November 7, 2018, Introduced by Reps. Lucido and Elder and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 1106, 1210, 2519, 2806, 3605, 3916, 3917,
3918, 3959, 3981, 3982, 3983, 5102, 5301, 5310, 5313, and 5314
(MCL 700.1106, 700.1210, 700.2519, 700.2806, 700.3605, 700.3916,
700.3917, 700.3918, 700.3959, 700.3981, 700.3982, 700.3983,
700.5102, 700.5301, 700.5310, 700.5313, and 700.5314), sections
1106 and 5314 as amended by 2017 PA 155, section 1210 as amended
by 2009 PA 46, section 2519 as amended by 2010 PA 325, section
3917 as amended by 2004 PA 314, section 5301 as amended by 2005
PA 204, section 5310 as amended by 2000 PA 54, and section 5313
as amended by 2012 PA 545, and by adding section 5301c; and to
repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 1106. As used in this act:
2 (a) "Mental health professional" means an individual who is
3 trained and experienced in the area of mental illness or
4 developmental disabilities and who is 1 of the following:
5 (i) A physician who is licensed to practice medicine or
6 osteopathic medicine and surgery in this state under article 15
7 of the public health code, 1978 PA 368, MCL 333.16101 to
8 333.18838.
9 (ii) A psychologist licensed to practice in this state under
10 article 15 of the public health code, 1978 PA 368, MCL 333.16101
11 to 333.18838.
12 (iii) A registered professional nurse licensed to practice in
13 this state under article 15 of the public health code, 1978 PA
14 368, MCL 333.16101 to 333.18838.
15 (iv) A licensed master's social worker licensed under article
16 15 of the public health code, 1978 PA 368, MCL 333.16101 to
17 333.18838.
18 (v) A physician's assistant licensed to practice in this
19 state under article 15 of the public health code, 1978 PA 368,
20 MCL 333.16101 to 333.18838.
21 (vi) A licensed professional counselor licensed under part
22 181 of the public health code, 1978 PA 368, MCL 333.18101 to
23 333.18117.
24 (b) "Michigan prudent investor rule" means the fiduciary
25 investment and management rule prescribed by part 5 of this
26 article.
1 (c) "Minor" means an individual who is less than 18 years of
2 age.
3 (d) "Minor ward" means a minor for whom a guardian is
4 appointed solely because of minority.
5 (e) "Money" means legal tender or a note, draft, certificate
6 of deposit, stock, bond, check, or credit card.
7 (f) "Mortgage" means a conveyance, agreement, or arrangement
8 in which property is encumbered or used as security.
9 (g) "Nonresident decedent" means a decedent who was
10 domiciled in another jurisdiction at the time of his or her
11 death.
12 (h) "Organization" means a corporation, business trust,
13 estate, trust, partnership, limited liability company,
14 association, or joint venture; governmental subdivision, agency,
15 or instrumentality; public corporation; or another legal or
16 commercial entity.
17 (i) "Parent" includes, but is not limited to, an individual
18 entitled to take, or who would be entitled to take, as a parent
19 under this act by intestate succession from a child who dies
20 without a will and whose relationship is in question. Parent does
21 not include an individual who is only a stepparent, foster
22 parent, or grandparent.
23 (j) "Partial guardian" means that term as defined in section
24 600 of the mental health code, 1974 PA 258, MCL 330.1600.
25 (k) "Patient advocate" means an individual designated to
26 exercise powers concerning another individual's care, custody,
27 and medical or mental health treatment or authorized to make an
1 anatomical gift on behalf of another individual, or both, as
2 provided in section 5506.
3 (l) "Patient advocate designation" means the written document
4 executed and with the effect as described in sections 5506 to
5 5515.
6 (m) "Payor" means a trustee, insurer, business entity,
7 employer, government, governmental subdivision or agency, or
8 other person authorized or obligated by law or a governing
9 instrument to make payments.
10 (n) "Person" means an individual or an organization.
11 (o) "Personal representative" includes, but is not limited
12 to, an executor, administrator, successor personal
13 representative, and special personal representative, and any
14 other person, other than a trustee of a trust subject to article
15 VII, who performs substantially the same function under the law
16 governing that person's status.
17 (p) "Petition" means a written request to the court for an
18 order after notice.
19 (q) "Physician orders for scope of treatment form" means
20 that term as defined in section 5674 of the public health code,
21 1978 PA 368, MCL 333.5674.
22 (r) "Plenary guardian" means that term as defined in section
23 600 of the mental health code, 1974 PA 258, MCL 330.1600.
24 (s) "Power of appointment" means that term as defined in
25 section 2 of the powers of appointment act of 1967, 1967 PA 224,
26 MCL 556.112.
27 (t) (s) "Proceeding"
includes an application and a petition,
1 and may be an action at law or a suit in equity. A proceeding may
2 be denominated a civil action under court rules.
3 (u) (t) "Professional
conservator" means a person that
4 provides conservatorship services for a fee. Professional
5 conservator does not include a person who is an individual who is
6 related to all but 2 of the protected individuals for whom he or
7 she is appointed as conservator.
8 (v) (u) "Professional
guardian" means a person that provides
9 guardianship services for a fee. Professional guardian does not
10 include a person who is an individual who is related to all but 2
11 of the wards for whom he or she is appointed as guardian.
12 (w) (v) "Property"
means anything that may be the subject of
13 ownership, and includes both real and personal property or an
14 interest in real or personal property.
15 (x) (w) "Protected
individual" means a minor or other
16 individual for whom a conservator has been appointed or other
17 protective order has been made as provided in part 4 of article
18 V.
19 (y) (x) "Protective
proceeding" means a proceeding under the
20 provisions of part 4 of article V.
21 Sec. 1210. (1) The specific dollar amounts stated in
22 sections 2102, 2402, 2404, 2405, and 3983 apply to decedents who
23 die before January 1, 2001. For decedents who die after December
24 31, 2000, these specific dollar amounts shall must be
multiplied
25 by the cost-of-living adjustment factor for the calendar year in
26 which the decedent dies.
