trustee's usual place of business where records related to the Trust are kept or the Trustee's residence if the Trustee does not have such a place of business (MCLA 700.7109(1)).

Let's break down what this means? In simple terms, you need to find out where the current Trustee lives or has a business in which he or she might keep trust records such as tax returns, statements and correspondence.   Does the Trustee send out letters about the Trust from his or her home or office? Where do the bank statements for the Trust go? The most common answer is the Trustee's residence and you can file a trust action in the Probate Court in that county.

What about Co-Trustees? If there are two non-professional Trustees, such as two siblings, you need to determine if they share administration duties for the Trust.  If so, you can choose to file your action in the county where each lives.

Many Trusts have a corporate Trustee such as a bank or lawyer.  In that case, you can file your Trust action in the county in which the Trustee's usual place of business is located.  The usual place of business is the business located of the primary trust office for that Trust.  For example, Comerica Bank is a common corporate Trustee for Michigan Trusts.  While there is sure to be a Comerica Bank located in every county in Michigan, the principal trust office is likely to be in Detroit or Oakland County, where the main trust offices are located.  As such, you will likely file your action in Wayne or Oakland County.

If a Trust is created by a will (called a Testamentary Trust) and the estate is not yet closed, you can file a matter related to the Trust in the county in which the estate is being administered.

The Michigan Trust Code has a separate rule for determining venue for proceedings to appoint a Trustee where there is no current Trustee serving.  In that case, venue is appropriate in a county in which a trust beneficiary resides, a county where trust property is located, or in the case of a testamentary trust, a county in which the estate is being administered (MCLA 700.7204(2)).

Make sure that you know the right venue to file your probate matter before you start.  

Suzanne R. Fanning is a probate attorney with over 22 years of experience.  You are welcome to contact our office with any questions about your probate matter.

 

 

 

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