Michigan Trustee powers

The general powers

A trustee, without authorization by the court, may exercise the powers conferred by the terms of the trust and, except as the terms limit them, all powers over the trust property that an unmarried competent owner has over individually owned property, any other powers appropriate to achieve the proper investment, management and distribution of the trust property, and the other powers the trust code confers (MCL 700.7816(1)). The exercise of every power is subject to the fiduciary duties the code prescribes (MCL 700.7816(2)).

The specific powers

Without limiting the general powers, MCL 700.7817 lists specific ones, among them:

• To take possession, custody or control of property transferred to the trust, and to retain property under the Michigan prudent investor rule (MCL 700.7817(a), (b)).
• To deposit trust property in a financial institution and invest it as a prudent investor would (MCL 700.7817(f)).
• To acquire, sell, exchange, lease, repair and manage property (MCL 700.7817(g)–(j), (y)).
• To insure the trust property, borrow, and compromise obligations owed to the trust (MCL 700.7817(p)–(r)).
• To pay taxes, assessments, the trustee's compensation and the expenses of administration (MCL 700.7817(s)).
• To employ and pay advisers, accountants, appraisers and an attorney (MCL 700.7817(v), (w)).
• To continue a business, and to make a payment to or for a minor or incapacitated beneficiary (MCL 700.7817(z), (ff)).

Discretion, and the standard that governs it

A beneficiary of a discretionary trust provision has no property right in that interest (MCL 700.7815(1), 700.7505). However broad the discretion — even "absolute", "sole" or "uncontrolled" — a trustee abuses it by acting dishonestly, with an improper motive, or without exercising judgment in accordance with the trust's terms and purposes (MCL 700.7815(1)). Unless the terms expressly say otherwise, a beneficiary-trustee other than a settlor may make discretionary distributions to itself only under an ascertainable standard, and no trustee may use them to satisfy a support obligation the trustee personally owes (MCL 700.7815(3)).

Delegation and cotrustees

A fiduciary may delegate investment and management functions, using reasonable care in selecting the agent, setting the terms and reviewing the agent's actions (MCL 700.1510). Cotrustees act by majority; a delegation to a cotrustee of a power only a trustee can perform is noticed to the qualified trust beneficiaries within 28 days (MCL 700.7703).

Separate trustees and directed trusts

A trust may divide the trusteeship into separate offices — such as investment and distribution — each separately accepted, whose holders are not cotrustees of one another (MCL 700.7703b). Where the terms give a trust director a power of direction, the directed trustee takes action to comply and is not liable for doing so, except where the direction was obtained by the trustee's collusion or fraud (MCL 700.7703a). The trust's own terms say who holds which power.

Distributing to a second trust

Unless the terms expressly provide otherwise, the trustee of an irrevocable trust with a discretionary trust provision may distribute the property subject to it to a second trust whose terms do not materially change the beneficial interests, without the settlor's, the beneficiaries' or the court's consent (MCL 700.7820a). The trustee gives written notice, with a copy of the proposed instrument, to the living settlors and the qualified trust beneficiaries not later than 63 days before exercising the power, unless they waive the period in writing (MCL 700.7820a(7)). Unless the instrument says otherwise, a trustee is not liable for not exercising the power (MCL 700.7815(2)).

Dealing with banks and title companies: the certificate of trust

Instead of the trust instrument, a trustee may give a person other than a beneficiary a certificate of trust — in the form of an affidavit — stating the trust's name and date and each operative instrument's date, each current trustee's name and address, the trustee's powers for the transaction, the trust's revocability and who may revoke it, and the cotrustees' signing authority, with a statement that the trust has not been changed in a way that makes it incorrect (MCL 700.7913). A person who relies on it without knowing it is incorrect is protected; one who demands the whole instrument without a legal requirement to do so may be liable for the costs (MCL 700.7913(6)–(8)). For real property, the certificate includes the legal description and may be recorded as a separate document (MCL 565.431, 565.434).

When a licensed Michigan attorney is the right next call

TrusteeClear explains the powers; it does not say whether a particular sale, loan or distribution fits the trust's terms. A licensed Michigan attorney of your choosing can advise before a significant transaction, a distribution to a second trust, or a question under a directed-trust or separate-trustee provision.