If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In re ESTATE OF GLADYS SCHUHMACHER.

DAVID SCHUHMACHER, YVONNE RANDALL 

AND GARY SCHUHMACHER,

Appellees,

UNPUBLISHED

October 13, 2022

V No. 357958

Roscommon Probate Court

COLLEEN WILLIAMS, LC No. 13-054465-DE

Appellant.

Before: MARKEY, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

Appellant Colleen Williams (Colleen), appeals by right the June 1, 2021 order of the 

probate court that, in part, granted the motion of appellee David Schuhmacher (David), personal 

representative for the estate of his mother, Gladys Schuhmacher (Gladys), to approve the sale of 

Gladys’s home in Houghton Lake Heights (the Houghton Lake Heights property).

1

 The probate 

court had previously approved the sale of estate property in West Branch (the West Branch 

property) to Walter Schuhmacher (Walter). Gladys’s other surviving offspring include intervening

 

1

Judge Douglas C. Dosson presided over this case in the probate court from March 26, 2013 until 

his apparent retirement in 2015. Judge Eugene R. Turkelson presided at an August 24, 2015 

motion hearing regarding the sale of certain property located in West Branch. Judge Nancy A. 

Kida presided at the continuation of that hearing on November 23, 2015 and at a February 8, 2016, 

motion hearing regarding the requested removal of the personal representative. Judge Mark D. 

Jernigan presided over the remainder of the case, including hearings regarding the sale of the 

Houghton Lake Heights property.
-2-

appellees Yvonne Randell (Yvonne) and Gary Schuhmacher (Gary).

2

 We conclude that the 

probate court erred by ordering the estate to pay Walter $10,000 for maintaining the Houghton 

Lake Heights property, because it was contrary to an earlier agreement, and that the probate court

further erred by not accounting for the distribution of proceeds from oil leases that were listed as 

estate property. On remand, the probate court should hold a hearing to determine these matters, 

as well as the status of the distribution of the proceeds from the sale of the Houghton Lake Heights 

property. We otherwise affirm the probate court’s rulings, and therefore affirm in part, vacate in 

part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Gladys died on May 6, 2010 and was survived by five children, in order of age (oldest to 

youngest): David, Gary, Yvonne, Colleen, and Walter. In 2013, Yvonne was appointed personal 

representative of the Gladys’s estate after requesting appointment and alleging that Gladys had 

died intestate. Walter and Colleen moved the probate court to remove Yvonne as personal 

representative, alleging that Gladys had left a will that nominated David as her personal 

representative. After a hearing, the probate court granted the motion, appointed David as personal 

representative, froze the assets of the estate, and ordered David to provide an inventory of the 

estate.

Gladys’s will named David as the estate’s personal representative and directed that her 

property be distributed to her children, except that Colleen was “not to share in any of the personal 

possessions of the testator, as she has already been given everything that she wanted.” An 

inventory of the estate listed the Houghton Lake Heights property valued at $40,000, the West 

Branch property with an unknown value, an oil lease worth $7,150, a $293 bank account, a $1,000 

vehicle, and $3,582 in personal property (total estate value of $52.053).

Yvonne and Gary moved for a distribution of Gladys’s property and sought to have Colleen 

return personal property of Gladys that she had taken, because the will excluded her from receiving 

personal property. David responded by providing a codicil to Gladys’s will that included Colleen 

in the distribution of property. The codicil listed all five surviving children as recipients of 

Gladys’s property, and also referenced “any money regarding the lease (rent) agreement” in 

relation to the West Branch property.

Yvonne and Gary objected to the admission of the codicil, asserting that Yvonne had hired 

a handwriting expert who had determined that the codicil was forged. They also objected that the 

amended inventory did not include personal property from the West Branch property or many 

other items in Colleen’s possession, including antiques and silver. Walter and Colleen also 

objected to the inventory of the estate’s assets, arguing that that the valuation of the Houghton 

Lake property was below market value.

 

2 This Court granted Yvonne and Gary’s motion to intervene in this appeal. In re Estate of 

Schuhmacher, unpublished order of the Court of Appeals, entered October 25, 2021 (Docket No. 

