Here’s a case that’s worth filing away for those who do probate litigation and estate administration. It’s unpublished, but addresses an issue that comes up not infrequently. The holding is that a probate court cannot deny a petition to appoint a personal representative on the grounds that the estate has no assets.
In In Re Estate of Janet Kapp (click on name to read case), the trial court denied a petition to appoint a personal representative on the grounds that there were no known assets to be administered. The COA reversed and remanded, holding that there is no basis in EPIC to support the trial court’s decision. The COA says:
Instead, the court concluded that the appointment of a personal representative was unnecessary because there were no assets in the estate to probate. In doing so, however, the probate court did not cite statutory authority that allows a court to deny the appointment of a nominated personal representative on those grounds. To the contrary, a court rule provides that personal representatives do not need to provide notice to creditors when “[t]he estate has no assets[.]” MCR 5.208(D)(3)(a). It follows that personal representatives can be appointed even when the estate has no assets.
There are many reasons to open an estate which have nothing to do with distribution of assets. This is a good decision, and although unpublished, should provide an outline for the argument when attorneys are faced with this misunderstanding in their cases.