Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

MI Rules MCR 5.125

Michigan Court Rules of 1985

Chapter 5. Probate Court (Refs & Annos)

Subchapter 5.100. General Rules of Pleading and Practice

RULE 5.125 INTERESTED PERSONS DEFINED

(A) Special Persons. In addition to persons named in subrule (C) with respect to specific proceedings, the following persons must be served:

(1) The Attorney General must be served if required by law or court rule. The Attorney General must be served in the specific proceedings enumerated in subrule (C) when the decedent is not survived by any known heirs, or the protected person has no known presumptive heirs.

(2) A foreign consul must be served if required by MCL 700.1401(4) or court rule. An attorney who has filed an appearance for a foreign consul must be served when required by subrule (A)(5).

(3) On a petition for the appointment of a guardian or conservator of a person on whose account benefits are payable by the Veterans' Administration, the Administrator of Veterans' Affairs must be served through the administrator's Michigan district counsel.

(4) A guardian, conservator, or guardian ad litem of a person must be served with notice of proceedings as to which the represented person is an interested person, except as provided by MCR 5.105(D)(1).

(5) An attorney who has filed an appearance must be served notice of proceedings concerning which the attorney's client is an interested person.

(6) A special fiduciary appointed under MCL 700.1309.

(7) A person who filed a demand for notice under MCL 700.3205 or a request for notice under MCL 700.5104 if the demand or request has not been withdrawn, expired, or terminated by court order.

(8) In a guardianship proceeding for a minor, if the minor is an Indian child as defined by the Act, 25 USC 1901 et seq., the minor's tribe and the Indian custodian, if any, and, if the Indian child's parent or Indian custodian, or tribe, is unknown, the Secretary of the Interior.

(B) Special Conditions for Interested Persons.

(1) Claimant. Only a claimant who has properly presented a claim and whose claim has not been disallowed and remains unpaid need be notified of specific proceedings under subrule (C).

(2) Devisee. Only a devisee whose devise remains unsatisfied need be notified of specific proceedings under subrule (C).

(3) Trust as Devisee. If either a trust or a trustee is a devisee, the trustee is the interested person. If no trustee has qualified, the interested persons are the qualified trust beneficiaries described in MCL 700.7103(g)(i) and the nominated trustee, if any.

(4) Father of a Child Born out of Wedlock. Except as otherwise provided by law, the natural father of a child born out of wedlock need not be served notice of proceedings in which the child's parents are interested persons unless his paternity has been determined in a manner provided by law.

(5) Decedent as Interested Person. If a decedent is an interested person, the personal representative of the decedent's estate is the interested person. If there is no personal representative, the interested persons are the known heirs of the estate of the decedent, and the known devisees. If there are no known heirs, the Attorney General must receive notice.

(C) Specific Proceedings. Subject to subrules (A) and (B) and MCR 5.105(E), the following provisions apply. When a single petition requests multiple forms of relief, the petitioner must give notice to all persons interested in each type of relief:

(1) The persons interested in an application or a petition to probate a will are the

(a) devisees,

(b) nominated trustee and qualified trust beneficiaries described in MCL 700.7103(g)(i) of a trust created under the will,

(d) nominated personal representative, and

(e) trustee of a revocable trust described in MCL 700.7605(1).

(2) The persons interested in an application or a petition to appoint a personal representative, other than a special personal representative, of an intestate estate are the

(a) heirs,

(b) nominated personal representative, and

(3) The persons interested in a petition to determine the heirs of a decedent are the presumptive heirs.

(4) The persons interested in a petition of surety for discharge from further liability are the

(a) principal on the bond,

(b) co-surety,

(d) heirs of an intestate estate,

(e) qualified trust beneficiaries, as referred to in MCL 700.7103(g)(i),

(f) protected person and presumptive heirs of the protected person in a conservatorship, and

(g) claimants.

(5) The persons interested in a proceeding for spouse's allowance are the

(a) devisees of a testate estate,

(b) heirs of an intestate estate,

(d) spouse, and

(e) the personal representative, if the spouse is not the personal representative.

(6) The persons interested in a proceeding for examination of an account of a fiduciary are the:

(a) devisees of a testate estate, and if one of the devisees is a trustee or a trust, the persons referred to in MCR 5.125(B)(3),

(b) heirs of an intestate estate,

(d) ward and presumptive heirs of the ward in a guardianship,

(e) claimants,

(f) settlor of a revocable trust,

(g) if the petitioner has a reasonable basis to believe the settlor is an incapacitated individual, those persons who are entitled to be reasonably informed, as referred to in MCL 700.7603(2),

(h) current trustee,

(i) qualified trust beneficiaries described in MCL 700.7103(g)(i), for a trust accounting, and

(j) other persons whose interests would be adversely affected by the relief requested, including insurers and sureties who might be subject to financial obligations as the result of the approval of the account.

