IN RE EST OF DUANE V BALDWIN
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STATE OF MICHIGAN
COURT OF APPEALS
In re DUANE V. BALDWIN TRUST.
THOMAS M. SHOAFF,
FOR PUBLICATION
February 27, 2007
9:10 a.m.
Petitioner-Appellant,
v
No. 261642
Ingham Probate Court
LC No. 00-002046-TI
THOMAS E. WOODS, Trustee,
Respondent-Appellee,
and
THOMAS E. WOODS, Individually, and GARY
BALDWIN,
Appellees.
In re Estate of DUANE V. BALDWIN, Deceased.
________________________________________
THOMAS M. SHOAFF,
Petitioner-Appellant,
v
THOMAS E. WOODS, Personal Representative,
No. 261643
Ingham Probate Court
LC No. 00-001858-DE
Respondent-Appellee,
and
THOMAS E. WOODS, Individually, and GARY
BALDWIN,
Appellees.
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Official Reported Version
Before: Sawyer, P.J., and Wilder and Servitto, JJ.
PER CURIAM.
In these consolidated appeals, petitioner Thomas M. Shoaff appeals as of right the order
in Ingham County Probate Court Case No. 00-2046-TI (the trust action) and the order in Ingham
County Probate Court Case No. 00-1858-DE (the estate action) granting summary disposition of
his respective petitions to remove and surcharge respondent Thomas E. Woods as trustee of the
Duane V. Baldwin Trust (the trust) and as personal representative of Duane V. Baldwin's estate.
We affirm.
This case arises out of alleged improper actions taken by Thomas Woods in his
representative capacity in an underlying action brought by Shoaff in which the circuit court
found that certain assets conveyed by Duane V. Baldwin (the decedent) before his death to
partnerships and corporations of decedent's beneficiaries were fraudulent conveyances under the
Uniform Fraudulent Conveyance Act (UFCA), former MCL 566.11 et seq.1 Shoaff v Baldwin,
unpublished opinion per curiam of the Court of Appeals, issued February 3, 2005 (Docket Nos.
248606, 248609, and 255460), slip op at 6. In the estate action, Shoaff also alleged that Woods
had improperly administered the estate and failed to liquidate the fraudulently conveyed assets to
pay decedent's creditors after the underlying judgment was issued.
I. FACTS AND PROCEDURAL HISTORY
The facts are based principally on those found in the Court's prior opinion in Shoaff. In
1991, decedent transferred real estate, mutual funds, bonds, insurance policies, and certificates of
deposit into five newly created partnerships in which his children were given ownership
interests, but in which decedent retained the largest percentage of interest. Shoaff, supra, slip op
at 5. In February 1996, Shoaff, decedent, and Mark Baldwin entered into a business agreement
to form and become shareholders in a corporation (Baldwin Farms, Inc.). Shoaff guaranteed a
loan, and, in return, decedent agreed to indemnify Shoaff and hold him harmless if the business
failed. Id. at 4. As security for the indemnity obligation, decedent pledged 2,000 shares of
American Paytel Corporation, which he represented to be worth $400,000. Id. at 4-5.
Later in 1996, the indemnity agreement was amended twice. Mark Baldwin was added
as an indemnitor, and the parties agreed that additional assets would provide collateral for the
indemnity obligation should the Paytel stock prove insufficient.
According to [Shoaff], Duane Baldwin claimed he had more than enough
assets, in the form of real estate holdings and securities, to cover the
[indemnification] obligation. However, unbeknownst to [Shoaff], in October
1
The UFCA was repealed by 1998 PA 434, effective December 30, 1998. See MCL 566.43. It
was replaced by the Uniform Fraudulent Transfer Act, MCL 566.31 et seq.
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1991, five years before the [indemnity] agreement . . . , Duane Baldwin had
transferred [most of his assets] into five newly-created limited partnerships . . . .
[Id. at 5.]
Baldwin Farms failed and never made loan payments. "At the same time, the value of
American Paytel stock plummeted. [Additionally, i]n February 1998, Baldwin Farms was
unable to meet its payments . . . coming due to the bank." Id.
"In July 1998, [decedent] conveyed the remainder of his assets to the Duane V. Baldwin
Trust, a revocable living trust." Id. According to decedent's will dated July 28, 1998, the trust
was also created on July 28, 1998. Decedent, while alive, was trustee. The trust named his son,
Gary Baldwin, and daughter, Mary Jo Baldwin, as successor cotrustees. On September 14, 1998,
Duane Baldwin died at the age of 72.
