Term
7.1 TO 7.3
Problem A: Jane Doe, owner of Blackacre, died testate. Her estate was probated. Blackacre, which was not specifically devised, was not included in the inventory or described in the order distributing the residue. Lucy Doe, sole residuary devisee, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: No, unless it can be established that there is no lien for federal estate tax or Michigan estate or inheritance tax attaching to Blackacre. If Blackacre had been included as an administered asset there might have been increased liability for estate or inheritance taxes, the lien of which attached at Jane Doe’s death. |
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Term
7.1 TO 7.3
Problem B: Jane Doe, owner of Blackacre, died intestate. Her estate was probated. Blackacre, which was not specifically devised, was not included in the inventory or described in the order distributing the residue. Blackacre was deeded by Lucy Doe, her sole heir, to Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: No, unless it can be established that there is no lien for federal estate tax or Michigan estate or inheritance tax attaching to Blackacre. If Blackacre had been included as an administered asset there might have been increased liability for estate or inheritance taxes, the lien of which attached at Jane Doe’s death. |
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Term
7.1 TO 7.3
Problem C: John Doe, owner of Blackacre, died testate. His will was admitted to probate. Blackacre was devised to his widow for life, with a vested remainder to Doe’s niece. Blackacre was included in the inventory. All debts, taxes and administration expenses were paid. Notice of hearing on the final account and on the petition for distribution of the residue was given to all parties in interest. The court entered an order allowing the account and distributing Blackacre to the widow outright. After the death of the widow, the niece deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: No. Although the order of distribution was erroneous, it had the effect of an order construing the will and became res judicata unless set aside or reversed. An erroneous order that is no longer appealable conveys title contrary to the laws of descent, the will, or an agreement, as of the date of the decedent’s death. Accordingly, title to Blackacre became vested in the widow and, upon her death, vested in her heirs or devisees. |
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Term
| Problem D: John Doe, owner of Blackacre, died intestate leaving his four children, Mary, Jane, Harry and Joseph Doe as his heirs. His estate was probated, Blackacre was inventoried and all debts, taxes and expenses paid. Notice of hearing on the final account and petition for distribution of residue was given. Through error, the order of distribution assigned the residue to Mary Doe and Jane Doe. Three years later they deeded Blackacre to Simon Grant, a good faith purchaser for value. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: Yes. The order of distribution is, in effect, a determination of heirs and is not subject to collateral attack, as against a good faith purchaser for value. |
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Term
7.1 TO 7.3
Problem E: John Doe, owner of Blackacre, died intestate July 1, 1979, leaving his four daughters as his heirs. On July 15, 1979, the daughters deeded Blackacre to Simon Grant. Later Doe’s estate was probated and an order of distribution was entered assigning the residue to the four daughters. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: Yes. Title vested in the heirs upon Doe’s death. |
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Term
7.1 TO 7.3
Problem F: John Doe, owner of Blackacre, died intestate in 1992. A petition for administration of Doe’s estate was filed listing his four sisters as his heirs. A personal representative was appointed and qualified. An inventory was filed listing Blackacre and other property of an aggregate value in excess of $100,000. A hearing on claims was held but no claim was presented. In 1999, the four sisters deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: No. The possibility still exists of the entry of an order distributing the estate real property which, through error or otherwise, would constitute a determination of different heirs. Although the statute of limitations may bar the lien of federal estate tax, the lien of Michigan inheritance tax is not barred in the absence of an order determining the tax or an order distributing the estate real property. |
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Term
7.1 TO 7.3
Problem G: John Doe, owner of Blackacre, died intestate. His estate was probated. Blackacre was inventoried and all debts, taxes and expenses were paid. The personal representative filed a final account, which was allowed, and an order of distribution was entered assigning the residue to Doe’s heirs, but Blackacre was described erroneously. The heirs deeded Blackacre to Simon Grant using the correct description. Did Grant acquire marketable title to Blackacre? |
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Definition
| Answer: Yes. Title vested in the heirs upon Doe’s death. Misdescription of estate real property in the order of distribution was immaterial. The result would have been the same had Doe died testate. |
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Term
7.1 TO 7.3
John Doe, owner of Blackacre, died intestate. His estate was probated. Blackacre was inventoried and all debts, taxes and expenses were paid. The personal representative filed a final account, which was allowed, and an order of distribution was entered assigning the residue to Doe’s heirs, but the order of distribution did not refer to Blackacre. The heirs deeded Blackacre to Simon Grant using the correct description. Did Grant acquire marketable title to Blackacre? |
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Definition
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Term
7.1 TO 7.3
Problem I: John Doe, owner of Blackacre, died intestate leaving his four children, Mary, Jane, Harry and Joseph Doe as his heirs. His estate was probated, Blackacre was inventoried and all debts, taxes and expenses paid. Notice of hearing on the final account was given. The order of distribution assigned Blackacre to Mary Doe in accordance with a written agreement signed by all of the heirs which was filed with the court and referred to in the order. The personal representative of the estate deeded Blackacre to Mary Doe. Did Mary Doe acquire marketable title to Blackacre? |
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Definition
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Term
7.4
Problem A: Jane Doe, the owner of Blackacre, died intestate. Her estate was probated and Richard Roe qualified as personal representative. Roe as personal representative filed a report of sale of Blackacre to Simon Grant, a purchaser in good faith, for the purpose of paying debts. The report was confirmed and a bond on sale was filed and approved. Roe deeded Blackacre to Grant. Through error Roe was described as executor rather than as personal representative in the petition, the report of sale and the deed. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: NOTWITHSTANDING A NON-JURISDICTIONAL IRREGULARITY IN SUPERVISED PROBATE SALES PROCEEDINGS BEFORE APRIL 1, 2000, A CONVEYANCE OF AN INTEREST IN REAL PROPERTY BY A FIDUCIARY MAY NOT BE AVOIDED IF :
(A) THE SALE WAS AUTHORIZED BY LAW;
(B) ANY REQUIRED BOND WAS GIVEN AND APPROVED;
(C) THE PRESCRIBED NOTICE OF THE SALE WAS GIVEN;
(D) THE SALE WAS CONFIRMED; AND
(E) THE REAL PROPERTY IS HELD BY ONE WHO PURCHASED IN GOOD FAITH. |
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Term
| Problem B: Jane Doe, the owner of Blackacre, died intestate. Her estate was probated and Richard Roe qualified as personal representative. Roe as personal representative filed a report of sale of Blackacre to Simon Grant, a purchaser in good faith, for the purpose of paying debts. The report was confirmed and a bond on sale was filed and approved. Roe deeded Blackacre to Grant. Through error Roe was described as executor rather than as personal representative in the petition, the report of sale and the deed. Certain of Jane Doe’s heirs were minors and no general guardian or guardian ad litem acted or was appointed for them. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: NOTWITHSTANDING A NON-JURISDICTIONAL IRREGULARITY IN SUPERVISED PROBATE SALES PROCEEDINGS BEFORE APRIL 1, 2000, A CONVEYANCE OF AN INTEREST IN REAL PROPERTY BY A FIDUCIARY MAY NOT BE AVOIDED IF :
(A) THE SALE WAS AUTHORIZED BY LAW;
(B) ANY REQUIRED BOND WAS GIVEN AND APPROVED;
(C) THE PRESCRIBED NOTICE OF THE SALE WAS GIVEN;
(D) THE SALE WAS CONFIRMED; AND
(E) THE REAL PROPERTY IS HELD BY ONE WHO PURCHASED IN GOOD FAITH. |
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Term
7.4
Problem C: Jane Doe, the owner of Blackacre, died intestate. Her estate was probated and Richard Roe qualified as personal representative. Roe as personal representative filed a report of sale of Blackacre to Simon Grant, a purchaser in good faith, for the purpose of paying debts. The report was confirmed and a bond on sale was filed and approved. Roe deeded Blackacre to Grant. Through error Roe was described as executor rather than as personal representative in the petition, the report of sale and the deed. The personal representative failed to give proper notice to the heirs of the hearing on his report of the sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Failure to give the notice was jurisdictional.
