In Re Schuhmacher Estate

            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                           COURT OF APPEALS



In re ESTATE OF GLADYS SCHUHMACHER.


DAVID SCHUHMACHER, YVONNE RANDALL                                  UNPUBLISHED
AND GARY SCHUHMACHER,                                              October 13, 2022

              Appellees,

V                                                                  No. 357958
                                                                   Roscommon Probate Court
COLLEEN WILLIAMS,                                                  LC No. 13-054465-DE

              Appellant.


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

PER CURIAM.

       Appellant Colleen Williams (Colleen), appeals by right the June 1, 2021 order of the
probate court that, in part, granted the motion of appellee David Schuhmacher (David), personal
representative for the estate of his mother, Gladys Schuhmacher (Gladys), to approve the sale of
Gladys’s home in Houghton Lake Heights (the Houghton Lake Heights property).1 The probate
court had previously approved the sale of estate property in West Branch (the West Branch
property) to Walter Schuhmacher (Walter). Gladys’s other surviving offspring include intervening




1
 Judge Douglas C. Dosson presided over this case in the probate court from March 26, 2013 until
his apparent retirement in 2015. Judge Eugene R. Turkelson presided at an August 24, 2015
motion hearing regarding the sale of certain property located in West Branch. Judge Nancy A.
Kida presided at the continuation of that hearing on November 23, 2015 and at a February 8, 2016,
motion hearing regarding the requested removal of the personal representative. Judge Mark D.
Jernigan presided over the remainder of the case, including hearings regarding the sale of the
Houghton Lake Heights property.



                                               -1-
appellees Yvonne Randell (Yvonne) and Gary Schuhmacher (Gary).2 We conclude that the
probate court erred by ordering the estate to pay Walter $10,000 for maintaining the Houghton
Lake Heights property, because it was contrary to an earlier agreement, and that the probate court
further erred by not accounting for the distribution of proceeds from oil leases that were listed as
estate property. On remand, the probate court should hold a hearing to determine these matters,
as well as the status of the distribution of the proceeds from the sale of the Houghton Lake Heights
property. We otherwise affirm the probate court’s rulings, and therefore affirm in part, vacate in
part, and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Gladys died on May 6, 2010 and was survived by five children, in order of age (oldest to
youngest): David, Gary, Yvonne, Colleen, and Walter. In 2013, Yvonne was appointed personal
representative of the Gladys’s estate after requesting appointment and alleging that Gladys had
died intestate. Walter and Colleen moved the probate court to remove Yvonne as personal
representative, alleging that Gladys had left a will that nominated David as her personal
representative. After a hearing, the probate court granted the motion, appointed David as personal
representative, froze the assets of the estate, and ordered David to provide an inventory of the
estate.

       Gladys’s will named David as the estate’s personal representative and directed that her
property be distributed to her children, except that Colleen was “not to share in any of the personal
possessions of the testator, as she has already been given everything that she wanted.” An
inventory of the estate listed the Houghton Lake Heights property valued at $40,000, the West
Branch property with an unknown value, an oil lease worth $7,150, a $293 bank account, a $1,000
vehicle, and $3,582 in personal property (total estate value of $52.053).

        Yvonne and Gary moved for a distribution of Gladys’s property and sought to have Colleen
return personal property of Gladys that she had taken, because the will excluded her from receiving
personal property. David responded by providing a codicil to Gladys’s will that included Colleen
in the distribution of property. The codicil listed all five surviving children as recipients of
Gladys’s property, and also referenced “any money regarding the lease (rent) agreement” in
relation to the West Branch property.

        Yvonne and Gary objected to the admission of the codicil, asserting that Yvonne had hired
a handwriting expert who had determined that the codicil was forged. They also objected that the
amended inventory did not include personal property from the West Branch property or many
other items in Colleen’s possession, including antiques and silver. Walter and Colleen also
objected to the inventory of the estate’s assets, arguing that that the valuation of the Houghton
Lake property was below market value.




2
  This Court granted Yvonne and Gary’s motion to intervene in this appeal. In re Estate of
Schuhmacher, unpublished order of the Court of Appeals, entered October 25, 2021 (Docket No.
357958).


