Bill Text: MI HB5195 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Probate; wills and estates; forfeiture and revocation of benefits for individuals who abused, neglected, or exploited decedent; provide for. Amends secs. 2802, 2803 & 2804 of 1998 PA 386 (MCL 700.2802 et seq.).
Spectrum: Partisan Bill (Democrat 37-0)
Status: (Introduced - Dead) 2010-03-02 - Referred To Committee On Judiciary [HB5195 Detail]
Download: Michigan-2009-HB5195-Engrossed.html
HB-5195, As Passed House, February 25, 2010
SUBSTITUTE FOR
HOUSE BILL NO. 5195
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 2802, 2803, and 2804 (MCL 700.2802, 700.2803,
and 700.2804).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2802. As used in this section and sections 2803 and 2804:
(a) "Abuse, neglect, or exploitation" means any of the
following:
(i) An intentional act, the commission of which is a felony,
prohibited under chapter XXA of the Michigan penal code, 1931 PA
328, MCL 750.145m to 750.145r.
(ii) A violation of section 174a of the Michigan penal code,
1931 PA 328, MCL 750.174a.
(iii) A criminal act that is an offense involving domestic
violence as that term is defined in section 27b of the code of
criminal procedure, 1927 PA 175, MCL 768.27b.
(iv) An act that constitutes child abuse under section 136b of
the Michigan penal code, 1931 PA 328, MCL 750.136b.
(v) A criminal act that constitutes abuse as that term is
defined in section 11 of the social welfare act, 1939 PA 280, MCL
400.11.
(b) (a)
"Disposition or appointment of property" includes, but
is not limited to, a transfer of an item of property or another
benefit to a beneficiary designated in a governing instrument.
(c) (b)
"Governing instrument" means a governing instrument
executed by the decedent.
(d) "Offender" means the individual who was convicted of
committing the abuse, neglect, or exploitation.
(e) (c)
"Revocable" means, with respect to a disposition,
appointment, provision, or nomination, one under which the
decedent, at the time of or immediately before death, was alone
empowered, by law or under the governing instrument, to cancel the
designation in favor of the killer or offender, whether or not the
decedent was then empowered to designate himself or herself in
place of his or her killer or offender and whether or not the
decedent then had the capacity to exercise the power.
Sec. 2803. (1) An individual who feloniously and intentionally
kills or who is convicted of committing abuse, neglect, or
exploitation with respect to the decedent forfeits all benefits
under this article with respect to the decedent's estate, including
an intestate share, an elective share, an omitted spouse's or
child's share, a homestead allowance, a family allowance, and
exempt property. If the decedent died intestate, the decedent's
intestate estate passes as if the killer or offender disclaimed his
or her intestate share.
(2) The felonious and intentional killing or the conviction of
the offender for the abuse, neglect, or exploitation of the
decedent does all of the following:
(a) Revokes all of the following that are revocable:
(i) Disposition or appointment of property made by the decedent
to the killer or offender in a governing instrument.
(ii) Provision in a governing instrument conferring a general
or nongeneral power of appointment on the killer or offender.
(iii) Nomination of the killer or offender in a governing
instrument, nominating or appointing the killer or offender to
serve in a fiduciary or representative capacity, including a
personal representative, executor, trustee, or agent.
(b) Severs the interests of the decedent and killer or
offender in property held by them at the time of the killing,
abuse, neglect, or exploitation as joint tenants with the right of
survivorship, transforming the interests of the decedent and killer
or offender into tenancies in common.
(3) A severance under subsection (2)(b) does not affect a
third party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the killer
or offender unless a writing declaring the severance has been
noted, registered, filed, or recorded in records appropriate to the
kind and location of the property that are relied upon, in the
ordinary course of transactions involving that type of property, as
evidence of ownership.
(4) A provision of a governing instrument is given effect as
if the killer or offender disclaimed all provisions revoked by this
section or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the killer or offender predeceased
the decedent.