27 (2) Before January 1, 2019, the specific amounts stated in
1 sections 2519, 3605, 3916, 3917, 3918, 3981, 3982, and 5102 apply
2 to those sections. Beginning January 1, 2019, those specific
3 dollar amounts must be multiplied by the cost-of-living
4 adjustment factor for the calendar year in which the decedent
5 dies.
6 (3) (2) Before
February 1, 2001, and annually after 2001,
7 the department of treasury shall publish the cost-of-living
8 adjustment factor to be applied to the specific dollar amounts
9 referred to in subsection subsections (1) and (2) for
decedents
10 who die during that calendar year and in section 7414 for trusts
11 the value of the property of which is insufficient to justify the
12 cost of administration. A product resulting from application of
13 the cost-of-living adjustment factor to a specific dollar amount
14 shall must be rounded to the nearest $1,000.00 amount.
15 Sec. 2519. (1) A will executed in the form prescribed by
16 subsection (2) and otherwise in compliance with the terms of the
17 Michigan statutory will form is a valid will. A person printing
18 and distributing the Michigan statutory will shall print and
19 distribute the form verbatim as it appears in subsection (2). The
20 notice provisions shall must
be printed in 10-point boldfaced
21 type.
22 (2) The form of the Michigan statutory will is as follows:
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MICHIGAN STATUTORY WILL NOTICE |
24 1. An individual age 18 or older who has sufficient mental
25 capacity may make a will.
26 2. There are several kinds of wills. If you choose to
1 complete this form, you will have a Michigan statutory will. If
2 this will does not meet your wishes in any way, you should talk
3 with a lawyer before choosing a Michigan statutory will.
4 3. Warning! It is strongly recommended that you do not add
5 or cross out any words on this form except for filling in the
6 blanks because all or part of this will may not be valid if you
7 do so.
8 4. This will has no effect on jointly held assets, on
9 retirement plan benefits, or on life insurance on your life if
10 you have named a beneficiary who survives you.
11 5. This will is not designed to reduce estate taxes.
12 6. This will treats adopted children and children born
13 outside of wedlock who would inherit if their parent died without
14 a will the same way as children born or conceived during
15 marriage.
16 7. You should keep this will in your safe deposit box or
17 other safe place. By paying a small fee, you may file this will
18 in your county's probate court for safekeeping. You should tell
19 your family where the will is kept.
20 8. You may make and sign a new will at any time. If you
21 marry or divorce after you sign this will, you should make and
22 sign a new will.
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INSTRUCTIONS: |
24 1. To have a Michigan statutory will, you must complete the
25 blanks on the will form. You may do this yourself, or direct
1 someone to do it for you. You must either sign the will or direct
2 someone else to sign it in your name and in your presence.
3 2. Read the entire Michigan statutory will carefully before
4 you begin filling in the blanks. If there is anything you do not
5 understand, you should ask a lawyer to explain it to you.
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MICHIGAN STATUTORY WILL OF ________________________________ |
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(Print or type your full name) |
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ARTICLE 1. DECLARATIONS |
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This is my will and I revoke any prior wills and codicils. |
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I live in ___________________________ County, Michigan. |
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My spouse is ___________________________________________. |
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(Insert spouse's name or write "none") |
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My children now living are: |
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______________________ ______________________ |
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______________________ ______________________ |
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______________________ ______________________ |
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(Insert names or write "none") |
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ARTICLE 2. DISPOSITION OF MY ASSETS |
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2.1 CASH GIFTS TO PERSONS OR CHARITIES. |
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(Optional) |
21 I can leave no more than two (2) cash gifts. I make the
22 following cash gifts to the persons or charities in the amount
23 stated here. Any transfer tax due upon my death shall be paid
24 from the balance of my estate and not from these gifts. Full name
25 and address of person or charity to receive cash gift (name only
26 1 person or charity here):
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____________________________________ |
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(Insert name of person or charity) |
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____________________________________ |
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(Insert address) |
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AMOUNT OF GIFT (In figures): $ ________________________________ |
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AMOUNT OF GIFT (In words): ____________________________ Dollars |
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____________________________________ |
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(Your signature) |
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Full name and address of person or charity to receive cash gift |
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(Name only 1 person or charity): |
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____________________________________ |
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(Insert name of person or charity) |
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____________________________________ |
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(Insert address) |
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AMOUNT OF GIFT (In figures): $ ________________________________ |
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AMOUNT OF GIFT (In words): ____________________________ Dollars |
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____________________________________ |
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(Your signature) |
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2.2 PERSONAL AND HOUSEHOLD ITEMS. |
18 I may leave a separate list or statement, either in my
19 handwriting or signed by me at the end, regarding gifts of
20 specific books, jewelry, clothing, automobiles, furniture, and
21 other personal and household items.
22 I give my spouse all my books, jewelry, clothing,
23 automobiles, furniture, and other personal and household items
24 not included on such a separate list or statement. If I am not
25 married at the time I sign this will or if my spouse dies before
26 me, my personal representative shall distribute those items, as
27 equally as possible, among my children who survive me. If no
28 children survive me, these items shall be distributed as set
1 forth in paragraph 2.3.
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2.3 ALL OTHER ASSETS. |
3 I give everything else I own to my spouse. If I am not
4 married at the time I sign this will or if my spouse dies before
5 me, I give these assets to my children and the descendants of any
6 deceased child. If no spouse, children, or descendants of
7 children survive me, I choose 1 of the following distribution
8 clauses by signing my name on the line after that clause. If I
9 sign on both lines, if I fail to sign on either line, or if I am
10 not now married, these assets will go under distribution clause
11 (b).
12 Distribution clause, if no spouse, children, or descendants
13 of children survive me.
14 (Select only 1)
15 (a) One-half to be distributed to my heirs as if I did not
16 have a will, and one-half to be distributed to my spouse's heirs
17 as if my spouse had died just after me without a will.
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_________________________________ |
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(Your signature) |
20 (b) All to be distributed to my heirs as if I did not have a
21 will.