                                                -2-
        In 2015, the probate court held an evidentiary hearing regarding these contested issues, and
found that Gladys had sold the West Branch property to Walter under a land contract. The probate
court found that Walter had agreed to buy the West Branch property for $80,000, with a $5,000
down payment and $500 monthly payments at 11% yearly interest, but noted that the payment
amount specified in the contract was insufficient to cover the interest as it accrued, much less
reduce the principal obligation. The probate court concluded that Walter owed an outstanding
amount on the land contract. The probate court determined that the fair market value of the West
Branch property was $83,100, minus the $26,000 remaining on Gladys’s mortgage for the
property, and that the estate and Walter remained subject to the land contract on which Walter
owed $103,386. The probate court held that the contested issues regarding personal property on
the amended inventory that were discussed in evidentiary hearings had been resolved, either by
stipulation or involuntary dismissal, and that the objection to the codicil had been withdrawn.

         In 2015, Yvonne and Gary again moved to remove David as personal representative of the
estate, asserting, among other things, that David had delayed opening the estate or reading the will
to the heirs, that he had “endorsed” Walter’s and Colleen’s alleged misleading of the probate court
with misrepresentations and fraudulent documents, that David was depositing the oil lease
payments into his personal account, and that David and Colleen had assaulted Yvonne. Also in
2015, David moved the probate court to approve the sale of the West Branch property to Walter,
with Walter assuming the mortgage payments while waiving all future claims to estate assets.
Yvonne and Gary objected. The probate court granted David’s motion.

         At the 2016 hearing on the motion to remove David as personal representative, Gary
testified that Gladys’s intent had been to divide her property in five equal parts, and that David
had not acted in accordance with those directions. Gary claimed that David had failed to deposit
into the estate’s account a $7,000 payment (related to the lease of oil rights), causing the funds to
be returned to the oil company, and had not been forthcoming with the heirs in providing
information about the estate. David testified that he was unable to deposit the oil lease check
because it was written in December 2021, 18 months before he was appointed as personal
representative. Gary also alleged that David had titled a vehicle belonging to the estate in his own
name, and that Gladys had owned several other vehicles that were not accounted for, such as boats,
a jeep, pickup trucks, and a dump truck. David responded that the inventory, which had been
approved, listed all known vehicles owned by the estate. Gary also argued that the sale of the West
Branch property to Walter was inequitable, and that the land contract had been improperly altered,
but the probate court held that the time for objecting to the sale had passed. The probate court
denied the motion to remove David as personal representative.

       In April 2021, David moved the probate court to release the lis pendens (notice of pending
legal action, see MCL 600.2701) on the Houghton Lake Heights property that Yvonne had
recorded in 2018, and approve the sale of the property to an unrelated party. In May 2021, Walter
moved the probate court to enforce its order for David to sell him the West Branch property, and
also requested reimbursement of expenditures he had incurred to maintain and improve the
property.

       At a motion hearing before Judge Jernigan, Walter’s attorney asked the probate court to
order David to execute a deed conveying the West Branch property to Walter as previously ordered
by Judge Nancy A. Kita. David’s attorney responded that he was unaware that the deed had not


                                                -3-
been executed, and promised to transfer the deed to Walter as soon as possible. Yvonne requested
an adjournment so that she, Gary, and Colleen could seek legal counsel, explaining that they did
not agree with the sale in light of the appraised value and a question regarding the validity of the
contract. The probate court ordered that David deed the property to Walter within 30 days. The
probate court then adjourned the hearing for two weeks to allow Yvonne and Colleen time to
prepare their objections to the sale.

         At the continuation of the motion hearing, the attorneys for Walter and David stated that
there was agreement to reimburse Walter $10,000 for repairs, utilities, and maintenance that he
had personally expended on the Houghton Lake Heights property. They also informed the probate
court that the deed to the West Branch property had been given to Walter, but had not yet been
recorded. The probate court determined that there was a fair market value, arm’s-length offer for
the Houghton Lake Heights property and, with no other concrete offers in view, ordered the sale
of that property. The probate court issued an order on June 1, 2021 that the Houghton Lake Heights
property could be sold and the lis pendens discharged. The probate court further granted $10,000
of the proceeds of that sale to Walter in satisfaction of all present and future claims against the
estate, and ordered the balance of the proceeds from the sale to be equally divided among Yvonne,
Colleen, Gary, and David. The probate court subsequently denied Colleen, Gary, and Yvonne’s
motion for reconsideration. This appeal followed.

