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STATE OF MICHIGAN 

COURT OF APPEALS 

In re Estate of DOUGLAS W. BALTRIP. 

KELLY COSBY, Personal Representative, 

 Petitioner-Appellee, 

UNPUBLISHED 

January 26, 2016 

v No. 324154 

Monroe Probate Court 

BRANDI BALTRIP, Personal Representative, LC No. 2011-000709-DE 

 Respondent-Appellant. 

Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ. 

PER CURIAM. 

 Respondent, Brandi Baltrip, the personal representative of the estate of Douglas W. 

Baltrip (“decedent”), appeals as of right a probate court order appointing petitioner, Kelly Cosby, 

the special personal representative of the estate. We affirm. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 On November 17, 2011, decedent, who was 43 years old, was killed in an automobile 

accident allegedly involving alcohol. Most relevant to this appeal, he was survived by his 

second wife, the respondent; the petitioner, his sister; his minor children, Colton and Emma 

Baltrip; and Kellie Skidmore Baltrip, his first wife and the mother of his children.1

 

 In December 2011, respondent was appointed personal representative of decedent’s 

estate. Several months later, decedent’s first wife (Kellie) filed an emergency petition on behalf 

of Colton and Emma for the removal of respondent as personal representative, for the 

appointment of a special personal representative, and for other relief based on a series of claims 

not relevant to this appeal. In October 2012, respondent and Kellie, as the children’s 

conservator, entered into a settlement agreement arising from Kellie’s petition. Most relevant to 

 

1

 In the interest of clarity, we will refer to respondent Brandi Baltrip as “respondent,” petitioner 

Kelly Cosby as “petitioner,” and the rest of the individuals by their first names in this opinion. 
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this appeal, the parties, in a writing, agreed that after the conditions under the agreement were 

satisfied, neither party would raise any additional allegations against the other, and the minor 

children—and Kellie as their conservator—would no longer have any interest in, or claim 

against, the estate or respondent as personal representative of the estate. 

 In June 2014, petitioner filed a petition for the appointment of a special personal 

representative and/or removal respondent as personal representative of the estate. This is the 

petition at issue in this appeal. Petitioner asserted that she was an interested person with regard 

to decedent’s estate and sought appointment as a special personal representative in order to 

pursue a wrongful death action arising from decedent’s death, which would likely name 

respondent as a defendant based on allegations concerning respondent’s involvement in the 

accident that caused decedent’s death. She also requested that the probate court remove 

respondent as personal representative and grant any other relief appropriate under the 

circumstances.2

 Respondent subsequently opposed petitioner’s petition on a variety of grounds, including 

that (1) petitioner did not have an interest in the estate and, therefore, lacked standing to bring 

the petition, and (2) the petition was barred by the doctrine of laches because petitioner was 

previously aware of Kellie’s investigation of a potential wrongful death claim in 2012, which 

was found to be meritless, and the role of a potential wrongful death claim in settlement 

negotiations and the resulting settlement agreement between respondent and Kellie in 2012. 

 After holding two hearings on the petition and providing an opportunity for the parties to 

provide supplemental briefs, the probate court found that petitioner was an interested person with 

regard to a wrongful death claim. The court also concluded that, under the circumstances of this 

case, respondent was unable to appropriately administer decedent’s estate in connection with any 

potential tort action that the estate may assert against her. Accordingly, it held, pursuant to MCL 

700.3614(b), that appointment of a special personal representative was necessary to ensure the 

proper administration of a potential wrongful death claim. However, the probate court denied 

the petition to appoint either petitioner or Kellie as a special personal representative of the estate. 

Instead, “[t]he [c]ourt, on its own motion, to ensure impartiality and no real or perceived basis, 

appoint[ed] retired circuit Judge Michael W. LaBeau as a [s]pecial [p]ersonal [r]epresentative of 

the [e]state,” for the limited purpose of investigating and possibly pursuing a wrongful death 

action. 