In June 1999, before an estate was opened, Shoaff filed his circuit court action. On June
11, 1999, Gary Baldwin (nominated personal representative in the will and nominated trustee of
the trust) filed in the probate court a petition for assignment for an estate not exceeding $15,000.
The petition listed three assets: a 24 1/2-percent interest in a "Family Limited Partnership,"
valued at $4,728.50; a Merrill Lynch account valued at $6,560.22; and a "real estate interest"
valued at $3,430.51. The total value of decedent's property, after payment of funeral and burial
expenses, was $14,719.23.
In September 1999, pursuant to his loan guarantee, Shoaff paid off the loans from the
bank. Subsequently, the Revised Probate Code was repealed and was superseded by the Estates
and Protected Individuals Code (EPIC), MCL 700.1101 et seq.2
Having paid the bank loans, and once an estate was opened and a personal representative
appointed, Shoaff in May 2000 filed in the circuit court his first amended complaint against both
the personal representative of the estate and the trustee of the trust. The first amended complaint
added a fraudulent conveyances claim. Shoaff, supra, slip op at 5 n 4 and at 7. Woods, as
personal representative and as trustee, defended against Shoaff 's action. Eventually, Shoaff
added as defendants several business entities, including the partnerships, claiming that the
transfers to the partnerships had left decedent insolvent. Id. at 5 nn 2 and 4.
On November 14, 2000, Shoaff filed in the probate court a petition for "probate and/or
appointment of personal representative." Shoaff nominated Woods as personal representative.
This was the estate action.
2
EPIC replaced the Revised Probate Code, 1978 PA 642, former MCL 700.1 to 700.993,
effective April 1, 2000. 1998 PA 386. Although decedent died before EPIC became effective,
EPIC is applicable because the matter was pending in the probate court after EPIC became
effective. MCL 700.8101(2)(b) provides, in pertinent part: "The act applies to a proceeding in
court pending on that date or commenced after that date regardless of the time of the decedent's
death . . . ." See also In re Smith Estate, 252 Mich App 120, 126-127; 651 NW2d 153 (2002).
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On December 5, 2000, Shoaff filed in the probate court a petition for removal of the
cotrustees and appointment of a neutral trustee. This was the trust action. On February 20,
2001, in the trust action, the probate court appointed Woods as successor trustee. On March 30,
2001, in the estate action, the probate court appointed Woods successor personal representative.
In March 2001, Shoaff filed a second amended complaint in the circuit court. Shoaff
asserted counts for breach of contract, tortious conversion, fraudulent conveyances (the 1991 and
1998 transfers), recovery or property from the estate, accounting of assets held by defendants,
violation of the Michigan securities act, and injunctive relief. Id. at 5-6. Shoaff sought
indemnification, pursuant to the indemnity agreement, for payments in excess of $729,000. Id.
at 6.
In April 2001, Woods, as personal representative and trustee, agreed in the circuit court
action to a consent judgment in Shoaff 's favor in the amount of $701,462.76, plus statutory
interest. Woods, as personal representative and trustee, admitted liability to Shoaff under the
indemnification agreements. In September 2001, the circuit court granted summary disposition
on the securities violation claim. Three other counts "were subsequently dismissed . . . by
stipulation of the parties." Id.
On August 26, 2002, in the estate action, Shoaff filed a petition to remove Woods as
personal representative and for the appointment of Steven D. Lowe as his successor. This
petition stated that Woods should be removed as personal representative because he "has failed
to act in the best interests of . . . Shoaff, a creditor whose claim has been allowed as called for by
MCLA 700.3703(1), and he has taken steps contrary to . . . Shoaff 's interests causing injury and
damages to him."
Also on August 26, 2002, Shoaff filed in the trust action a petition to remove Woods as
trustee and for appointment of Lowe as successor trustee, stating that
Woods should be removed as Trustee . . . because he has failed to act in the best
interests of . . . Shoaff, a creditor whose claim has been allowed as called for by
Part 5 of Article VII of the Estates and Protected Individuals Code, MCLA
700.7501 et seq, and he has taken steps contrary to . . . Shoaff 's interests causing
injury and damages to him.