(7) The persons interested in a proceeding for partial distribution of the estate of a decedent are the

(a) devisees of a testate estate entitled to share in the residue,

(b) heirs of an intestate estate,

(d) any other person whose unsatisfied interests in the estate may be affected by such assignment.

(8) The persons interested in a petition for an order of complete estate settlement under MCL 700.3952 or a petition for discharge under MCR 5.311(B)(3) are the

(a) devisees of a testate estate,

(b) heirs unless there has been an adjudication that decedent died testate,

(d) such other persons whose interests are affected by the relief requested.

(9) The persons interested in a proceeding for an estate settlement order pursuant to MCL 700.3953 are the

(a) personal representative,

(b) devisees,

(d) such other persons whose interests are affected by the relief requested.

(10) The persons interested in a proceeding for assignment and distribution of the share of an absent apparent heir or devisee in the estate of a decedent are the

(a) devisees of the will of the decedent,

(b) heirs of the decedent if the decedent did not leave a will,

(d) presumptive heirs of the absent person.

(11) The persons interested in a petition for supervised administration after an estate has been commenced are the

(a) devisees, unless the court has previously found decedent died intestate,

(b) heirs, unless the court has previously found decedent died testate,

(d) claimants.

(12) The persons interested in an independent request for adjudication under MCL 700.3415 and a petition for an interim order under MCL 700.3505 are the

(a) personal representative, and

(b) other persons who will be affected by the adjudication.

(13) The persons interested in a petition for settlement of a wrongful-death action or distribution of wrongful-death proceeds are the

(a) heirs of the decedent,

(b) other persons who may be entitled to distribution of wrongful-death proceeds, and

(14) The persons interested in a will contest settlement proceeding are the

(a) heirs of the decedent and

(b) devisees affected by settlement.

(15) The persons interested in a partition proceeding where the property has not been assigned to a trust under the will are the

(a) heirs in an intestate estate or

(b) devisees affected by partition.

(16) The persons interested in a partition proceeding where the property has been assigned to a trust under the will are the

(a) trustee and

(b) beneficiaries affected by the partition.

(17) The persons interested in a petition to establish the cause and date of death in an accident or disaster case under MCL 700.1208 are the heirs of the presumed decedent.

(18) The persons interested in a proceeding under the Mental Health Code that may result in an individual receiving involuntary mental health treatment or judicial admission of an individual with a developmental disability to a center are the

(a) individual,

(b) individual's attorney,

(d) prosecuting attorney or petitioner's attorney,

(e) director of any hospital or center to which the individual has been admitted,

(f) the individual's spouse, if the spouse's whereabouts are known,

(g) the individual's guardian, if any,

(h) in a proceeding for judicial admission to a center, the community mental health program, and

(i) such other relatives or persons as the court may determine.

(19) The persons interested in a petition for appointment of a guardian for a minor are:

(a) the minor, if 14 years of age or older;

(b) if known by the petitioner, each person who had the principal care and custody of the minor during the 63 days preceding the filing of the petition;

(c) the parents of the minor or, if neither of them is living, any grandparents and the adult presumptive heirs of the minor, and

(d) the nominated guardian.

(20) The persons interested in the acceptance of parental appointment of the guardian of a minor under MCL 700.5202 are:

(a) the minor, if 14 years of age or older,

(b) the person having the minor's care, and

(21) The persons interested in a 7-day notice of acceptance of appointment as guardian of an incapacitated individual under MCL 700.5301 are the

(a) incapacitated individual,

(b) person having the care of the incapacitated individual, and

(22) The persons interested in a petition for appointment of a guardian of an alleged incapacitated individual are

(a) the alleged incapacitated individual,

(b) if known, a person named as attorney in fact under a durable power of attorney,

(d) the alleged incapacitated individual's adult children and the individual's parents,

(e) if no spouse, child, or parent is living, the presumptive heirs of the individual,

(f) the person who has the care and custody of the alleged incapacitated individual, and

(g) the nominated guardian.