                                  II. STANDARD OF REVIEW

        “[A]ppeals from a probate court decision are on the record, not de novo.” In re Temple
Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008). This Court reviews the probate
court’s factual findings for clear error, and its dispositional rulings for an abuse of discretion. Id.
This includes the probate court’s decision whether to remove a personal representative. In re
Duane v Baldwin Trust, 274 Mich App 387, 396-397; 733 NW2d 419 (2007). A probate court
abuses its discretion when it chooses an outcome outside the range of reasonable and principled
outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). A finding
of fact is clearly erroneous where it leaves this Court with the definite and firm conviction that a
mistake has been made. Jonkers v Summit Twp, 278 Mich App 263, 265; 747 NW2d 901 (2008).
We review de novo allegations of judicial misconduct. See People v Stevens, 498 Mich 162, 168;
869 NW2d 233 (2015).

                        III. SALE OF THE WEST BRANCH PROPERTY

       Colleen argues that the probate court erred by approving the sale of the West Branch
property to Walter. We disagree.

        The primary functions of the probate court concerning wills is to determine the testator’s
intent, and to effectuate that intent. In re Stan Estate, 301 Mich App 435, 442; 839 NW2d 498
(2013). When there is no patent or latent ambiguity in the language of a will, the plain meaning
of the terms express the testator’s intent. In re Reisman Estate, 266 Mich App 522, 527; 702
NW2d 658 (2005). “A court may not construe a clear and unambiguous will in such a way as to
rewrite it.” Id. (quotation marks, citation, and alteration omitted).




                                                 -4-
         In this case, Article II of Gladys Schuhmacher’s will provided as follows: “I devise all the
rest, residue and remainder of my property, . . . all property over which I may have the power to
appoint or dispose of by my Last Will and Testament to my beloved children.” Article III
nominated David as the estate’s personal representative, and empowered the representative to
“contract for the sale of or otherwise treat with all property as in his judgment shall be for the best
interest of my estate, without the necessity of procuring any license or order from the court having
jurisdiction of the administration of my estate.” Therefore, in general, the intent expressed by
Gladys’s will was for David to distribute her estate to himself and his siblings.

        The inventory of the estate listed the West Branch property as having an unknown value,
because Walter had been living there under a land contract between Gladys and Walter. At the
2014 hearing regarding the land contract value, David and Walter argued that the value of the land
contract to the estate was zero because of the payments that had been made. The other heirs argued
that the value of the contract was unknown because Walter’s payments on it were not recorded,
and that the payments required by the contract would not even have covered the interest on
Gladys’s mortgage for that property.

        Walter’s documentation of his payments to Gladys were admitted into evidence, as was a
statement by Glady from a previous deposition that she had sold the West Branch property to
Walter under a land contract on February 12, 1993, which was never recorded, when Walter’s
parents still lived there. Walter testified that he moved onto the property in 1998, and had paid for
the attendant utilities, taxes, and $62,400 in improvements. Walter testified that the terms of the
land contract included $80,000 total for the property, a down payment of $5,000, monthly
payments of $500, and 11% yearly interest, and that he typically paid $500 in cash each month.
He added that he had made some lump-sum payments larger than $500, and, although he recorded
some of them, he had relied on Gladys to keep track. He admitted that he had been incarcerated
for a two-year period covering 1995 to 1997 and he did not make payments during that time, and
stated that his parents lived at the property until 1998.

        Walter further testified that, in 2001 or 2002, he paid Gladys’s credit card bills, in addition
to periodic $500 payments on the land contract. Walter testified that he had paid $77,652 in
Gladys’s credit card bills, and stated that Gladys had said that those payments would be credited
as land contract payments. He further stated that from 2010 to 2013 he had paid $16,409 toward
Gladys’s living expenses. Walter opined that he had thus paid the land contract in full, and that
the value of the property was currently $60,000 to $65,000. Walter testified that Gladys had had
a mortgage on the West Branch property, on which he had been making the payments for five
years, and that the remaining balance was $29,000. According to Walter, Gladys told him in
September 2009 that she wanted to convey the property to him when she felt better.

         The probate court concluded that a land contract for the sale of the West Branch property
existed, but that any value left on the contract was an estate asset because a deed was never
conveyed to Walter. The probate court invited interested parties to submit arguments on the value
of the land contract. Walter submitted an accounting of payments and cancelled checks purporting
to demonstrate that he had paid off the land contract, while Colleen, Gary, and Yvonne submitted
a document which contained calculations that resulted in Walter owing $125,000 on the land
contract.