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_________________________________ |
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(Your signature) |
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ARTICLE 3. NOMINATIONS OF PERSONAL |
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REPRESENTATIVE, GUARDIAN, AND CONSERVATOR |
2 Personal representatives, guardians, and conservators have a
3 great deal of responsibility. The role of a personal
4 representative is to collect your assets, pay debts and taxes
5 from those assets, and distribute the remaining assets as
6 directed in the will. A guardian is a person who will look after
7 the physical well-being of a child. A conservator is a person who
8 will manage a child's assets and make payments from those assets
9 for the child's benefit. Select them carefully. Also, before you
10 select them, ask them whether they are willing and able to serve.
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3.1 PERSONAL REPRESENTATIVE. |
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(Name at least 1) |
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I nominate _____________________________________________________ |
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(Insert name of person or eligible financial institution) |
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of _________________________ to serve as personal representative. |
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(Insert address) |
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If my first choice does not serve, I nominate __________________ |
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___________________________________________________________ |
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(Insert name of person or eligible financial institution) |
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of ________________________ to serve as personal representative. |
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(Insert address) |
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3.2 GUARDIAN AND CONSERVATOR. |
23 Your spouse may die before you. Therefore, if you have a
24 child under age 18, name an individual as guardian of the child,
25 and an individual or eligible financial institution as
26 conservator of the child's assets. The guardian and the
27 conservator may, but need not be, the same person.
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If a guardian or conservator is needed for a child of |
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mine, I nominate _________________________________________ |
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(Insert name of individual) |
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of ____________________________________________ as guardian and |
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(Insert address) |
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________________________________________________________________ |
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(Insert name of individual or eligible financial institution) |
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of ____________________________________ to serve as conservator. |
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(Insert address) |
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If my first choice cannot serve, I nominate |
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______________________________________________ |
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(Insert name of individual) |
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of ___________________________________________ as guardian and |
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(Insert address) |
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________________________________________________________________ |
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(Insert name of individual or eligible financial institution) |
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of ____________________________________ to serve as conservator. |
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(Insert address) |
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3.3 BOND. |
20 A bond is a form of insurance in case your personal
21 representative or a conservator performs improperly and
22 jeopardizes your assets. A bond is not required. You may choose
23 whether you wish to require your personal representative and any
24 conservator to serve with or without bond. Bond premiums would be
25 paid out of your assets. (Select only 1)
26 (a) My personal representative and any conservator I have
27 named shall serve with bond.
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_________________________________ |
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(Your signature) |
1 (b) My personal representative and any conservator I have
2 named shall serve without bond.
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_________________________________ |
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(Your signature) |
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3.4 DEFINITIONS AND ADDITIONAL CLAUSES. |
6 Definitions and additional clauses found at the end of this
7 form are part of this will.
8 I sign my name to this Michigan statutory will on
9 ______________ , 20_____.
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_________________________________ |
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(Your signature) |
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NOTICE REGARDING WITNESSES |
13 You must use 2 adults as witnesses. It is preferable to have
14 3 adult witnesses. All the witnesses must observe you sign the
15 will, have you tell them you signed the will, or have you tell
16 them the will was signed at your direction in your presence.
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STATEMENT OF WITNESSES |
18 We sign below as witnesses, declaring that the individual
19 who is making this will appears to have sufficient mental
20 capacity to make this will and appears to be making this will
21 freely, without duress, fraud, or undue influence, and that the
22 individual making this will acknowledges that he or she has read
23 the will, or has had it read to him or her, and understands the
1 contents of this will.
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_____________________________________ |
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(Print Name) |
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_____________________________________ |
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(Signature of witness) |
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_____________________________________ |
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(Address) |
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_________________________________ ______ ______ |
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(City) (State) (Zip) |
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_____________________________________ |
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(Print name) |
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_____________________________________ |
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(Signature of witness) |
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_____________________________________ |
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(Address) |
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_________________________________ ______ ______ |
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(City) (State) (Zip) |
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_____________________________________ |
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(Print name) |
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_____________________________________ |
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(Signature of witness) |
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_____________________________________ |
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(Address) |
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_________________________________ ______ ______ |
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(City) (State) (Zip) |
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DEFINITIONS |
27 The following definitions and rules of construction apply to
28 this Michigan statutory will:
29 (a) "Assets" means all types of property you can own, such
30 as real estate, stocks and bonds, bank accounts, business
31 interests, furniture, and automobiles.
32 (b) "Descendants" means your children, grandchildren, and
1 their descendants.
2 (c) "Descendants" or "children" includes individuals born or
3 conceived during marriage, individuals legally adopted, and
4 individuals born out of wedlock who would inherit if their parent
5 died without a will.
6 (d) "Jointly held assets" means those assets to which
7 ownership is transferred automatically upon the death of 1 of the
8 owners to the remaining owner or owners.
9 (e) "Spouse" means your husband or wife spouse at
the time
10 you sign this will.
11 (f) Whenever a distribution under a Michigan statutory will
12 is to be made to an individual's descendants, the assets are to
13 be divided into as many equal shares as there are then living
14 descendants of the nearest degree of living descendants and
15 deceased descendants of that same degree who leave living
16 descendants. Each living descendant of the nearest degree shall
17 will receive 1 share. The remaining shares, if any, are combined
18 and then divided in the same manner among the surviving
19 descendants of the deceased descendants as if the surviving
20 descendants who were allocated a share and their surviving
21 descendants had predeceased the descendant. In this manner, all
22 descendants who are in the same generation will take an equal
23 share.
24 (g) "Heirs" means those persons who would have received your
25 assets if you had died without a will, domiciled in Michigan,
26 under the laws that are then in effect.
27 (h) "Person" includes individuals and institutions.
1 (i) Plural and singular words include each other, where
2 appropriate.
3 (j) If a Michigan statutory will states that a person shall
4 perform an act, the person is required to perform that act. If a
5 Michigan statutory will states that a person may do an act, the
6 person's decision to do or not to do the act shall must be
made
7 in good faith exercise of the person's powers.
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ADDITIONAL CLAUSES |
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Powers of personal representative |
10 1. A personal representative has all powers of
11 administration given by Michigan law to personal representatives
12 and, to the extent funds are not needed to meet debts and
13 expenses currently payable and are not immediately distributable,
14 the power to invest and reinvest the estate from time to time in
15 accordance with the Michigan prudent investor rule. In dividing
16 and distributing the estate, the personal representative may
17 distribute partially or totally in kind, may determine the value
18 of distributions in kind without reference to income tax bases,
19 and may make non-pro rata distributions.