357958).
-3-

In 2015, the probate court held an evidentiary hearing regarding these contested issues, and 

found that Gladys had sold the West Branch property to Walter under a land contract. The probate 

court found that Walter had agreed to buy the West Branch property for $80,000, with a $5,000 

down payment and $500 monthly payments at 11% yearly interest, but noted that the payment 

amount specified in the contract was insufficient to cover the interest as it accrued, much less 

reduce the principal obligation. The probate court concluded that Walter owed an outstanding 

amount on the land contract. The probate court determined that the fair market value of the West 

Branch property was $83,100, minus the $26,000 remaining on Gladys’s mortgage for the 

property, and that the estate and Walter remained subject to the land contract on which Walter 

owed $103,386. The probate court held that the contested issues regarding personal property on 

the amended inventory that were discussed in evidentiary hearings had been resolved, either by 

stipulation or involuntary dismissal, and that the objection to the codicil had been withdrawn.

In 2015, Yvonne and Gary again moved to remove David as personal representative of the 

estate, asserting, among other things, that David had delayed opening the estate or reading the will 

to the heirs, that he had “endorsed” Walter’s and Colleen’s alleged misleading of the probate court

with misrepresentations and fraudulent documents, that David was depositing the oil lease 

payments into his personal account, and that David and Colleen had assaulted Yvonne. Also in 

2015, David moved the probate court to approve the sale of the West Branch property to Walter, 

with Walter assuming the mortgage payments while waiving all future claims to estate assets.

Yvonne and Gary objected. The probate court granted David’s motion.

At the 2016 hearing on the motion to remove David as personal representative, Gary 

testified that Gladys’s intent had been to divide her property in five equal parts, and that David 

had not acted in accordance with those directions. Gary claimed that David had failed to deposit

into the estate’s account a $7,000 payment (related to the lease of oil rights), causing the funds to 

be returned to the oil company, and had not been forthcoming with the heirs in providing

information about the estate. David testified that he was unable to deposit the oil lease check 

because it was written in December 2021, 18 months before he was appointed as personal 

representative. Gary also alleged that David had titled a vehicle belonging to the estate in his own 

name, and that Gladys had owned several other vehicles that were not accounted for, such as boats, 

a jeep, pickup trucks, and a dump truck. David responded that the inventory, which had been 

approved, listed all known vehicles owned by the estate. Gary also argued that the sale of the West 

Branch property to Walter was inequitable, and that the land contract had been improperly altered, 

but the probate court held that the time for objecting to the sale had passed. The probate court

denied the motion to remove David as personal representative.

In April 2021, David moved the probate court to release the lis pendens (notice of pending 

legal action, see MCL 600.2701) on the Houghton Lake Heights property that Yvonne had 

recorded in 2018, and approve the sale of the property to an unrelated party. In May 2021, Walter 

moved the probate court to enforce its order for David to sell him the West Branch property, and 

also requested reimbursement of expenditures he had incurred to maintain and improve the

property.

At a motion hearing before Judge Jernigan, Walter’s attorney asked the probate court to 

order David to execute a deed conveying the West Branch property to Walter as previously ordered 

by Judge Nancy A. Kita. David’s attorney responded that he was unaware that the deed had not 
-4-

been executed, and promised to transfer the deed to Walter as soon as possible. Yvonne requested 

an adjournment so that she, Gary, and Colleen could seek legal counsel, explaining that they did 

not agree with the sale in light of the appraised value and a question regarding the validity of the 

contract. The probate court ordered that David deed the property to Walter within 30 days. The 

probate court then adjourned the hearing for two weeks to allow Yvonne and Colleen time to 

prepare their objections to the sale.

At the continuation of the motion hearing, the attorneys for Walter and David stated that 

there was agreement to reimburse Walter $10,000 for repairs, utilities, and maintenance that he 

had personally expended on the Houghton Lake Heights property. They also informed the probate 

court that the deed to the West Branch property had been given to Walter, but had not yet been

recorded. The probate court determined that there was a fair market value, arm’s-length offer for 

the Houghton Lake Heights property and, with no other concrete offers in view, ordered the sale 

of that property. The probate court issued an order on June 1, 2021 that the Houghton Lake Heights 

property could be sold and the lis pendens discharged. The probate court further granted $10,000 

of the proceeds of that sale to Walter in satisfaction of all present and future claims against the 

estate, and ordered the balance of the proceeds from the sale to be equally divided among Yvonne, 

Colleen, Gary, and David. The probate court subsequently denied Colleen, Gary, and Yvonne’s 

motion for reconsideration. This appeal followed.

II. STANDARD OF REVIEW

“[A]ppeals from a probate court decision are on the record, not de novo.” In re Temple 

Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). This Court reviews the probate 

court’s factual findings for clear error, and its dispositional rulings for an abuse of discretion. Id. 