STANDARD: NOTWITHSTANDING A NON-JURISDICTIONAL IRREGULARITY IN SUPERVISED PROBATE SALES PROCEEDINGS BEFORE APRIL 1, 2000, A CONVEYANCE OF AN INTEREST IN REAL PROPERTY BY A FIDUCIARY MAY NOT BE AVOIDED IF :
(A) THE SALE WAS AUTHORIZED BY LAW;
(B) ANY REQUIRED BOND WAS GIVEN AND APPROVED;
(C) THE PRESCRIBED NOTICE OF THE SALE WAS GIVEN;
(D) THE SALE WAS CONFIRMED; AND
(E) THE REAL PROPERTY IS HELD BY ONE WHO PURCHASED IN GOOD FAITH. |
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Term
7.5
Problem: The will of John Doe naming Richard Roe and Edgar Poe as personal representatives with power of sale was admitted to probate. Roe and Poe both qualified. Richard Roe, as personal representative, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Unless there is recorded evidence of the prior death or resignation of Poe or some provision in the will authorizing only one personal representative to convey, all personal representatives must join in executing a deed.
STANDARD: ALL QUALIFIED AND SURVIVING PERSONAL REPRESENTATIVES MUST EXECUTE A DEED PURSUANT TO A TESTAMENTARY POWER OF SALE UNLESS THE WILL AUTHORIZES LESS THAN ALL OF THEM TO CONVEY. |
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Term
7.6
Problem A: The will of John Doe, the owner of Blackacre, was admitted to probate. It contained a valid power of sale and named Richard Roe, Edgar Poe and Samuel Smith as personal representatives. Roe and Poe were appointed and qualified as personal representatives. No rights of a surviving spouse were involved. Smith was not appointed. Poe and Roe, as personal representatives, deeded Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes, unless it appears from the will that the testator intended to limit the exercise of the power of sale to all of the named personal representatives acting together.
STANDARD: A SUCCESSOR PERSONAL REPRESENTATIVE HAS THE SAME POWERS AND DUTIES AS THE ORIGINAL PERSONAL REPRESENTATIVE TO COMPLETE THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATE , BUT THE SUCCESSOR PERSONAL REPRESENTATIVE OF A TESTATE ESTATE MAY NOT EXERCISE A POWER EXPRESSLY MADE PERSONAL TO THE PERSONAL REPRESENTATIVE NAMED IN THE WILL.
UNLES THE WILL PROVIDES OTHERWISE:
(A) EACH POWER EXERCISABLE BY SURVIVING PERSONAL CO-REPRESENTATIVE(S) MAY BEXERCISED BY THE REMAINING PERSONAL CO-REPRESENTATIVE(S) AFTER THE APOINTMENT OF ONE OR MORE IS TERMINATED; AND
(B) IF ANY PERSONOMINATED AS PERSONAL CO-REPRESENTATIVE (S) IS NOT APPOINTED, THE REMAINING APOINTED PERSONAL COREPRESENTATIVE(S) MAY EXERCISE ALL THE POWERS INCIDENT TO THE OFFICE. |
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Term
7.6
Problem B: The will of Jane Doe, the owner of Blackacre, was admitted to probate. It contained a valid power of sale and named Richard Roe, Edgar Poe and Samuel Smith as personal representatives. Smith was appointed and qualified but died (or resigned). Poe predeceased Jane Doe, and Roe declined to serve. William West was appointed and qualified as personal representative. No rights of a surviving spouse were involved. West, as personal representative, deeded Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes, unless it appears from the will that the testatrix intended to limit the exercise of the power of sale to the named personal representatives.
STANDARD: A SUCCESSOR PERSONAL REPRESENTATIVE HAS THE SAME POWERS AND DUTIES AS THE ORIGINAL PERSONAL REPRESENTATIVE TO COMPLETE THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATE , BUT THE SUCCESSOR PERSONAL REPRESENTATIVE OF A TESTATE ESTATE MAY NOT EXERCISE A POWER EXPRESSLY MADE PERSONAL TO THE PERSONAL REPRESENTATIVE NAMED IN THE WILL.
UNLES THE WILL PROVIDES OTHERWISE:
(A) EACH POWER EXERCISABLE BY SURVIVING PERSONAL CO-REPRESENTATIVE(S) MAY BEXERCISED BY THE REMAINING PERSONAL CO-REPRESENTATIVE(S) AFTER THE APOINTMENT OF ONE OR MORE IS TERMINATED; AND
(B) IF ANY PERSONOMINATED AS PERSONAL CO-REPRESENTATIVE (S) IS NOT APPOINTED, THE REMAINING APOINTED PERSONAL COREPRESENTATIVE(S) MAY EXERCISE ALL THE POWERS INCIDENT TO THE OFFICE. |
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Term
7.6
Problem C: The will of John Doe, the owner of Blackacre, was admitted to probate. It contained a valid power of sale and appointed Richard Roe and Edgar Poe as personal representatives. After Roe and Poe had qualified, Poe died (or resigned). No rights of a surviving spouse were involved. Roe, as surviving personal representative, deeded Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes, unless it appears from the will that the testator intended to limit the exercise of the power of sale to both of the named personal representatives acting together.
STANDARD: A SUCCESSOR PERSONAL REPRESENTATIVE HAS THE SAME POWERS AND DUTIES AS THE ORIGINAL PERSONAL REPRESENTATIVE TO COMPLETE THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATE , BUT THE SUCCESSOR PERSONAL REPRESENTATIVE OF A TESTATE ESTATE MAY NOT EXERCISE A POWER EXPRESSLY MADE PERSONAL TO THE PERSONAL REPRESENTATIVE NAMED IN THE WILL.
UNLES THE WILL PROVIDES OTHERWISE:
(A) EACH POWER EXERCISABLE BY SURVIVING PERSONAL CO-REPRESENTATIVE(S) MAY BEXERCISED BY THE REMAINING PERSONAL CO-REPRESENTATIVE(S) AFTER THE APOINTMENT OF ONE OR MORE IS TERMINATED; AND
(B) IF ANY PERSONOMINATED AS PERSONAL CO-REPRESENTATIVE (S) IS NOT APPOINTED, THE REMAINING APOINTED PERSONAL COREPRESENTATIVE(S) MAY EXERCISE ALL THE POWERS INCIDENT TO THE OFFICE. |
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Term
7.6
Problem D: Jane Doe, a resident of Colorado, was the owner of Blackacre, located in Michigan. She died and her will, appointing Richard Roe as personal representative and containing a valid power of sale, was admitted to probate in Colorado. Ancillary administration of the estate occurred in Michigan and the will was admitted to probate. William West was appointed as personal representative and qualified. In this capacity, West deeded Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes, unless it appears from the will that the testatrix intended to limit the exercise of the power of sale to the named personal representative.
STANDARD: A SUCCESSOR PERSONAL REPRESENTATIVE HAS THE SAME POWERS AND DUTIES AS THE ORIGINAL PERSONAL REPRESENTATIVE TO COMPLETE THE ADMINISTRATION AND DISTRIBUTION OF THE ESTATE , BUT THE SUCCESSOR PERSONAL REPRESENTATIVE OF A TESTATE ESTATE MAY NOT EXERCISE A POWER EXPRESSLY MADE PERSONAL TO THE PERSONAL REPRESENTATIVE NAMED IN THE WILL.
UNLES THE WILL PROVIDES OTHERWISE:
(A) EACH POWER EXERCISABLE BY SURVIVING PERSONAL CO-REPRESENTATIVE(S) MAY BEXERCISED BY THE REMAINING PERSONAL CO-REPRESENTATIVE(S) AFTER THE APOINTMENT OF ONE OR MORE IS TERMINATED; AND
(B) IF ANY PERSONOMINATED AS PERSONAL CO-REPRESENTATIVE (S) IS NOT APPOINTED, THE REMAINING APOINTED PERSONAL COREPRESENTATIVE(S) MAY EXERCISE ALL THE POWERS INCIDENT TO THE OFFICE. |
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Term
7.7
Problem: The will of John Doe, the owner of Blackacre, was admitted to probate under supervised probate proceedings commenced on March 1, 2000. The will appointed Richard Roe as personal representative and contained a valid power of sale. Roe qualified as personal representative. Roe, as personal representative, borrowed $10,000 which he used for proper estate purposes. To secure the loan, Roe executed a mortgage describing Blackacre. Is the mortgage valid? |
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Definition
Answer: No.