 

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 On August 13, 2014, Kellie filed a petition seeking the appointment of either herself or 

petitioner as special personal representative of decedent’s estate in order to pursue a wrongful 

death action. In a supplemental brief, petitioner stated that she bought her petition jointly with 

Kellie for the appointment of a special personal representative pursuant to MCL 700.3614, as 

they both requested that the probate court appoint one or both of them as special personal 

representative of the estate for the purpose of investigating and possibly pursuing a wrongful 

death action against respondent and any other tortfeasors. However, the probate court denied 

Kellie’s petition, and it is not at issue in this appeal. 
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 At a September 26, 2014 status conference, the court informed the parties that retired 

Judge LaBeau declined appointment as special personal representative. The court then 

reconsidered its previous decision and appointed petitioner as a special personal representative 

for the purpose of pursuing a wrongful death action. 

II. STANDARDS OF REVIEW 

We review de novo, as a question of law, the question of whether a party has standing to 

assert a claim. In re Gerald L Pollack Trust, 309 Mich App 125, 154; 867 NW2d 884 (2015). 

Likewise, “[i]ssues of statutory construction present questions of law that this Court reviews de 

novo,” In re Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008) (citations 

omitted), and we generally review de novo a court’s decision regarding whether to apply an 

equitable doctrine, including laches, In re Filibeck Estate, 305 Mich App 550, 553; 853 NW2d 

448 (2014); Knight v Northpointe Bank, 300 Mich App 109, 113; 832 NW2d 439 (2013). 

However, “appeals from a probate court decision are on the record, not de novo.” In re 

Temple Marital Trust, 278 Mich App at 128, 141-142, citing MCL 700.1305; MCL 600.866(1); 

MCR 5.802(B)(1). We review the probate court’s factual findings for clear error and its 

dispositional rulings for an abuse of discretion. Id. at 128. A “court abuses its discretion when it 

chooses an outcome outside the range of reasonable and principled outcomes.” Id. 

III. STANDING TO FILE A PETITION UNDER MCL 700.3614(b) 

 Respondent first argues that petitioner does not qualify as an “interested person” who has 

standing to file a petition for the appointment of a special personal representative under MCL 

700.3614(b) because petitioner is not entitled to any proceeds from a wrongful death action and, 

as a result, does not “ha[ve] a property right in or claim against . . . the estate of [the] decedent.” 

MCL 700.1105(c). Respondent’s claim that petitioner is not entitled to any wrongful death 

proceeds is based on the fact that petitioner is not entitled to any portion of decedent’s estate 

under the laws of intestate succession, as decedent was survived by his wife and children. See 

MCL 700.2103. Respondent’s argument has no merit. 

This Court reiterated the following principles of statutory interpretation in Book-Gilbert v 

Greenleaf, 302 Mich App 538, 541-542; 840 NW2d 743 (2013): 

The judiciary’s objective when interpreting a statute is to discern and give effect 

to the intent of the Legislature. First, the court examines the most reliable 

evidence of the Legislature’s intent, the language of the statute itself. When 

construing statutory language, [the court] must read the statute as a whole and in 

its grammatical context, giving each and every word its plain and ordinary 

meaning unless otherwise defined. Effect must be given to every word, phrase, 

and clause in a statute, and the court must avoid a construction that would render 

part of the statute surplusage or nugatory. If the language of a statute is clear and 

unambiguous, the statute must be enforced as written and no further judicial 

construction is permitted. Generally, when language is included in one section of 

a statute but omitted from another section, it is presumed that the drafters acted 

intentionally and purposely in their inclusion or exclusion. The courts may not 
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read into the statute a requirement that the Legislature has seen fit to omit. When 

the Legislature fails to address a concern in the statute with a specific provision, 

the courts cannot insert a provision simply because it would have been wise of the 

Legislature to do so to effect the statute’s purpose. Statutes that address the same 

subject matter or share a common purpose are in pari materia and must be read 

collectively as one law, even when there is no reference to one another. . . . 

[Quotation marks and citations omitted; alteration in original.] 

The Estates and Protected Individuals Code (“EPIC”), MCL 700.1101 et seq., governs 

the administration of estates in Michigan and applies to the appointment of a special personal 

representative. See MCL 700.3614. A probate court’s decision to appoint a personal 

representative is discretionary. In re Kramek Estate, 268 Mich App 565, 575; 710 NW2d 753 

(2005). In relevant part, MCL 700.3614 provides: 

 A special personal representative may be appointed in any of the following 

circumstances: 

* * * 

 (b) By the court on its own motion or in a formal proceeding by court order on 

the petition of an interested person if in either case, after notice and hearing, the 

court finds that the appointment is necessary to preserve the estate or to secure its 

proper administration, including its administration in circumstances in which a 

general personal representative cannot or should not act. If it appears to the court 

that an emergency exists, the court may order the appointment without notice. 