This includes the probate court’s decision whether to remove a personal representative. In re 

Duane v Baldwin Trust, 274 Mich App 387, 396-397; 733 NW2d 419 (2007). A probate court 

abuses its discretion when it chooses an outcome outside the range of reasonable and principled 

outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). A finding 

of fact is clearly erroneous where it leaves this Court with the definite and firm conviction that a 

mistake has been made. Jonkers v Summit Twp, 278 Mich App 263, 265; 747 NW2d 901 (2008). 

We review de novo allegations of judicial misconduct. See People v Stevens, 498 Mich 162, 168; 

869 NW2d 233 (2015).

III. SALE OF THE WEST BRANCH PROPERTY

Colleen argues that the probate court erred by approving the sale of the West Branch 

property to Walter. We disagree.

The primary functions of the probate court concerning wills is to determine the testator’s 

intent, and to effectuate that intent. In re Stan Estate, 301 Mich App 435, 442; 839 NW2d 498 

(2013). When there is no patent or latent ambiguity in the language of a will, the plain meaning 

of the terms express the testator’s intent. In re Reisman Estate, 266 Mich App 522, 527; 702 

NW2d 658 (2005). “A court may not construe a clear and unambiguous will in such a way as to 

rewrite it.” Id. (quotation marks, citation, and alteration omitted).
-5-

In this case, Article II of Gladys Schuhmacher’s will provided as follows: “I devise all the 

rest, residue and remainder of my property, . . . all property over which I may have the power to 

appoint or dispose of by my Last Will and Testament to my beloved children.” Article III 

nominated David as the estate’s personal representative, and empowered the representative to 

“contract for the sale of or otherwise treat with all property as in his judgment shall be for the best 

interest of my estate, without the necessity of procuring any license or order from the court having 

jurisdiction of the administration of my estate.” Therefore, in general, the intent expressed by

Gladys’s will was for David to distribute her estate to himself and his siblings.

The inventory of the estate listed the West Branch property as having an unknown value,

because Walter had been living there under a land contract between Gladys and Walter. At the 

2014 hearing regarding the land contract value, David and Walter argued that the value of the land 

contract to the estate was zero because of the payments that had been made. The other heirs argued 

that the value of the contract was unknown because Walter’s payments on it were not recorded, 

and that the payments required by the contract would not even have covered the interest on 

Gladys’s mortgage for that property.

Walter’s documentation of his payments to Gladys were admitted into evidence, as was a 

statement by Glady from a previous deposition that she had sold the West Branch property to 

Walter under a land contract on February 12, 1993, which was never recorded, when Walter’s 

parents still lived there. Walter testified that he moved onto the property in 1998, and had paid for 

the attendant utilities, taxes, and $62,400 in improvements. Walter testified that the terms of the 

land contract included $80,000 total for the property, a down payment of $5,000, monthly 

payments of $500, and 11% yearly interest, and that he typically paid $500 in cash each month. 

He added that he had made some lump-sum payments larger than $500, and, although he recorded 

some of them, he had relied on Gladys to keep track. He admitted that he had been incarcerated 

for a two-year period covering 1995 to 1997 and he did not make payments during that time, and 

stated that his parents lived at the property until 1998.

Walter further testified that, in 2001 or 2002, he paid Gladys’s credit card bills, in addition 

to periodic $500 payments on the land contract. Walter testified that he had paid $77,652 in 

Gladys’s credit card bills, and stated that Gladys had said that those payments would be credited 

as land contract payments. He further stated that from 2010 to 2013 he had paid $16,409 toward

Gladys’s living expenses. Walter opined that he had thus paid the land contract in full, and that 

the value of the property was currently $60,000 to $65,000. Walter testified that Gladys had had 

a mortgage on the West Branch property, on which he had been making the payments for five 

years, and that the remaining balance was $29,000. According to Walter, Gladys told him in 

September 2009 that she wanted to convey the property to him when she felt better.

The probate court concluded that a land contract for the sale of the West Branch property

existed, but that any value left on the contract was an estate asset because a deed was never 

conveyed to Walter. The probate court invited interested parties to submit arguments on the value 

of the land contract. Walter submitted an accounting of payments and cancelled checks purporting 

to demonstrate that he had paid off the land contract, while Colleen, Gary, and Yvonne submitted 

a document which contained calculations that resulted in Walter owing $125,000 on the land 

contract.
-6-

The probate court issued an order reflecting its findings that Gladys had sold the home in 

West Branch to Walter under a land contract, that Walter agreed to buy the home for $80,000, with 

a $5,000 down payment and $500 monthly payments and 11% yearly interest, but that the interest 

alone would have been $200 more a month than the payments required under the contract. The 

probate court calculated, on the basis of Walter’s testimony, that Walter owed an outstanding 

amount on the land contract. The probate court noted that the interested parties had valued the 

land contract differently, but that Walter could be credited for contributions he had made to the 

estate, and encouraged the parties to come to an agreement to convey the property to Walter, 

subject to the mortgage, in accordance with Gladys’s wishes.

