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Decanting Statutes in Michigan

Adam Keilen

Decanting is the discretionary exercise of a fiduciary power to appoint assets in trust, meaning, under IRC 2652, to “effect an arrangement that although not a trust, has substantially the same effect as a trust.” “The paradigm of the activity is the trustee of trust 1, T1, is currently authorized by the trust instrument to distribute trust income and principal to or for the benefit of beneficiary B in such amounts and at such times as T1 determines, in T1’s sole discretion, to be in the best interest of B; to the extent trust assets are not distributed to or for the benefit of B.” Spica, James P., Michigan Probate & Estate Planning, Vol. 32 No. 2. Spring 2013.

Mich. Comp. Laws Ann. § 700.7820a states that:

  1. If an irrevocable trust includes a discretionary trust provision, the trustee of the trust may, unless the terms of the first trust expressly provide otherwise, distribute by written instrument all or part of the property subject to that provision to the trustee of a second trust, provided that both of the following conditions are satisfied:
    • (a) The terms of the second trust do not materially change the beneficial interests of the beneficiaries of the first trust.
    • (b) If the governing instrument of the first trust expressly indicates an intention that the first trust qualify for a tax benefit or the terms of the first trust are clearly designed to qualify the first trust for a tax benefit, and if the first trust would qualify for the intended tax benefit, the governing instrument of the second trust is not inconsistent with the tax planning that informed the first trust.
  2. A distribution of property to the trustee of a second trust under subsection (1) shall not result in any of the following:
    • (a) An increase in or a change in the method of determining the compensation of a trustee, unless the increase or change has been consented to in writing by all beneficiaries entitled to receive reports regarding the first trust.
    • (b) A charge of a fee or commission on the transfer of assets from the first trust to the second trust, unless the fee or commission has been consented to in writing by all beneficiaries entitled to receive reports regarding the first trust.
    • (c) A reduction in the standard of care applicable to the trustee’s actions or an expansion of exoneration of the trustee.
    • (d) A diminution in the authority of a person who has a power exercisable in a fiduciary capacity to direct or remove the trustee.
  3. For purposes of this section, all of the following apply:
    • (a) In determining whether a trust is irrevocable, a settlor’s lack of capacity to exercise a power of revocation negates the power unless an agent of the settlor under a durable power of attorney, a conservator of the settlor, or a plenary guardian of the settlor is serving and the agent, conservator, or guardian is authorized to exercise the power of revocation.
    • (b) An increase in the maximum period during which the vesting of a future interest may be suspended or postponed under applicable law does not constitute a material change in the interest of a beneficiary.
    • (c) An increase in compensation arising solely because the duration of the second trust is longer than the duration of the first trust does not constitute an increase in or a change in the method of determining the compensation of the trustee.
  4. The distribution power described in subsection (1) shall not be exercised over any portion of the first trust as to which the exercising trustee is the settlor, unless the exercising trustee was acting in a fiduciary capacity when he or she created the first trust.
  5. The trustee of the second trust may be the trustee of the first trust, the second trust may be a trust under the governing instrument of the first trust or another governing instrument, the governing instrument may be created by the trustee of the first trust, and the governing instrument may be the instrument that exercises the power described in subsection (1).
  6. The second trust instrument may provide 1 or both of the following:
    • (a) That assets of the first trust discovered after exercise of the power described in subsection (1) shall be property of the first trust if that trust is to continue in existence after exercise of the power, or that assets of the first trust discovered after exercise of the power shall be property of the second trust if the first trust terminates upon exercise of the power.
    • (b) For indemnification of the trustee of the first trust, except as limited by section 7908.
  7. A trustee of the first trust may exercise the power described in subsection (1) without the consent of that trust’s settlor, any beneficiary, or a court. However, the trustee shall give written notice of an intended exercise of the power to the settlors of the first trust, if living, and qualified trust beneficiaries no later than 63 days before exercise of the power. The notice required by this section shall include a copy of the proposed instrument of exercise. If the living settlors and qualified trust beneficiaries waive the 63-day notice period in writing, a distribution under subsection (1) may be made before expiration of the notice period.
  8. The period during which the vesting of a future interest may be suspended or postponed by the exercise of the power described in subsection (1) is determined under the powers of appointment act of 1967, 1967 PA 224, MCL 556.111 to 556.133, treating the power under subsection (1) as a power of appointment for purposes of this subsection.
  9. This section shall not abridge the right of a trustee who has a power to distribute trust property in further trust under the terms of a trust instrument, any other statute, or the common law. The provisions of this section shall not abridge any right of a trustee who has a power to amend or terminate a trust.
  10. As used in this section:
    • (a) “First trust” means an irrevocable trust that has a discretionary trust provision that is exercised as described in subsection (1).
    • (b) “Tax benefit” means a federal or state tax deduction, exemption, exclusion, or other particular tax attribute. The term tax benefit does not include grantor trust status. A trust has grantor trust status to the extent that the assets of the trust are treated, for federal income tax purposes, as owned by the grantor or another person under sections 671 to 679 of the internal revenue code, 26 USC 671 to 679.

In sum, the Michigan Legislature passed PA 483, effective as of December 28, 2012, which is legislation providing a trustee decanting power. The ability to “decant” allows a trustee to use their distribution power to “pour” funds from one trust into another trust with substantially similar provisions. Decanting a trust, or pouring over assets, may be done even if the original trust is irrevocable. The trustee of a trust is authorized by the trust to distribute income and principal to, or for, the beneficiaries and at times the trustee deems in the best interest of the beneficiary. Unless the trust expressly prohibits or has language to the contrary, a trustee’s power to make the aforementioned distributions includes; (1) distributions in trust for permissible distributes, and (2) to create powers of appointment in such distributes over trust assets.