Farmington Hills, MI asked in Probate for Michigan

Q: Son dies 40 yrs old divorced 2 minor children, x-wife has custody. Does Father of son begin probate or x wife?

Father was advised to receive permission from X-wife as children's representative to bury the son. Then x-wife was told she needed to get permission from deceased son's father to be in charge of the probate process. Why would Father need permission to bury from x-wife then x-wife need permission from father to run the probate process. This seems to be a conflict, doesn't one the father or x-wife have authority?

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3 Lawyer Answers
Trent Harris
Trent Harris
  • Estate Planning Lawyer
  • Jackson, MI
  • Licensed in Michigan

A: The right to make decisions about funeral and burial arrangements falls to the next of kin in a statutory order of priority. Typically, that would be: surviving spouse; surviving children; surviving parents; then surviving siblings, and so on. The right to be personal representative follows the same order of priority.

It sounds like the funeral home chose to recognize the children as deceased son's next of kin, although the children were not legally adults. The children's guardian (mother) could act for them in a representative capacity since they were not adults. I'm not saying that was wrong, but it would probably have been equally correct if the funeral home had recognized the deceased son's father as next of kin. That sounds like a judgment call to me for the funeral home.

As to personal representative, a minor has no priority to act as personal representative of an estate. So it would naturally fall to the next person with statutory priority, which would be one of deceased son's parents. I hope this explains better what might have happened.

Kenneth V Zichi
Kenneth V Zichi
  • Estate Planning Lawyer
  • Fowlerville, MI
  • Licensed in Michigan

A: Bear with me -- you actually ask a rather complicated question even though you may not think it is! AND THIS UNDERSCORES why you need local legal representation!

There are two things going on here: 1) who can make burial arrangements and 2) who has priority to act as Personal Representative. The 'complication' in both is that 'surviving children' generally have priority over parents or other heirs, but the children here are minors and cannot act 'on their own' in either case.

That said, the two things here are SIMILAR but not exactly the same. And it highlights why people -- particularly people with 'unusual' family structures need to have a valid will and medical and financial powers of attorney prepared! The funeral home 'wiffed it' in my opinion, but I'm not sure what is appropriate to do to address that mistake. I'm pretty sure it was a 'good faith' mistake and not something malicious but still -- it was a mistake. Minor Children don't have a say in funeral arrangements under Michigan law. Under that statute, the people who do and the order of priority is:

"(a) If the decedent was a service member at the time of the decedent's death, a person designated to direct the disposition of the service member's remains according to a statute of the United States or regulation, policy, directive, or instruction of the Department of Defense.

(b) A funeral representative designated under subsection (2).

(c) The surviving spouse.

(d) *The individual or individuals 18 years of age or older* in the following order of priority:

(i) The decedent's children.

(ii) The decedent's grandchildren.

(iii) The decedent's parents." (and it goes on with others too).

Note the '18 years of age or older' provision. Minor kid's representatives are NOT included in the list.

For final arrangements of burial etc, a person CAN be designated in an appropriate power of attorney and that designation will survive the person (and that is the ONLY thing that survives death in a power of attorney -- in general they are not valid after someone dies). Absent that, funeral homes MUST follow this list.

For PROBATE, the '18 or older' clause is not included. A REPRESENTATIVE of someone in this list with a legal disability CAN petition the court to act as PR, and the Court will appoint a personal representative from the following list of people, in order starting from the top:

• A person named in the decedent's will as personal representative

• A surviving spouse if he or she is beneficiary under the will

• Other beneficiaries under the will

• The surviving spouse if he or she is not a beneficiary under the will

• Other heirs of the decedent and as a 'fallback/last case'

• If none named after a certain amount of time, someone chosen by a creditor and approved by the probate judge /or/ the county 'public administrator'

I strongly urge you to consult with a local lawyer and ask about this, and determine what -- if anything -- should be done.

David Soble
David Soble
  • Probate Lawyer
  • Farmington Hills, MI
  • Licensed in Michigan

A: Generally speaking, the ex- spouse has no authority to do anything related to funeral arrangements for the 'son' unless the deceased son left a will stating otherwise. The father or parents have the rights and authority to conduct funeral arrangements for his son. If the funeral home has issues with that, then a probate court order will be necessary. Very sorry for your loss. See for more information.

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