STANDARD: A TESTAMENTARY POWER TO SELL REAL PROPERTY DOES NOT INCLUDE THE POWER TO MORTGAGE REAL PROPERTY IN SUPERVISED PROBATE PROCEEDINGS COMMENCED BEFORE APRIL 1, 2000.
Comment A: See Standard 7.17 with respect to the power to mortgage by an independent
personal representative under the Revised Probate Code. |
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Term
7.8
Problem: The will of John Doe, the owner of Blackacre, was admitted to probate. The will named Richard Roe as personal representative, provided for the support of Doe’s children during their minority and contained a valid power of sale of Blackacre, qualified by the phrase “if the sale is necessary to provide funds to support my children while they are minors.” The petition for probate disclosed that at the date of Doe’s death each of his children had reached majority. No rights of a surviving spouse were involved. Roe was appointed and qualified as personal representative, and gave a deed describing Blackacre to Simon Grant under the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: A TESTAMENTARY POWER OF SALE, GIVEN FOR A SPECIFIC PURPOSE, MAY BE EXERCISED ONLY FOR THAT PURPOSE. |
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Term
7.9
Problem A: John Doe, domiciled in Michigan and owner of Blackacre, died intestate leaving Mary Doe, his widow, as one of his heirs. Richard Roe was appointed and qualified as personal representative. Roe negotiated a sale of Blackacre for the purpose of paying debts and expenses of administration except that no notice of right of election was given to the widow. Roe filed a report of sale to Simon Grant, gave notice of hearing on the report of sale and filed and had approved the bond on sale as required by the court. The sale was confirmed and Roe conveyed to Grant by personal representative’s deed. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Under the facts stated, Mary Doe has not barred dower and the statutory notice has not been served upon her; therefore her right to elect to take dower still exists. The result would have been the same if Doe had died testate without specifically devising Blackacre.
STANDARD: TITLE TO REAL PROPERTY OF A MARRIED MALE DECEDENT DOMICILED IN MICHIGAN AT THE TIME OF HIS DEATH IS SUBJECT TO THE DOWER INTEREST OF HIS WIDOW, UNLESS:
(A) DOWER HAS BEEN BARRED;
(B) THE WIDOW HAS ELECTED NOT TO TAKE DOWER;
OR
(C) THE WIDOW HAS FAILED TO MAKE A TIMELY ELECTION AFTER PROPER NOTICE. |
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Term
| Problem B: John Doe, domiciled in Michigan and owner of Blackacre, died intestate leaving Mary Doe, his widow, as one of his heirs. Doe, while married to Mary Doe, sold Blackacre on land contract to Simon Grant. Mary Doe did not sign the land contract. Richard Roe, as personal representative, upon receiving the balance due under the land contract, conveyed to Grant by deed pursuant to the land contract as provided by MCL 700.3715. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: TITLE TO REAL PROPERTY OF A MARRIED MALE DECEDENT DOMICILED IN MICHIGAN AT THE TIME OF HIS DEATH IS SUBJECT TO THE DOWER INTEREST OF HIS WIDOW, UNLESS:
(A) DOWER HAS BEEN BARRED;
(B) THE WIDOW HAS ELECTED NOT TO TAKE DOWER;
OR
(C) THE WIDOW HAS FAILED TO MAKE A TIMELY ELECTION AFTER PROPER NOTICE. |
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Term
7.9
Problem C: John Doe, domiciled in Michigan and owner of Blackacre, died intestate leaving Mary Doe, his widow, as one of his heirs. In addition: (1) Blackacre was occupied by the widow, (2) the personal representative timely served on the widow statutory notice of right of election, (3) proof of service was filed, and (4) the widow failed to make an election within the statutory period. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: TITLE TO REAL PROPERTY OF A MARRIED MALE DECEDENT DOMICILED IN MICHIGAN AT THE TIME OF HIS DEATH IS SUBJECT TO THE DOWER INTEREST OF HIS WIDOW, UNLESS:
(A) DOWER HAS BEEN BARRED;
(B) THE WIDOW HAS ELECTED NOT TO TAKE DOWER;
OR
(C) THE WIDOW HAS FAILED TO MAKE A TIMELY ELECTION AFTER PROPER NOTICE. |
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Term
7.9
Problem D: John Doe, domiciled in Michigan and owner of Blackacre, died intestate leaving Mary Doe, his widow, as one of his heirs. After execution of the personal representative’s deed to Simon Grant, the widow gave a quit claim deed of Blackacre to Grant. The deed recited her intent to bar her dower. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
Comment: Under certain circumstances, laches or estoppel may bar a widow’s claim of consummate dower as against the validity of deeds such as are discussed in this Standard. See, Rosen v Tackett, supra.
STANDARD: TITLE TO REAL PROPERTY OF A MARRIED MALE DECEDENT DOMICILED IN MICHIGAN AT THE TIME OF HIS DEATH IS SUBJECT TO THE DOWER INTEREST OF HIS WIDOW, UNLESS:
(A) DOWER HAS BEEN BARRED;
(B) THE WIDOW HAS ELECTED NOT TO TAKE DOWER;
OR
(C) THE WIDOW HAS FAILED TO MAKE A TIMELY ELECTION AFTER PROPER NOTICE.
Caveat: If a decedent was not domiciled in Michigan, the surviving spouse is entitled to elect against the will only as may be provided by the law of the decedent’s domiciliary state at the date of death. See,
MCL 700.2202(6). |
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Term
7.10
Problem A: The will of John Doe, the owner of Blackacre, was admitted to probate. The will appointed Richard Roe as executor and contained a valid power of sale. On May 2, 1979, Roe, who had qualified as executor, deeded Blackacre pursuant to the power of sale to Simon Grant who, with his wife, then deeded Blackacre to Roe. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, BEFORE JULY 1, 1979 IS NOT MARKETABLE. |
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Term
7.10
Problem B: John Doe, the owner of Blackacre, died intestate. Richard Roe was appointed and qualified as administrator of Doe’s estate. Roe obtained a license to sell Blackacre and sold it on May 2, 1979 to Simon Grant. The sale was confirmed. Grant and his wife then deeded Blackacre to Roe and Alice Roe, husband and wife. Did the Roes acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, BEFORE JULY 1, 1979 IS NOT MARKETABLE.
Comment A: Laches or estoppel may bar claims of heirs or others claiming under the estate, contesting the validity of deeds such as are discussed in this Standard.
Comment B: The Committee expresses no opinion regarding the validity of a conveyance to a fiduciary under a will expressly authorizing the fiduciary to purchase real property from the estate. |
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Term
7.11-1
Problem A: The will of John Doe, the owner of Blackacre, was admitted to probate. The will appointed Richard Roe as personal representative and contained a valid power of sale. Roe, after qualifying as personal representative on November 21, 1999, deeded Blackacre to Simon Grant who, with his wife, then deeded Blackacre to Roe. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
7.11-1
Problem B: John Doe, the owner of Blackacre, died intestate. Richard Roe was appointed and qualified as personal representative of Doe’s estate. On November 21, 1999, Roe sold Blackacre to Simon Grant. The sale was confirmed. Grant and his wife then deeded Blackacre to Roe and Alice Roe, husband and wife. Did the Roes acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
7.11-1
Problem C: John Doe, the owner of Blackacre, died intestate on July 30, 1999. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe deeded Blackacre to himself on September 1, 1999 with probate court authority after petition to the court, notice to all interested parties and a hearing. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
7.11-1
Problem D: Richard Roe, while acting as conservator of the estate of Mary Roe, a minor and the owner of Blackacre, sold Blackacre to himself on August 1, 1999 with probate court authority after petition to the court, notice to all interested parties and a hearing. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
| Problem E: John Doe, the owner of Blackacre, died intestate on July 30, 1999. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe, as independent personal representative, deeded Blackacre to himself pursuant to specific authority contained in John Doe’s will. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
| Problem F: John Doe, the owner of Blackacre, died intestate on July 30, 1999. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe as independent personal representative, deeded Blackacre to himself after a fair disclosure of the pending transaction was made to and written consent was obtained from all interested parties and filed in the proceedings. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE. |
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Term
| Problem G: John Doe, the owner of Blackacre, died intestate on July 30, 1999. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe, as personal representative in supervised proceedings, deeded Blackacre to himself pursuant to specific authority contained in Doe’s will. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, IS NOT MARKETABLE UNLESS THE SALE WAS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING. IN INDEPENDENT PROBATE PROCEEDINGS FOR A DECEDENT’S ESTATE, TITLE IS ALSO MARKETABLE IF THE WILL OR A CONTRACT ENTERED INTO BY THE DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION OR ALL INTERESTED PARTIES CONSENTED AFTER FAIR DISCLOSURE.
