Legally Speaking
New Trust Code, Part 3
By Amanda Roggenbuck

This is the third article in a series discussing the new Michigan Trust Code (MTC).

Based on the MTC, your durable power of attorney may be able to change some of the provisions in your trust. MCL Section 700.7602(5) states, a settlor’s powers with respect to revocation, amendment or distribution of trust property may be exercised by an agent under a durable power of attorney only to the extent expressly authorized by the terms of the trust or the power of attorney.

It is important that parties review their power of attorney document to be able to take advantage of or restrict any provisions that they either do or do not want utilized in their estate. It is also important to note a statue of limitations now exists with regards to contesting revocable trusts; the limitation is as follows based on MCL 70.7604:1) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s death within the earlier of the following:

1. Two years after the settlor’s death.
2. Six months after the trustee sent the person a notice informing the person of all of the following:
   1. The trust’s existence.
   2. The date of the trust instrument.
   3. The date of any amendments known to the trustee.
   4. A copy of relevant portions of the terms of the trust that describe or affect the person’s interest in the trust, if any.
   5. The settlor’s name.
   6. The trustee’s name and address.
   7. The time allowed for commencing a proceeding.

This has not been the case or standard in the past and can affect beneficiaries’ rights, but also serves to provide grantors and trustees some closure and limit to exposure of liability for decisions made pertaining to the trust and its property.