Bill Text: MI HB5370 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Probate; trusts; fiduciary access to digital assets act; enact. Amends sec. 7817 of 1998 PA 386 (MCL 700.7817) & adds sec. 7912a. TIE BAR WITH: HB 5366'14, HB 5367'14, HB 5368'14, HB 5369'14
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Introduced - Dead) 2014-10-02 - Referred To Second Reading [HB5370 Detail]
Download: Michigan-2013-HB5370-Introduced.html
HOUSE BILL No. 5370
February 26, 2014, Introduced by Reps. Jenkins, Cotter, Geiss, LaFontaine, Leonard, Lauwers and Kowall and referred to the Committee on Judiciary.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending section 7817 (MCL 700.7817), as amended by 2010 PA 325,
and by adding section 7912a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7817. Without limiting the authority conferred by section
7816, a trustee has all of the following powers:
(a) To take possession, custody, or control of property
transferred to the trust and accept or reject additions to the
trust.
(b) To retain property that the trustee receives, including
property in which the trustee is personally interested, in
accordance with the Michigan prudent investor rule.
(c) To receive property from a fiduciary or another source
that is acceptable to the trustee.
(d) To perform, compromise, or refuse to perform a contract of
the settlor that is an obligation of the trust, as the trustee may
determine under the circumstances. In performing an enforceable
contract by the settlor to convey or lease land, if the contract
for a conveyance requires the giving of a warranty, the deed or
other instrument of conveyance to be given by the trustee shall
contain the warranty required. The warranty is binding on the trust
as though made by the settlor, but does not bind the trustee except
in the trustee's fiduciary capacity. The trustee, among other
possible courses of action, may do either of the following:
(i) Execute and deliver a deed of conveyance for cash payment
of money remaining due or the purchaser's note for the money
remaining due secured by a mortgage on the land.
(ii) Deliver a deed in escrow with directions that the
proceeds, when paid in accordance with the escrow agreement, be
paid to the trustee, as designated in the escrow agreement.
(e) To satisfy a settlor's written charitable pledge
irrespective of whether the pledge constitutes a binding obligation
of the settlor or was properly presented as a claim, if in the
trustee's judgment the settlor would have wanted the pledge
completed under the circumstances.
(f) To deposit trust property in a financial institution,
including a financial institution operated by or affiliated with
the trustee and to invest and reinvest trust property as would a
prudent investor acting in accordance with the Michigan prudent
investor rule and to deposit securities with a depositary or other
financial institution.
(g) To acquire property, including property in this or another
state or country, in any manner for cash or on credit, at public or
private sale; and to manage, develop, improve, exchange, partition,
or change the character of trust property.
(h) To make an ordinary or extraordinary repair or alteration
in a building or another structure, to demolish an improvement, or
to raze an existing or erect a new party wall or building.
(i) To subdivide, develop, or dedicate land to public use; to
make or obtain the vacation of a plat or adjust a boundary; to
adjust a difference in valuation on exchange or partition by giving
or receiving consideration; or to dedicate an easement to public
use without consideration.
(j) To enter for any purpose into a lease as lessor or lessee,
with or without an option to purchase or renew, for a period within
or extending beyond the duration of the trust.
(k) To enter into a lease or arrangement for exploration and
removal of minerals or another natural resource or to enter into a
pooling or unitization agreement for a period within or extending
beyond the duration of the trust.
(l) To abandon or decline to administer property if, in the
trustee's opinion, the property is valueless, or is so encumbered
or in such a condition that it is of no benefit to the trust.
(m) To vote a stock or other security in person, by general or
limited proxy, or in another manner provided by law, or enter into
or continue a voting trust agreement.
(n) To pay a call, assessment, or other amount chargeable or
accruing against or on account of a security, and sell or exercise
stock subscription or conversion rights.
(o) To hold property in the name of a nominee or in another
form without disclosure of the interest of the trust. However, the
trustee is liable for an act of the nominee in connection with the
property so held.
(p) To insure the trust property against damage, loss, or
liability and to insure the trustee, the trustee's agents, and the
trust beneficiaries against liability arising from the
administration of the trust.
(q) To borrow property, with or without security, for any
purpose from the trustee or others and to mortgage or pledge trust
property for a period within or extending beyond the duration of
the trust.
(r) To effect a fair and reasonable compromise with a debtor
or obligor, or extend, renew, or in any manner modify the terms of
an obligation owing to the trust. If the trustee holds a mortgage,
pledge, or another lien on property of another person, the trustee
may, instead of foreclosure, accept a conveyance or transfer of
encumbered property from the property's owner in satisfaction of
the indebtedness secured by a lien.
(s) To pay a tax, an assessment, the trustee's compensation,
or another expense incident to the administration of the trust.