                                                 -5-
        The probate court issued an order reflecting its findings that Gladys had sold the home in
West Branch to Walter under a land contract, that Walter agreed to buy the home for $80,000, with
a $5,000 down payment and $500 monthly payments and 11% yearly interest, but that the interest
alone would have been $200 more a month than the payments required under the contract. The
probate court calculated, on the basis of Walter’s testimony, that Walter owed an outstanding
amount on the land contract. The probate court noted that the interested parties had valued the
land contract differently, but that Walter could be credited for contributions he had made to the
estate, and encouraged the parties to come to an agreement to convey the property to Walter,
subject to the mortgage, in accordance with Gladys’s wishes.

        David subsequently moved the probate court to approve the sale of the West Branch
property to Walter. At the hearing on the motion, the estate’s attorney informed the probate court
that there had been difficulty valuing the land contract because of the interest provision, Walter’s
various contributions to estate expenses, and the methods of payment, and asked that the valuation
of the West Branch property to be entrusted to David as the personal representative. David asked
the probate court to approve the sale of the West Branch property to Walter in consideration of his
assumption of the mortgage, the one-fifth interest in the property already granted to Walter by the
will, his waiver of his interest in the Houghton Lake Heights property, and $77,000 in documented
payments for Gladys’s expenses. Gary and Colleen objected on the grounds that they did not trust
Walter’s documentation or accounting.

        The probate court approved the sale of the West Branch property to Walter, and listed the
consideration paid to the estate as “assumption of the mortgage debt by the purchaser,” “waiver of
all present and future claims for additional estate property distribution by the purchaser,” and
“waiver and release of all present and future claims against the estate for payments, services or
other actions by the purchaser.” The probate court added that the consideration that Walter
returned to the estate was adequate “such that acceptance of the same falls within the legal
discretion of the personal representative.” Colleen argues that the probate court erred by ordering
the sale for multiple reasons, which we will discuss in turn.

                                 A. FALSE REPRESENTATION

        Colleen argues that the December 7, 2015 order approving the sale of the West Branch
property to Walter was based on an inaccurate representation by Walter’s attorney to the probate
court during the 2015 hearing on the objections to the proposed order approving the sale. We
disagree. At that hearing, Walter’s attorney stated that, “[b]asically, it says all issues are resolved.
He resolved all issues,” when discussing the probate court’s previous opinion regarding the value
of the land contract. This Court’s review of the transcript reveals that Walter’s attorney made that
statement after Colleen expressed skepticism about Walter’s accounting of expenses for the estate
that Walter claimed, and the probate court responded that that issue could not be developed and
resolved within the scope of the present hearing. Walter’s attorney remarked that “all of those
issues have already been adjudicated, so there’s nothing to catch up to speed with,” and referred
the probate court to the March 3, 2015 opinion on the value of the land contract. Walter’s attorney
elaborated, stating that “Judge Dosson has already adjudicated the issues that they’re raising. A
land contract is valid. He acknowledged my client made payments towards the land contract he
acknowledged my client made payments that he wasn’t going to apply to the land contract
payments, but certainly my client could file a claim against the estate.”


                                                  -6-
         We discern no material misrepresentation in these statements; rather, Walter’s attorney
merely argued that certain issues raised by Colleen had already been decided in the probate court’s
previous opinion. Further, there is no indication that the probate court relied on these statements
in approving the proposed order; rather, the record shows that the probate court was skeptical of
Walter’s attorney’s argument, noting that the reason an order had not already been entered was
because certain objections had been raised for its consideration. We find no merit to Colleen’s
argument. See Baker v Arbor Drugs, Inc, 215 Mich App 198, 208; 544 NW2d 727 (1996) (noting
that the elements of fraud or misrepresentation include that the representation was false, the party
making it was aware that it was false, and that the recipient of the statement acted in reliance on
that statement).

                               B. VALUE OF LAND CONTRACT

        Colleen also argues that the probate court erred by approving the sale without a
determination of the value of the land contract. We disagree. In the opinion regarding the value
of the land contract, the probate court found that there was a $101,266 balance at the time of
Gladys’s death, but acknowledged the difficulty of the valuation because of “the extremely unusual
terms of this contract coupled with the fact that no record of payments was ever kept, either by the
decedent or by Walter.” The probate court noted that, after Gladys’s death, Walter continued to
live at the property without making payments on the contract, but “assisted in many ways with
estate property, paying bills (specifically including the decedent’s mortgage obligation on the
[West Branch] property), and performing maintenance to the decedent’s house and car.”