Comment A: Laches or estoppel may bar claims of heirs or others claiming under the estate, contesting the validity of deeds such as are discussed in this Standard.
Comment B: Carpenter v Mumby, 86 Mich App 739, 273 NW2d 605 (1978) and Thiele v Cruikshank, 96 Mich App 7, 292 NW2d 150 (1980) held that transactions in violation of MCL 709.27, repealed by the Revised Probate Code (RPC), now MCL 700.642 (repealed effective April 1, 2000, by 1998 P.A. 386, being MCL 700.1101 et seq.), are merely voidable, not void.
Comment C: MCL 700.992 (repealed effective April 1, 2000, by 1998 P.A. 386, being MCL 700.1101 et seq.) provided transition rules for the application of the RPC to proceedings pending on July 1, 1979 or commenced after June 30, 1979 for a decedent whose death occurred before July 1, 1979.
Note: See Standards 7.1 and 7.2 for other rights or interests that may affect a conveyance of real property of a decedent. See Standard 8.7 with respect to self-dealing transactions by non-testamentary trustees. |
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Term
7.11-2
Problem A: The will of John Doe, the owner of Blackacre, was admitted to probate. The will appointed Richard Roe as personal representative and contained a valid power of sale. Roe, after qualifying as personal representative on November 21, 2000, deeded Blackacre to Simon Grant who, with his wife, then deeded Blackacre to Roe. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem B: John Doe, the owner of Blackacre, died intestate. Richard Roe was appointed and qualified as personal representative of Doe’s estate on November 21, 2000. Roe sold Blackacre to Simon Grant. The sale was confirmed. Grant and his wife then deeded Blackacre to Roe and Alice Roe, husband and wife. Did the Roes acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem C: John Doe, the owner of Blackacre, died intestate on June 1, 2000. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe deeded Blackacre to himself with probate court authority after petition to the court, notice to all interested parties and a hearing. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem D: Richard Roe, while acting as conservator of the estate of Mary Roe, a minor and the owner of Blackacre, deeded Blackacre to himself on August 1, 2000 with probate court authority after petition to the court, notice to all interested parties and a hearing. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem E: John Doe, the owner of Blackacre, died intestate on June 1, 2000. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe, as personal representative acting in informal proceedings, deeded Blackacre to himself pursuant to specific authority contained in Doe’s will. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem F: John Doe, the owner of Blackacre, died intestate on June 1, 2000. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe as personal representative in informal proceedings, deeded Blackacre to himself after fair disclosure of the pending transaction was made to and written consent was obtained from all interested parties and filed in the proceedings. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.11-2
Problem G: John Doe, the owner of Blackacre, died intestate on June 1, 2000. Richard Roe was appointed and qualified as personal representative of Doe’s estate. Roe, as personal representative in formal proceedings, deeded Blackacre to himself pursuant to specific authority contained in Doe’s will. Did Roe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: THE TITLE ACQUIRED BY A FIDUCIARY PURCHASING ESTATE REAL PROPERTY IN AN INDIVIDUAL CAPACITY, DIRECTLY OR INDIRECTLY, AFTER MARCH 31, 2000 IS NOT MARKETABLE UNLESS:
(A) THE SALE IS MADE WITH EXPRESS COURT AUTHORITY AND AFTER NOTICE TO ALL INTERESTED PARTIES AND A HEARING;
(B) THE WILL OR A CONTRACT ENTERED INTO BY the DECEDENT EXPRESSLY AUTHORIZED THE TRANSACTION; OR
(C) ALL INTERESTED PARTIES CONSENT to the sale AFTER FAIR DISCLOSURE. |
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Term
7.12
Problem A: Jane Doe, a resident of Ohio and the owner of Blackacre, a parcel of real property in Michigan, died intestate. Her estate was probated in Ohio. The fiduciary of the estate deeded Blackacre to Simon Grant pursuant to Ohio law. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD : A FIDUCIARY APPOINTED BY A COURT IN A FOREIGN JURISDICTION DURING THE ADMINISTRATION OF AN ES TATE CANOT CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY UNLES QUALIFIED AS A FIDUCIARY IN MICHIGAN . |
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Term
7.12
Problem B: Jane Doe, a resident of Utah and the owner of Blackacre, a parcel of real property in Michigan, died testate. Her will, which appointed Richard Roe as personal representative with power of sale, was admitted to probate in Utah. After qualifying in Utah as fiduciary, Roe conveyed Blackacre to Simon Grant by a deed pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD : A FIDUCIARY APPOINTED BY A COURT IN A FOREIGN JURISDICTION DURING THE ADMINISTRATION OF AN ES TATE CANOT CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY UNLES QUALIFIED AS A FIDUCIARY IN MICHIGAN . |
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Term
7.12
Problem C: Jane Doe, a resident of Utah and the owner of a vendor’s or vendee’s interst in Blackacre, a parcel of real property in Michigan, died testate. Her will, which appointed Richard Roe as personal representative with power of sale, was admitted to probate in Utah. After qualifying in Utah as fiduciary, Roe conveyed Blackacre to Simon Grant by a deed pursuant to the power of sale. Did Grant, who was not a party to the land contract, acquire marketable title to Doe’s interest in Blackacre? |
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Definition
Answer: No. Neither a vendor’s nor a vendee’s interest can be conveyed by a foreign fiduciary who is not qualified in Michigan.
STANDARD : A FIDUCIARY APPOINTED BY A COURT IN A FOREIGN JURISDICTION DURING THE ADMINISTRATION OF AN ES TATE CANOT CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY UNLES QUALIFIED AS A FIDUCIARY IN MICHIGAN . |
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Term
7.13-1
Problem A: John Doe, a single man and a resident of Pennsylvania, died on July 10, 1979 owning Blackacre, a farm in Michigan. Richard Roe was appointed administrator of Doe’s estate in Pennsylvania. More than 30 days after Doe’s death, Roe qualified as personal representative in Michigan. No local administration or petition for local administration was pending at that time. On August 20, 1979, Roe deeded Blackacre to Simon Grant for a purpose permitted by statute and the sale was confirmed, no subsequent petition for local administration having been filed. All estate and inheritance taxes were paid. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, A FOREIGN FIDUCIARY APPOINTED ADMINISTRATOR OF AN INTESTATE ESTATE IN ANOTHER STATE MAY, MORE THAN 30 DAYS AFTER THE DEATH OF THE DECEDENT, QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN, PROVIDED NO LOCAL ADMINISTRATION OR PETITION FOR LOCAL ADMINISTRATION IS PENDING IN MICHIGAN, AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.13-1
Problem B: John Doe, a single man and a resident of Pennsylvania, died on July 10, 1979 owning Blackacre, a farm in Michigan. Richard Roe was appointed administrator of Doe’s estate in Pennsylvania. More than 30 days after Doe’s death, Roe qualified as personal representative in Michigan. No local administration or petition for local administration was pending at that time. Before Roe’s sale of Blackacre, a petition for the appointment of a local resident as personal representative was filed in a Michigan court, but Grant had no actual notice of the filing of the petition.On August 20, 1979, Roe deeded Blackacre to Simon Grant for a purpose permitted by statute and the sale was confirmed. All estate and inheritance taxes were paid. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Although Roe’s authority to act as personal representative was terminated upon the filing of the petition for local administration, Grant, who had no actual notice of the filing, was entitled to rely on the authority of Roe.