20 2. The personal representative may distribute estate assets
21 otherwise distributable to a minor beneficiary to the minor's
22 conservator or, in amounts not exceeding $5,000.00 $25,000.00 per
23 year, either to the minor, if married; to a parent or another
24 adult with whom the minor resides and who has the care, custody,
25 or control of the minor; or to the guardian. The personal
26 representative is free of liability and is discharged from
1 further accountability for distributing assets in compliance with
2 the provisions of this paragraph.
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POWERS OF GUARDIAN AND CONSERVATOR |
4 A guardian named in this will has the same authority with
5 respect to the child as a parent having legal custody would have.
6 A conservator named in this will has all of the powers conferred
7 by law.
8 (3) The dollar amount described in this section must be
9 adjusted as provided in section 1210.
10 Sec. 2806. As used in this section and sections 2807 to
11 2809:
12 (a) "Disposition or appointment of property" includes, but
13 is not limited to, a transfer of an item of property or another
14 benefit to a beneficiary designated in a governing instrument.
15 (b) "Divorce or annulment" means a divorce or annulment, or
16 a dissolution or declaration of invalidity of a marriage, that
17 would exclude the spouse as a surviving spouse within the meaning
18 of section 2801. A decree of separation that does not terminate
19 the status of husband and wife decedent's marriage is not a
20 divorce for purposes of this section and sections 2807 to 2809.
21 (c) "Divorced individual" includes, but is not limited to,
22 an individual whose marriage has been annulled.
23 (d) "Governing instrument" means a governing instrument
24 executed by a divorced individual before the divorce from, or
25 annulment of his or her marriage to, his or her former spouse.
1 (e) "Relative of the divorced individual's former spouse"
2 means an individual who is related to the divorced individual's
3 former spouse by blood, adoption, or affinity and who, after the
4 divorce or annulment, is not related to the divorced individual
5 by blood, adoption, or affinity.
6 (f) "Revocable" means, with respect to a disposition,
7 appointment, provision, or nomination, one under which the
8 divorced individual, at the time of the divorce or annulment, was
9 alone empowered, by law or under the governing instrument, to
10 cancel the designation in favor of his or her former spouse or
11 former spouse's relative, whether or not the divorced individual
12 was then empowered to designate himself or herself in place of
13 his or her former spouse or in place of his or her former
14 spouse's relative and whether or not the divorced individual then
15 had the capacity to exercise the power.
16 Sec. 3605. (1) A person apparently having an interest in the
17 estate worth in excess of $2,500.00 $25,000.00 or a creditor
18 having a claim against the estate in excess of $2,500.00
19 $25,000.00 may make a written demand that a personal
20 representative give bond. The demand must be filed with the
21 register, and if appointment and qualification have occurred, a
22 copy must be mailed to the personal representative. Upon filing
23 of the demand, bond is required, but the requirement ceases if
24 the person demanding bond ceases to be interested in the estate
25 or if bond is excused as provided in section 3603 or 3604. After
26 receipt of notice and until the filing of the bond or cessation
27 of the requirement of bond, the personal representative shall
1 refrain from exercising not
exercise any powers of the fiduciary
2 office except as necessary to preserve the estate. Failure of the
3 personal representative to meet a requirement of bond by giving
4 suitable bond within 28 days after receipt of notice is cause for
5 removal and appointment of a successor personal representative.
6 (2) The dollar amount described in this section must be
7 adjusted as provided in section 1210.
8 Sec. 3916. (1) In exchange for suitable receipts and
9 following a court order if the administration is supervised, a
10 fiduciary making final distribution shall deposit with the county
11 treasurer the money or personal property the fiduciary has that
12 belongs to any of the following:
13 (a) An heir, devisee, trust beneficiary, or claimant whose
14 whereabouts the fiduciary cannot ascertain after diligent
15 inquiry.
16 (b) An heir, devisee, trust beneficiary, or claimant who
17 declines to accept the money awarded to the person.
18 (c) A person if the right of the person is the subject of
19 appeal from an order of the court.
20 (2) As an alternative to deposit with the county treasurer
21 under subsection (1), if the amount involved for a person
22 described under subsection (1)(a) or (b) is $250.00 $1,000.00 or
23 less, the fiduciary may distribute the amount as part of the
24 residue of the decedent's estate or to those entitled to the
25 trust fund balance. If the fiduciary has property other than
26 money that belongs to a person described in subsection (1)(a) or
27 (b), the fiduciary may sell the property for the purpose of
1 reducing it to money to be deposited with the county treasurer.
2 (3) The fiduciary shall retain or file the county
3 treasurer's receipt for property deposited under this section in
4 the same fashion as though the fiduciary paid or delivered the
5 money or property to, and received a receipt from, the heir,
6 devisee, trust beneficiary, or claimant.
7 (4) The dollar amount described in this section must be
8 adjusted as provided in section 1210.
9 Sec. 3917. (1) The county treasurer shall receive and safely
10 keep money deposited under authority of this act in a separate
11 fund and keep a separate account for each distributee or claim.
12 The county treasurer shall deposit the money in a county
13 depository at the current rate of interest, shall pay out from
14 the fund upon the order of the court, and shall turn over any
15 surplus left in the treasurer's hands at the termination of the
16 treasurer's term of office to the treasurer's successor. The
17 county treasurer shall, at the end of each year, render to the
18 court, and to the county board of commissioners, a true account
19 of that money.
20 (2) For the care of the money received under authority of
21 this act, the county treasurer may take 1% from the different
22 amounts paid out under court order unless the amount paid out to
23 a single individual exceeds $1,000.00, $1,500.00, in which case
24 the county treasurer shall take $10.00 $15.00 plus
1/2 of 1% of
25 the excess of the amount over $1,000.00.$1,500.00.
26 (3) A person entitled to the money may petition the court
27 having jurisdiction for an order directing the county treasurer
1 to pay over money that is deposited with the county treasurer.