In the circuit court, a bench trial was held on the equitable claims remaining. Shoaff prevailed,
and the circuit court set aside the transfers of property to the defendants that were entities,
finding that the entity defendants were sham entities, were alter egos of decedent, and were
intended to defraud creditors. Id. "A final judgment in the amount of $1,352,936.82 was entered
on December 17, 2002." Id.
On November 6, 2003, in both the estate and trust actions, Judge R. George Economy
held a hearing on the requests in the petitions to enjoin further payments by Woods until further
order of the court. Judge Economy ruled that Woods should not make any further disbursements
in excess of $2,500 without court approval, but denied the requests to remove Woods as
fiduciary.
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On March 10, 2004, in the estate action, Shoaff filed his third amended petition to
remove Woods as successor personal representative. Shoaff alleged that Woods "failed to take
control over and marshal assets of the Estate and Trust as required by MCL 700.3703, 3709 and
3710" and "[f]ailed to seize assets that were fraudulently conveyed by Woods' decedent . . . and
failed to take steps to pierce the organizational structure of the entity defendants which were
established for unlawful purposes[.]" Shoaff further alleged that
Woods has a fiduciary duty to creditors . . . of the Estate and Trust and has the
same power over the property as an owner would have, however, for the benefit
of creditors . . . . MCL 700.3711. Woods has failed to properly investigate and
collect assets for the benefit of creditors . . . .
Finally, Shoaff alleged that "Woods has a statutory duty to Shoaff as a creditor of the Estate and
Trust."
Also on March 10, 2004, Shoaff filed a third amended petition for removal of the trustee,
making the same allegations as the third amended petition for the removal of Woods as personal
representative. On January 28, 2005, Judge Economy recused himself, and the estate action and
the trust action were reassigned to Judge Richard J. Garcia.
On February 3, 2005, this Court affirmed the circuit court's rulings in Shoaff 's favor. Id.
at 4, 18-19. This Court held that "[t]he evidence overwhelmingly established Duane Baldwin's
abuse of partnership and corporate arrangements by using them as devices from which he paid
his personal expenses, while insulating himself from payment of his personal debts." Id. at 11.
This Court affirmed the circuit court's ruling "piercing the veil of these partnership and corporate
entities and finding that they were, indeed, sham entities used by Duane Baldwin for his sole
benefit." Id. at 12.
Regarding the circuit court action, this Court further held that
the overwhelming evidence clearly supports the trial court's conclusion that the
1991 and 1998 transfers violated the UFCA. The record indicates that, in 1991,
Duane Baldwin and his attorney formed a firm to develop and market a "scheme"
to shield assets from future creditors, at about the same time that Baldwin
transferred most, if not all, of his assets to five limited partnerships. The scheme
was marketed to farmers, individuals and lawyers, and promoted the concept of
farmers transferring all of their property to several limited partnerships and
corporations to avoid future creditors. [Id. at 12-13 (emphasis added).]
This Court further found that
Baldwin repeatedly represented to [Shoaff] in 1996 and 1997, during the series of
business transactions involving Baldwin Farms, that he held enough property to
indemnify [Shoaff] for any losses incurred by that business venture. Consistent
with these representations was Baldwin's handwritten personal financial
statement, dated December 1996, showing his net worth to be $1,700,000. No
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mention was made of the five limited partnerships holding Baldwin's real estate.
[Id. at 13 (emphasis added).]
This Court concluded that "the evidence shows that Duane Baldwin was rendered insolvent as a
result of his fraudulent transactions." Id. This Court agreed that the evidence that the transfers
were made in 1991 with the intent to defraud existing and future creditors was "overwhelming."
Id. Furthermore, this Court agreed with the trial court that DGM Corporation and Agricon, Inc.,
which were defendants in the circuit court action, "were sham entities utilized by Duane Baldwin
to frustrate his creditors, evade lawful execution processes, and deceive governmental entities."
Id. at 14.
On February 16, 2005, Judge Garcia held a pretrial conference at which he sua sponte
concluded that there was no genuine issue regarding any material fact that would justify
removing Woods, sanctioning Woods, or awarding Shoaff any more money from the estate. On
March 7, 2005, Judge Garcia entered an order denying Shoaff 's petition to remove and surcharge
Woods as trustee and an order denying Shoaff 's petition to remove and surcharge Woods as
personal representative. Shoaff now appeals.
II. STANDARDS OF REVIEW
A trial court's decision on a motion for summary disposition is reviewed de novo.
