Michigan Laws 700.2902 – Right to disclaim; partial disclaimers; limitation on right to disclaim
Current as of: 2023 | Check for updates
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(1) A person, or a fiduciary representing a person to whom a disclaimable interest devolves, may disclaim a disclaimable interest in whole or in part. A trustee, with respect to the trust as a whole or with respect to a separate trust that is or will be established under the governing instrument, may disclaim a disclaimable interest, in whole or in part, but only to the extent that the governing instrument expressly gives the trustee the right to disclaim.
(2) A disclaimer may be of a specific asset, an interest in a specific asset, a pecuniary amount, a fractional or percentage share, or a limited interest or estate. A provision in a power of attorney granting the agent the authority to do whatever the principal could do, or words of similar effect, includes the authority to disclaim, unless the authority to disclaim is specifically excluded or limited. Unless the governing instrument is a trust instrument that does not authorize the trustee to disclaim or a power of attorney that denies the agent the authority to disclaim, the right to disclaim exists notwithstanding the existence of either of the following:
Terms Used In Michigan Laws 700.2902
- Agent: means an agent or attorney in fact acting under a written power of attorney and within the scope of his, her, or its authority. See Michigan Laws 700.2901
- Attorney: means , if appointed to represent a child under the provisions referenced in section 5213, an attorney serving as the child's legal advocate in the manner defined and described in section 13a of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A. See Michigan Laws 700.1103
- Disclaimable interest: includes , but is not limited to, property, the right to receive or control property, and a power of appointment. See Michigan Laws 700.2901
- Estate: includes the property of the decedent, trust, or other person whose affairs are subject to this act as the property is originally constituted and as it exists throughout administration. See Michigan Laws 700.1104
- Fiduciary: A trustee, executor, or administrator.
- Fiduciary: includes , but is not limited to, an agent, a conservator, a guardian if no conservator has been appointed, a guardian ad litem, a personal representative, a trustee, a probate court acting through a protective order under this act, and a temporary, successor, or foreign fiduciary. See Michigan Laws 700.2901
- Fiduciary power: means a management power relating to the administration or management of assets similar to those powers granted to a personal representative in section 3715 and a trustee in section 7816 and 7817, and granted by law to a fiduciary or conferred upon a fiduciary in a governing instrument. See Michigan Laws 700.2901
- Governing instrument: means a deed, assignment, bill of sale, will, trust, beneficiary designation, contract, instrument creating or exercising a power of appointment or a power of attorney, or another instrument under which property devolves, a property right is created, or a contract right is created. See Michigan Laws 700.2901
- Person: includes an entity and an individual, but does not include a fiduciary, an estate, or a trust. See Michigan Laws 700.2901
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Trust: means a fiduciary relationship with respect to property that subjects the person who holds title to the property to equitable duties to deal with the property for the benefit of another person, which fiduciary relationship arises as a result of a manifestation of an intention to create it. See Michigan Laws 700.2901
- Trustee: A person or institution holding and administering property in trust.
- Trustee: includes an original, additional, or successor trustee, whether or not appointed or confirmed by the court. See Michigan Laws 700.1107
(a) A spendthrift provision or similar restriction that limits the interest of the disclaimant.
(b) A restriction or limitation on the right to disclaim contained in the governing instrument.
(3) A fiduciary may disclaim a fiduciary power. The right to disclaim a fiduciary power exists notwithstanding a restriction or limitation on the right to disclaim contained in the governing instrument.