David subsequently moved the probate court to approve the sale of the West Branch 

property to Walter. At the hearing on the motion, the estate’s attorney informed the probate court

that there had been difficulty valuing the land contract because of the interest provision, Walter’s 

various contributions to estate expenses, and the methods of payment, and asked that the valuation 

of the West Branch property to be entrusted to David as the personal representative. David asked 

the probate court to approve the sale of the West Branch property to Walter in consideration of his 

assumption of the mortgage, the one-fifth interest in the property already granted to Walter by the 

will, his waiver of his interest in the Houghton Lake Heights property, and $77,000 in documented 

payments for Gladys’s expenses. Gary and Colleen objected on the grounds that they did not trust 

Walter’s documentation or accounting.

The probate court approved the sale of the West Branch property to Walter, and listed the 

consideration paid to the estate as “assumption of the mortgage debt by the purchaser,” “waiver of 

all present and future claims for additional estate property distribution by the purchaser,” and 

“waiver and release of all present and future claims against the estate for payments, services or 

other actions by the purchaser.” The probate court added that the consideration that Walter 

returned to the estate was adequate “such that acceptance of the same falls within the legal 

discretion of the personal representative.” Colleen argues that the probate court erred by ordering 

the sale for multiple reasons, which we will discuss in turn.

A. FALSE REPRESENTATION

Colleen argues that the December 7, 2015 order approving the sale of the West Branch 

property to Walter was based on an inaccurate representation by Walter’s attorney to the probate 

court during the 2015 hearing on the objections to the proposed order approving the sale. We 

disagree. At that hearing, Walter’s attorney stated that, “[b]asically, it says all issues are resolved. 

He resolved all issues,” when discussing the probate court’s previous opinion regarding the value 

of the land contract. This Court’s review of the transcript reveals that Walter’s attorney made that 

statement after Colleen expressed skepticism about Walter’s accounting of expenses for the estate 

that Walter claimed, and the probate court responded that that issue could not be developed and 

resolved within the scope of the present hearing. Walter’s attorney remarked that “all of those 

issues have already been adjudicated, so there’s nothing to catch up to speed with,” and referred 

the probate court to the March 3, 2015 opinion on the value of the land contract. Walter’s attorney 

elaborated, stating that “Judge Dosson has already adjudicated the issues that they’re raising. A 

land contract is valid. He acknowledged my client made payments towards the land contract he 

acknowledged my client made payments that he wasn’t going to apply to the land contract 

payments, but certainly my client could file a claim against the estate.”
-7-

We discern no material misrepresentation in these statements; rather, Walter’s attorney 

merely argued that certain issues raised by Colleen had already been decided in the probate court’s 

previous opinion. Further, there is no indication that the probate court relied on these statements 

in approving the proposed order; rather, the record shows that the probate court was skeptical of 

Walter’s attorney’s argument, noting that the reason an order had not already been entered was 

because certain objections had been raised for its consideration. We find no merit to Colleen’s 

argument. See Baker v Arbor Drugs, Inc, 215 Mich App 198, 208; 544 NW2d 727 (1996) (noting 

that the elements of fraud or misrepresentation include that the representation was false, the party 

making it was aware that it was false, and that the recipient of the statement acted in reliance on 

that statement).

B. VALUE OF LAND CONTRACT

Colleen also argues that the probate court erred by approving the sale without a 

determination of the value of the land contract. We disagree. In the opinion regarding the value 

of the land contract, the probate court found that there was a $101,266 balance at the time of 

Gladys’s death, but acknowledged the difficulty of the valuation because of “the extremely unusual 

terms of this contract coupled with the fact that no record of payments was ever kept, either by the 

decedent or by Walter.” The probate court noted that, after Gladys’s death, Walter continued to 

live at the property without making payments on the contract, but “assisted in many ways with 

estate property, paying bills (specifically including the decedent’s mortgage obligation on the 

[West Branch] property), and performing maintenance to the decedent’s house and car.”