2 Upon On receiving the petition, the court shall make an
order as
3 to notice of the hearing as the court considers proper. Upon On
4 satisfactory proof being made to the court of the claimant's
5 right to the money, the court shall order the county treasurer to
6 pay the money and interest earned on the money, less the fee of
7 the county treasurer, to the claimant.
8 (4) If a person whose whereabouts are unknown or who
9 declined to accept the money does not make a claim to money
10 deposited by a fiduciary before the expiration of 3 years after
11 the deposit date, the money and interest earned on the money that
12 would be distributed under this section to the person, if alive,
13 less expenses, shall must
be distributed by court order to each
14 person who would be entitled to the money if the person had died
15 before the date that he or she became entitled to the money, and
16 the person is forever barred from all claim or right to the
17 money.
18 (5) The dollar amounts described in this section must be
19 adjusted as provided in section 1210.
20 Sec. 3918. (1) A personal representative may discharge the
21 personal representative's obligation to distribute to an
22 individual under legal disability by distributing in a manner
23 expressly provided in the will.
24 (2) Unless contrary to an express provision in the will, the
25 personal representative may discharge the personal
26 representative's obligation to distribute to an individual under
27 legal disability as authorized by section 5102 or another
1 statute. If the personal representative knows that a conservator
2 has been appointed for an individual or that a proceeding for
3 appointment of a conservator for the individual is pending, the
4 personal representative is authorized to distribute only to the
5 conservator. If the personal representative knows that a guardian
6 of the estate of an individual with a developmental disability
7 has been appointed under the mental health code, 1974 PA 258, MCL
8 330.1001 to 330.2106, or that a proceeding for appointment of a
9 guardian of the estate for the individual with the developmental
10 disability is pending, the personal representative is authorized
11 to distribute only to the guardian of the estate.
12 (3) If the heir or devisee is under legal disability other
13 than minority, the personal representative is authorized to
14 distribute to any of the following:
15 (a) A trustee appointed by the court under section 3915(4).
16 (b) An attorney in fact who has authority under a power of
17 attorney to receive property for that person.
18 (c) The spouse, parent, or other close relative with whom
19 the individual under legal disability resides if both of the
20 following are true:
21 (i) A conservator has not been appointed for the individual.
22 (ii) The
distribution is in amounts not exceeding $5,000.00
23
$25,000.00 a year or property not
exceeding $5,000.00 $25,000.00
24 in value, unless the court authorizes a higher amount or value.
25 (4) A person receiving money or property for an individual
26 under legal disability shall use the money or property only for
27 that individual's support and for reimbursement of out-of-pocket
1 expenses for goods and services necessary for that individual's
2 support. Excess money and property shall must be
preserved for
3 the individual's future support. The personal representative is
4 not responsible for the proper use of money or property by the
5 recipient if distribution is made under the authority of this
6 section.
7 (5) The dollar amounts described in this section must be
8 adjusted as provided in section 1210.
9 Sec. 3959. (1) If estate The court may reopen an estate if
10 either of the following apply:
11 (a) Estate property is discovered after an estate is settled
12 and either the personal representative is discharged or 1 year
13 has expired after a closing statement is filed. ,
or if there
14 (b) There is other good cause to reopen a previously
15 administered estate, including an estate administratively closed,
16 upon on petition of an interested person and notice as the
court
17 directs. , the
18 (2) The court may appoint the same or a successor personal
19 representative to administer the subsequently discovered estate.
20 If a new appointment is made, unless the court orders otherwise,
21 the provisions of this act apply as appropriate. A claim
22 previously barred shall must
not be asserted in the subsequent
23 administration.
24 Sec. 3981. (1) A hospital, convalescent or nursing home,
25 morgue, or law enforcement agency holding $500.00 $1,000.00 or
26 less and wearing apparel of a decedent may deliver the money and
27 wearing apparel to an individual furnishing identification and a
1 sworn statement that the individual is the decedent's spouse,
2 child, or parent and that there is no application or petition
3 pending for administration of the decedent's estate. The
4 hospital, home, morgue, or law enforcement agency making the
5 delivery is released to the same extent as if delivery were made
6 to a legally qualified personal representative of the decedent's
7 estate and is not required to see to the property's disposition.
8 The individual to whom delivery is made is answerable for the
9 property to a person with a prior right and accountable to a
10 personal representative of the decedent's estate appointed after
11 the delivery.
12 (2) The dollar amount described in this section must be
13 adjusted as provided in section 1210.
14 Sec. 3982. (1) Upon On a showing of evidence,
satisfactory
15 to the court, of payment of the expenses for the decedent's
16 funeral and burial and if the balance of a decedent's gross
17 estate consists of property of the value of $15,000.00 $25,000.00
18 or less, the court may order that the property be turned over to
19 the surviving spouse or, if there is not a spouse, to the
20 decedent's heirs.
21 (2) Upon On a showing of evidence, satisfactory to the
22 court, that the decedent's funeral or burial expenses are unpaid
23 or were paid by a person other than the estate, and if the
24 balance of the gross estate after payment of the expenses would
25 consist of property of the value of $15,000.00 $25,000.00 or
26 less, the court shall order that the property be first used to
27 pay the unpaid funeral and burial expenses, or to reimburse the
1 person that paid those expenses, and may order that the balance
2 be turned over to the surviving spouse or, if there is not a
3 spouse, to the decedent's heirs.
4 (3) Other than a surviving spouse who qualifies for
5 allowances under this act or the decedent's minor children, an
6 heir who receives property through an order under this section is
7 responsible, for 63 days after the date of the order, for any
8 unsatisfied debt of the decedent up to the value of the property
9 received through the order. The court shall state in the order
10 the condition on the distribution of property provided by this
11 subsection.
12 (4) If a decedent's estate meets the criteria for using the
13 procedure under either this section or section 3983 and if a
14 person is authorized by this act to use either procedure, a
15 person, other than the court, shall not require the authorized
16 person to use 1 procedure rather than the other.
17 (5) A dollar amount prescribed by this section shall must be
18 adjusted as provided in section 1210.