(5) A killer's or offender's wrongful acquisition of property
or interest not covered by this section shall be treated in
accordance with the principle that a killer or offender cannot
profit from his or her wrong.
(6) After all right to appeal has been exhausted, a judgment
of conviction establishing criminal accountability for the
felonious and intentional killing or the abuse, neglect, or
exploitation of the decedent conclusively establishes the convicted
individual as the decedent's killer or as an offender, as
applicable,
for purposes of this section. In With respect to a
claim of felonious and intentional killing, in the absence of a
conviction, the court, upon the petition of an interested person,
shall determine whether, under the preponderance of evidence
standard, the individual would be found criminally accountable for
the felonious and intentional killing of the decedent. If the court
determines that, under that standard, the individual would be found
criminally accountable for the felonious and intentional killing of
the decedent, the determination conclusively establishes that
individual as the decedent's killer for purposes of this section.
(7) This section does not apply if the forfeiture, revocation,
or severance would occur because of abuse, neglect, or exploitation
and the decedent executed a governing instrument after the date of
the conviction expressing a specific intent to allow the offender
to inherit or otherwise receive the estate or property of the
decedent.
Sec. 2804. (1) Except as otherwise provided in this section, a
payor or other third party is not liable for having made a payment
or transferred an item of property or another benefit to a
beneficiary designated in a governing instrument affected by an
intentional and felonious killing or by abuse, neglect, or
exploitation, or for having taken another action in reliance on the
validity of the governing instrument, upon request and satisfactory
proof of the decedent's death. A payor or other third party is
liable
for a payment made or other action taken 3 7 or
more
business days after the payor or other third party actually
receives written notice of a claimed forfeiture or revocation under
section 2803. A payor or other third party is not obligated to
determine whether the decedent was the victim of felonious killing
or abuse, neglect, or exploitation or to seek evidence relating to
such a killing or abuse, neglect, or exploitation even if the
circumstances of the decedent's death are suspicious as to the
beneficiary's participation in such a killing or if there is
evidence that would raise suspicions that the decedent was the
victim of abuse, neglect, or exploitation by the beneficiary. A
recipient who incorrectly receives a payment, transfer of property,
or other benefit is liable for the payment or transfer received,
whether or not written notice of the claim is given.
(2) Written notice of a claimed forfeiture or revocation under
subsection (1) must be mailed to the payor's or other third party's
main office or home by registered or certified mail, return receipt
requested, or served upon the payor or other third party in the
same manner as a summons in a civil action. Notice to a sales
representative of a payor or other third party does not constitute
notice to the payor or other third party.
(3) The written notice under subsection (1) must include the
decedent's name, the name of the person asserting an interest, the
nature
of the payment, item of property, or other benefit, and a
statement that a claim of forfeiture or revocation is being made
under section 2803, and, if the claim is based on a conviction for
abuse, neglect, or exploitation, a copy of the judgment of
conviction. Notice in a form or service in a manner other than that
described in this section does not impose liability on a payor or
other third party for an action taken in accordance with a
governing instrument.
(4) Upon receipt of written notice of a claimed forfeiture or
revocation under this section, a payor or other third party may pay
an amount owed to the county treasurer of the county of the court
having jurisdiction of the probate proceedings relating to the
decedent's estate or, if no proceedings have been commenced, to the
county treasurer of the county of the decedent's residence. With a
payment under this section, the payor or other third party shall
file a copy of the written notice received by the payor or other
third party. A payment made to the county treasurer discharges the
payor or other third party from a claim for the value of an amount
paid to the county treasurer.
(5) The county treasurer shall not charge a filing fee for a
payment to the county treasurer under this section. The county
treasurer shall hold the money in accordance with section 3917 and,
upon the court's determination under section 2803, shall disburse
the money in accordance with the determination.
(6) The provision for payment to the county treasurer under
this section does not preclude a payor or other third party from
taking another action authorized by law or the governing
instrument.
