Statute of Limitations for a Will?

Take-Away: While Michigan does not recognize a formal statute of limitations to present a Will to probate, there are plenty of other limitations periods associated with claims against the decedent or the decedent’s estate or claims against distributees of the decedent’s estate.

Background:  Unlike some other states, Michigan does not impose a statute of limitations on when a Will must be admitted to probate. A general ‘rule of thumb’ however is that a Will should be filed for admission to probate in Michigan within 3 years of the testator’s death, but there is no statute that mandates filing the decedent’s Will within 3 years. An example of how another state’s laws on statutes of limitations worked to bar the admission of a Will to probate was a recent Texas court decision.

In re Estate of Hartwell, Texas Court of Appeals (Texarkana) LEXIS 166, No. 06-2300054 CV, (December 6, 2023)

Facts: A grandmother died in 2012. Her estate was distributed through intestacy. In 2022 the decedent’s grandson attempted to admit to probate the grandmother’s Will which was executed by her in 2004. The grandson claimed that her Will gave him a right to purchase property under the Will.

Dispute: The decedent’s children opposed the grandson’s petition to have the Will admitted to probate. The children argued that they were entitled to receive the property under the law of intestacy. The children claimed that the 2022 Petition to Admit the Will to Probate was contrary to Texas’s statute of limitations regarding when a Will can be admitted to probate.

Trial Court: The trial judge granted the children’s motion for summary judgment. The judge found that the grandson’s offer of the Will to probate was contrary to Texas’s statute of limitations that bars a Will’s admission to probate after the elapse of time. That statute provides that “a Will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the Will was not in default in failing to present the Will for probate on or before the fourth anniversary of the testator’s death.”  This Texas statute defines default as the absence of reasonable diligence on the part of the person offering the instrument to probate.

Texas Appeals Court: The appellate court affirmed the trial judge’s grant of summary judgment. This court found that the burden of proof shifted to the grandson, once it was proven that the grandson had possession of the Will going back to 2004, that his petition was filed in 2022, more than 4 years after the decedent’s death in 2012. The grandson had argued that his own father owed him a fiduciary duty because he ‘trusted him.’ The court held that any claim for breach of fiduciary duty was waived by not raising it until the summary judgment response, and that there was no evidence that the father made any misrepresentation to his son concerning the Will.

Probate Limitations Periods: While Michigan does not have a direct statute of limitations with respect to the admission of a Will to probate like Texas, it has plenty of other statutes and implementing court rules [MCR 5.208(E) and MCR 5.307(D)] that impose limitations on proceedings or claims that impact the distribution of a decedent’s estate.  Consider just some of the following limitations periods associated with a Will or intestate estate, claims, and subsequent distributions:

MCL 700.3803(1)- Pre-Death Claims Against the Decedent’s Estate: A claim against a decedent’s estate that arose before the decedent’s death, including a claim held by Michigan or one of its subdivisions, whether due or to become due, absolute or contingent, liquidated or unliquidated, based on contract, tort, or another legal basis, if not barred earlier by another statute of limitations or ‘nonclaim’ statute is barred against the estate, Personal Representative, the decedent’s heirs, devisees, and nonprobate transferees of the decedent, unless it is presented within 1 of the following time limits:

1.      Within 4 months after the date of publication of notice to creditors, except that a claim barred by a statute at the decedent’s domicile before the publication for claims in this other state is also barred in Michigan.
2. For a creditor known to the Personal Representative at the time of publication or during the 4 months following that publication of notice to creditors, 1 month after the subsequent sending of notice or 4 months after the date of publication to creditors, whichever is later.
3.      If the notice requirements of MCL 700.3801[Personal Representative’s Duty to Publish Notice to Creditors within 4 months] or MCL 700.7608 [trustee’s duty to give notice to creditors if there is no Personal Representative] have not been met, within 3 years after the decedent’s death.

MCL 700.3801(2)- Post-Death Claims Against the Decedent’s Estate:  A claim that arises at or after the decedent’s death is barred against the estate, the Personal Representative, and the decedent’s heirs and devisees- but not nonprobate transferees– unless the claims are presented within 1 of the following time limits:

1.      For a claim based on contract with the Personal Representative within 4 months after performance by the Personal Representative is due.
2. When subsection (a) is not applicable, within 4 months after the claims arises or 4 months after the publication of notice to creditors, whichever is later.

MCL 700.3956- Claims Against Personal Representative: The right of a successor or creditor whose right is not otherwise barred against a Personal Representative for breach of fiduciary duty is barred unless a proceeding to assert the right is commenced within 6 months after the filing of the closing statement. However, the right barred under this statute does not include a right to recover from a Personal Representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent’s estate. Note that this 6-month bar would not apply to a known creditor who was not given a ‘claims notice’ and was not sent a closing statement.

MCL 700.3957- Proceedings Against Distributees: An individual’s claim to recover from a distributee of a decedent’s estate who is liable to pay the claim, and the right of an heir or devisee, or of a successor personal representative acting in their behalf to recover property improperly distributed or it’s value form a distributee are forever barred at the later of 3 years after the decedent’s death or 1 year after the time of the property’s distribution. All claims of the decedent’s creditors are barred in accordance with the time periods specified in MCL 700.3803.

MCL 600.5801(1)- Executor’s Deed:  For an individual who claims title to real property by or through a deed made upon sale by an executor (or Personal Representative), the limitations period is 5 years.

MCL 600.5801(3)- Devise: For an individual who claims through a devise in any Will, the period of limitations is 15 years after the probate of the Will in Michigan.

Conclusion: While there is no official statute of limitations period by which a Will must be admitted to probate in Michigan, as probate proceedings can be commenced at any time, there are plenty of other limitations periods that must be followed when it comes to creditor claims either against the decedent’s estate or claims with respect to assets that were distributed from the decedent’s estate