STANDARD: AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, A FOREIGN FIDUCIARY APPOINTED ADMINISTRATOR OF AN INTESTATE ESTATE IN ANOTHER STATE MAY, MORE THAN 30 DAYS AFTER THE DEATH OF THE DECEDENT, QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN, PROVIDED NO LOCAL ADMINISTRATION OR PETITION FOR LOCAL ADMINISTRATION IS PENDING IN MICHIGAN, AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.13-2
Problem A: John Doe, a single man, and a resident of Pennsylvania, died on July 10, 2002 owning Blackacre, a farm in Michigan. Richard Roe was appointed administrator of Doe’s estate in Pennsylvania. Roe qualified as personal representative in Michigan. No local administration or petition for local administration was pending in Michigan. Roe deeded Blackacre to Simon Grant on July 20, 2002. No local administration or petition for local administration was pending at the time of the conveyance. All estate taxes were paid. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : AFTER MARCH 31, 2000, A DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE APPOINTED ADMINISTRATOR OF AN INTESTATE ESTATE IN ANOTHER STATE MAY QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN, IF NO LOCAL ADMINISTRATION OR PETITION FOR LOCAL ADMINISTRATION IS PENDING IN MICHIGAN , AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.13-2
Problem B: John Doe, a single man, and a resident of Pennsylvania, died on July 10, 2002 owning Blackacre, a farm in Michigan. Richard Roe was appointed administrator of Doe’s estate in Pennsylvania. Roe qualified as personal representative in Michigan. No local administration or petition for local administration was pending in Michigan. Roe deeded Blackacre to Simon Grant on July 20, 2002. Before Roe’s conveyance of Blackacre, a petition for the appointment of a Michigan resident as personal representative was filed in Michigan. Grant had no actual notice of the petition. All estate taxes were paid. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Although Roe’s authority terminated upon the filing of the petition for local administration, Grant was entitled to rely on Roe’s apparent authority.
STANDARD : AFTER MARCH 31, 2000, A DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE APPOINTED ADMINISTRATOR OF AN INTESTATE ESTATE IN ANOTHER STATE MAY QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN, IF NO LOCAL ADMINISTRATION OR PETITION FOR LOCAL ADMINISTRATION IS PENDING IN MICHIGAN , AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY.
Comment B: “Foreign personal representative” is defined in MCL 700.1104 as a personal representative appointed in another jurisdiction. Although “domiciliary foreign personal representative” is not defined by statute, the Committee interprets the term as used in EPIC to mean a foreign personal representative appointed by a court in the jurisdiction in which the non-resident decedent resided at the time of death.
Comment C: The provision in MCL 700.4204 that the authority of a domiciliary foreign personal representative may be exercised only if local administration or a petition for local administration “is not pending” in Michigan, is not limited to the county or counties in which the real property is located. Accordingly, a domiciliary foreign personal representative, even if qualified in one county, has no authority to convey estate real property if local administration or a petition for local administration is pending in another county. |
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Term
7.14-1
Problem A: John Doe, a single man and a resident of Pennsylvania, died on July 10, 1979 owning Blackacre, a farm in Michigan. His will was admitted to probate in Pennsylvania, where Richard Roe qualified as executor. More than 30 days after Doe’s death, Doe’s will was admitted to probate in Michigan and Roe qualified as personal representative. Roe deeded Blackacre to Simon Grant on July 20, 1981 for a purpose permitted by Michigan statute and the sale was confirmed. All estate and inheritance taxes were paid. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, A FOREIGN FIDUCIARY APPOINTED PURSUANT TO A WILL ADMITTED TO PROBATE IN ANOTHER STATE MAY, MORE THAN 30 DAYS AFTER THE DEATH OF THE DECEDENT , QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.14-1
Problem B: Same facts as in Problem A, except that Doe’s will contained a power of sale and Roe deeded Blackacre to Grant without any court proceedings relating to the sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, A FOREIGN FIDUCIARY APPOINTED PURSUANT TO A WILL ADMITTED TO PROBATE IN ANOTHER STATE MAY, MORE THAN 30 DAYS AFTER THE DEATH OF THE DECEDENT , QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.14-1
Problem C: John Doe, a single man and a resident of Pennsylvania, died on July 10, 1979 owning Blackacre, a farm in Michigan. His will was admitted to probate in Pennsylvania, where Richard Roe qualified as executor. More than 30 days after Doe’s death, an authenticated copy of Doe’s will and the order admitting the will were deposited in a Michigan probate court. Richard Roe then qualified as independent personal representative in Michigan. Roe deeded Blackacre to Simon Grant on August 20, 1979. Did Grant acquire marketable title? |
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Definition
Answer: Yes.
STANDARD : AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, A FOREIGN FIDUCIARY APPOINTED PURSUANT TO A WILL ADMITTED TO PROBATE IN ANOTHER STATE MAY, MORE THAN 30 DAYS AFTER THE DEATH OF THE DECEDENT , QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.14-2
Problem: John Doe, a single man and a resident of Pennsylvania, died on May 1, 2000 owning Blackacre, a farm in Michigan. His will was admitted to probate in Pennsylvania, where Richard Roe qualified as executor. Doe’s will was admitted to probate in Michigan and Roe qualified as personal representative. No local administration or petition for local administration was pending at that time. Roe deeded Blackacre to Simon Grant on July 20, 2002. All estate taxes were paid. No local administration or petition for local administration was pending at the time of the conveyance. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AFTER MARCH 31, 2000, A DOMICILIARY FOREIGN PERSONAL REPRESENTATIVE APPOINTED PURSUANT TO A WILL ADMITTED TO PROBATE IN ANOTHER STATE MAY QUALIFY AS A PERSONAL REPRESENTATIVE IN MICHIGAN, IF NO LOCAL ADMINISTRATION OR PETITION FOR LOCAL ADMINISTRATION IS PENDING IN MICHIGAN, AND MAY IN THAT CAPACITY CONVEY MARKETABLE TITLE TO MICHIGAN REAL PROPERTY. |
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Term
7.15
Problem A: John Doe, the owner of Blackacre, died intestate on May 7, 1974. His estate was probated. Notices of hearings on the petition for administration, the petition for allowance of claims, the petition for determination of Doe’s heirs, and the administrator’s final account were given in accordance with Probate Court Rule (PCR) 106. There was only one publication of notice in each instance. Doe’s estate was closed in 1975. The residue, including Blackacre, was assigned to Ruth Roe and Nancy Poe, who were determined by the probate court to be Doe’s heirs at law. Roe and Poe deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. The probate court Rules required only one publication of notice for each hearing. The Probate Code required three publications, but the Supreme Court has held that its constitutional power to establish rules of practice and procedure for all state courts supersedes conflicting statutory provisions. Accordingly, one publication of notice for each hearing was sufficient. MCL 702.56, 708.2, 702.76, 704.39 and 701.32, repealed effective July 1, 1979 by MCL 700.993 (Revised Probate Code), repealed effective April 1, 2000 by MCL 700.8102 (Estates and Protected Individuals Code).
STANDARD : BEFORE JULY 1, 1979, MARKETABILITY OF TITLE TO REAL PROPERTY ACQUIRED THROUGH PROBATE PROCEEDINGS WAS NOT ADVERSELY AFFECTED BY FAILURE TO GIVE NOTICE OF HEARING ACCORDING TO THE PROBATE CODE, IF THE NOTICE WAS GIVEN PURSUANT TO THE APPLICABLE PROBATE COURT RULE.
Comment A: The Revised Probate Code (MCL 700.31, repealed effective April 1, 2000, by 1998 P.A. 386, being MCL 700.1101 et seq.), effective July 1, 1979, provided as follows: “Except as otherwise provided by law, any notice required by law shall be governed by Supreme Court rule.” See also, PCR 16.