The probate court determined that the fair market value of the West Branch property was 

$83,100, with $26,000 remaining on Gladys’s mortgage for the property, and that the estate and 

Walter remained subject to the land contract, on which Walter owed $103,386. However, the 

probate court determined that it would be “ridiculous” for Walter to pay $103,386 when the 

property was worth far less, and that Walter might well “forfeit” his interest and buy the property 

from the estate. The probate court stated that the land contract would not be valued at $103,386, 

because the fair market value of the asset was only $83,000 minus the remaining $26,000 

mortgage.

The probate court discussed the credit that Walter sought to claim against the land contract, 

and determined that Walter could not claim his expenditures to maintain and improve the West 

Branch property, or the taxes he paid on that property, because these were his obligations under 

the land contract, not the obligation of the estate. The probate court held that Walter could properly

be credited with contributions to the estate for mortgage payments on the property made after 

Gladys’s death, paying for repairs to Gladys’s vehicle, paying bills for the estate (including funeral 

expenses), and for expending funds on maintaining and improving the Houghton Lake Heights 

property after her death, and encouraged the parties to agree to convey the West Branch property 

to Walter, subject to the mortgage, in accordance with Gladys’s wishes. The probate court also 

noted that the apparent $57,000 value in property that Water received by purchasing the land was 

offset by his waiver of claims regarding the value of the share he would have received from the 

estate from selling the Houghton Lake Heights property, and the expenses that he would claim 

against the estate.
-8-

The probate court made the factual finding that the credit for expenses plus Walter’s waiver 

of his share of a distribution from the sale of the Houghton Lake Heights property equaled the 

market value of the West Branch property. Colleen has not demonstrated that it clearly erred by 

doing so. Temple Marital Trust, 278 Mich App at 128. Accordingly, Colleen has not demonstrated 

that the probate court abused its discretion approving the sale of the West Branch property to 

Walter. Id.

C. STIPULATION

Colleen also argues that the probate court erred by approving the sale of the West Branch 

property without the agreement of all of the heirs. We disagree. In support of this argument, 

Colleen cites the probate court’s statement that the sale “can only be accomplished by agreement 

of the parties,” and the probate court’s encouragement of the parties to “consider a stipulated 

resolution to this effect.” However, David and Walter did agree on a settlement to convey the 

property to Walter for consideration. As noted, the probate court’s approval of the terms of this 

settlement was not clearly erroneous or an abuse of discretion. Further, the terms of the will did 

not require unanimous agreement on the distribution of property; rather, the will authorized David, 

as the personal representative, “to sell, contract for the sale of or otherwise treat with all property 

as in his judgment shall be for the best interest of my estate.” David’s agreement to sell the 

property to Walter was an act in furtherance of the interests of all beneficiaries. See 

MCL 700.1209.3 Despite the probate court’s encouragement to the parties to seek a resolution that 

satisfied everyone, it was not necessary for the beneficiaries to agree to the sale, and the probate 

did not err by failing to interpret the language of the will as requiring unanimous consent. Reisman 

Estate, 266 Mich App at 527.

IV. SALE OF THE HOUGHTON LAKE HEIGHTS PROPERTY

Colleen also argues that the probate court erred by approving the sale of the Houghton 

Lake Heights Property. We disagree.

At the 2021 motion hearings on the motion to remove the notice of lis pendens, David’s

attorney argued that the probate court should invalidate Yvonne’s notice of lis pendens on the 

Houghton Lake Heights property because it was threatening a sale for $92,000 to an unrelated

buyer, no lawsuit against David had been filed, and it was not properly served. David argued that 

the Houghton Lake Heights property should be sold, and that there had been only one arm’s-length 

 

3 MCL 700.1209 states as follows: 

For the purpose of granting consent or approval with regard to the acts or 

accounts of a personal representative, including relief from liability or penalty for 

failure to post bond or to perform other duties, the sole holder or all coholders of a 

presently exercisable or testamentary general or special power of appointment, 

including 1 in the form of a power of amendment or revocation, are deemed to act 

for beneficiaries to the extent their interests, as permissible appointees, takers in 

default, or otherwise, are subject to the power.
-9-

offer to buy it since it was listed in 2010. Yvonne, Gary, and Colleen objected on the grounds that 

the home should be purchased by family members, and that the fair market value was greater than 

$92,000, citing a neighboring property listed for sale at $135,000. The probate court noted that

Yvonne, Gary, and Colleen could own the home by paying David his $23,000 share of the $92,000 

offer, plus $10,000 for the reimbursement of repairs to Walter, if they wished to do so, but they 

had not made such an offer. The probate court also determined that there was a fair market, arm’slength offer for the property, and, with no other concrete offers, ordered the sale of the property, 

and also that the lis pendens be released because it was improperly executed and not followed 

through on. The probate court also denied motions for an accounting, and to appoint a receiver. 