[MCL 700.3614(b).] 

“Interested person” is defined, for purposes of the EPIC, as follows: 

(c) “Interested person” or “person interested in an estate” includes, but is not 

limited to, the incumbent fiduciary; an heir, devisee, child, spouse, creditor, and 

beneficiary and any other person that has a property right in or claim against a 

trust estate or the estate of a decedent, ward, or protected individual; a person that 

has priority for appointment as personal representative; and a fiduciary 

representing an interested person. Identification of interested persons may vary 

from time to time and shall be determined according to the particular purposes of, 

and matter involved in, a proceeding, and by the supreme court rules. [MCL 

700.1105(c).] 

As an initial matter, it is significant to note that respondent’s argument regarding 

petitioner’s standing is inconsequential, especially given that respondent herself claims in her 

brief on appeal that the probate court appointed petitioner as special personal representative on 

its own motion, not in response to the petition filed by petitioner. While the record reveals that 

the probate court appointed petitioner as a special personal representative upon reconsideration 

of its previous denial of petitioner’s petition, not on its own motion, the probate court was, in 

fact, statutorily authorized to appoint a special personal representative on its own motion if it 

concluded that such an appointment was necessary. MCL 700.3614(b). 
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Nevertheless, we conclude that petitioner has standing under MCL 700.3614(b) as an 

interested person to file the petition at issue. The wrongful death act, MCL 600.2922, provides, 

in pertinent part, that the following individuals may be entitled to proceeds from a wrongful 

death action: 

(3) Subject to . . . MCL 700.2802 to 700.2805, the person or persons who may be 

entitled to damages under this section shall be limited to any of the following who 

suffer damages and survive the deceased: 

(a) The deceased’s spouse, children, descendants, parents, grandparents, brothers 

and sisters, and, if none of these persons survive the deceased, then those persons 

to whom the estate of the deceased would pass under the laws of intestate 

succession determined as of the date of death of the deceased. [MCL 

600.2922(3)(a).] 

 In support of her position, respondent relies on In re Renaud Estate, 202 Mich App 588, 

589; 509 NW2d 858 (1993), in which this Court concluded that “it was [not] the intent of the 

Legislature to create a class of recipients under subsection 3(a) of the wrongful death act that 

would not also be entitled to take under our laws of intestacy.” Id. 589-591. Likewise, this 

Court reiterated at the end of its opinion that “[i]t would not be proper to define any of the terms 

in § 2922(3)(a) of the wrongful death act without taking into account the laws of intestate 

succession.” Id. at 591. 

 Contrary to respondent’s claims, In re Renaud only dictates that the laws of intestate 

succession shall be used to determine whether an individual falls under the categories delineated 

under MCL 600.2922(3). The Court’s conclusion and reasoning does not require that an 

individual must actually be entitled to inherit a portion of the estate under the laws of intestacy in 

order to be entitled to wrongful death proceeds as a spouse, child, descendant, parent, 

grandparent, brother, or sister. See In re Renaud Estate, 202 Mich App at 589-591; see also 

Claim of Turner, 209 Mich App 66, 69; 530 NW2d 487 (1995), rev’d on other grounds 454 Mich 

863 (1997). 

Moreover, respondent’s argument is contrary to the plain language of MCL 

600.2922(3)(a). See Book-Gilbert, 302 Mich App at 541-542. Subsection (3)(a) first delineates 

several categories of individuals who may be entitled to wrongful death proceeds without 

qualification. It subsequently states that individuals entitled to damages under the wrongful 

death act then should be determined by ascertaining to whom the estate actually passes under the 

laws of intestate succession only if none of the aforementioned categories of individuals survive 

the deceased. Given this differentiation, it appears that it is only necessary to determine who 

actually takes under the laws of intestate succession if “[t]he deceased’s spouse, children, 

descendants, parents, grandparents, brothers and sisters” all predecease the decedent. 