19 Sec. 3983. (1) After 28 days after a decedent's death, a
20 person indebted to the decedent or having possession of tangible
21 personal property or an instrument evidencing a debt, obligation,
22 stock, or chose in action belonging to the decedent shall pay the
23 indebtedness or deliver the tangible personal property or the
24 instrument to a person claiming to be the decedent's successor
25 upon on being presented with the decedent's death
certificate and
26 a sworn statement made by or on behalf of the successor stating
27 all of the following:
1 (a) The estate does not include real property and the value
2 of the entire estate, wherever located, net of liens and
3 encumbrances, does not exceed $15,000.00, $25,000.00, adjusted as
4 provided in section 1210.
5 (b) Twenty-eight days have elapsed since the decedent's
6 death.
7 (c) An application or petition for the appointment of a
8 personal representative is not pending or has not been granted in
9 any jurisdiction.
10 (d) The claiming successor is entitled to payment or
11 delivery of the property.
12 (e) The name and address of each other person that is
13 entitled to a share of the property and the portion to which each
14 is entitled.
15 (2) A transfer agent of a security shall change the
16 registered ownership on the books of a corporation from the
17 decedent to the successor or successors upon the presentation of
18 a sworn statement as provided in subsection (1).
19 (3) The state court administrative office shall develop and
20 make available a standardized form for use as a sworn statement
21 that can be used for the procedure authorized under subsection
22 (1). The form shall must
include a notice that a false statement
23 may subject the person swearing to the statement to prosecution
24 for perjury.
25 Sec. 5102. (1) A person under a duty to pay or deliver money
26 or personal property to a minor may perform this duty by paying
27 or delivering the money or property, in an aggregate value that
1 does not exceed $5,000.00 $25,000.00 each year, to any
of the
2 following:
3 (a) The minor if he or she is married.
4 (b) An individual having the care and custody of the minor
5 with whom the minor resides.
6 (c) A guardian of the minor.
7 (d) A financial institution incident to a deposit in a state
8 or federally insured savings account in the sole name of the
9 minor with notice of the deposit to the minor.
10 (2) This section does not apply if the person making payment
11 or delivery knows that a conservator has been appointed or a
12 proceeding for appointment of a conservator of the minor's estate
13 is pending.
14 (3) Other than the minor or a financial institution, an
15 individual receiving money or property for a minor is obligated
16 to apply the money to the minor's support and education, but
17 shall not pay himself or herself except by way of reimbursement
18 for out-of-pocket expenses for goods and services necessary for
19 the minor's support. An excess amount shall must be
preserved for
20 the minor's future support and education. A balance not used for
21 those purposes and property received for the minor shall must be
22 turned over to the minor when majority is attained. A person who
23 pays or delivers money or property in accordance with this
24 section is not responsible for the proper application of the
25 money or property.
26 (4) The dollar amount described in this section must be
27 adjusted as provided in section 1210.
1 Sec. 5301. (1) If serving as guardian, the parent of an
2 unmarried legally incapacitated individual may appoint by will,
3 or other writing signed by the parent and attested by at least 2
4 witnesses, a guardian for the legally incapacitated individual.
5 If both parents are dead or the surviving parent is adjudged
6 legally incapacitated, and no standby guardian has been appointed
7 under section 5301c, a parental appointment becomes effective
8 when, after having given 7 days' prior written notice of
9 intention to do so to the legally incapacitated individual and to
10 the person having the care of the legally incapacitated
11 individual or to the nearest adult relative, the guardian files
12 acceptance of appointment in the court in which the will
13 containing the nomination is probated or, if the nomination is
14 contained in a nontestamentary nominating instrument or the
15 testator who made the nomination is not deceased, when the
16 guardian's acceptance is filed in the court at the place where
17 the legally incapacitated individual resides or is present. The
18 notice must state that the appointment may be terminated by
19 filing a written objection in the court as provided by subsection
20 (4). If both parents are dead, an effective appointment by the
21 parent who died later has priority.
22 (2) If serving as guardian, the spouse of a married legally
23 incapacitated individual may appoint by will, or other writing
24 signed by the spouse and attested by at least 2 witnesses, a
25 guardian of the legally incapacitated individual. The If no
26 standby guardian has been appointed under section 5301c, the
27 appointment becomes effective when, after having given 7 days'
1 prior written notice of intention to do so to the legally
2 incapacitated individual and to the person having care of the
3 legally incapacitated individual or to the nearest adult
4 relative, the guardian files acceptance of appointment in the
5 court in which the will containing the nomination is probated or,
6 if the nomination is contained in a nontestamentary nominating
7 instrument or the testator who made the nomination is not
8 deceased, when the guardian's acceptance is filed in the court at
9 the place where the legally incapacitated individual resides or
10 is present. The notice must state that the appointment may be
11 terminated by filing a written objection in the court as provided
12 by subsection (4).
13 (3) An appointment effected by filing the guardian's
14 acceptance under a will probated in the state of the decedent's
15 domicile is effective in this state.
16 (4) Upon On the filing of the legally incapacitated
17 individual's written objection to a guardian's appointment under
18 this section in either the court in which the will was probated
19 or, for a nontestamentary nominating instrument or a testamentary
20 nominating instrument made by a testator who is not deceased, the
21 court at the place where the legally incapacitated individual
22 resides or is present, the appointment is terminated. An
23 objection does not prevent appointment by the court in a proper
24 proceeding of the parental or spousal nominee or another suitable
25 person upon on an adjudication of incapacity in a proceeding
26 under sections 5302 to 5317.
27 Sec. 5301c. (1) At a hearing convened under this part, the
1 court may designate 1 or more standby guardians. The court may
2 designate as standby guardian a competent person that is suitable
3 and willing to serve.
4 (2) The standby guardian must receive a copy of the petition
5 nominating the person to serve, the court order establishing or
6 modifying guardianship, and the order designating the standby
7 guardian.
8 (3) A standby guardian shall file an acceptance of the
9 person's designation under subsection (2) within 28 days after
10 receiving notice of the order designating the standby guardian.
11 (4) If the standby guardian is unable or unwilling to serve,
12 the standby guardian shall promptly notify the court and
13 interested persons.