The probate court further ordered that the balance of the proceeds from the sale be equally divided 

among Yvonne, Colleen, Gary, and David. Colleen argues that the probate court erred in several 

respects by ordering this sale; we will discuss each of them in turn.

A. VERIFICATION

Colleen argues that the probate court should not have approved the sale without seeing the 

offer or verifying its terms. We disagree. Colleen cites no authority for the proposition that the 

probate court was required to independently verify the representations of a particular witness or 

attorney. In this case, David’s attorney represented to the probate court that there was an offer for 

the Houghton Lake Heights property for $92,000 in cash that had been accepted. Colleen has 

presented no evidence that this information was false or inaccurate, or otherwise should not have 

been credited by the probate court. We find no clear error in the probate court’s factual finding 

regarding the existence of an offer to purchase the property. Temple Marital Trust, 278 Mich App 

at 128.

B. MOTION TO APPOINT RECEIVER

Colleen also argues that the probate court erred by denying her request for a receiver, or to 

establish an escrow account to protect the funds from the sale. We disagree. The probate court

addressed the request as follows:

I believe there’s another motion . . . requesting the appointment of a receiver and 

an account. I’m going to deny those motions, even though they were not properly 

motioned up for today. There’s absolutely no need to appoint a receiver . . . . 

There’s one piece of property that’s now been ordered by the court to be resolved. 

There is no other property left in this estate . . . . So the motion for the appointment 

of receiver is denied as not being a valid request to begin with. And as to requesting 

of an accounting there will be a closing statement here. If the parties object to the 

closing statement they can do so and we’ll have a hearing on that.

The probate court ordered the “proceeds to be deposited into the estate of and then after any 

expenses that it be dispersed to the heirs.”

Colleen asserts on appeal that the probate court’s failure to appoint a receiver “literally 

turned the [personal representative] loose with the keys to the cash register” and asserts that, at the 

time of this appeal, David had not distributed the funds from the sale to the beneficiaries. As we

will discuss later in this opinion, this issue, if still present, may be explored on remand. But 
-10-

Colleen does not explain why a receiver was required to handle a relatively simple transaction, or 

why the probate court’s order that the proceeds of the sale be deposited with the estate and 

dispersed to the heirs was insufficient given the circumstances of the case. Because the imminent 

sale of the Houghton Lake Heights property constituted the disposition of the final asset of the 

estate, and the receipt, deposit, and distribution of the proceeds was uncomplicated, the probate 

court did not err by denying Colleen’s motion to appoint a receiver. Temple Marital Trust, 278 

Mich App at 128.

C. OPPORTUNITY TO PURCHASE

Colleen also argues that the probate court erred by approving the sale of the Houghton 

Lake Heights property without allowing the other heirs an opportunity to purchase it. We disagree 

with her characterization of the record. David’s attorney noted that there had been only one offer 

to buy the property since it was listed. The probate court noted that Yvonne, Gary, and Colleen 

could own the home by paying the personal representative a total of $33,000, but had not made 

such an offer, stating: “There is no other legitimate offer made for the property. There is request 

that maybe it should be assigned to everybody and they’ll work out a deal, but they want nothing 

firm, nothing concrete. There is one concrete offer for the sale of this property.” The record shows 

that no concrete offer was put forth by any heir to purchase the property in nearly 10 years; we 

conclude that this span of time represented a sufficient opportunity for any heir who wished to 

purchase the property, and the probate court did not err by approving the sale without allowing 

additional time for offers from heirs to the estate. Id.

D. EXPENSES

Colleen next argues that the probate court erred by approving David’s request to reimburse 

Walter $10,000, after the sale, for repairs, utilities, and maintenance that he paid for on the 

Houghton Lake Heights property. We agree.

In the order approving the sale of the West Branch property to Walter, the relevant 

consideration provided by Walter included “waiver of all present and future claims for additional 

estate property distribution by the purchaser,” and “waiver and release of all present and future 

claims against the estate for payments, services or other actions by the purchaser.”