Comment B: The Estates and Protected Individuals Code (MCL 700.1401), effective April 1, 2000, provides as follows: “Unless otherwise provided by supreme court rule, notice must be given by 1 of the following methods:…”
Caveat 1: Buscaino and Perin, supra, were overruled by McDougall v Schanz, 461 Mich 15, 597 NW2d 148 (1999) to the extent that Buscaino and Perin held that the Michigan Supreme Court had authority to promulgate rules which superseded conflicting statutory provisions. McDougall held that the Supreme Court’s constitutional rule-making authority extended only to matters of practice and procedure, not to adoption of court rules that establish, abrogate, or modify substantive law. |
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Term
7.16-1
Problem: John Doe, the owner of Blackacre, died January 10, 1980. Richard Roe qualified as the independent personal representative of Doe’s estate. Roe deeded Blackacre to Simon Grant, a good faith purchaser for value. Roe’s letters of authority did not restrict Roe’s power to convey real property. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, AN INDEPENDENT PERSONAL REPRESENTATIVE MAY CON VEY MARKETABLE TITLE TO REAL PROPERTY TO A GOOD FAITH PURCHASER FOR VALUE, IF THE LETTERS OF AUTHORITY DO NOT RESTRICTHE POWER OF THE INDEPENDENT PERSONAL REPRESENTATIVE TO MAKE THE CONVEYANCE . |
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Term
7.16-2
Problem A: John Doe died May 1, 2002 owning Blackacre. Richard Roe was appointed personal representative of Doe’s estate, pursuant to informal appointment proceedings, and his letters of appointment contained no restrictions. Doe left no widow or minor children. Roe deeded Blackacre to Simon Grant, a good faith purchaser for value, on September 10, 2002. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AFTER MARCH 31, 2000, A PERSONAL REPRESENTATIVE ACTING IN AN INFORMAL APPOINTMENT PROCEDING MAY CONVEY MARKETABLE TITLE TO REAL PROPERTY TO A GOOD FAITH PURCHASER FOR VALUE, IF LETTERS OF APPOINTMENT ARE IN EFFECT WHEN THE CONVEYANCE IS MADE AND THE PURCHASER HAS NO ACTUAL KNOWLEDGE OF ANY RESTRICTION AGAINST THE CONVEYANCE. |
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Term
7.16-2
Problem B: Same facts as in Problem A, except that Roe’s letters of appointment contained restrictions against the sale. Grant had no actual knowledge of the restrictions. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: AFTER MARCH 31, 2000, A PERSONAL REPRESENTATIVE ACTING IN AN INFORMAL APPOINTMENT PROCEDING MAY CONVEY MARKETABLE TITLE TO REAL PROPERTY TO A GOOD FAITH PURCHASER FOR VALUE, IF LETTERS OF APPOINTMENT ARE IN EFFECT WHEN THE CONVEYANCE IS MADE AND THE PURCHASER HAS NO ACTUAL KNOWLEDGE OF ANY RESTRICTION AGAINST THE CONVEYANCE. |
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Term
7.17
Problem: John Doe, the owner of Blackacre, died intestate on March 1, 1991. Richard Roe qualified as independent personal representative of Doe’s estate on May 1, 1991. Roe mortgaged Blackacre for value to Simon Grant, a good faith mortgagee. Did Grant obtain a valid mortgage? |
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Definition
Answer: Yes, unless the letters of authority restricted Roe’s power to mortgage or unless there was a court order or a will limiting Roe’s power to mortgage and Grant had actual knowledge of those limitations.
STANDARD: AFTER JUNE 30, 1979 AND BEFORE APRIL 1, 2000, AN INDEPENDENT PERSONAL REPRESENTATIVE MAY GIVE A VALID MORTGAGE OF REAL PROPERTY TO A GOD FAITH MORTGAGE FOR VALUE , UNLES THE LETERS OF AUTHORITY RESTRICTHE POWER TO MORTGAGE OR THE MORTGAGE HAS ACTUAL KNOWLEDGE OF LIMITATIONS CONTAINED IN A COURT ORDER OR THE WILL, IF ANY . |
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Term
7.18
Problem: John Doe, the owner of Blackacre, died intestate on June 1, 2001. Richard Roe qualified as personal representative of Doe’s estate. Roe mortgaged Blackacre for value to Simon Grant, a good faith mortgagee. Did Grant obtain a valid mortgage? |
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Definition
Answer: Yes, unless the letters of appointment restricted Roe’s power to mortgage or unless there was a court order or a will limiting Roe’s power to mortgage and Grant had actual knowledge of those limitations.
STANDARD : AFTER MARCH 31, 2000, A PERSONAL REPRESENTATIVE ACTING IN FORMAL OR INFORMAL APPOINTMENT PROCEDINGS MAY GIVE A VALID MORTGAGE OF REAL PROPERTY TO A GOD FAITH MORTGAGE FOR VALUE , UNLESS THE LETTERS OF APOINTMENT RESTRICT THE POWER TO MORTGAGE OR THE MORTGAGE HAS ACTUAL KNOWLEDGE OF LIMITATIONS CONTAINED IN A COURT ORDER OR THE WILL, IF ANY .
Comment: With respect to the mortgage of estate real property in independent probate proceedings after June 30, 1979 and before April 1, 2000, see Standard 7.17. |
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Term
8.1
Problem: John Doe deeded Blackacre to “Richard Roe in trust for Mary Doe.” The deed contained no other reference to a trust. Investigation establishes that there is no will, declaration of trust or other instrument in which Roe is named as trustee for Mary Doe. Later, Mary Doe deeded Blackacre to Simon Grant. Roe did not join, either individually or as trustee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : A CONVEYANCE TO A TRUSTEE, WHO HAS NO POWER OF ACTUAL DISPOSITION OR MANAGEMENT OR UPON WHOM NO TRUST DUTIES ARE IMPOSED, CREATES A PASSIVE TRUST AND VESTS TITLE IN THE BENEFICIARY, IF LIVING, AND NOT IN THE NAMED TRUSTEE. |
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Term
8.2
Problem A: John Doe deeded Blackacre to “Richard Roe, Trustee.” The deed contained no other reference to a trust. Does the word “Trustee” constitute notice of a trust? |
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Definition
Answer: No.
STANDARD : THE WORD “TRUSTEE” FOLLOWING THE NAME OF A PARTY TO AN INSTRUMENT WHICH CONTAINS NO OTHER REFERENCE TO A TRUST OR TRUST POWERS , DOES NOT OF ITSELF CONSTITUTE NOTICE OF A TRUST . |
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Term
8.2
Problem B: John Doe deeded Blackacre to “Ruth Roe, Trustee.” The deed contained no other reference to a trust. Later, “Ruth Roe, Trustee” deeded Blackacre to Simon Grant, who was a purchaser for value with no actual notice of the existence of a trust. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes. Grant could treat the conveyance as vesting title in Ruth Roe individually and free of any trust. Although there may have been a valid trust, Grant took free of the trust because he had no notice of it.