Collins v Comerica Bank, 468 Mich 628, 631; 664 NW2d 713 (2003). Whether a party was
given sufficient notice to satisfy due process is a legal question reviewed de novo. Vicencio v
Jaime Ramirez, MD, PC, 211 Mich App 501, 503; 536 NW2d 280 (1995). Issues of statutory
interpretation are questions of law reviewed de novo. Griffith v State Farm Mut Automobile Ins
Co, 472 Mich 521, 525-526; 697 NW2d 895 (2005).
"The standard of review on appeal in cases where a probate court sits without a jury is
whether the court's findings are clearly erroneous." In re Bennett Estate, 255 Mich App 545,
549; 662 NW2d 772 (2003). A probate court's decision whether to remove a trustee is reviewed
for an abuse of discretion, Comerica Bank v City of Adrian, 179 Mich App 712, 729; 446 NW2d
553 (1989), as is a decision whether to remove a personal representative, In re Kramek Estate,
268 Mich App 565, 576; 710 NW2d 753 (2005). A probate court's decision whether to
surcharge a personal representative or a trustee is also reviewed for an abuse of discretion. In re
Thacker Estate, 137 Mich App 253, 264; 358 NW2d 342 (1984). Our Supreme Court recently
adopted a new definition of an abuse of discretion:
"[A]n abuse of discretion standard acknowledges that there will be
circumstances in which there will be no single correct outcome; rather, there will
be more than one reasonable and principled outcome." . . . "[W]hen the trial court
selects one of these principled outcomes, the trial court has not abused its
discretion and, thus, it is proper for the reviewing court to defer to the trial court's
judgment." [Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006) (citations omitted; emphasis added).]
This is the new default standard. Id.
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III. ANALYSIS
A. JURISDICTION
Woods argues that Shoaff does not have an appeal as of right and that this appeal should
be dismissed for lack of jurisdiction because MCR 5.801(B)(1)(v)3 is unconstitutional in that it
violates the separation of powers, Const 1963, art 3, § 2, and exceeds our Supreme Court's rulemaking powers, Const 1963, art 6, § 5. Woods cites only McDougall v Schanz, 461 Mich 15;
597 NW2d 148 (1999), in support of his argument. However, we perceive nothing in that case
that is relevant to this Court's jurisdiction in this case. In McDougall, our Supreme Court held
that a statutory rule of evidence would violate Const 1963, art 6, § 5 only when no clear
legislative policy reflecting considerations other than judicial dispatch of litigation could be
identified. Id. at 30. McDougall is immaterial to Woods's challenge to a judicially adopted court
rule. Thus, this Court does not lack jurisdiction.
B. THE SUA SPONTE DISMISSAL
Shoaff argues that the probate court erred when it sua sponte granted summary
disposition for Woods concerning the petitions to remove and surcharge Woods as personal
representative and trustee. We disagree.
Under MCR 2.401(C)(1)(l), during a pretrial conference, the court may consider any
matters that may aid in the disposition of the action. Further, at any time after an action has
commenced, if the pleadings show that a party is entitled to judgment as a matter of law, the
court must render judgment without delay. MCR 2.116(I)(1). In that regard, if no factual
dispute exists, a trial court is required to dismiss an action when a party is entitled to judgment as
a matter of law, and a motion for summary disposition is unnecessary. Sobiecki v Dep't of
Corrections, 271 Mich App 139, 141; 721 NW2d 229 (2006).
3
MCR 5.801 provides:
(B) Orders Appealable to Court of Appeals. Orders appealable of right to
the Court of Appeals are defined as and limited to the following:
(1) a final order affecting the rights or interests of an interested person in a
decedent estate, the estate of a person who has disappeared or is missing, a
conservatorship or other protective proceeding, the estate of an individual with
developmental disabilities, or an inter vivos or testamentary trust. These are
defined as and limited to orders resolving the following maters:
* * *
(v) surcharging or refusing to surcharge a fiduciary[.]
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Regarding Shoaff 's reliance on Judge (now Justice) Corrigan's concurrence in Haji v
Prevention Ins Agency, Inc, 196 Mich App 84; 492 NW2d 460 (1992), this case is clearly
distinguishable because the probate court's sua sponte grant of summary disposition was not
based on a novel, substantive legal theory not raised by the parties, see id. at 86, but was based
on the substantive legal theories pursued by Shoaff. We find that, procedurally, the probate
court did not err in dismissing the petitions and that Shoaff was afforded due process because he
had had ample opportunity to respond to the probate court's sua sponte raising of the issue.
C. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE
PETITIONS TO REMOVE AND SURCHARGE WOODS
Shoaff next argues that the probate court erred in dismissing his petitions under MCR
2.116(C)(10), and further argues that, in fact, the probate court relied on subrule C(8). The
essential issue is whether the probate court abused its discretion in dismissing the petitions.
1. THE PETITION TO REMOVE AND SURCHARGE WOODS AS PERSONAL
REPRESENTATIVE
EPIC governs when the probate court may remove a personal representative. MCL
700.3611 provides:
(1) An interested person may petition for removal of a personal
representative for cause at any time. . . .
(2) The court may remove a personal representative under any of the
following circumstances:
(a) Removal is in the best interests of the estate.
(b) It is shown that the personal representative or the person who sought
the personal representative's appointment intentionally misrepresented material
facts in a proceeding leading to the appointment.
(c) The personal representative did any of the following:
(i) Disregarded a court order.
(ii) Became incapable of discharging the duties of office.
(iii) Mismanaged the estate.
(iv) Failed to perform a duty pertaining to the office.
Although the probate court granted summary disposition of the petition to remove and
surcharge Woods as personal representative, this decision was essentially a substantive ruling
denying the relief requested. We find no basis on which to conclude that the trial court abused
its discretion in denying the relief requested. Woods never disregarded a court order, and there
is no evidence that Woods mismanaged the estate. Rather, Woods merely defended the estate
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and himself against Shoaff 's lawsuit in the circuit court. A personal representative is authorized
by EPIC to "[p]rosecute or defend a claim or proceeding . . . for the protection of the estate and
of the personal representative in the performance of the personal representative's duties." MCL
700.3715(x).
MCL 700.3712 provides: "If the exercise or the failure to exercise a power concerning
the estate is improper, the personal representative is liable to interested persons for damage or
loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust."
(Emphasis added.) MCL 700.1308(1) provides, in relevant part: "A fiduciary is liable for a loss
to an estate that arises from . . . negligence in the handling of an estate . . . and for misfeasance,
malfeasance, nonfeasance, or other breach of duty." But, under MCL 700.1212(1), a personal
representative is not a fiduciary to a creditor. MCL 700.1212(1) provides: "A fiduciary stands
in a position of confidence and trust with respect to each heir, devisee, beneficiary, protected
individual, or ward for whom the person is a fiduciary." (Emphasis added.) Thus, a personal
representative may be held liable to interested persons for an improper exercise of his or her
powers, or an improper failure to exercise powers, if there is a breach of fiduciary duty. MCL
700.3712.
Woods owed fiduciary duties to the estate's successors, i.e., decedent's heirs. MCL
700.1212(1). MCL 700.1212(1) indicates that Woods, as personal representative of the estate,
did not have a fiduciary relationship with Shoaff, a creditor. In addition, a claim of breach of
fiduciary duty is generally defined as follows: "Damages may be obtained for a breach of
fiduciary duty when a 'position of influence has been acquired and abused, or when confidence
has been reposed and betrayed.'" Meyer & Anna Prentis Family Foundation, Inc v Barbara Ann
Karmanos Cancer Institute, 266 Mich App 39, 47; 698 NW2d 900 (2005) (citation omitted).
Shoaff alleged that Woods had a fiduciary duty to creditors. But Shoaff did not allege that a
position of influence was acquired and abused or that confidence was reposed and betrayed.
Thus, a factual basis for the existence of a fiduciary duty is also absent. Further, the existence of
a legal duty is a question of law for the court. Valcaniant v Detroit Edison Co, 470 Mich 82, 86;
679 NW2d 689 (2004). Under EPIC, then, a personal representative does not owe creditors a
fiduciary duty. MCL 700.1212(1).
In addition, EPIC provides: "A personal representative shall not be surcharged for acts of
administration or distribution if the conduct in question was authorized at the time." MCL
700.3703(2). Because Woods owed fiduciary duties to decedent's heirs, and not to Shoaff,
Woods was authorized to try to protect the interests of decedent's heirs, who also happened to be
the owners of the entities to which decedent made nonprobate transfers. Although Woods may
have been protecting the heirs' interests in their capacity as owners of the nonprobate entities,
Shoaff cites no authority suggesting that a fiduciary for heirs cannot protect the heirs' interests in
their capacities as other than heirs of the estate.