       The probate court determined that the fair market value of the West Branch property was
$83,100, with $26,000 remaining on Gladys’s mortgage for the property, and that the estate and
Walter remained subject to the land contract, on which Walter owed $103,386. However, the
probate court determined that it would be “ridiculous” for Walter to pay $103,386 when the
property was worth far less, and that Walter might well “forfeit” his interest and buy the property
from the estate. The probate court stated that the land contract would not be valued at $103,386,
because the fair market value of the asset was only $83,000 minus the remaining $26,000
mortgage.

        The probate court discussed the credit that Walter sought to claim against the land contract,
and determined that Walter could not claim his expenditures to maintain and improve the West
Branch property, or the taxes he paid on that property, because these were his obligations under
the land contract, not the obligation of the estate. The probate court held that Walter could properly
be credited with contributions to the estate for mortgage payments on the property made after
Gladys’s death, paying for repairs to Gladys’s vehicle, paying bills for the estate (including funeral
expenses), and for expending funds on maintaining and improving the Houghton Lake Heights
property after her death, and encouraged the parties to agree to convey the West Branch property
to Walter, subject to the mortgage, in accordance with Gladys’s wishes. The probate court also
noted that the apparent $57,000 value in property that Water received by purchasing the land was
offset by his waiver of claims regarding the value of the share he would have received from the
estate from selling the Houghton Lake Heights property, and the expenses that he would claim
against the estate.




                                                 -7-
        The probate court made the factual finding that the credit for expenses plus Walter’s waiver
of his share of a distribution from the sale of the Houghton Lake Heights property equaled the
market value of the West Branch property. Colleen has not demonstrated that it clearly erred by
doing so. Temple Marital Trust, 278 Mich App at 128. Accordingly, Colleen has not demonstrated
that the probate court abused its discretion approving the sale of the West Branch property to
Walter. Id.

                                         C. STIPULATION

        Colleen also argues that the probate court erred by approving the sale of the West Branch
property without the agreement of all of the heirs. We disagree. In support of this argument,
Colleen cites the probate court’s statement that the sale “can only be accomplished by agreement
of the parties,” and the probate court’s encouragement of the parties to “consider a stipulated
resolution to this effect.” However, David and Walter did agree on a settlement to convey the
property to Walter for consideration. As noted, the probate court’s approval of the terms of this
settlement was not clearly erroneous or an abuse of discretion. Further, the terms of the will did
not require unanimous agreement on the distribution of property; rather, the will authorized David,
as the personal representative, “to sell, contract for the sale of or otherwise treat with all property
as in his judgment shall be for the best interest of my estate.” David’s agreement to sell the
property to Walter was an act in furtherance of the interests of all beneficiaries. See
MCL 700.1209.3 Despite the probate court’s encouragement to the parties to seek a resolution that
satisfied everyone, it was not necessary for the beneficiaries to agree to the sale, and the probate
did not err by failing to interpret the language of the will as requiring unanimous consent. Reisman
Estate, 266 Mich App at 527.

                 IV. SALE OF THE HOUGHTON LAKE HEIGHTS PROPERTY

      Colleen also argues that the probate court erred by approving the sale of the Houghton
Lake Heights Property. We disagree.

       At the 2021 motion hearings on the motion to remove the notice of lis pendens, David’s
attorney argued that the probate court should invalidate Yvonne’s notice of lis pendens on the
Houghton Lake Heights property because it was threatening a sale for $92,000 to an unrelated
buyer, no lawsuit against David had been filed, and it was not properly served. David argued that
the Houghton Lake Heights property should be sold, and that there had been only one arm’s-length



3
    MCL 700.1209 states as follows:
                  For the purpose of granting consent or approval with regard to the acts or
         accounts of a personal representative, including relief from liability or penalty for
         failure to post bond or to perform other duties, the sole holder or all coholders of a
         presently exercisable or testamentary general or special power of appointment,
         including 1 in the form of a power of amendment or revocation, are deemed to act
         for beneficiaries to the extent their interests, as permissible appointees, takers in
         default, or otherwise, are subject to the power.


                                                  -8-
offer to buy it since it was listed in 2010. Yvonne, Gary, and Colleen objected on the grounds that
the home should be purchased by family members, and that the fair market value was greater than
$92,000, citing a neighboring property listed for sale at $135,000. The probate court noted that
Yvonne, Gary, and Colleen could own the home by paying David his $23,000 share of the $92,000
offer, plus $10,000 for the reimbursement of repairs to Walter, if they wished to do so, but they
had not made such an offer. The probate court also determined that there was a fair market, arm’s-
length offer for the property, and, with no other concrete offers, ordered the sale of the property,
and also that the lis pendens be released because it was improperly executed and not followed
through on. The probate court also denied motions for an accounting, and to appoint a receiver.
The probate court further ordered that the balance of the proceeds from the sale be equally divided
among Yvonne, Colleen, Gary, and David. Colleen argues that the probate court erred in several
respects by ordering this sale; we will discuss each of them in turn.

