Legislative Update — 2024
By Howard H. Collens and Nathan R. Piwowarski
Originally Published but the Michigan Probate and Estate Planning Journal — Summer 2024
Source: https://connect.michbar.org/probate/reports/publications
A. Active Bills
1. Uniform Partition of Heirs Property Act
A committee, spearheaded by Jim Spica, was developing a Michigan version of the Uniform Law Commission’s Partition of Heirs Property Act only to happily discover that a version of the law was proposed in the Legislature. 2023 HB 4924¹ would create the Uniform Partition of Heirs Property Act by amending MCL 600.3304 and adding a new chapter to the Revised Judicature Act to prevent abusive and speculative proceedings to partition of property co-owned by persons who received it by reason of a relative’s death. This specialized type of partition action would apply to property when (a) there is no agreement in a record binding all the cotenants that governs the partition of the property, (b) one or more of the cotenants acquired title from a living or deceased relative, and (c) 20 percent or more of the interests are held by co-tenants who are relatives, by an individual who acquired title from a relative, whether living or deceased or are relatives of each other. The Probate and Estate Planning Section has adopted a public policy position in favor of this bill. This Bill has been passed by the House and was placed on immediate passage by the Senate.
2. Uniform Fiduciary Income and Principal Act
The Section developed this bill, which adopts the income- and unitrust-conversion-related provisions of this Act. Its proposal can be found in 2023 HB 5110.² The Bill has passed the House and has been referred to the Senate Committee on Finance, Insurance, and Consumer Protection.
3. Remote Witnessing and Notarization
During the pandemic, the Section formed a workgroup with the Elder Law and Disability Rights Section to obtain emergency executive orders that allowed the remote witnessing and notarization of estate planning documents. After the Supreme Court limited the Governor’s power to issue these orders, the Legislature enacted short-term statutes preserving these rules.
2024 HB 5883³ would amend EPIC to allow for the ongoing use of two-way audio visual technology for signing and witnessing the execution of a document or instrument.
2024 HB 5882⁴ would amend the Michigan Law on Notarial Acts in three ways. First, it would permanently expand remote notarization for Michigan-licensed attorneys and their staff, under standards like those imposed by the pandemic emergency orders. Second, it would permit bank and credit union employees to remotely notarize during a statewide health emergency. Third, it would further open the market for remote notarization platforms. This Bill has been referred to the House Committee on Judiciary.
4. Electronic Wills
This ad hoc committee, first led by Kurt Olson and now by Kathleen Cieslik, is exploring whether Michigan should adopt the Uniform Law Commission’s proposed Uniform Electronic Wills Act,⁵ and evaluate other proposals concerning electronic wills or some alternative to it. Recently, 2024 HB 4654⁶ was introduced, which would amend EPIC to allow electronic wills and even amends Michigan’s statutory will. The Bill has been referred to the House Committee on Judiciary. The Section’s Electronic Wills Ad Hoc Committee will be reviewing this closely.
5. Premarital Agreements Ad Hoc Committee/Uniform Premarital and Marital Agreements Act
The Probate and Estate Planning Section has adopted a public policy position in favor of the Uniform Premarital and Marital Agreements Act, but before the Section bill could be introduced, 2024 SB 809⁷ was introduced. 2024 SB 809 was drafted the Family Law Section of the State Bar of Michigan. The Bill has been referred to the Senate Committee on Civil Rights, Judiciary, and Public Safety. The Section has adopted a public policy position in opposition to 2024 SB 809 as drafted in light of its alterations to the Uniform Premarital and Marital Agreement Act as will continue to try to introduce a competing bill.
B. Unintroduced Proposals
The following proposals are fully formed, but have not been introduced for a variety of reasons:
Vehicle and Watercraft Transfer-on-Death Designations. This proposal, spearheaded by Katie Lynwood and Georgette David, would enable motor vehicle and watercraft owners to designate death beneficiaries.
Assisted Reproductive Technology. This proposal—most recently introduced as 2020 HBs 5321,⁸ 5322,⁹ and 5324¹⁰—would have updated the Estates and Protected Individuals Code and procedures related to a child born using assisted reproduction or a gestational agreement. We expect to have bills introduced, with better prospects given the Legislature’s recent change in control. Nancy Welber chairs the Assisted Reproductive Technology Ad Hoc Committee.
Tenants by the Entireties Trusts. Mature drafts of this legislation supported by the Probate and Estate Planning Section exist but have not been reintroduced on account of objections from creditors’ rights constituencies.
Nonbanking Entity Trust Powers Ad Hoc Committee (Nonbank Institutional Trustees). Jim Spica and Rob Tiplady jointly run the Non-banking Entities Trust Powers Committee, which developed bills that would authorize the creation of family-sponsored small commercial nonbank trust companies.