(23) The persons interested in receiving a copy of the report of a guardian of a legally incapacitated individual on the condition of a ward are:

(a) the ward,

(b) the person who has principal care and custody of the ward, and

(24) The persons interested in a petition for the appointment of a conservator or for a protective order are:

(a) the individual to be protected if 14 years of age or older,

(b) the presumptive heirs of the individual to be protected,

(d) the nominated conservator, and

(e) a governmental agency paying benefits to the individual to be protected or before which an application for benefits is pending.

(25) The persons interested in a petition for the modification or termination of a guardianship or conservatorship or for the removal of a guardian or a conservator are

(a) those interested in a petition for appointment under subrule (C)(19), (21), (22), or (23) as the case may be, and

(b) the guardian or conservator.

(26) The persons interested in a petition by a conservator for instructions or approval of sale of real estate or other assets are

(a) the protected individual and

(b) those persons listed in subrule (C)(24) who will be affected by the instructions or order.

(27) The persons interested in receiving a copy of an inventory or account of a conservator or of a guardian are:

(a) the protected individual or ward, if he or she is 14 years of age or older and can be located,

(b) the presumptive heirs of the protected individual or ward,

(d) the guardian ad litem.

(28) The persons interested in a petition for approval of a trust under MCR 2.420 are

(a) the protected individual if 14 years of age or older,

(b) the presumptive heirs of the protected individual,

(d) the nominated trustee, and

(e) a governmental agency paying benefits to the individual to be protected or before which an application for benefits is pending.

(29) The persons interested in a petition for emancipation of a minor are

(a) the minor,

(b) parents of the minor,

(d) any guardian or conservator.

(30) Interested persons for any proceeding concerning a durable power of attorney for health care are:

(a) the patient;

(b) the patient's advocate;

(d) the patient's adult children;

(e) the patient's parents if the patient has no adult children;

(f) if the patient has no spouse, adult children or parents, the patient's minor children, or, if there are none, the presumptive heirs whose addresses are known;

(g) the patient's guardian and conservator, if any; and

(h) the patient's guardian ad litem.

(31) Persons interested in a proceeding to require, hear, or settle an accounting of an agent under a power of attorney are:

(a) the principal,

(b) the attorney in fact or agent,

(d) the principal's guardian ad litem or attorney, if any, and

(e) the principal's presumptive heirs.

(32) Subject to the provisions of Part 3 of Article VII of the Estates and Protected Individuals Code, the persons interested in the modification or termination of a noncharitable irrevocable trust are:

(a) the qualified trust beneficiaries affected by the relief requested,

(b) the settlor,

(c) if the petitioner has a reasonable basis to believe the settlor is an incapacitated individual, the settlor's representative, as referred to in MCL 700.7411(6),

(d) the trust protector, if any, as referred to in MCL 700.7103(n),

(e) the current trustee, and

(f) any other person named in the terms of the trust to receive notice of such a proceeding.

(33) Subject to the provisions of Part 3 of Article VII of the Estates and Protected Individuals Code, the persons interested in a proceeding affecting a trust other than those already covered by subrules (C)(6), (C)(28), and (C)(32) are:

(a) the qualified trust beneficiaries affected by the relief requested,

(b) the holder of a power of appointment affected by the relief requested,

(d) in a proceeding to appoint a trustee, the proposed trustee,

(e) the trust protector, if any, as referred to in MCL 700.7103(n),

(f) the settlor of a revocable trust, and

(g) if the petitioner has a reasonable basis to believe the settlor is an incapacitated individual, those persons who are entitled to be reasonably informed, as referred to in MCL 700.7603(2).

(D) The court shall make a specific determination of the interested persons if they are not defined by statute or court rule.

(E) In the interest of justice, the court may require additional persons be served.

CREDIT(S)

[Adopted July 12, 2001, effective January 1, 2002, 464 Mich; amended December 18, 2001, effective May 1, 2002, 465 Mich; February 4, 2003, effective May 1, 2003, 467 Mich; July 1, 2004, effective September 1, 2004, 470 Mich; January 8, 2008, 480 Mich; May 28, 2008, 481 Mich; January 14, 2009, effective May 1, 2009, 483 Mich; February 2, effective April 1, 485 Mich; February 2, effective May 1, 485 Mich.]

COMMENTS

Comment

This rule was MCR 5.205. The proceedings described in subrules (C)(27), (28), and (30) have been transferred to the exclusive jurisdiction of the family division of the circuit court. However, the subrules are left in place temporarily until development of rules for family division.

