Probate Courts annual update held December 21st

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By Roberta Gubbins

Legal News

George Strander, Court Administrator and Probate Register, Ingham County Probate Court, brought his annual Probate Court Update to the last ICBA Probate Section meeting of 2010 on December 21st.

Stander began the luncheon meeting, held at the State Bar of Michigan in Lansing, with the observation that, for the Probate Court at least, there were not as many changes as in years past.

"There was a change to the Michigan Rules of Professional Conduct," Strander said. "There is a new rule regarding a lawyer serving as a third party neutral and what responsibilities that lawyer has to the other parties. There is an existing rule regarding candor to the tribunal, which has seen substantial change. The tribunal is any court."

The question was asked: If a prospective client, for example, comes to you, saying I am the Personal Representative of an estate, I took $10,000 from the estate and I didn't include that fact in the accounting and now I want to hire you. The lawyer turns him down. Is the lawyer, under the new rule, obligated to inform the court?

"The rule states," Strander said, " that ' if the lawyer knows that the lawyer's client or other person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to an adjudicated proceeding involving the client, the lawyer shall take reasonable remedial measures, including, if necessary disclosure to the tribunal.'"

The problem is in the words 'client or other person,' the questioner said. How should lawyers define those terms? " The Probate Council, commented a member, "will seek clarification of that part of the rule."

Strander turned to a new rule providing that lawyers should not communicate with a juror or prospective juror after discharge of the jury if such communication has been prohibited by law or court order or juror request.

Form Changes:

To get the latest forms, Stander recommended that lawyers visit the Supreme Court's website (http//courts. michigan. gov /scao/court forms/probate /gindex.htm). The site has the up-to-date form that should be used by practitioners.

The following forms have been modified:

* PC 558 (Application for Informal Probate/PR)

* PC 647 (Order Regarding Sale of Real Estate) there is a check box that the court can order a written appraisal of the real estate.

* PC 650/651 (Petitions for Limited/Full Minor Guardianship) If a parent is incarcerated, you must so indicate on the petition and the court must actually call the incarcerated parent to explain the nature of the proceedings and to be sure they understand what is happening.

* PC 675/676 (Petition to Terminate/Modify Guardianshop/ Conservatorship) it is now required to give the current address of the fiduciary.

Legislation:

Strander distributed a copy of House Bill No: 6197, a public act addressing issues created because there was no estate tax in 2010. "The statute basically says that unless the trust or other document says otherwise, the presumption is to use the numbers from 2009. The problem is that the law also says that if Congress enacts a statute "before January 1, 2011, the reference to January 1, 2011 in subsection (1) shall refer instead to the earlier date on which the tax takes effect."

The estate tax takes effect on January 1, 2010, which could mean that there will be "no decedents that this House Bill applies to." The consensus among the group was that the Bill should be repealed.

Stander's Helpful Tips:

* Know the seven day rule procedure

* For adjournment, please file a stipulation signed by all the parties or set the matter for a hearing.

* If you want documents returned, provide a self addressed stamped envelope.

* If there is a deceased child or devise of the estate, the court needs something in writing such as an obituary or an affidavit.

* Note there is an investigation fee when an investigation is required.

* In restricted accounts, a prior court order is necessary for expenditures.

* Get the bond set on a Petition for Sale of Real Estate at filing to save a trip back to the court.

* Discharge options in adult conservatorships when the protected person dies include opening an estate or, if small amounts, petition for a small estate assignment, or file an affidavit of decedent successor.

Stander recommended that when questions arise, parties can visit the Ingham County Probate Court website at www.ingham. org/PR

The next probate section meeting will be held on January 18th at the Michael Franck Bldg in Lansing at noon. Katie Lynwood and Mary R.Schrauben will speak on "Coordinating Prenuptial Agreement with Estate Plans." For reservations" kkemp@inghambar.org

Published: Thu, Jan 6, 2011