STANDARD : THE WORD “TRUSTEE” FOLLOWING THE NAME OF A PARTY TO AN INSTRUMENT WHICH CONTAINS NO OTHER REFERENCE TO A TRUST OR TRUST POWERS , DOES NOT OF ITSELF CONSTITUTE NOTICE OF A TRUST . |
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Term
| In the case of a deed from “Richard Roe, Trustee,” without other reference to a trust, if Roe is married but his wife does not join in the deed, the prudent title examiner should consider requiring a deed from Roe’s wife so as to bar her inchoate dower. |
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Definition
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Term
8.3
Problem A: John Doe deeded Blackacre to “Richard Roe as Trustee to collect rents and pay to James Smith for his life.” There is no recorded trust instrument or certificate of trust existence and authority. Roe, as trustee, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD : A DEED BY A TRUSTEE UNDER A TRUST WHOSE NECESSARY TERMS ARE EXPRESSED IN THE INSTRUMENT CREATING THE TRUSTEE’S ESTATE DOES NOT VEST MARKETABLE TITLE OF RECORD IN THE GRANTEE UNLESS THE INSTRUMENT CONTAINING THE TRUST TERMS OR A CERTIFICATE OF TRUST EXISTENCE AND AUTHORITY COMPLYING WITH THE REQUIREMENTS OF ACT 133 OF THE MICHIGAN PUBLIC ACTS OF 1991:
(A) IS OF PUBLIC RECORD;
(B) ESTABLISHES A VALID TRUST; AND
(C) CONTAINS A VALID AUTHORITY FOR THE CONVEYANCE. |
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Term
8.3
Problem B: John Doe, a widower and owner of Blackacre, died testate. Doe’s will, which was admitted to probate, created a valid trust for the benefit of Doe’s children and appointed Richard Roe trustee, with power of sale. Doe’s estate was probated, debts, taxes and expenses paid, and an order entered distributing Blackacre to the trustee. Roe, as testamentary trustee, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : A DEED BY A TRUSTEE UNDER A TRUST WHOSE NECESSARY TERMS ARE EXPRESSED IN THE INSTRUMENT CREATING THE TRUSTEE’S ESTATE DOES NOT VEST MARKETABLE TITLE OF RECORD IN THE GRANTEE UNLESS THE INSTRUMENT CONTAINING THE TRUST TERMS OR A CERTIFICATE OF TRUST EXISTENCE AND AUTHORITY COMPLYING WITH THE REQUIREMENTS OF ACT 133 OF THE MICHIGAN PUBLIC ACTS OF 1991:
(A) IS OF PUBLIC RECORD;
(B) ESTABLISHES A VALID TRUST; AND
(C) CONTAINS A VALID AUTHORITY FOR THE CONVEYANCE. |
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Term
8.3
Problem C: Richard Roe owned Blackacre as trustee under a trust agreement conferring upon the trustee the express power to sell and convey any real property constituting part of the trust corpus. A certificate of trust existence and authority as to the trust, complying with the requirements of Act 133 of the Michigan Public Acts of 1991, was recorded. Roe, as trustee, deeded Blackacre to Simon Grant. Did Grant obtain marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD : A DEED BY A TRUSTEE UNDER A TRUST WHOSE NECESSARY TERMS ARE EXPRESSED IN THE INSTRUMENT CREATING THE TRUSTEE’S ESTATE DOES NOT VEST MARKETABLE TITLE OF RECORD IN THE GRANTEE UNLESS THE INSTRUMENT CONTAINING THE TRUST TERMS OR A CERTIFICATE OF TRUST EXISTENCE AND AUTHORITY COMPLYING WITH THE REQUIREMENTS OF ACT 133 OF THE MICHIGAN PUBLIC ACTS OF 1991:
(A) IS OF PUBLIC RECORD;
(B) ESTABLISHES A VALID TRUST; AND
(C) CONTAINS A VALID AUTHORITY FOR THE CONVEYANCE. |
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Term
8.3
Problem D: John Doe deeded Blackacre to Richard Roe as trustee under a valid recorded trust. The trust agreement conferred power of sale only with the consent of a majority of the beneficiaries. Roe, as trustee, deeded Blackacre to Simon Grant, but a majority of the beneficiaries did not sign the deed or otherwise consent to the conveyance. Did Grant acquire marketable title of record to Blackacre? |
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Definition
Answer: No.
STANDARD : A DEED BY A TRUSTEE UNDER A TRUST WHOSE NECESSARY TERMS ARE EXPRESSED IN THE INSTRUMENT CREATING THE TRUSTEE’S ESTATE DOES NOT VEST MARKETABLE TITLE OF RECORD IN THE GRANTEE UNLESS THE INSTRUMENT CONTAINING THE TRUST TERMS OR A CERTIFICATE OF TRUST EXISTENCE AND AUTHORITY COMPLYING WITH THE REQUIREMENTS OF ACT 133 OF THE MICHIGAN PUBLIC ACTS OF 1991:
(A) IS OF PUBLIC RECORD;
(B) ESTABLISHES A VALID TRUST; AND
(C) CONTAINS A VALID AUTHORITY FOR THE CONVEYANCE. |
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Term
8.3
Problem E: John Doe, a widower, the owner of Blackacre, deeded Blackacre on December 1, 1988, to Richard Roe as trustee under a recorded declaration of trust containing a power of sale. The trust provided that the corpus was to be retained for 50 years and then distributed to Doe’s then-living lineal descendants, the income to be distributed annually to Doe’s children and grandchildren. Later, Roe, as trustee, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. The trust was void ab initio as violating either the statute prohibiting suspension of the power of alienation (see, Standard 9.6) or the common law rule against perpetuities (see, Standard 9.4), whichever is applicable. Because the trust was void at its creation, the power of sale failed. In the absence of a valid trust and power of sale, title acquired through the trustee was not marketable.
STANDARD : A DEED BY A TRUSTEE UNDER A TRUST WHOSE NECESSARY TERMS ARE EXPRESSED IN THE INSTRUMENT CREATING THE TRUSTEE’S ESTATE DOES NOT VEST MARKETABLE TITLE OF RECORD IN THE GRANTEE UNLESS THE INSTRUMENT CONTAINING THE TRUST TERMS OR A CERTIFICATE OF TRUST EXISTENCE AND AUTHORITY COMPLYING WITH THE REQUIREMENTS OF ACT 133 OF THE MICHIGAN PUBLIC ACTS OF 1991:
(A) IS OF PUBLIC RECORD;
(B) ESTABLISHES A VALID TRUST; AND
(C) CONTAINS A VALID AUTHORITY FOR THE CONVEYANCE. |
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Term
8.4
Problem A: John Doe, the owner of Blackacre, died testate. Doe’s will devised Blackacre to Edgar Poe and Richard Roe as trustees under an express trust containing a power of sale. The order assigning residue entered in Doe’s estate assigned Blackacre to Poe and Roe as trustees. Roe, as trustee, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: ALL SURVIVING TRUSTEES MUST EXECUTE A DEED PURSUANT TO A POWER OF SALE CONTAINED IN AN EXPRESS TRUST UNLESS THE TRUST INSTRUMENT PROVIDES OTHERWISE. |
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Term
8.4
Problem B: Same facts as in Problem A, except that Poe died before the execution of the deed and no successor co-trustee was appointed. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: ALL SURVIVING TRUSTEES MUST EXECUTE A DEED PURSUANT TO A POWER OF SALE CONTAINED IN AN EXPRESS TRUST UNLESS THE TRUST INSTRUMENT PROVIDES OTHERWISE. |
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Term
8.5
Problem A: Richard Roe, the sole (or surviving) trustee under an express, recorded declaration of trust containing a power of sale, died. The trust instrument did not provide for a successor trustee. Blackacre was part of the corpus of the trust. Later, Alice Roe, widow and sole heir at law of Richard Roe, deeded Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: No. Real property held in trust does not descend to the heirs at law of a deceased trustee.
