Bulletin: MI2019001

Dear Associates:

On December 24, 2018, the Governor signed in to law Public Acts 491 and 492 of 2018 (attached) which laws act to repeal parts of MCL 565.431 et seq. entitled Recording Trust Agreement or Certificate of Trust Existence and Authority and modify portions of the Estates and Protected Individuals Code (EPIC) or MCL 700.7913. The effective date of these changes is December 27, 2018. The specific sections repealed were MCL 565.432, MCL 565.433 and MCL 565.436.

The net effect of these Acts was to remove the ambiguity of having 2 different statutes attempt to identify the requirements for the contents of a Certificate of Trust. By repealing the provisions of MCL 565.432, Section 7913 of EPIC [MCL 700.7913(1)] now establishes those requirements, to wit:

• Name of the trust, the date of the trust, and the date of each operative trust instrument.
• Name and address of each current trustee.
• Powers of the trustee relating to the purposes for which the certificate of trust is being offered.
• Revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust.
• Authority of co-trustees to sign on behalf of the trust or otherwise authenticate on behalf of the trust and whether all or less than all of the co-trustees are required to exercise the powers of the trustee.

Please note that while MCL 700.7913(1) doesn’t require a legal description like MCL 565.432 did, we would still require that a legal description be included within the terms of the Certificate, or added to the Certificate, so that it may be found by a tract index search of the property.

Also, the repeal of MCL 565.433 coupled with the provisions of MCL 700.7913(2), act to empower any successor trustee to sign the certificate (and not just the initial trustee), so that now, the settlor, any trustee, or an attorney for the settlor or trustee may execute the Certificate.

Finally, please note that the provisions of MCL 565.434 provide that the Certificate “must be recorded as a separate document”, and we will need to collect recording fees accordingly.

Please advise all appropriate personnel of the above-identified information.

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