Staff Comment to 2002 Amendment

The December 18, 2001 amendments, effective May 1, 2002, updated various rules in light of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., and revisions made to EPIC by 2000 PA 312, 313, and 469.

Note to 2003 Amendment

The amendments of MCR 5.125(C) delete provisions listing interested parties in petitions for treatment of infectious disease and adoption proceedings, which are now within the jurisdiction of the family division of the circuit court. The substance of those provisions is included in MCR 3.615 and 3.800.

Staff Comment to 2004 Amendment

The July 1, 2004, amendment of MCR 5.125, effective September 1, 2004, added persons and entities such as insurers and sureties whose interests would be adversely affected to the list of interested persons who must receive notice of a proceeding for an examination of an account of a fiduciary.

Notes to 2004 Amendment

CAVANAGH, J. (dissenting). I dissent as I see no need to add this additional requirement.

KELLY, J., concurs with CAVANAGH, J.

Staff Comment to January, 2008 Amendment

The amendment of MCR 5.125 conforms the rule to language in MCL 700.5311 by clarifying that parents are interested persons entitled to notice in a petition for the appointment of a guardian of an alleged incapacitated individual, regardless of whether the alleged incapacitated individual has living adult children.

Staff Comment to May, 2008 Amendment

By this order, the Court retains the amendment of MCR 5.125 that conforms the rule to language in MCL 700.5311 by clarifying that parents are interested persons entitled to notice in a petition for appointment of a guardian for an alleged incapacitated individual, and further clarifies that only adult children are entitled to notice under this rule and the statute.

Staff Comment to 2009 Amendment

These amendments were adopted primarily as a result of submissions by the Michigan Probate Judges Association and the State Bar of Michigan's Probate and Estate Planning Section. This was a joint effort to increase the oversight of guardianship and conservatorship proceedings, as well as to improve other procedures in probate court.

Staff Comment to April 2010 Amendment

These changes, submitted by the Probate and Estate Planning Council of the State Bar of Michigan and the Michigan Probate Judges Association, have been designed so that the rules conform to recently-enacted statutory changes creating the Michigan Trust Code. The amendments correct and insert cross-references to the applicable statutory provisions, and make other technical changes. In addition, new MCR 5.208 incorporates the notice requirements for both decedent estates and trusts currently contained in MCR 5.306 and MCR 5.503, and replaces those rules.

Staff Comment to May 2010 Amendment

These amendments incorporate provisions of the Indian Child Welfare Act into specific provisions within various rules relating to child protective proceedings and juvenile status offenses. The language is designed to make the rules reflect a more integrated approach to addressing issues specific to Indian children.

MCR 3.002(1)(c) defines "preadoptive placement" to mean the "temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement, and ..." The phrase "in lieu of adoptive placement" is not intended to mean that it is permissible to leave a child in foster care indefinitely, in violation of MCL 712A.19b(6) or (7) or 45 CFR 1355.20, 45 CFR 1356.21, or 45 CFR 1356.50. Rather, it addresses situations where the parental rights to a child have been terminated and there is no permanency plan for adoption of the child. One example is when the child has been placed with a juvenile guardian and the guardianship is subsequently revoked. In this situation, jurisdiction over the child pursuant to MCL 712A.2(b) will be reinstated and the child is placed in foster care.

MCR 3.002(1): The definition of "child custody proceeding" is intended to apply the Indian Child Welfare Act to delinquency proceedings if an "Indian child" is charged with a so-called status offense in violation of MCL 712A.2(a)(2)-(4) or (d). Delinquency proceedings involving an Indian child charged with any other non-status offense are generally not subject to the Indian Child Welfare Act; however, if the initial investigation or subsequent review of a non-status delinquency case reveals that the Indian child involved suffers from child abuse or neglect, a separate child protective proceeding may be initiated, which would be subject to the Indian Child Welfare Act.

The amendment of MCR 3.905(C)(1) states that a court shall consider guidelines established by the Bureau of Indian Affairs (BIA) in determining whether good cause not to transfer exists (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No 228, 67590-67592, C.2-C.4. [November 26, 1979]). Some examples of good cause are that the Indian tribe does not have a tribal court or that the Indian child is over 12 years old and objects to the transfer. For additional examples of good cause and relevant case law, see the BIA guidelines cited above and A Practical Guide to the Indian Child Welfare Act. (Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act [Boulder, CO: Native American Rights Fund, 2007], 7.15 and 7.16, p 60.)

MI Rules MCR 5.125, MI R PROB MCR 5.125

Current with amendments received through January 1, 2011.