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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 JANET KAPP.

MILA KAPUSTA and BONNIE PENTA,

Appellants,

UNPUBLISHED

October 18, 2018

v No. 341871

Oakland Probate Court

JANET LORRAINE KAPP and SANDRA KAPP, LC No. 2017-380134-DA

Appellees,

and

MILAN KAPP and THOMAS BRENNAN 

FRASER,

Other parties. 

Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

Appellant Mila Kapusta (Mila) was the decedent’s nominated personal representative 

under the terms of her will. The probate court declined to appoint Mila as the personal 

representative because it believed that there were no assets in the decedent’s estate. Mila and her 

sister Bonnie Penta (appellants) appeal that decision. We reverse and remand.

I. BACKGROUND

Janet Lorraine Kapp (Lorrie) and Mila are both daughters of the decedent. After their 

mother’s death, Lorrie filed a petition asking the probate court to appoint Thomas Fraser as 

personal representative of the decedent’s estate and to appoint a special personal representative 

pending the appointment of a personal representative. Fraser was the decedent’s guardian and 

conservator and was also serving in that capacity for the decedent’s surviving spouse. At the
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hearing to address the appointment of a special personal representative,

1 it was established that 

the decedent’s will nominated Mila to serve as personal representative. The probate court denied 

the request for the appointment of a special personal representative. 

Mila then filed a petition to be appointed as the personal representative. At the hearing 

scheduled to address the competing petitions, Lorrie and the decedent’s spouse raised concerns 

regarding Mila’s suitability. Conservator Fraser argued that there was no purpose in appointing 

a personal representative because there was not “anything left” in the estate. Alternatively, 

Fraser believed that, at the very least, the probate court should wait to determine whether a 

personal representative was necessary until after he filed his final accounting as the decedent’s 

conservator. Mila’s counsel disputed that the estate contained no assets and advised the court

that there were possible causes of action to be brought on the decedent’s behalf. Ultimately, 

after back and forth discussions regarding the existence of estate assets, the probate court 

concluded: “Okay. I’m just going to make my decision. I’m tired of going around in circles 

with you. I’m denying the petition to appoint a personal representative. There are no—there are 

currently no assets to be distributed. That’s my decision.” The probate court then entered an 

order denying all pending petitions for the appointment of a personal representative.

Appellants then filed a claim of appeal. The probate court continued to hold proceedings 

and enter orders in the probate file, which appellants objected to on the basis that the court 

lacked jurisdiction to take such actions after the filing of the appeal. We granted appellants’

motion for an expedited appeal.2

II. ANALYSIS

Appellants first contend that the probate court erred in declining to appoint a personal 

representative based upon its belief that there were no assets in the estate to probate. We agree.

“We review a probate court’s appointment or removal of a fiduciary for an abuse of 

discretion.” In re Conservatorship of Shirley Bittner, 312 Mich App 227, 235; 879 NW2d 269 

(2015). “A probate court abuses its discretion when it chooses an outcome outside the range of 

reasonable and principled outcomes.” In re Redd Guardianship, 321 Mich App 398, 403; 909 

NW2d 289 (2017) (quotation marks and citation omitted). We review a probate court’s factual 

findings for clear error. Id. We review de novo issues of statutory interpretation. In re Estate of 

Attia, 317 Mich App 705, 709; 895 NW2d 564 (2016). 

A. APPOINTMENT OF PERSONAL REPRESENTATIVE

 1 The hearing also concerned the parties’ dispute over the decedent’s autopsy. We note that the

probate court entered numerous orders pertaining to the decedent’s autopsy and funeral 

arrangements. Because appellants are not appealing any of those orders, we will generally avoid 

discussion of those matters except when relevant to appellants’ arguments on appeal.

2 In re Kapp Estate, unpublished order of the Court of Appeals, entered August 22, 2018 (Docket 

No. 341871). 
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Article III of the Estates and Protected Individuals Code, MCL 700.3101 et seq., governs 

the probate and administration of wills. MCL 700.3414 governs formal proceedings concerning 

the appointment of personal representatives and provides that after notice to all interested 

persons, “the court shall determine who is entitled to appointment under section 3203.” MCL 

700.3414(4). MCL 700.3203 provides for the priority of persons seeking appointment as the 

decedent’s personal representative. The statute provides that a person nominated to act as the 

personal representative in the will, unless disqualified, is first in priority:

(1) For either formal or informal proceedings, subject to subsection (2), 

persons who are not disqualified have priority for appointment as personal 

representative in the following order:

(a) The person with priority as determined by a probated will including a 

person nominated by a power conferred in a will. [MCL 700.3203(1)(a).]

Thus, the person nominated in the decedent’s will always has priority unless he or she is shown 

to be “disqualified” or a specified exception applies.3

MCL 700.3203(2) sets forth the two exceptions under which a decedent’s nominee, 

though qualified, may not be appointed:

(2) An objection to the appointment of a personal representative may be 

made only in a formal proceeding. If an objection is made, the priorities 

prescribed by subsection (1) apply except in either of the following 

circumstances:

(a) If the estate appears to be more than adequate to meet exemptions and 

costs of administration but inadequate to discharge anticipated unsecured claims, 

on petition of creditors, the court may appoint any qualified person.

(b) If a devisee or heir who appears to have a substantial interest in the 

estate objects to the appointment of a person whose priority is not determined by 

will, the court may appoint a person who is acceptable to the devisees and heirs 

whose interests in the estate appear to be worth in total more than 1/2 of the 

 3 It is clear that in adopting MCL 700.3203, the Legislature chose to respect a decedent’s 

decision regarding the administrator of his or her estate except in specified circumstances. 