The probate court acknowledged the language of the order, but awarded $10,000 to Walter 

because “this is a separate agreement between the personal representative for actual costs incurred 

in maintaining the property and trying to preserve” the Houghton Lake Heights property prior to 

its sale. We conclude that it erred by doing so. Awarding Walter $10,000 for maintaining the 

Houghton Lake Heights property was directly opposed to the agreement for him to purchase the 

West Branch property. Even though David and Walter had agreed to reimburse Walter’s 

caretaking of the property, Walter had specifically waived his claim to these expenses. The probate 

court’s statement that Walter has “a right to a claim that’s been settled” with David was contrary 

to Walter’s agreeing to a “waiver and release of all present and future claims against the estate for 

payments, services or other actions by the purchaser.” There was no carve-out for expenses 

incurred by Walter in maintaining the Houghton Lake Heights property for a certain period of 

time. Therefore, the probate court erred by ordering that Walter “be paid $10.000.00 from 

proceeds in satisfaction of all claims against the estate, now and in the future, for the costs, services 
-11-

and expenses he has requested.” On remand, the probate court should amend its June 1, 2021 

order accordingly.

E. ASSET DISTRIBUTION

Colleen also argues that the probate court erred by issuing a final order disposing of the 

last assets of the estate when no distributions of the estate’s funds had been made to the estate’s 

heirs. We agree. Colleen makes no mention of the distribution of personal property, and there is 

no indication in the record whether the estate’s personal property was distributed. Colleen further 

notes that the issue of mineral rights was not addressed in any court order. We conclude that this 

issue should be explored on remand. While it appears from the record that the probate court held 

that mineral rights for the West Branch property accompanied the sale to Walter, none of the 

probate court’s orders make reference to the payments for oil leases that were listed on the 

amended inventory. There is no evidence that the oil lease payments were factored into the 

agreement for Walter to purchase the West Branch property. The lack of mention of the oil leases 

in any order of the probate court, and the representation of David’s attorney that a 2021 payment 

to the estate had not been resolved, indicate that there was no resolution regarding the distribution 

of the oil rights. Because the oil leases and personal property were listed property, on remand, the 

probate court should address their distribution.

As we noted earlier, Colleen also asserts on appeal that the proceeds from the sale of the 

Houghton Lake Heights property have not been distributed. The probate court’s “order after 

hearing on motion to remove lis pendens” directed David to deposit and distribute the proceeds of 

that sale. On remand, the probate court should determine the status of the distribution of the 

proceeds from the sale of the Houghton Lake Heights property.

In sum, we conclude that the probate court erred by ordering that the estate pay Walter 

$10,000 for maintaining the Houghton Lake Heights property, because it is contrary to an earlier 

agreement, and also erred by not accounting for the distribution of oil leases that were listed as 

estate property. On remand, the probate court should resolve any of these issues that are still 

outstanding, as well as the status of the distribution of the proceeds from the sale of the Houghton 

Lake Heights property. Temple Marital Trust, 278 Mich App at 128.

V. DENIAL OF CONTEMPT MOTION

Colleen also argues that the probate court erred by denying the motion to hold David in 

contempt and remove him as personal representative of the estate. We conclude that the probate 

court did not err by holding that a contempt proceeding was not an appropriate vehicle for the 

address of these issues, and that the probate court may address them on remand to the extent they 

remain. The personal representative has a fiduciary duty to each devisee, heir, and beneficiary.

MCL 700.1212(1). See also MCL 700.1104(e) and MCL 700.3703(1). “ ‘A fiduciary stands in a 

position of confidence and trust with respect to each heir, devisee, beneficiary, protected individual, or ward for whom the person is a fiduciary.’ ” In re Schwein Estate, 314 Mich App 51, 59; 

885 NW2d 316 (2016), quoting MCL 700.1212(1). Those fiduciary duties include “ ‘undivided 

loyalty; impartiality between heirs, devisees, and beneficiaries; [and] care and prudence in 

actions.’ ” In re Estate of Stan, 301 Mich App at 447, quoting MCL 700.1212(1). The personal 
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representative “ ‘shall keep each presumptive distributee informed of the estate settlement,’ ” and 

must regularly “ ‘account to each beneficiary by supplying a statement of the activities of the estate 

and of the personal representative.’ ” In re Estate of Stan, 301 Mich App at 447, quoting 

MCL 700.3703(4).