14 (5) A standby guardian does not have authority to act unless
15 the guardian is unavailable for any reason, including any of the
16 following:
17 (a) The guardian dies.
18 (b) The guardian is permanently or temporarily unavailable.
19 (c) The court removes or suspends the guardian.
20 (6) During an emergency affecting the legally incapacitated
21 individual's welfare when the guardian is unavailable, the
22 standby guardian may temporarily assume the powers and duties of
23 the guardian. A person may rely on the standby guardian's
24 representation that the standby guardian has the authority to act
25 if the person is given the order issued under subsection (2) and
26 acceptance filed under subsection (3). A person that acts in
27 reliance on the representations and documentation described in
1 this subsection without knowledge that the representations are
2 incorrect is not liable to any person for so acting and may
3 assume without further inquiry the existence of the standby
4 guardian's authority.
5 (7) A standby guardian's appointment as guardian is
6 effective, without further proceedings or reiteration of
7 acceptance, immediately on the guardian's unavailability as
8 described in subsection (5). The standby guardian has the same
9 powers and duties as the prior guardian.
10 (8) On assuming office, the standby guardian shall promptly
11 notify the court, any known agent appointed under a power of
12 attorney executed under section 5103, and interested persons. On
13 receiving notice under this subsection, the court may enter an
14 order appointing a standby guardian as guardian without the need
15 for additional proceedings. The guardian appointed under this
16 subsection shall serve the court's order on the interested
17 persons.
18 Sec. 5310. (1) On petition of the guardian and subject to
19 the filing and approval of a report prepared as required by
20 section 5314, the court shall accept the guardian's resignation
21 and make any other order that is appropriate.
22 (2) The ward, a person appointed guardian in a will or other
23
writing by a parent or spouse under section 5301, or a any other
24 person interested in the ward's welfare may petition for an order
25 removing the guardian, appointing a successor guardian, modifying
26 the guardianship's terms, or terminating the guardianship. A
27 request for this order may be made by informal letter to the
1 court or judge. If a request under this subsection is made by the
2 person appointed by will or other writing under section 5301, the
3 person shall also present proof of the person's appointment by
4 will or other writing. A person who knowingly interferes with the
5 transmission of this kind of request to the court or judge is
6 subject to a finding of contempt of court.
7 (3) Except as otherwise provided in the order finding
8 incapacity, upon on
receiving a petition or request under
this
9 section, the court shall set a date for a hearing to be held
10 within 28 days after the receipt of the petition or request. An
11 order finding incapacity may specify a minimum period, not
12 exceeding 182 days, during which a petition or request for a
13 finding that a ward is no longer an incapacitated individual, or
14 for an order removing the guardian, modifying the guardianship's
15 terms, or terminating the guardianship, shall must not
be filed
16 without special leave of the court.
17 (4) Before removing a guardian, appointing a successor
18 guardian, modifying the guardianship's terms, or terminating a
19 guardianship, and following the same procedures to safeguard the
20 ward's rights as apply to a petition for a guardian's
21 appointment, the court may send a visitor to the present
22 guardian's residence and to the place where the ward resides or
23 is detained to observe conditions and report in writing to the
24 court.
25 Sec. 5313. (1) The court may appoint a competent person as
26 guardian of a legally incapacitated individual. The court shall
27 not appoint as a guardian an agency, public or private, that
1 financially benefits from directly providing housing, medical,
2 mental health, or social services to the legally incapacitated
3 individual. If the court determines that the ward's property
4 needs protection, the court shall order the guardian to furnish a
5 bond or shall include restrictions in the letters of guardianship
6 as necessary to protect the property.
7 (2) In appointing a guardian under this section, the court
8 shall appoint a person, if suitable and willing to serve, in the
9 following order of priority:
10 (a) A person previously appointed, qualified, and serving in
11 good standing as guardian for the legally incapacitated
12 individual in this state or another state.
13 (b) A person the individual subject to the petition chooses
14 to serve as guardian.
15 (c) A person nominated as guardian in a durable power of
16 attorney or other writing by the individual subject to the
17 petition.
18 (d) A person named by the individual as a patient advocate
19 or attorney in fact in a durable power of attorney.
20 (e) A person appointed by a parent or spouse of a legally
21 incapacitated individual by will or other writing under section
22 5301.
23 (3) If there is no person chosen, nominated, or named under
24 subsection (2), or if none of the persons listed in subsection
25 (2) are suitable or willing to serve, the court may appoint as a
26 guardian an individual who is related to the individual who is
27 the subject of the petition in the following order of preference:
1 (a) The legally incapacitated individual's spouse. This
2 subdivision shall be is
considered to include a person
nominated
3 by will or other writing signed by a deceased spouse.
4 (b) An adult child of the legally incapacitated individual.
5 (c) A parent of the legally incapacitated individual. This
6 subdivision shall be is
considered to include a person
nominated
7 by will or other writing signed by a deceased parent.
8 (d) A relative of the legally incapacitated individual with
9 whom the individual has resided for more than 6 months before the
10 filing of the petition.
11 (e) A person nominated by a person who is caring for the
12 legally incapacitated individual or paying benefits to the
13 legally incapacitated individual.
14 (4) If none of the persons as designated or listed in
15 subsection (2) or (3) are suitable or willing to serve, the court
16 may appoint any competent person who is suitable and willing to
17 serve, including a professional guardian as provided in section
18 5106.
19 Sec. 5314. If meaningful communication is possible, a
20 legally incapacitated individual's guardian shall consult with
21 the legally incapacitated individual before making a major
22 decision affecting the legally incapacitated individual. To the
23 extent a guardian of a legally incapacitated individual is
24 granted powers by the court under section 5306, the guardian is
25 responsible for the ward's care, custody, and control, but is not
26 liable to third persons because of that responsibility for the
27 ward's acts. In particular and without qualifying the previous
1 sentences, a guardian has all of the following powers and duties,
2 to the extent granted by court order:
3 (a) The custody of the person of the ward and the power to
4 establish the ward's place of residence in or outside this state.
5 The guardian shall visit the ward within 3 months after the
6 guardian's appointment and not less than once within 3 months
7 after each previous visit. The guardian shall notify the court
8 within 14 days of a change in the ward's place of residence or a
9 change in the guardian's place of residence.