                                        A. VERIFICATION

        Colleen argues that the probate court should not have approved the sale without seeing the
offer or verifying its terms. We disagree. Colleen cites no authority for the proposition that the
probate court was required to independently verify the representations of a particular witness or
attorney. In this case, David’s attorney represented to the probate court that there was an offer for
the Houghton Lake Heights property for $92,000 in cash that had been accepted. Colleen has
presented no evidence that this information was false or inaccurate, or otherwise should not have
been credited by the probate court. We find no clear error in the probate court’s factual finding
regarding the existence of an offer to purchase the property. Temple Marital Trust, 278 Mich App
at 128.

                             B. MOTION TO APPOINT RECEIVER

        Colleen also argues that the probate court erred by denying her request for a receiver, or to
establish an escrow account to protect the funds from the sale. We disagree. The probate court
addressed the request as follows:
       I believe there’s another motion . . . requesting the appointment of a receiver and
       an account. I’m going to deny those motions, even though they were not properly
       motioned up for today. There’s absolutely no need to appoint a receiver . . . .
       There’s one piece of property that’s now been ordered by the court to be resolved.
       There is no other property left in this estate . . . . So the motion for the appointment
       of receiver is denied as not being a valid request to begin with. And as to requesting
       of an accounting there will be a closing statement here. If the parties object to the
       closing statement they can do so and we’ll have a hearing on that.

The probate court ordered the “proceeds to be deposited into the estate of and then after any
expenses that it be dispersed to the heirs.”

        Colleen asserts on appeal that the probate court’s failure to appoint a receiver “literally
turned the [personal representative] loose with the keys to the cash register” and asserts that, at the
time of this appeal, David had not distributed the funds from the sale to the beneficiaries. As we
will discuss later in this opinion, this issue, if still present, may be explored on remand. But


                                                 -9-
Colleen does not explain why a receiver was required to handle a relatively simple transaction, or
why the probate court’s order that the proceeds of the sale be deposited with the estate and
dispersed to the heirs was insufficient given the circumstances of the case. Because the imminent
sale of the Houghton Lake Heights property constituted the disposition of the final asset of the
estate, and the receipt, deposit, and distribution of the proceeds was uncomplicated, the probate
court did not err by denying Colleen’s motion to appoint a receiver. Temple Marital Trust, 278
Mich App at 128.

                               C. OPPORTUNITY TO PURCHASE

        Colleen also argues that the probate court erred by approving the sale of the Houghton
Lake Heights property without allowing the other heirs an opportunity to purchase it. We disagree
with her characterization of the record. David’s attorney noted that there had been only one offer
to buy the property since it was listed. The probate court noted that Yvonne, Gary, and Colleen
could own the home by paying the personal representative a total of $33,000, but had not made
such an offer, stating: “There is no other legitimate offer made for the property. There is request
that maybe it should be assigned to everybody and they’ll work out a deal, but they want nothing
firm, nothing concrete. There is one concrete offer for the sale of this property.” The record shows
that no concrete offer was put forth by any heir to purchase the property in nearly 10 years; we
conclude that this span of time represented a sufficient opportunity for any heir who wished to
purchase the property, and the probate court did not err by approving the sale without allowing
additional time for offers from heirs to the estate. Id.

                                           D. EXPENSES

       Colleen next argues that the probate court erred by approving David’s request to reimburse
Walter $10,000, after the sale, for repairs, utilities, and maintenance that he paid for on the
Houghton Lake Heights property. We agree.

        In the order approving the sale of the West Branch property to Walter, the relevant
consideration provided by Walter included “waiver of all present and future claims for additional
estate property distribution by the purchaser,” and “waiver and release of all present and future
claims against the estate for payments, services or other actions by the purchaser.”
         The probate court acknowledged the language of the order, but awarded $10,000 to Walter
because “this is a separate agreement between the personal representative for actual costs incurred
in maintaining the property and trying to preserve” the Houghton Lake Heights property prior to
its sale. We conclude that it erred by doing so. Awarding Walter $10,000 for maintaining the
Houghton Lake Heights property was directly opposed to the agreement for him to purchase the
West Branch property. Even though David and Walter had agreed to reimburse Walter’s
caretaking of the property, Walter had specifically waived his claim to these expenses. The probate
court’s statement that Walter has “a right to a claim that’s been settled” with David was contrary
to Walter’s agreeing to a “waiver and release of all present and future claims against the estate for
payments, services or other actions by the purchaser.” There was no carve-out for expenses
incurred by Walter in maintaining the Houghton Lake Heights property for a certain period of
time. Therefore, the probate court erred by ordering that Walter “be paid $10.000.00 from
proceeds in satisfaction of all claims against the estate, now and in the future, for the costs, services