(t) To sell or exercise a subscription or conversion right or
to consent, directly or through a committee or another agent, to
the reorganization, consolidation, merger, dissolution, or
liquidation of a business enterprise.
(u) To allocate an item of income or expense to either trust
income or principal, as permitted or provided by law.
(v) To employ, and pay reasonable compensation for services
performed by, a person, including an auditor, investment advisor,
accountant, appraiser, broker, custodian, rental agent, realtor, or
agent, even if the person is associated with the trustee, for the
purpose of advising or assisting the trustee in the performance of
an administrative duty; to act without independent investigation
upon
on such a person's recommendation; and, instead of
acting
personally, to employ 1 or more agents to perform an act of
administration, whether or not discretionary.
(w) To employ an attorney to perform necessary legal services
or to advise or assist the trustee in the performance of the
trustee's administrative duties, even if the attorney is associated
with
the trustee, and to act without independent investigation upon
on the attorney's recommendation. An attorney employed under this
subdivision shall receive reasonable compensation for his or her
employment.
(x) To prosecute, defend, arbitrate, settle, release,
compromise, or agree to indemnify an action, claim, or proceeding
in any jurisdiction or under an alternative dispute resolution
procedure. The trustee may act under this subdivision for the
trustee's protection in the performance of the trustee's duties.
(y) To sell, exchange, partition, or otherwise dispose of, or
grant an option with respect to, trust property for any purpose
upon
on any terms or conditions for a period within or
extending
beyond the duration of the trust.
(z) To continue or participate in a business or enterprise in
any manner, in any form, and for any length of time.
(aa) To change the form, in any manner, of a business or
enterprise in which the settlor was engaged at the time of death.
(bb) To provide for exoneration of the trustee from personal
liability in a contract entered into on behalf of the trust.
(cc) To respond to environmental concerns and hazards
affecting trust property as provided in section 7818.
(dd) To collect, pay, contest, settle, release, agree to
indemnify against, compromise, or abandon a claim of or against the
trust, including a claim against the trust by the trustee.
(ee) To respond to a tax matter as provided in section 7819.
(ff) To make a payment of money, or other property instead of
money, to or for a minor or incapacitated trust beneficiary as
provided in section 7820.
(gg) To make a distribution or division of trust property in
cash or in kind, or both; to allot a different kind or
disproportionate portion of, or an undivided interest in, trust
property among beneficiaries and determine the value of allotted
trust property; or to distribute an unclaimed share in the same
manner as described in section 3916.
(hh) To transfer the property of a trust to another
jurisdiction and appoint, compensate, or remove a successor
trustee, individual or corporate, for trust property in another
jurisdiction, with any trust powers set out in this part that the
trustee delegates to the successor trustee.
(ii) To execute and deliver an instrument that accomplishes or
facilitates the exercise of a power vested in the trustee.
(jj) To select a mode of payment under any employee benefit or
retirement plan, annuity, or life insurance payable to the trustee,
exercise rights thereunder, including exercise of the right to
indemnification for expenses and against liabilities, and take
appropriate action to collect the proceeds.
(kk) To make loans out of trust property, including loans to a
trust beneficiary on terms and conditions the trustee considers to
be fair and reasonable under the circumstances. The trustee has a
lien on future distributions for repayment of loans made under this
subdivision.
(ll) To pledge trust property to guarantee loans made by others
to the trust beneficiary.
(mm) To resolve a dispute concerning the interpretation of the
trust or its administration by mediation, arbitration, or other
procedure for alternative dispute resolution.
(nn) On termination of the trust, to exercise the powers
appropriate to wind up the administration of the trust and
distribute the trust property to the persons entitled to it.
(oo) Subject to the applicable terms-of-service agreement,
exercise control over and rights in digital property according to
the terms of the trust.
Sec. 7912a. (1) On receipt of a trustee's written request
under this subsection for access to digital property, ownership of
digital property, or a copy of a digital asset, a digital custodian
shall provide the trustee with the requested access, ownership, or
copy, as applicable. A trustee's written request under this
subsection must be accompanied by a certificate of trust.
(2) A digital custodian shall comply not later than 56 days
after receipt of a request made under subsection (1). If the
digital custodian fails to comply, the trustee may petition the
court for an order directing compliance. If, not later than 56 days
after receiving a request made under subsection (1), the digital
custodian fails to comply with the request, the trustee may
petition the court for an order directing compliance.
(3) A digital custodian is not liable for an action done in
compliance with this section.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 97th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 5368 (request no.
01198'13).
(b) Senate Bill No.____ or House Bill No. 5367 (request no.
04550'13).
(c) Senate Bill No.____ or House Bill No. 5366 (request no.
04551'13).
(d) Senate Bill No.____ or House Bill No. 5369 (request no.
04552'13).