C. Study Committees and Early-Stage Projects
The Probate and Estate Planning Section’s committees continually explore and develop new topics. That said, each of the following topics should be considered only to understand trends, rather than to plan for imminent changes in the law:
Uniform Community Property Disposition at Death Act. This ad hoc committee, chaired by Jim Spica, is exploring the Uniform Law Commissions’ proposed Uniform Community Property Disposition at Death Act (UCPDDA),¹¹ under which community property acquired by a married couple retains its character as community property even when the couple relocates to reside in a noncommunity property state.
Various Issues Involving Death and Divorce. This ad hoc committee, cochaired by Daniel Borst and Sean Blume, is tasked with addressing overlapping issues arising from recent appellate court decisions, including: (a) Whether a pending divorce should affect one’s priority to serve in a fiduciary position under EPIC; (b) whether a pending divorce should affect one’s rights to intestacy, elective share, exemptions and allowances; (c) whether “affinity” be redefined to prevent elimination of stepchildren’s gifts by operation of law after divorce or, instead, should there be an exception allowing gifts to stepchildren on a particular evidentiary showing that the Settlor would not have intended the omission of the stepchild.
Fiduciary Exception to the Attorney-Client Privilege. This ad hoc committee, chaired by Warren H. Krueger, III, has explored whether there should be some exception to the rule that beneficiaries of an estate or trust are entitled to production of documents regarding the advice given by an attorney to the fiduciary. It has been tasked with drafting a statute making clear that there is no such exception.
Undue Influence Ad Hoc Committee. A committee chaired by Ken Silver is exploring creating an express statutory framework outlining the definition and presumption-related rules concerning undue influence.
Inherited IRAs. A subcommittee of the Legislative Development and Drafting Committee, chaired by Robert P. Tiplady, is exploring legislation that would enhance the creditor protections for assets held in an inherited IRA.
Charitable Trust Supervision Act. The Probate and Estate Planning Section’s Charitable and Exempt Organizations Committee is exploring changes to Michigan’s charitable trust supervision statute to both (a) lessen the burdens on trustees of charitable trusts as to the trustees’ reporting requirements, and (b) increase the authority (and ability) of the
Attorney General to oversee charitable trusts.
The Probate and Estate Planning Section’s public policy positions are published at http://connect.michbar.org/probate/reports/policy
Notes
https://www.legislature.mi.gov/Bills/Bill?ObjectName=2023-HB-4924
https://www.legislature.mi.gov/Bills/Bill?ObjectName=2023-HB-5110
https://www.legislature.mi.gov/Bills/Bill?ObjectName=2024-HB-5883
https://www.legislature.mi.gov/Bills/Bill?ObjectName=2024-HB-5882
https://www.uniformlaws.org/committees/community-home?CommunityKey=a0a16f19-97a8-4f86-afc1-b1c0e051fc71#:~:text=The%20Uniform%20Electronic%20Wills%20Act,give%20electronic%20wills%20legal%20effect
https://legislature.mi.gov/Bills/Bill?ObjectName=2023-HB-4654
https://legislature.mi.gov/Bills/Bill?ObjectName=2024-SB-0809
http://legislature.mi.gov/doc.aspx?2020-HB-5321
http://legislature.mi.gov/doc.aspx?2020-HB-5322
http://legislature.mi.gov/doc.aspx?2020-HB-5324
https://www.uniformlaws.org/committees/community-home?CommunityKey=425b0732-7ff0-4b28-ada1-fc2b4638f29e#:~:text=Uniform%20Community%20Property%20Disposition%20at,a%20non%2Dcommunity%20property%20state
Authors
Howard H. Collens, founding member of Collens Estate Law in Huntington Woods, focuses his practice on contested and uncontested probate and trust administration, guardianships and conservatorships, estate planning, and elder law. He is a member of the State Bar of Michigan’s Elder Law and Disability Rights Section (ELDRS) and the ELDRS’s legislative committee, and is serving in his second stint as a member of the ELDRS’s Council. Mr. Collens is also a member of the State Bar of Michigan’s Probate and Estate Planning Section (PEPS) and serves on the PEPS’s Legislative Development and Drafting Committee.
Nathan R. Piwowarski is a shareholder of McCurdy, Wotila, and Porteous in Cadillac. He practices in the areas of elder law, estate planning, and estate administration. He is also a title agent and co-owner of Lakeside Title. Nathan is a fellow of the American College of Trust and Estate Lawyers, vice chair of the SBM Probate and Estate Planning Section, and previously chaired the section’s Legislation Development and Drafting Committee.