The concept of trust is not a new concept for our lawyers. We have handled some trusts and made sure to protect all parties involved. We have also seen situations where the trust is violated and the beneficiaries need help to get a hold of their properties.
With that, we deem it proper to start our discussion of trusts under Michigan Law.
What is a Trust?
A trust has the same requirements as a will but they are not the same. Generally, a trust is set up to protect a property from depletion from possible mismanagement of the recipient or because the recipient is not yet able to manage his own affairs.
What is a Proof of Trust?
A proof of trust is found in a Certificate of Trust. It is defined in Section 700.7913 Certificate of trust of Michigan’s Compiled Laws, to wit:
(1) Instead of furnishing a copy of the trust instrument to a person other than a trust beneficiary, the trustee may furnish to the person a certificate of trust containing all of the following information:
(a) The name of the trust and the date of the trust instrument and any amendments.
(b) The name and address of the currently acting trustee.
(c) The powers of the trustee relating to the purposes for which the certificate is being offered.
(d) The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust.
(e) The authority of co trustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee.
(2) A certificate of trust may be signed or otherwise authenticated by the settlor, any trustee, or an attorney for the settlor or trustee. The certificate shall be in the form of an affidavit.
(3) A certificate of trust shall state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certificate of trust to be incorrect.
(4) A certificate of trust need not contain the dispositive terms of the trust.
(5) A recipient of a certificate of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.
(6) A person who acts in reliance upon a certificate of trust without knowledge that the representations contained in the certificate are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certificate.
(7) A person who in good faith enters into a transaction in reliance upon a certificate of trust may enforce the transaction against the trust property as if the representations contained in the certificate were correct.
(8) A person making a demand for the trust instrument in addition to a certificate of trust or excerpts is liable for damages, costs, expenses, and legal fees if the court determines that the person was not acting pursuant to a legal requirement in demanding the trust instrument.
(9) This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust.
In the coming articles, we will discuss more about the different kinds of trusts in Michigan.
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