                                                  -10-
and expenses he has requested.” On remand, the probate court should amend its June 1, 2021
order accordingly.

                                   E. ASSET DISTRIBUTION

        Colleen also argues that the probate court erred by issuing a final order disposing of the
last assets of the estate when no distributions of the estate’s funds had been made to the estate’s
heirs. We agree. Colleen makes no mention of the distribution of personal property, and there is
no indication in the record whether the estate’s personal property was distributed. Colleen further
notes that the issue of mineral rights was not addressed in any court order. We conclude that this
issue should be explored on remand. While it appears from the record that the probate court held
that mineral rights for the West Branch property accompanied the sale to Walter, none of the
probate court’s orders make reference to the payments for oil leases that were listed on the
amended inventory. There is no evidence that the oil lease payments were factored into the
agreement for Walter to purchase the West Branch property. The lack of mention of the oil leases
in any order of the probate court, and the representation of David’s attorney that a 2021 payment
to the estate had not been resolved, indicate that there was no resolution regarding the distribution
of the oil rights. Because the oil leases and personal property were listed property, on remand, the
probate court should address their distribution.

        As we noted earlier, Colleen also asserts on appeal that the proceeds from the sale of the
Houghton Lake Heights property have not been distributed. The probate court’s “order after
hearing on motion to remove lis pendens” directed David to deposit and distribute the proceeds of
that sale. On remand, the probate court should determine the status of the distribution of the
proceeds from the sale of the Houghton Lake Heights property.

        In sum, we conclude that the probate court erred by ordering that the estate pay Walter
$10,000 for maintaining the Houghton Lake Heights property, because it is contrary to an earlier
agreement, and also erred by not accounting for the distribution of oil leases that were listed as
estate property. On remand, the probate court should resolve any of these issues that are still
outstanding, as well as the status of the distribution of the proceeds from the sale of the Houghton
Lake Heights property. Temple Marital Trust, 278 Mich App at 128.

                            V. DENIAL OF CONTEMPT MOTION

        Colleen also argues that the probate court erred by denying the motion to hold David in
contempt and remove him as personal representative of the estate. We conclude that the probate
court did not err by holding that a contempt proceeding was not an appropriate vehicle for the
address of these issues, and that the probate court may address them on remand to the extent they
remain. The personal representative has a fiduciary duty to each devisee, heir, and beneficiary.
MCL 700.1212(1). See also MCL 700.1104(e) and MCL 700.3703(1). “ ‘A fiduciary stands in a
position of confidence and trust with respect to each heir, devisee, beneficiary, protected indi-
vidual, or ward for whom the person is a fiduciary.’ ” In re Schwein Estate, 314 Mich App 51, 59;
885 NW2d 316 (2016), quoting MCL 700.1212(1). Those fiduciary duties include “ ‘undivided
loyalty; impartiality between heirs, devisees, and beneficiaries; [and] care and prudence in
actions.’ ” In re Estate of Stan, 301 Mich App at 447, quoting MCL 700.1212(1). The personal



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representative “ ‘shall keep each presumptive distributee informed of the estate settlement,’ ” and
must regularly “ ‘account to each beneficiary by supplying a statement of the activities of the estate
and of the personal representative.’ ” In re Estate of Stan, 301 Mich App at 447, quoting
MCL 700.3703(4).

