Michigan Trusts

There are dozens of types of trusts.  They are generally classified as revocable or irrevocable, and inter vivos or testamentary.  Obviously, revocable trusts can be revoked, while irrevocable trusts may not.  An "inter vivos" (Latin for "among the living") trust is simply a trust that is active while a person is alive, while a "testamentary" trust becomes operative only upon the death of the settlor.  The most common type of trust is a revocable inter vivos trust, which is commonly referred to as a "living trust".

 

The person creating a trust is referred to as the "settlor".  A trust may be created by any person over the age of 18.  The Michigan Trust Code contains (5) requirements that must be met to create a trust (MCL 700.7402):

  • The settlor must have capacity to create a trust
  • The settlor must intend to create a trust
  • The trust must have a definite beneficiary
  • The trustee must have duties to perform
  • The same person cannot be the sole trustee and beneficiary

 

Volumes have been written about each of these requirements.  However, the point of listing them is to demonstrate that the legal requirements to create a trust are not restrictive or technical.  The Michigan Trust Code does not define what must be in a trust, rather it defines when a trust is created.  The only restriction is that "a trust may be created only to the extent its purposes are lawful, not contrary to public policy, and possible to achieve." (MCL 700.7404)  The rest is up to the settlor.

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