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### STATE OF MICHIGAN

COURT OF APPEALS

In re Estate of DONNELLY.

JAMIE L. PETERSON,

Appellant, UNPUBLISHED April 13, 2017

v No. 331420
Kalkaska Probate Court RUTHANN DONNELLY, LC No. 15-009656-DA

Appellee.

Before: R ONAYANE K RAUSE , P.J., and K. F. K ELLY and G ADOLA , JJ.

P ER C URIAM

.

Appellant appeals from an order of the probate court denying a petition for formal proceedings. Appellant argues that the probate court erred whe n it concluded he did not have standing to file a petition under the Estates and Protected Ind ividuals Code, MCL 700.1101 et

seq . We vacate the trial court’s ruling and remand for further pr oceedings.

This action was initiated before the probate court by a petiti on for formal proceedings with regard to the estate of Brian Donnelly. The petition iden tifies the petitioner as “Gretchen Helfrich as attorney for Jamie Lee Peterson.” The petition fur ther identifies the petitioner as a “creditor” of the estate and states that “Litigation against th e Estate is pending.” Appellee is the widow of Brian Donnelly and was de signated in the petition as t he heir of the estate.

At the hearing on the petition before the probate court, couns el for petitioner explained that petitioner had filed an act ion against the estate in feder al court and petitioner was seeking to establish the estate so that petitioner could serve notice of t he federal action on the estate, and presumably thereafter proceed aga inst the estate. At the concl usion of the hearing, the probate court denied the petition for formal proceedings for the reason that petitioner had failed to present evidence of being a creditor of the estate, and therefo re lacked standing to petition the probate court as a creditor. T he probate court reasoned:

[U]ntil you’re able to establish that you’re a valid creditor t hat can petition to open up an estate, you really don’t have standing to be here to day . . . . You have to have a valid basis to do that and a legitimate interest in t he estate. And if you-2- don’t have a case that’s been decided . . . and there’s some ki nd of a judgment there that needs to be pa id, you have no standing here.

Generally, we review appeals from a probate court decision on the record, not de novo. In re Temple Marital Trust , 278 Mich App 122, 128; 748 NW2d 265 (2008). Nonetheless, we review de novo questions of stat utory interpretation and standi ng. In re Casey Estate , 306 Mich App 252, 256; 856 NW2d 556 (2014). In general, “to have standi ng, a party must have a legally protected interest that is in jeopardy of being adversely affec ted.” In re Foster , 226 Mich App 348, 358; 573 NW2d 324 (1998). The party bringing the claim mu st have “some real interest in the cause of action, or a legal or equitable right, title, or i nterest in the subject matter of the controversy.” Bowie v Arder , 441 Mich 23, 42; 490 NW2d 568 (1992) ( citation omitted).

MCL 700.3401(1) provides that “[a]n interested person or a per son that has a right or
cause of action that cannot be enforced without administration may commence a formal testacy proceeding” by filing a petition in accordance with that sectio n. An “interested person” is defined by MCL 700.1105(c) as follows:

“Interested person” or “person interested in an estate” includ es, but is not limited to, the incumbent fiduciary; an heir, devisee, child, s pouse, creditor, and beneficiary and any other person that has a property right in o r claim against a trust estate or the estate of a decedent, ward, or protected in dividual; a person that has priority for appointment as personal representative; and a fiduciary representing an interested pers on. Identification of intereste d persons may vary from time to time and shall be determined according to the part icular purposes of, and matter involved in, a proceeding, and by the supreme court rules.

In the petition before the probate court, the petitioner sough t a formal testacy proceeding as a “creditor.” As the probate court found, the record is devo id of evidence that would support that claim. However, it is unclear from the record whether app ellant could have demonstrated that he was nonetheless an “interested person” or a “person tha t has a right or cause of action” within the meaning of MCL 700.3401(1) and MCL 700.1105(c). Pet itioner contended before the probate court that he had filed an action against the estate in federal court. The record of the hearing reflects that petitioner offered to give the probate co urt a copy of the complaint filed in the alleged federal action, but the probate court declined to a ccept it. Had petitioner been permitted to pursue this argument, petitioner may have been suc cessful in demonstrating a “claim against . . . the estate of a decedent” or that he was “ a person that has a right or cause of
action that cannot be enforced without administration . . . .” We therefore vacate the trial court’s ruling and remand this matter to t he probate court for further proceedings to determine whether-3- appellant, though not a creditor, is otherwise entitled to a fo rmal testacy proceeding against the estate of Brian Donnelly.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ Kirsten Frank Kelly
/s/ Michael F. Gadola