When Is Probate Litigation The Right Choice in Michigan?

Probate disputes typically involve private family matters: the death of a loved one, conflict over an inheritance or concern over the decline of a elder relative. The best outcome is to resolve disputes about family members privately without the intervention of a judge. However, there are situations in which families can't work out problems on their own and probate litigation is necessary. Here are some examples where probate litigation is commonly seen in Washtenaw County Probate Court and which apply equally to other Michigan probate courts:

Will Contests

In Michigan, disputes often occur over will copies, a missing will or conflicting wills. If you cannot find an original will to probate, you must petition the probate court for a hearing to admit a will copy or another writing intended to be a will. Likewise, if a family member or party petitions to admit a will that you dispute, you must object at or before the initial hearing in order to challenge the proposed will. The probate court will hold an evidentiary hearing to determine the validity of the proposed will.


Probate litigation is often started because a deceased family member changed his or her will, beneficiaries, or a deed prior to death. The changes might leave one family member out in the cold while benefitting another family member disproportionately. Another scenario which prompts litigation is where new changes to documents benefit a non-family member like a care giver, neighbor or "new" friend. Family members can bring a petition in probate court to challenge the validity of these new documents if there is a basis that the decedent lacked capacity when he or she executed the documents. An example might be that a will was changed while the decedent was in hospital or after an elder adult was diagnosed with dementia. The probate court will hold an evidentiary hearing to determine if the changed documents are valid or not.

Breach of Fiduciary Duty

A fiduciary is a person who is appointed to a position of responsibility. In Michigan, a Personal Representative is responsible for administering an estate, a Trustee is responsible for administering a trust and a Conservator is responsible for managing the finances of an incapacitated adult or minor. Probate litigation can be appropriate when a fiduciary fails to carry out his or her duties in a way that damages the estate. For example, a Personal Representative may fail to sell an asset such as a house in a decedent's estate. Similarly, a Conservator may make inappropriate payments to himself or family members. A petition to the probate court can ask the court to order the fiduciary to undertake certain responsibilities or repay funds that have been improperly expended.

Lack of Information To Beneficiaries of a Trust

One of the most common causes of litigation in trusts is a failure of the trustee to provide information to beneficiaries. If a trustee won't provide documents such as a schedule of trust property or annual accountings of the trust, a beneficiary can petition the probate court to order the trustee to produce this information. If the trustee still does not provide the requested information or engages in other misconduct, the court can remove and replace the trustee with another family member or independent trustee.

Contested Guardianship

Given the growing population over 65 and the increase in elders with dementia, the numbers of Guardianship petitions filed in Michigan each year are gaining. However, it is not unusual for an elder adult who is the subject of a Guardianship petition to object to the proceeding. In Washtenaw County, for example, in 2018, there were over 2,300 new Guardianships filed. The elder adult may deny that there is any issue with a decline in capacity or that he or she needs a Guardian. Alternatively, the elder adult may object to the proposed Guardian and want a different, perhaps more enabling, family member as Guardian. When the alleged incapacitated adult objects to a Guardianship proceeding, the probate judge appoints an attorney to act on the adult's behalf. The Judge will also schedule an evidentiary hearing to determine whether the adult is incapacitated and requires a Guardian. Both sides will have an opportunity to present evidence in the form of medical records, testimony and other documentation to prove their case.

Undue Influence

The number of vulnerable elder adults living with diminished capacity means that the opportunities for financial manipulation are flourishing. Undue influence can be exerted by a family member, a caregiver, a neighbor or romantic partner. The results of undue influence can be unusually large withdrawals from an elder's bank account, a large number of checks written to the influencer or changes in documents such as a will, beneficiary designation or deeds. One of the hallmarks of undue influence is that the influencing activity is concealed and may not be discovered by family members for some time. Probate litigation is usually the only recourse available to stop the undue influence, set aside changed documents or recoup money that has been withdrawn. The probate court also has the option of appointing a family member or independent fiduciary to manage the elder adult's finances if the Judge determines that he or she continues to be vulnerable.

Civil Litigation in Probate Court

Sometimes, it is strategically beneficial to bring a civil litigation matter through the probate court. In Washtenaw County, as well as other Michigan counties, the probate judge wears two hats. He or she is a probate judge but can also hear civil matters. Say you have a probate estate for someone who died. You open that matter in the probate court. However, if there is a wrongful death suit, for example the person died in a car accident, in most cases, the court will assign that civil case to the same judge. Another example is where a trustee, personal representative or conservator discovers that a third party has inappropriately taken money or other assets out of the estate. If the person is an unrelated party such as a care giver or "friend", the fiduciary will have to file a civil complaint against that person. Having both the conservatorship or estate and a related civil action in the probate court saves judicial time and expense.

We routinely handle probate litigation cases at Suzanne R. Fanning PLLC. You are welcome to contact our office with any questions you have about a probate litigation matter.