Probate Litigation

20 years of litigation
experience in Michigan

Practice Areas

Probate Litigation

Michigan Probate Litigation Attorneys

Probate law and probate litigation deals with four major areas:

  1. The estate of a person who dies.
  2. Trusts that people have created before they die.
  3. Incapacitated persons who need conservators to handle their property and guardians to see to their personal care.
  4. Matters relating to children who have been abused or neglected, or children who have gotten into legal trouble and are not old enough to be tried as an adult.

Problems With Wills and Trusts

Although most trusts and probate estates pass through the system without a whisper of trouble, but there are occasions where issues do arise. Some of the most common will and trust problems include, but are not limited to:

  • Absence of a will– There are laws that determine how property passes in the absence of a will.
  • Improperly drawn wills– It may be unclear who is entitled to what.

One of the most common trusts issues arises when, despite the trust being created properly, mistakes were made in having property transferred into it. This causes involved parties to think the trust will handle all their affairs, only for them to find out this is untrue.

Problems With Breach of Fiduciary Duty

People in a trust relationship are generally referred to as fiduciaries. A lawyer is a fiduciary to their client, and the trustee of a trust is a fiduciary to the trust and its beneficiaries. A person holding power of attorney is a fiduciary to the person who gave that power. When a fiduciary acts inappropriately and violates the trust, this is commonly referred to as a breach of fiduciary duty.

Case Study
One of the most difficult fiduciary duty problems to deal with is when a family member taking care of an elderly parent is later found to have been taking unfair advantage of the situation. Perhaps they were taking money outright, or maybe they had the elderly parent paying their expenses. Many times a will or trust is changed relatively late in the game, and the child taking care of the parent is suddenly designated the sole beneficiary or the lions share beneficiary, to the exclusion of siblings and family members.

These are particularly difficult situations because the beneficiaries who have been cut out almost always believe it was a matter of undue influence. The child who has become the principal beneficiary almost always responds by saying “Where were you when all the hard work was being done? When I had to make a trip in the middle of the night make sure mom was alright; when she had to be taken to the hospital 10 times over the last six months of her life and no one was there to do it but me?” It may very well be that the parent made a rational decision to reward the child who took care of them and punish – or at least ignore – the others.

Cases like this are understandably nasty and expensive to litigate. The mental capacity of the person making change is almost invariably challenged, and doctors are called upon for opinions about their mental competency. Competency is a much more difficult issue, as the law recognizes some people may not be competent enough to handle their daily affairs, but be perfectly able to understand matters including:

  • What property they own.
  • Which family members they want to give/withhold from.
  • What they want to do with their property.

This is the only standard the law requires, so a person with mild dementia and spotty memory may be perfectly capable of making a legal and enforceable change in his or her will or trust.

When issues arise relating to the management of an estate, conservatorship, or trust by fiduciary, the court has broad powers in remedying the situation. The first step it can take is to remove the fiduciary from power. It can also require that the fiduciary account for the way money and property has been handled and decide to restore the funds or property if they had been mishandled.  When a fiduciary has taken or misused property intentionally, a judgment can be entered against them that is not dischargeable in bankruptcy action.

Guardianships and Conservatorships

Michigan probate law also deals with questions of who needs to have their financial or personal affairs turned over to a conservator or guardian. In Michigan, conservators are persons appointed by the court to manage and oversee the property and financial affairs of a person incapable of handling it him or herself. Examples of such situations may include:

  • A minor who inherited a great deal of money or has recovered a personal injury settlement.
  • An elderly person who cannot manage their affairs anymore due to an accident or injury.
  • A person who cannot manage their own affairs due to a developmental disability.

The reasons for a guardianship vary, but the effect is the same: the court needs to appoint someone to properly managed the incapacitated person’s property and affairs.

When only a person’s money and financial affairs need to be managed, a conservator is enough. When a person reaches the point where they can no longer make personal care decisions, such as medical care or entering a nursing home, the court may appoint a guardian who is given the authority to make those decisions. Appointing a conservator or guardian for a loved one is a major step, and the law protects the allegedly incapacitated person in a several ways. These include:

  • The person can retain their own attorney if they are capable of doing so.
  • The court typically appoints an attorney, referred to as a guardian ad litem, to make an independent report as to whether the allegedly incapacitated person really needs protection.
  • Expert testimony is usually required to establish whether there is a medical or mental reason why the person needs protection.

The recent trade has been making conservatorships and guardianships as limited as possible, giving the protected person as much freedom to handle their own affairs as possible. The law even provides that the appointment of a conservator is not the same as saying a person is incapacitated or incapable of making their own decisions.

Even after a conservator or guardian is appointed, problems may arise. The conservator or guardian may take unfair advantage of the incapacitated person – usually financially – requiring that they be removed and made to repay misappropriated or wasted funds. Family members may bring a petition before the court to ask that the conservator or guardian be investigated and made to account for their behavior as guardian or conservator.  On the other side of the coin, a lawyer may be retained to defend the conservator or guardian against an unjustified accusation by other family members.


As in virtually all legal matters, it is helpful to get legal advice early on in probate litigation situations before they become unmanageable. If one of the issues above resonates with a probate issue you are experiencing, it is in your best interest to obtain a well-versed Michigan probate attorney immediately.  Arrange your no-obligation consultation with the Michigan probate lawyers at Seikaly, Stewart & Bennett by calling  248-785-0102 or filling out our contact form.

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