On the record before us, we find insufficient evidence of mismanagement of the estate by
Woods, who merely defended the estate against Shoaff 's circuit court action. Therefore, the
probate court did not abuse its discretion in denying the petition to remove Woods as personal
representative. We also find insufficient authority suggesting that Woods's actions as personal
representative, in protecting the interests of heirs, were not authorized at the time. Accordingly,
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on the record before us, the probate court did not abuse its discretion in denying Shoaff 's petition
to surcharge Woods as personal representative. The probate court's rulings were within the
range of principled outcomes. Maldonado, supra at 388.
2. THE PETITION TO REMOVE AND SURCHARGE WOODS AS TRUSTEE
MCL 700.7306(2) provides: "A trustee is personally liable for an obligation arising from
ownership or control of the trust estate property or for a tort committed in the course of
administration of the trust estate only if the trustee is personally at fault." (Emphasis added.)
Accordingly, a trustee is not liable for a tort committed while administering a trust estate unless
the trustee is personally at fault. MCL 700.7306(2). Shoaff has not alleged that Woods, as
trustee, committed a tort while administering the trust or that Woods was personally at fault in
committing a tort.
Duty is a question of law. Valcaniant, supra at 86. A trustee owes express statutory
duties to beneficiaries of the trust. "Except as specifically provided, the general duty of a trustee
to administer a trust expeditiously for the benefit of the beneficiaries is not altered by this act."
MCL 700.7301 (emphasis added). Unlike the duties EPIC imposes on a personal representative,
see MCL 700.3703(1)4 and MCL 700.3805(3),5 EPIC imposes no duties on trustees to pursue
nontrust assets or to use their authority for the benefit of allowed claimants.6 Therefore, Woods,
4
MCL 700.3703(1) provides:
A personal representative is a fiduciary who shall observe the standard of care
applicable to a trustee as described in section 7302. A personal representative is under a
duty to settle and distribute the decedent's estate in accordance with the terms of a
probated and effective will and this act, and as expeditiously and efficiently as is
consistent with the best interests of the estate. The personal representative shall use the
authority conferred by this act, the terms of the will, if any, and an order in a proceeding
to which the personal representative is a party for the best interests of claimants whose
claims have been allowed and of successors to the estate. [Emphasis added.]
5
MCL 700.3805(3) provides:
If there are insufficient assets to pay all claims in full or to satisfy homestead allowance,
family allowance, and exempt property, the personal representative shall certify the amount and
nature of the deficiency to the trustee of a trust described in section 7501(1) for payment by the
trustee in accordance with section 7502. If the personal representative is aware of other
nonprobate transfers that may be liable for claims and allowances, then, unless the will provides
otherwise, the personal representative shall proceed to collect the deficiency in a manner
reasonable under the circumstances so that each nonprobate transfer, including those made under
a trust described in section 7501(1), bears a proportionate share or equitable share of the total
burden.
6
In this situation, "allowed claimants" means "claimants whose claims have been allowed . . . ."
MCL 700.3703(1).
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as trustee, as a matter of law owed no duty to use his authority conferred by EPIC for the benefit
of allowed claimants like Shoaff. Because Woods as trustee owed no such duty to Shoaff, the
probate court did not abuse its discretion in denying Shoaff 's request to remove or surcharge
Woods as trustee. On the record before us, the trial court's ruling was within the range of
principled outcomes. Maldonado, supra at 388.
D. REQUEST FOR ASSIGNMENT TO A NEW PROBATE JUDGE
Shoaff finally argues that these actions should be reassigned to a different judge on
remand. In light of our affirmance of the probate court's orders, this issue is moot. Ewing v
Bolden, 194 Mich App 95, 104; 486 NW2d 96 (1992).
IV. CONCLUSIONS
In the estate action, the probate court did not abuse its discretion in denying Shoaff 's
request to remove Woods as personal representative, because there was insufficient evidence of
that Woods mismanaged the estate. The probate court did not abuse its discretion in denying
Shoaff 's request to surcharge Woods as personal representative, because Shoaff failed to show
that Woods's actions as personal representative were not authorized at the time. In the trust
action, the probate court did not abuse its discretion in denying Shoaff 's request to remove and
surcharge Woods as trustee, because Shoaff did not allege that Woods as trustee committed a tort
and because Woods as trustee owed no fiduciary or statutory duty to Shoaff.
Affirmed.
/s/ David H. Sawyer
/s/ Kurtis T. Wilder
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