 This conclusion is further confirmed by the language of MCL 600.2922(6), which 

governs the distribution of proceeds from a wrongful death action, and MCL 700.3924, which 

applies to the distribution of proceeds following the settlement of a wrongful death claim. 

Neither statute provides that individuals actually entitled to a portion of the estate under the laws 

of intestate succession are the only individuals who may be entitled to proceeds from a wrongful 
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death action. Instead, MCL 600.2922(6)(d) and MCL 700.3924(2)(d) both provide that a trial 

court shall enter an order distributing the proceeds to (1) the individuals designated under MCL 

600.2922(3)(a) who suffered damages in an amount that is fair and equitable in light of the 

damages sustained by each person and (2) to the estate in an amount that is fair and equitable 

based on the amount of damages sustained by the estate. See also McTaggart v Lindsey, 202 

Mich App 612, 615; 509 NW2d 881 (1993) (stating same). 

Therefore, as sister of the decedent, there still was a possibility that petitioner could be 

entitled to damages under MCL 600.2922(3)(a). As such, petitioner was an “interested person,” 

as defined under MCL 700.1105(c), and had standing to file a petition for the appointment of a 

special personal representative under MCL 700.3614(b) for the purpose of pursuing a wrongful 

death action. 

Further, even if we assume, arguendo, that petitioner did not have standing to bring a 

petition for the appointment of a special personal representative under MCL 700.3614(b) 

because she was not entitled to a portion of the estate under the laws of intestate succession, see 

MCL 700.2101; MCL 700.2103, the purported error is harmless under the circumstances of this 

case. See MCR 2.613(A); Ypsilanti Fire Marshal v Kircher, 273 Mich App 496, 529; 730 

NW2d 481 (2007) (“[A]ny error in this respect was not decisive to the outcome, and we will not 

reverse on the basis of harmless error.”), lv gtd in part 480 Mich 910 (2007). The probate court 

specifically stated that it was reconsidering its previous decision on its own motion in light of the 

conclusions of retired Judge Labeau. Given the court’s statements, it is apparent that it believed 

that the appointment of a special personal representative was necessary and in the best interests 

of the estate. As such, the probate court’s act of reconsidering its previous decision on 

petitioner’s petition was, in essence, equivalent to appointing a special personal representative on 

its own motion, as permitted under MCL 700.3614(b). 

IV. DOCTRINE OF LACHES 

 Next, respondent argues that the petition should have been barred by the doctrine of 

laches. We disagree. 

 Even if we accept, for the sake of argument, respondent’s claims regarding petitioner’s 

knowledge of a potential wrongful death claim in 2012, and the role of the potential wrongful 

death claim in the negotiations between respondent and Kellie with regard to the 2012 settlement 

agreement, respondent has failed to establish that the doctrine of laches bars the petition in this 

case. 

 The doctrine of laches only is “applicable in cases in which there is an unexcused or 

unexplained delay in commencing an action and a corresponding change of material condition 

that results in prejudice to a party.” Pub Health Dep’t v Rivergate Manor, 452 Mich 495, 507; 

550 NW2d 515 (1996); see also Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App 429, 457; 

761 NW2d 846 (2008) (“For laches to apply, inexcusable delay in bringing suit must have 

resulted in prejudice.”). Accordingly, the primary focus of laches is “the effect of delay.” 

Lothian v City of Detroit, 414 Mich 160, 168; 324 NW2d 9 (1982) (quotation marks and citation 

omitted). “As a general rule, [w]here the situation of neither party has changed materially, and 

the delay of one has not put the other in a worse condition, the defense of laches cannot * * * be 
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recognized.” Peabody v DiMeglio, 306 Mich App 397, 408; 856 NW2d 245 (2014) (quotation 

marks and citation omitted; alterations in original). 

 On appeal, respondent identifies two sources of prejudice arising from petitioner’s delay 

in filing the petition: (1) “after three years of being open, continued administration [of the estate] 

is now required until resolution of the wrongful death lawsuit,” and (2) “[respondent] wants 

nothing more than to close this chapter of her life and move on after the tragedy of losing her 

husband and undertaking the daunting task of administering his extremely complicated estate, 

and [petitioner’s] petition prevents her from doing so.” 