Indeed, EPIC “shall be liberally construed and applied to promote its underlying purposes and 

policies,” which includes discovering and effectuating the decedent’s intent. MCL 700.1201(b). 

This is consistent with the well-established rule that courts should effectuate the testator’s intent. 

In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983) (“A fundamental precept 

which governs the judicial review of wills is that the intent of the testator is to be carried out as 

nearly as possible.”); In re Butterfield’s Estate, 405 Mich 702, 711; 275 NW2d 262 (1979) (“The 

primary duty of any court faced with the task of resolving a disputed testamentary disposition is 

to effectuate as nearly as possible the intention of the testator.”).
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probable distributable value or, if no person is acceptable to these devisees and 

heirs, any suitable person. [MCL 700.3203(2)(a)-(b).]

The exception in subsection (a) is not at issue here. And the exception in subsection (b) does not 

apply because decedent’s will nominated a personal representative and the exception is 

applicable only when a devisee or heir objects “to the appointment of a person whose priority is 

not determined by will . . . .” MCL 700.3203(2)(b) (emphasis added). Since neither of these

exceptions applies, Mila had priority for appointment so long as she was not “disqualified.” 

MCL 700.3203(1). Disqualification is governed by MCL 700.3204, which provides that “[a]

person is not qualified to serve as a personal representative if the person is either under the age of 

18 or is a person whom the court finds unsuitable in formal proceedings.” MCL 700.3204(3)

(emphasis added).

In this case, although Lorrie and the surviving spouse raised concerns regarding Mila’s 

suitability, the probate court did not find her unsuitable and did not disqualify her from serving 

as the personal representative. Instead, the court concluded that the appointment of a personal 

representative was unnecessary because there were no assets in the estate to probate. In doing 

so, however, the probate court did not cite statutory authority that allows a court to deny the 

appointment of a nominated personal representative on those grounds. To the contrary, a court 

rule provides that personal representatives do not need to provide notice to creditors when “[t]he 

estate has no assets[.]” MCR 5.208(D)(3)(a). It follows that personal representatives can be 

appointed even when the estate has no assets.4

The probate court appears to have concluded that it could make the necessary rulings 

concerning estate matters without the appointment of a personal representative. However, a 

court’s subjective view that it can address estate issues without the appointment of a personal 

representative is not relevant and is not provided for by EPIC. When the appointment of a 

personal representative is sought and contested, the court is required to determine the priority 

and qualification of a nominated personal representative and make an appointment. Thus, in the 

absence of finding Mila unsuitable to serve as a personal representative, the probate court abused 

its discretion in not appointing her to that position. See In re Waters Drain Drainage Dist, 296 

Mich App 214, 220; 818 NW2d 478 (2012) (“A court by definition abuses its discretion when it 

makes an error of law.”).

 4 Further, the probate court’s finding that there were no assets in the estate was clearly erroneous. 

It was undisputed that jewelry and funds existed that properly belonged to the estate. The record 

indicates that the issue was not so much that there were no assets, but that the will expressly 

provided for the distribution of all existing assets, with the implication being that there was no 

need for a personal representative. However, the distribution of decedent’s estate in accordance 

with a probated will is one of a personal representative’s express duties. MCL 700.3703(1). 

Therefore, to the extent that the probate court denied the appointment because the will provided 

for the distribution of all the estate’s assets, this was not a reasonable outcome.
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B. JURISDICTION

Appellants also argue that the probate court was deprived of jurisdiction to resolve estate 

matters following the filing of her claim of appeal. MCL 600.867(1) provides:

(1) After an appeal of right from a judgment or order of the probate court 

is filed with the court of appeals and notice of the appeal is filed with the probate 

court, all further proceedings in pursuance of the judgment, order, or sentence, 

appealed from are stayed for a period of 21 days or, if a motion for stay pending 

appeal is granted, until the appeal is determined, except as provided in subsection 

(2), section 65(2) of chapter X of the probate code of 1939, 1939 PA 288, MCL 

710.65, or supreme court rule. 

Appellants appealed from the order denying Mila’s petition to be appointed personal 

representative.5 In the following 21 days, the probate court held a hearing to address an 

emergency motion filed by Fraser, the decedent’s conservator and guardian. The probate court

then, on its own motion, entered an order appointing Fraser as a special personal representative 

for the limited purpose of assisting the West Bloomfield Police Department in any investigation 

relating to the decedent’s death. The court also entered an order relating to the decedent’s 

funeral expenses.

With that in mind, we conclude that in the 21 days following appellants’ claim of appeal

the probate court did not conduct proceedings that were in furtherance of its decision to deny an 

appointment of a personal representative. Specifically, while the manner in which the court 

ruled on the seemingly constant disputes over the decedent’s funeral arrangements is 

questionable,6 we do not see how the court was divested of jurisdiction over those matters by the 

filing of the appeal. Further, we note that a probate court may appoint a special personal 

representative on its own motion, MCL 700.3614(b), and that the court appointed Fraser as a 

special personal representative for a limited purpose, not as a general personal representative. 

These actions were not barred by MCL 600.867(1).

Reversed and remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction.

/s/ Douglas B. Shapiro 

/s/ Deborah A. Servitto 

/s/ Michael F. Gadola 

 5 While the order appealed from resolved other matters than the appointment of a personal 

representative, MCL 600.867’s stay applies only to the specific order appellants are contesting. 

Comerica Bank v City of Adrian, 179 Mich App 712, 727; 446 NW2d 553 (1989).

6 See MCL 700.3206, MCL 700.3206a, MCL 700.3206b, and MCL 700.3207 (governing matters 

concerning funeral arrangements).