STANDARD: IF AN EXPRESS TRUST CONTAINS A POWER OF SALE WHICH IS NOT LIMITED TO THE NAMED TRUSTEE, A SUCCESSOR TRUSTEE MAY CONVEY REAL PROPERTY PURSUANT TO THE TRUST TERMS. IF A TRUST DOES NOT CONTAIN A POWER OF SALE OR CONTAINS A POWER OF SALE LIMITED TO THE NAMED TRUSTEE, THE PROBATE COURT MAY ENTER AN ORDER REMOVING ANY TRUST PROVISION LIMITING THE SUCCESSOR TRUSTEE’S POWER OF SALE, THEREBY PERMITTING THE SUCCESSOR TRUSTEE TO CONVEY REAL PROPERTY PURSUANT TO THE COURT’S ORDER. |
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Term
8.5
Problem B: Richard Roe, the sole (or surviving) trustee under an express, recorded declaration of trust containing a power of sale, died. The trust instrument did not provide for a successor trustee. Blackacre was part of the corpus of the trust. After Roe’s death the probate court appointed Edgar Poe as successor trustee. Poe, as trustee, conveyed Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: IF AN EXPRESS TRUST CONTAINS A POWER OF SALE WHICH IS NOT LIMITED TO THE NAMED TRUSTEE, A SUCCESSOR TRUSTEE MAY CONVEY REAL PROPERTY PURSUANT TO THE TRUST TERMS. IF A TRUST DOES NOT CONTAIN A POWER OF SALE OR CONTAINS A POWER OF SALE LIMITED TO THE NAMED TRUSTEE, THE PROBATE COURT MAY ENTER AN ORDER REMOVING ANY TRUST PROVISION LIMITING THE SUCCESSOR TRUSTEE’S POWER OF SALE, THEREBY PERMITTING THE SUCCESSOR TRUSTEE TO CONVEY REAL PROPERTY PURSUANT TO THE COURT’S ORDER. |
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Term
| Problem C: Richard Roe, the sole (or surviving) trustee under an express, recorded declaration of trust containing a power of sale, resigned as trustee and the probate court appointed Edgar Poe as successor trustee. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: IF AN EXPRESS TRUST CONTAINS A POWER OF SALE WHICH IS NOT LIMITED TO THE NAMED TRUSTEE, A SUCCESSOR TRUSTEE MAY CONVEY REAL PROPERTY PURSUANT TO THE TRUST TERMS. IF A TRUST DOES NOT CONTAIN A POWER OF SALE OR CONTAINS A POWER OF SALE LIMITED TO THE NAMED TRUSTEE, THE PROBATE COURT MAY ENTER AN ORDER REMOVING ANY TRUST PROVISION LIMITING THE SUCCESSOR TRUSTEE’S POWER OF SALE, THEREBY PERMITTING THE SUCCESSOR TRUSTEE TO CONVEY REAL PROPERTY PURSUANT TO THE COURT’S ORDER. |
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Term
8.5
Problem D: John Doe executed a declaration of trust under which Richard Roe and Edgar Poe were appointed trustees. The trust instrument contained a power of sale which was limited as follows: “Having confidence in the trustees herein named, I declare that the powers granted shall be personal to them and shall not vest in their successors.” The trust instrument was recorded, and Doe deeded Blackacre to the named trustees. Roe and Poe died; the probate court appointed John Jones and Samuel Smith as successor trustees. Jones and Smith, as successor trustees, executed a deed describing Blackacre to Simon Grant pursuant to the power of sale. Did Grant acquire marketable title to Blackacre. |
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Definition
Answer: No. Although the probate court appointed successor trustees, the court’s order did not remove the trust provision limiting the power of sale to the named trustees.
STANDARD: IF AN EXPRESS TRUST CONTAINS A POWER OF SALE WHICH IS NOT LIMITED TO THE NAMED TRUSTEE, A SUCCESSOR TRUSTEE MAY CONVEY REAL PROPERTY PURSUANT TO THE TRUST TERMS. IF A TRUST DOES NOT CONTAIN A POWER OF SALE OR CONTAINS A POWER OF SALE LIMITED TO THE NAMED TRUSTEE, THE PROBATE COURT MAY ENTER AN ORDER REMOVING ANY TRUST PROVISION LIMITING THE SUCCESSOR TRUSTEE’S POWER OF SALE, THEREBY PERMITTING THE SUCCESSOR TRUSTEE TO CONVEY REAL PROPERTY PURSUANT TO THE COURT’S ORDER. |
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Term
8.6
Problem A: John Doe died testate on December 1, 1999. His will devised Blackacre and other real property to Richard Roe as trustee under an express trust. The will did not contain or imply a power of sale, but it did not require that Blackacre be retained in the trust or otherwise restrict the sale of Blackacre. On January 31, 2000 Roe, as trustee, and all persons having a beneficial interest joined in a deed of Blackacre to Simon Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: BEFORE APRIL 1, 2000 A TRUSTEE UNDER AN EXPRESS TRUST WHICH NEITHER CONTAINS NOR IMPLIES A POWER OF SALE BUT DOES NOT RESTRICT SALE, HAD POWER TO CONVEY REAL PROPERTY IF:
(A) ALL PERSONS HAVING A BENEFICIAL INTEREST JOINED WITH THE TRUSTEE IN THE CONVEYANCE OR CONVEYED BY SEPARATE INSTRUMENT; OR
(B) THE SALE WAS CONFIRMED BY AN ORDER OF THE PROBATE COURT. |
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Term
8.6
Problem B: John Doe died testate on December 1, 1999. His will devised Blackacre and other real property to Richard Roe as trustee under an express trust. The will did not contain or imply a power of sale, but it did not require that Blackacre be retained in the trust or otherwise restrict the sale of Blackacre. Richard Roe, as trustee, reported the facts of the sale to the probate court and requested confirmation of the sale. Notice of hearing was given to all parties in interest. An order confirming the sale was entered, pursuant to which Roe deeded Blackacre to Grant. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: BEFORE APRIL 1, 2000 A TRUSTEE UNDER AN EXPRESS TRUST WHICH NEITHER CONTAINS NOR IMPLIES A POWER OF SALE BUT DOES NOT RESTRICT SALE, HAD POWER TO CONVEY REAL PROPERTY IF:
(A) ALL PERSONS HAVING A BENEFICIAL INTEREST JOINED WITH THE TRUSTEE IN THE CONVEYANCE OR CONVEYED BY SEPARATE INSTRUMENT; OR
(B) THE SALE WAS CONFIRMED BY AN ORDER OF THE PROBATE COURT. |
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Term
8.6
Problem C: John Doe died testate on December 1, 1999. His will devised Blackacre and other real property to Richard Roe as trustee under an express trust. The will did not contain or imply a power of sale, but it did not require that Blackacre be retained in the trust or otherwise restrict the sale of Blackacre. Roe, as trustee, petitioned the probate court for construction of the will and for authority to convey Blackacre. All interested parties were joined in the proceeding. The court entered an order authorizing the sale in order to preserve the assets of the estate, after determining that there was no express power of sale under the will. Roe, as trustee, filed a report of the sale to Grant, and the probate court entered an order confirming the sale. Roe, as trustee, deeded Blackacre to Grant pursuant to the order. Did Grant acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: BEFORE APRIL 1, 2000 A TRUSTEE UNDER AN EXPRESS TRUST WHICH NEITHER CONTAINS NOR IMPLIES A POWER OF SALE BUT DOES NOT RESTRICT SALE, HAD POWER TO CONVEY REAL PROPERTY IF:
(A) ALL PERSONS HAVING A BENEFICIAL INTEREST JOINED WITH THE TRUSTEE IN THE CONVEYANCE OR CONVEYED BY SEPARATE INSTRUMENT; OR
(B) THE SALE WAS CONFIRMED BY AN ORDER OF THE PROBATE COURT. |
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Term
8.7
Problem A: Title to Blackacre was vested in Richard Roe as trustee under an express trust which contained a power of sale but no provision authorizing Roe to acquire an interest in Blackacre. Roe, as trustee, deeded Blackacre to Susan Grant. Later, Grant deeded Blackacre to Richard Roe and Alice Roe, husband and wife. Did the Roes acquire marketable title to Blackacre? |
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Definition
Answer: No.
STANDARD: IF THE TRUSTEE OF AN EXPRESS NON-TESTAMENTARY TRUST DIRECTLY OR INDIRECTLY CONVEYS TRUST REAL PROPERTY TO HIMSELF OR HERSELF IN AN INDIVIDUAL CAPACITY, THE TITLE ACQUIRED IS NOT MARKETABLE UNLESS THE TRUST INSTRUMENT AUTHORIZES THE CONVEYANCE. |
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Term
8.7
Problem B: Title to Blackacre was vested in Richard Roe as trustee under an express trust for the benefit of Lucy Doe. Upon the death of Doe, the trust was to terminate and the corpus vest in Roe and Marjorie Poe. After Doe’s death, Roe, as trustee, deeded Blackacre to himself and Poe. Did Roe and Poe acquire marketable title to Blackacre? |
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Definition
Answer: Yes.
STANDARD: IF THE TRUSTEE OF AN EXPRESS NON-TESTAMENTARY TRUST DIRECTLY OR INDIRECTLY CONVEYS TRUST REAL PROPERTY TO HIMSELF OR HERSELF IN AN INDIVIDUAL CAPACITY, THE TITLE ACQUIRED IS NOT MARKETABLE UNLESS THE TRUST INSTRUMENT AUTHORIZES THE CONVEYANCE. |
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