 Respondent’s assertion of prejudice based on her own desire to move on with her life 

following the loss of her husband conflates respondent’s position in the instant case. Respondent 

is not participating in this appeal in an individual capacity; she is participating as the personal 

representative of decedent’s estate, meaning that her role in this case is to represent the best 

interests of the estate, not her own interests. See MCL 700.1212; MCL 700.3703(1); 

McTaggart, 202 Mich App at 617 (“The personal representative must use his authority in the 

best interest of the estate and in the interests of the parties.”). Additionally, respondent, as 

personal representative, was granted the “chose of action” for a wrongful death claim under 

MCL 600.2922(2). In re Haque Estate, 237 Mich App 295, 309; 602 NW2d 622 (1999). Given 

her duty to represent the interests of the estate, her personal desire to close the estate and 

conclude this chapter of her life is not sufficient to demonstrate prejudice to the estate as a result 

of petitioner’s delay. See Rivergate Manor, 452 Mich at 507. 

 Similarly, respondent’s assertion of prejudice based on continued administration of the 

estate is misplaced and reflects a misguided understanding of the interests of the estate. Under 

Michigan law, the right of action for the wrongful death of a decedent constitutes an asset of the 

decedent’s estate. Grand Trunk W R Co v Kaplansky, 270 Mich 135, 151; 258 NW 423 (1935); 

Findlay v Chicago & G T R Co, 106 Mich 700, 702; 64 NW 732 (1895). See also In re Haque 

Estate, 237 Mich App at 303 (holding “that a wrongful death cause of action constitutes 

‘property of the decedent’ such that [the] decedent could be considered to have had an ‘estate’ . . 

. that required administration”); In re Brown, 229 Mich App 496, 498; 582 NW2d 530 (1998) 

(stating that “a possible [wrongful death action] arising from the accident constituted the estate’s 

principal asset”); In re McDivitt Estate, 169 Mich App 435, 437; 425 NW2d 575 (1988). 

Accordingly, pursuing a viable wrongful death action is in the estate’s interest, as it is a means 

by which the estate’s assets may be increased. See In re Haque Estate, 237 Mich App at 309 

(“[T]he wrongful death act specifically provides that wrongful death proceeds may include 

recovery for expenses for which a decedent’s estate is liable, including medical, hospital, funeral, 

and burial expenses. MCL 600.2922(6)[.] . . . Further, the estate is eligible to receive damages 

for a decedent’s conscious pain and suffering before death, thus increasing the value of the 

estate. MCL 600.2922(6)[.] . . .”). Cf. In re McDivitt Estate, 169 Mich App at 440 (“In this 

case, the mediation sanctions assessed against the estate in the wrongful death action resulted 

from litigation that was undertaken to benefit the estate by increasing its assets.”). 

As such, it is not logical to assert prejudice on the basis of continued administration of 

the estate when the reason for the continued administration is the pursuit of an asset of the estate, 

i.e., a wrongful death claim which has the potential of increasing the value of the estate. 

Furthermore, there is no indication that the delay caused “a corresponding change of material 
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condition that result[ed] in prejudice to” the estate, as continued administration is, by definition, 

an extension of administration that already has been ongoing. See Rivergate Manor, 452 Mich at 

507 (emphasis added). 

 Therefore, given respondent’s failure to demonstrate the requisite prejudice, we reject 

respondent’s argument that petitioner’s petition is barred by the doctrine of laches. 

V. FAILURE TO PROVIDE NOTICE AND A HEARING PRIOR TO APPOINTMENT 

 Respondent next argues that the probate court abused its discretion when it appointed 

petitioner as a special personal representative because it failed to provide notice and a hearing 

prior to the appointment, as required under MCL 700.3614(b). We disagree. 

A. STANDARD OF REVIEW 

Because respondent did not assert that she did not receive notice or a hearing in the 

probate court, this issue is unpreserved. See Detroit Leasing Co v Detroit, 269 Mich App 233, 

237; 713 NW2d 269 (2005). We review unpreserved issues for plain error. Demski v Petlick, 

309 Mich App 404, 426-427; ___ NW2d ____ (2015). “Plain error occurs at the trial court level 

if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it 

affected the outcome of the lower court proceedings.” Duray Dev, LLC v Perrin, 288 Mich App 

143, 150; 792 NW2d 749 (2010). 