10 (b) If entitled to custody of the ward, the duty to make
11 provision for the ward's care, comfort, and maintenance and, when
12 appropriate, arrange for the ward's training and education. The
13 guardian shall secure services to restore the ward to the best
14 possible state of mental and physical well-being so that the ward
15 can return to self-management at the earliest possible time.
16 Without regard to custodial rights of the ward's person, the
17 guardian shall take reasonable care of the ward's clothing,
18 furniture, vehicles, and other personal effects and commence a
19 protective proceeding if the ward's other property needs
20 protection. If a guardian commences a protective proceeding
21 because the guardian believes that it is in the ward's best
22 interest to sell or otherwise dispose of the ward's real property
23 or interest in real property, the court may appoint the guardian
24 as special conservator and authorize the special conservator to
25 proceed under section 5423(3). A guardian shall not otherwise
26 sell the ward's real property or interest in real property.
27 (c) The power to give the consent or approval that is
1 necessary to enable the ward to receive medical or other
2 professional care, counsel, treatment, or service. The power of a
3 guardian to execute a do-not-resuscitate order under subdivision
4 (d) or execute a physician orders for scope of treatment form
5 under subdivision (f) does not affect or limit the power of a
6 guardian to consent to a physician's order to withhold
7 resuscitative measures in a hospital.
8 (d) The power to execute, reaffirm, and revoke a do-not-
9 resuscitate order on behalf of a ward. However, a guardian shall
10 not execute a do-not-resuscitate order unless the guardian does
11 all of the following:
12 (i) Not more than 14 days before executing the do-not-
13 resuscitate order, visits the ward and, if meaningful
14 communication is possible, consults with the ward about executing
15 the do-not-resuscitate order.
16 (ii) Consults directly with the ward's attending physician as
17 to the specific medical indications that warrant the do-not-
18 resuscitate order.
19 (e) If a guardian executes a do-not-resuscitate order under
20 subdivision (d), not less than annually after the do-not-
21 resuscitate order is first executed, the duty to do all of the
22 following:
23 (i) Visit the ward and, if meaningful communication is
24 possible, consult with the ward about reaffirming the do-not-
25 resuscitate order.
26 (ii) Consult directly with the ward's attending physician as
27 to specific medical indications that may warrant reaffirming the
1 do-not-resuscitate order.
2 (f) The power to execute, reaffirm, and revoke a physician
3 orders for scope of treatment form on behalf of a ward. However,
4 a guardian shall not execute a physician orders for scope of
5 treatment form unless the guardian does all of the following:
6 (i) Not more than 14 days before executing the physician
7 orders for scope of treatment form, visits the ward and, if
8 meaningful communication is possible, consults with the ward
9 about executing the physician orders for scope of treatment form.
10 (ii) Consults directly with the ward's attending physician as
11 to the specific medical indications that warrant the physician
12 orders for scope of treatment form.
13 (g) If a guardian executes a physician orders for scope of
14 treatment form under subdivision (f), not less than annually
15 after the physician orders for scope of treatment is first
16 executed, the duty to do all of the following:
17 (i) Visit the ward and, if meaningful communication is
18 possible, consult with the ward about reaffirming the physician
19 orders for scope of treatment form.
20 (ii) Consult directly with the ward's attending physician as
21 to specific medical indications that may warrant reaffirming the
22 physician orders for scope of treatment form.
23 (h) If a conservator for the ward's estate is not appointed,
24 the power to do any of the following:
25 (i) Institute a proceeding to compel a person under a duty to
26 support the ward or to pay money for the ward's welfare to
27 perform that duty.
1 (ii) Receive money and tangible property deliverable to the
2 ward and apply the money and property for the ward's support,
3 care, and education. The guardian shall not use money from the
4 ward's estate for room and board that the guardian or the
5 guardian's spouse, parent, or child have furnished the ward
6 unless a charge for the service is approved by court order made
7 on notice to at least 1 of the ward's next of kin, if notice is
8 possible. The guardian shall exercise care to conserve any excess
9 for the ward's needs.
10 (i) The duty to report the condition of the ward and the
11 ward's estate that is subject to the guardian's possession or
12 control, as required by the court, but not less often than
13 annually. The guardian shall also serve the report required under
14 this subdivision on the ward and interested persons as specified
15 in the Michigan court rules. A report under this subdivision must
16 contain all of the following:
17 (i) The ward's current mental, physical, and social
18 condition.
19 (ii) Improvement or deterioration in the ward's mental,
20 physical, and social condition that occurred during the past
21 year.
22 (iii) The ward's present living arrangement and changes in his
23 or her living arrangement that occurred during the past year.
24 (iv) Whether the guardian recommends a more suitable living
25 arrangement for the ward.
26 (v) Medical treatment received by the ward.
27 (vi) Whether the guardian has executed, reaffirmed, or
1 revoked a do-not-resuscitate order on behalf of the ward during
2 the past year.
3 (vii) Whether the guardian has executed, reaffirmed, or
4 revoked a physician orders for scope of treatment form on behalf
5 of the ward during the past year.
6 (viii) Services received by the ward.
7 (ix) A list of the guardian's visits with, and activities on
8 behalf of, the ward.
9 (x) A recommendation as to the need for continued
10 guardianship.
11 (xi) If a standby guardian has been appointed, a statement
12 signed by the standby guardian that the standby guardian
13 continues to be willing to serve in the event of the
14 unavailability, death, incapacity, or resignation of the
15 guardian.
16 (j) If a conservator is appointed, the duty to pay to the
17 conservator, for management as provided in this act, the amount
18 of the ward's estate received by the guardian in excess of the
19 amount the guardian expends for the ward's current support, care,
20 and education. The guardian shall account to the conservator for
21 the amount expended.
22 Enacting section 1. Section 2722 of the estates and
23 protected individuals code, 1998 PA 386, MCL 700.2722, is
24 repealed.
25 Enacting section 2. This amendatory act does not take effect
26 unless Senate Bill No.____ or House Bill No. 6471 (request no.
27 06614'18) of the 99th Legislature is enacted into law.