Updated April 04, 2023
The Michigan living trust acts much in the same way as a Will, with certain important differences. Whereas a Will necessitates a court to probate (litigate and approve) and distribute an estate to its Beneficiaries, a living trust avoids probate altogether. In signing their living trust, the Grantor signs over all of their assets and property into the trust. At such a time that the Grantor dies or becomes ill or incapacitated, control of the trust will be given to the Trustee. By making a living trust, Grantors can protect their estate and avoid the divesting of their estate to be litigated by the court.
Laws – Act 386, Title VII (Michigan Living Trust Code)
Registration – Under MCL 14.251 et seq. only charitable trusts must register with the Attorney General. To do so, use the Registration Form and the Flow Chart. Charitable Trusts must be renewed every year with the Solicitation Form.
Will (Last Will and Testament) – In this document, the Grantor will provide instructions for any property that is not located in a living trust. All Heirs listed will have to undergo probate in order to obtain possession of the property.
Individual Roles
The four (4) main roles in a living trust are as follows:
Grantor (or “Settlor”) – The individual who makes the trust.
Trustee – The individual placed in control of the trust.
Successor Trustee – In the event of the Trustee’s death, or if they are otherwise incapacitated, the Successor Trustee becomes the active Trustee.
Beneficiaries – According to instructions laid out in the living trust, the Grantor’s assets and property will be given to the Beneficiaries at the time of the Grantor’s death.
Types
Irrevocable – This type of living trust cannot be amended, altered, or revoked. However, this type of living trust has tax advantages over the Revocable Living Trust, as well as protecting the Grantor’s estate.
Revocable – As opposed to an Irrevocable Living Trust, with this option the Grantor retains their ability to change or revoke their living trust during their lifetime.
How to Make a Living Trust in Michigan
The creation of a living trust must follow § 700.7402 with the Settlor needing only the mental capacity to make the document as the only requirement. The creator may not be the sole Trustee and sole Beneficiary. The Settlor must name a Trustee, Successor Trustee, and one or more Beneficiaries. After the form has been completed, it is to be kept by the Trustee until the death of the Settlor at which time the property located in the Trust will be transferred to the Beneficiaries. It is suggested that a notary public be present during the signing of the document, but it is not legally mandatory.
Charitable Trust (§ 14.254(d)) – Required to be Registered with the Attorney General.
Motor Vehicles – Any motor vehicles that the Grantor owns must have their title name changed over to the living trust. This can be accomplished through the Department of Motor Vehicles.
Real Estate Deeds – To transfer the ownership of any real estate over to the trust will be done using a Michigan Deed. This deed must be filed with the Registry of Deeds Office.
Do I Need a Living Trust?
Needing a living trust depends on the estate plans of the individual. If a person is seeking to bypass the probate process and does not have more than $15,000 in total net worth, they would qualify as a Small Estate and would not need a living trust. Although under a small estate the decedent does not get to choose the Heirs to which their property gets transferred. Therefore it would be spread evenly to all eligible Heirs.
If an individual is not interested in having their property transferred evenly or do not qualify as having a small estate then the only route for the person is to create a living trust in order to avoid probate.