B. ANALYSIS 

MCL 700.3614(b) requires that unless an emergency exists, a special personal 

representative may be appointed “[b]y the court on its own motion or in a formal proceeding by 

court order on the petition of an interested person” only after notice and a hearing are provided. 

Respondent characterizes the probate court’s appointment of petitioner as an action taken “[b]y 

the court on its own motion” under MCL 700.3614(b). However, the probate court expressly 

stated at the September 26, 2014 hearing and in its September 26, 2014 order that it was 

reconsidering, on its own motion, its September 18, 2014 opinion and order, under which it 

denied petitioner’s petition for the appointment of a special personal representative for the 

purpose of pursuing a wrongful death action. Accordingly, given the probate court’s statements 

on the record and corresponding order, it is apparent that its ultimate decision resulted from 

petitioner’s petition and was not on its own motion under MCL 700.3614(b). 

While this distinction does not affect whether notice and a hearing are required prior to 

the appointment of a special personal representative under MCL 700.3614(b), it is clear, given 

the procedural posture of the lower court proceedings, that the notice and hearing requirements 

were fulfilled prior to the appointment at issue, as notice and multiple hearings were provided 

with regard to petitioner’s petition. Likewise, respondent acknowledges that a hearing on the 

petition was held on July 23, 2014, and oral arguments regarding the petition were heard on 

September 4, 2014. Respondent also recognizes that she raised her concerns regarding 

petitioner’s appointment as a special personal representative in her filings in response to the 

petition, at the hearings on the petition, and at the September 26, 2014 status conference. She 

does not claim a lack of notice with regard to those hearings, and the record confirms that both 

she and her attorneys were present at all of the hearings. 
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Yet, respondent claims that she was not given an opportunity to present evidence to 

corroborate her allegation that petitioner was discharged by respondent, in her capacity as 

personal representative, for misappropriating corporate funds during petitioner’s management of 

one of decedent’s businesses. However, respondent had ample opportunity to present such 

evidence in her initial answer and supplemental response to petitioner’s petition as well as at the 

hearings before the probate court on the petition, and she did not do so. 

Therefore, respondent has failed to establish a plain error affecting her substantial rights 

as to her claims regarding the lack of notice and a hearing. See Duray Dev, LLC v Perrin, 288 

Mich App at 150. 

VI. FAILURE TO DETERMINE PETITIONER’S SUITABILITY 

PRIOR TO APPOINTMENT 

 Finally, respondent contends that the probate court appointed petitioner as special 

personal representative without a prior finding that petitioner was a suitable appointee. We 

disagree. 

Contrary to respondent’s claim, the probate court addressed—albeit indirectly—

respondent’s claim that petitioner was not suitable to serve as a special personal representative in 

light of respondent’s allegations. In particular, it acknowledged respondent’s claims regarding 

petitioner’s strained relationship with respondent, which was related to respondent’s discharge of 

petitioner following her alleged misappropriation of funds. However, the court ultimately 

concluded that its decision to appoint petitioner as a special personal representative was in the 

best interest of the estate. 

Nonetheless, even if the court arguably failed to specifically determine whether petitioner 

was a suitable special personal representative, respondent has failed to establish that reversal of 

the probate court’s decision is warranted. 

Respondent relies on MCL 700.3203(2) as the basis of her ability to object to petitioner’s 

appointment. MCL 700.3203(2) states, in relevant part, “An objection to the appointment of a 

personal representative may be made only in a formal proceeding.” The party objecting to the 

appointment of a particular individual as a personal representative carries the burden establishing 

the unsuitability of the individual. In re Estate of Hutton, 191 Mich App 292, 294; 477 NW2d 

144 (1991) (considering an objection to the appointment of a personal representative under a 

similar provision of Michigan’s former probate code), citing In re Abramovitz’ Estate, 278 Mich 

271, 274; 270 NW 294 (1936) (establishing the burden of proof in light of statutory provisions of 

priority similar to MCL 700.3203). The Legislature has not identified the grounds that would 

support an objection to the appointment of a personal representative, but this Court has 