        In this case, Yvonne, Colleen, and Gary filed a motion to show cause why David should
not be held in contempt, alleging that he sold Houghton Lake Heights property during a 21-day
automatic stay following the probate court’s order approving the sale, and had failed to distribute
the proceeds to them. The probate court denied the motion to show cause because the allegations
“are administrative in nature regarding the estate and are not properly brought . . . in contempt
proceedings. Further, no court order has been violated, or ignored, to necessitate enforcement
powers of the Court.” This motion was filed on July 15, 2021. The probate court authorized the
sale on June 1, 2021, and Yvonne, Colleen, and Gary asserted via their motion that David conveyed
the Houghton Lake Heights property to a buyer on June 22, 2021. Therefore, the property was
conveyed on the 21st day following the order authorizing the sale. However, MCR 2.614(A)(1)
provides as follows;

                Except as provided in this rule, execution may not issue on a judgment and
       proceedings may not be taken for its enforcement until 21 days after a final
       judgment (as defined in MCR 7.202[6]) is entered in the case. If a motion for new
       trial, a motion for rehearing or reconsideration, or a motion for other relief from
       judgment is filed and served within 21 days after entry of the judgment or within
       further time the trial court has allowed for good cause during that 21-day period,
       execution may not issue on the judgment and proceedings may not be taken for its
       enforcement until the expiration of 21 days after the entry of the order deciding the
       motion, unless otherwise ordered by the court on motion for good cause. Nothing
       in this rule prohibits the court from enjoining the transfer or disposition of property
       during the 21-day period.

Because the probate court’s order approving the sale of the Houghton Lake Heights property was
a final order under MCR 7.202(6)(a)(i), and a motion for reconsideration had been filed, it does
appear that, if the sale took place on June 22, 2021, that sale may have been in violation of the
court order. However, this Court simply lacks an adequate record with which to conclude that
such a violation occurred, and, if it did, to fashion an adequate remedy for the violation. Similarly,
Colleen’s statement that the proceeds have not yet been distributed lacks factual support. But we
agree with the probate court that these issues are more appropriately raised in regular motion
practice before it, not in a contempt proceeding. The Estates and Protected Individuals Code
(EPIC), MCL 700.1100 et seq., contains procedures to petition a court for removal of a personal
representative or distribution of estate assets. See In re Kramek Estate, 268 Mich App 565, 575;
710 NW2d 753 (2005); see also, e.g., MCL 700.3611(1); MCL 700.3952. To that end, the probate
court may address these issues, to the extent they remain, on remand.

                                       VI. JUDICIAL BIAS

      Colleen further argues that Judge Jernigan demonstrated judicial bias, either against her,
Yvonne, and Gary, or in favor of David, and that the matter should, accordingly, be remanded to


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a different judge. We disagree. No party raised this issue below or moved to disqualify Judge
Jernigan,4 and this issue is therefore not preserved for appeal. We review unpreserved issues for
plain error. Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).

        A trial judge is presumed impartial, and the party who asserts otherwise has a heavy burden
of overcoming that presumption. Cain v Dep’t of Corrections, 451 Mich 470, 497; 548 NW2d
210 (1996). Remand to a different judge is appropriate where the original judge would have
difficulty setting aside previously expressed views or findings, or if reassignment is advisable to
preserve the appearance of justice and would not entail excessive waste or duplication. Bayati v
Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004).

        In this case, Colleen argues that Judge Jerrigan exhibited bias against her by authorizing
the sale of the Houghton Lake Heights property without protecting the proceeds from the sale by
appointing a receiver or other means. However, as discussed, Colleen has not demonstrated that
approving the sale of the Houghton Lake Heights property was error. Moreover, although Colleen
cites several instances where Judge Jernigan ruled against her, mere rulings against a party are not
grounds for disqualification. Bayati, 264 Mich App at 603. Colleen has not cited any comments
or conduct by Judge Jernigan that indicates bias, or would otherwise have difficulty deviating from
his written opinion on remand. We conclude that there is no need for proceedings on remand to
be presided over by a different judge.

                                         VII. CONCLUSION

        We affirm the probate court’s approval of the sale of the West Branch and the Houghton
Lake Heights property. We vacate the portion of the probate court’s June 1, 2021 order requiring
the estate to pay Walter $10,000 for maintaining the Houghton Lake Heights property. We remand
for the probate court to amend its order to reflect this ruling, as well as to make a determination
regarding the distribution of oil leases that were listed as estate property, and to determine the
status of the distribution of the proceeds from the sale of the Houghton Lake Heights property and
any other undistributed estate property, should any of these issues remain.




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

                 Disqualification of a judge is warranted for reasons that include, but are not
         limited to, the following:

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

                  (b) The judge, based on objective and reasonable perceptions, has either (i)
         a serious risk of actual bias impacting the due process rights of a party as enunciated
         in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or
         (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon
         2 of the Michigan Code of Judicial Conduct.


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       Affirmed in part, vacated in part, and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.



                                                            /s/ Jane E. Markey
                                                            /s/ David H. Sawyer
                                                            /s/ Mark T. Boonstra




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