In this case, Yvonne, Colleen, and Gary filed a motion to show cause why David should 

not be held in contempt, alleging that he sold Houghton Lake Heights property during a 21-day 

automatic stay following the probate court’s order approving the sale, and had failed to distribute 

the proceeds to them. The probate court denied the motion to show cause because the allegations 

“are administrative in nature regarding the estate and are not properly brought . . . in contempt 

proceedings. Further, no court order has been violated, or ignored, to necessitate enforcement 

powers of the Court.” This motion was filed on July 15, 2021. The probate court authorized the 

sale on June 1, 2021, and Yvonne, Colleen, and Gary asserted via their motion that David conveyed 

the Houghton Lake Heights property to a buyer on June 22, 2021. Therefore, the property was 

conveyed on the 21st day following the order authorizing the sale. However, MCR 2.614(A)(1)

provides as follows;

Except as provided in this rule, execution may not issue on a judgment and 

proceedings may not be taken for its enforcement until 21 days after a final 

judgment (as defined in MCR 7.202[6]) is entered in the case. If a motion for new 

trial, a motion for rehearing or reconsideration, or a motion for other relief from 

judgment is filed and served within 21 days after entry of the judgment or within 

further time the trial court has allowed for good cause during that 21-day period, 

execution may not issue on the judgment and proceedings may not be taken for its 

enforcement until the expiration of 21 days after the entry of the order deciding the 

motion, unless otherwise ordered by the court on motion for good cause. Nothing 

in this rule prohibits the court from enjoining the transfer or disposition of property 

during the 21-day period.

Because the probate court’s order approving the sale of the Houghton Lake Heights property was 

a final order under MCR 7.202(6)(a)(i), and a motion for reconsideration had been filed, it does 

appear that, if the sale took place on June 22, 2021, that sale may have been in violation of the 

court order. However, this Court simply lacks an adequate record with which to conclude that 

such a violation occurred, and, if it did, to fashion an adequate remedy for the violation. Similarly, 

Colleen’s statement that the proceeds have not yet been distributed lacks factual support. But we 

agree with the probate court that these issues are more appropriately raised in regular motion 

practice before it, not in a contempt proceeding. The Estates and Protected Individuals Code 

(EPIC), MCL 700.1100 et seq., contains procedures to petition a court for removal of a personal 

representative or distribution of estate assets. See In re Kramek Estate, 268 Mich App 565, 575; 

710 NW2d 753 (2005); see also, e.g., MCL 700.3611(1); MCL 700.3952. To that end, the probate 

court may address these issues, to the extent they remain, on remand.

VI. JUDICIAL BIAS

Colleen further argues that Judge Jernigan demonstrated judicial bias, either against her, 

Yvonne, and Gary, or in favor of David, and that the matter should, accordingly, be remanded to 
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a different judge. We disagree. No party raised this issue below or moved to disqualify Judge 

Jernigan,4and this issue is therefore not preserved for appeal. We review unpreserved issues for 

plain error. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).

A trial judge is presumed impartial, and the party who asserts otherwise has a heavy burden 

of overcoming that presumption. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d 

210 (1996). Remand to a different judge is appropriate where the original judge would have 

difficulty setting aside previously expressed views or findings, or if reassignment is advisable to 

preserve the appearance of justice and would not entail excessive waste or duplication. Bayati v 

Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004).

In this case, Colleen argues that Judge Jerrigan exhibited bias against her by authorizing 

the sale of the Houghton Lake Heights property without protecting the proceeds from the sale by 

appointing a receiver or other means. However, as discussed, Colleen has not demonstrated that 

approving the sale of the Houghton Lake Heights property was error. Moreover, although Colleen 

cites several instances where Judge Jernigan ruled against her, mere rulings against a party are not 

grounds for disqualification. Bayati, 264 Mich App at 603. Colleen has not cited any comments 

or conduct by Judge Jernigan that indicates bias, or would otherwise have difficulty deviating from

his written opinion on remand. We conclude that there is no need for proceedings on remand to 

be presided over by a different judge.

VII. CONCLUSION

We affirm the probate court’s approval of the sale of the West Branch and the Houghton 

Lake Heights property. We vacate the portion of the probate court’s June 1, 2021 order requiring

the estate to pay Walter $10,000 for maintaining the Houghton Lake Heights property. We remand 

for the probate court to amend its order to reflect this ruling, as well as to make a determination 

regarding the distribution of oil leases that were listed as estate property, and to determine the 

status of the distribution of the proceeds from the sale of the Houghton Lake Heights property and 

any other undistributed estate property, should any of these issues remain. 

 

4 Grounds for disqualification are provided in MCR 2.003(C)(1):

Disqualification of a judge is warranted for reasons that include, but are not 

limited to, the following:

(a) The judge is biased or prejudiced for or against a party or attorney.

(b) The judge, based on objective and reasonable perceptions, has either (i) 

a serious risk of actual bias impacting the due process rights of a party as enunciated 

in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or 

(ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 

2 of the Michigan Code of Judicial Conduct.
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Affirmed in part, vacated in part, and remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.

/s/ Jane E. Markey

/s/ David H. Sawyer

/s/ Mark T. Boonstra