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.
Before: Before: Sawyer, P.J., and Wilder and Servitto, JJ.
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Official Reported Version
SERVITTO, J. (concurring in part and dissenting in part).
While I agree with the majority with respect to jurisdiction and the probate court's
authority to sua sponte grant summary disposition, I would reverse the probate court's dismissal
of the petition to remove and surcharge Woods as personal representative.
The majority states that under MCL 700.1212(1), a personal representative is not a
fiduciary to a creditor. While that may be true, MCL 700.1308(1) provides that a fiduciary
is liable for a loss to an estate that arises from embezzlement by the fiduciary; for
a loss through commingling estate money with the fiduciary's money; for
negligence in the handling of an estate; for wanton and willful mishandling of an
estate; for loss through self-dealing; for failure to account for an estate; for failure
to terminate the estate when it is ready for termination; and for misfeasance,
malfeasance, nonfeasance, or other breach of duty.
MCL 700.3703(1) additionally provides:
A personal representative is a fiduciary who shall observe the standard of
care applicable to a trustee as described by section 7302. . . . 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 party for
the best interests of claimants whose claims have been allowed and of successors
to the estate.
Finally, if the exercise of or failure to exercise a power concerning the estate is improper, the
personal representative is liable to interested persons for damage or loss resulting from the
breach of a fiduciary duty to the same extent as the trustee of an express trust. MCL 700.3712.
Petitioner is undoubtedly an "interested person" for purposes of the Estates and Protected
Individuals Code, see MCL 700.1105(c), and filed a petition against Woods, as a personal
representative, for alleged wrongdoings that resulted in a loss to decedent's estate. While Woods
may not have owed a fiduciary duty to a creditor, he may nevertheless owe a duty and be liable
to a creditor for a loss to the estate arising from the breach of a duty owed to the estate. Given
petitioner's allegations of negligence that led to a loss to the estate, petitioner has stated a claim
under MCL 700.1308(1) and MCL 700.3712 against Woods. I would therefore reverse on this
issue.
/s/ Deborah A. Servitto
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