“conclude[d] that any ground which would justify the removal of a personal representative under 

MCL 700.3611(2) is equally sufficient to support an interested person’s objection to the initial 

appointment of a personal representative under MCL 700.3203(2).” In re Estate of Stan, 301 

Mich App 435, 446-447; 839 NW2d 498 (2013). For example, grounds justifying removal 

include, inter alia, “that [r]emoval is in the best interests of the estate, MCL 700.3611(2)(a), that 

the personal representative has [m]ismanaged the estate, MCL 700.3611(2)(c)(iii), and that the 

personal representative has [f]ailed to perform a duty pertaining to the office, MCL 
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700.3611(2)(c)(iv).” In re Estate of Stan, 301 Mich App at 446 (quotation marks omitted; 

alterations in original). 

However, MCL 700.3615, not MCL 700.3203, governs who may be appointed as a 

special personal representative.3

 Nevertheless, even if we assume, without deciding, that 

respondent was able to raise an objection as provided under MCL 700.3203(2), respondent is not 

entitled to relief. 

 If the probate court concluded that petitioner had misappropriated corporate funds with 

regard to one of decedent’s business, appointment of petitioner as a special personal 

representative arguably would have been contrary to the best interests of the estate. See MCL 

700.3611(2); In re Estate of Stan, 301 Mich App at 446. Respondent argues that the probate 

court’s failure to provide notice and a hearing on the matter prior to the appointment prevented 

her from presenting evidence relevant to the alleged misappropriation and whether petitioner was 

a suitable special personal representative. However, as explained supra, the court did provide 

notice and multiple hearings. Despite the fact that respondent was present and represented by 

counsel at two hearings on petitioner’s petition, and actually submitted two filings to the court in 

response to petitioner’s petition, respondent never presented any evidence regarding petitioner’s 

purported unsuitability, never requested an additional hearing to offer evidence in support of her 

allegation concerning the misappropriation of corporate funds, nor ever filed a formal objection 

to petitioner’s appointment. Cf. In re Estate of Stan, 301 Mich App at 439-440, 445-448. 

Further, it was not until the probate court issued its decision to appoint petitioner as 

special personal representative on the record at the status conference that respondent argued that 

petitioner’s alleged misappropriation of funds constituted a basis for finding that petitioner was 

unsuitable to serve as a fiduciary for the estate. Her previous references to the alleged 

misappropriation of funds were offered in support her argument that petitioner was bringing the 

petition as a result of a personal vendetta against respondent due to respondent’s discharge of 

petitioner. At that time, she did not request an additional opportunity to present evidence in 

support of her allegations, nor did she move for reconsideration of the probate court’s decision. 

Accordingly, respondent fails to carry her burden of establishing the basis of her 

objection to petitioner’s appointment as a special personal representative. See In re Abramovitz’ 

 

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 The Reporter’s Comments to the EPIC confirms this understanding of the statutory scheme. 

“While not binding, the Reporter’s Comments to the EPIC aid in the interpretation of a statute or 

rule.” In re Conservatorship of Bittner, ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket 

No. 320688); slip op at 8 (quotation marks and citation omitted). The commentary to MCL 

700.3203 provides, in relevant part: 

Sections 3203 and 3204 operate together and must be read together in many 

instances. They state the priorities for appointment as general personal 

representative. They, [sic] do not apply, however, to the appointment of a special 

personal representative under MCL 700.3614. [Estates & Protected Individuals 

Code with Reporters’ Commentary (ICLE, 2015 ed), p 82.] 
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Estate, 278 Mich at 274; In re Estate of Hutton, 191 Mich App at 294. Therefore, even if the 

probate court arguably failed to consider petitioner’s suitability prior to her appointment, the 

court’s failure to do so was harmless given the lack of evidence in the record which would 

support a finding that petitioner was unsuitable to serve as a special personal representative. See 

MCR 2.613(A); Ypsilanti Fire Marshal, 273 Mich App at 529.

VII. CONCLUSION 

Respondent has failed to establish that reversal of the probate court’s order appointing 

petitioner as a special personal representative is appropriate in this case. 

Affirmed. 

/s/ Michael J. Riordan 

/s/ Kathleen Jansen 

/s/ Karen M. Fort Hood