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密歇根州的醒酒法规

亚当Keilen

醒酒是信托权力的自由裁量行使，以信托方式指定资产, 意义, irc2652, “达成一项安排，尽管不是信托”, 实质上与信托具有相同的效果.”“该活动的范例是信托的受托人1, T1, is currently authorized by the trust instrument to distribute trust income and principal to 或 the benefit of beneficiary B in such amounts and at such times as T1 determines, 由T1全权决定, to be in the best interest of B; to the extent trust assets are not distributed to 或 the benefit of B.” 詹姆斯·P·斯皮卡.密歇根州遗嘱认证 & 遗产规划，卷. 32 No. 2. 2013年春季.

密歇根州. 电脑及相关知识. 法安. § 700.7820a规定:

  1. 不可撤销信托包括酌情信托条款的, 信托的受托人可以, 除非第一信托条款另有明文规定, distribute by written instrument all or part of the property subject to that provision to the trustee of a second trust, 前提是同时满足以下两个条件:
    • (a) The terms of the second trust do not materially change the beneficial interests of the beneficiaries of the first trust.
    • (b) If the governing instrument of the first trust expressly indicates an intention that the first trust qualify for a tax benefit or the terms of the first trust are clearly designed to qualify the first trust for a tax benefit, 第一个信托是否有资格获得预期的税收优惠, the governing instrument of the second trust is not inconsistent with the tax planning that informed the first trust.
  2. A distribution of property to the trustee of a second trust under subsection (1) shall not result in any of the following:
    • (a)确定受托人补偿的方法增加或改变, unless the increase or change has been consented to in writing by all beneficiaries entitled to receive reports regarding the first trust.
    • (b) A charge of a fee or commission on the transfer of assets from the first trust to the second trust, unless the fee or commission has been consented to in writing by all beneficiaries entitled to receive reports regarding the first trust.
    • (c) A reduction in the standard of care applicable to the trustee’s actions or an expansion of exoneration of the trustee.
    • (d) A diminution in the authority of a person who has a power exercisable in a fiduciary capacity to direct or remove the trustee.
  3. 就本条而言，下列各项均适用:
    • (a)在确定信托是否不可撤销时, a settlor’s lack of capacity to exercise a power of revocation negates the power unless an agent of the settlor under a durable power of attorney, 殖民者的保护者, 或由全体监护人担任受托人和代理人, 枕, 或者监护人有权行使撤销权.
    • (b) An increase in the maximum period during which the vesting of a future interest may be suspended or postponed under applicable law does not constitute a material change in the interest of a beneficiary.
    • (c) An increase in compensation arising solely because the duration of the second trust is longer than the duration of the first trust does not constitute an increase in or a change in the method of determining the compensation of the trustee.
  4. The distribution power described in subsection (1) shall not be exercised over any portion of the first trust as to which the exercising trustee is the settlor, unless the exercising trustee was acting in a fiduciary capacity when he or she created the first trust.
  5. 第二信托的受托人可以是第一信托的受托人, the second trust may be a trust under the governing instrument of the first trust or another governing instrument, 管治文书可以由第一信托的受托人制定, and the governing instrument may be the instrument that exercises the power described in subsection (1).
  6. 第二信托文书可提供下列一项或两项:
    • (a) That assets of the first trust discovered after exercise of the power described in subsection (1) shall be property of the first trust if that trust is to continue in existence after exercise of the power, or that assets of the first trust discovered after exercise of the power shall be property of the second trust if the first trust terminates upon exercise of the power.
    • (b)赔偿第一信托的受托人，但受第7908条限制的除外.
  7. A trustee of the first trust may exercise the power described in subsection (1) without the consent of that trust’s settlor, 任何受益人, 或者法庭. 然而, the trustee shall give written notice of an intended exercise of the power to the settlors of the first trust, 如果生活, 且符合条件的信托受益人不迟于行使权力前63天. 本条所规定的通知须包括建议行使文书的副本. If the living settlors and qualified trust beneficiaries waive the 63-day notice period in writing, 可在通知期届满前根据第(1)款作出分配.
  8. The period during which the vesting of a future interest may be suspended or postponed by the exercise of the power described in subsection (1) is determined under the powers of appointment act of 1967, 1967 PA 224, 程556.111 to 556.133, 将第(1)款下的权力视为就本款而言的委任权力.
  9. This section shall not abridge the right of a trustee who has a power to distribute trust property in further trust under the terms of a trust instrument, 任何其他法规, 或者普通法. The provisions of this section shall not abridge any right of a trustee who has a power to amend or terminate a trust.
  10. 在本节中使用:
    • (a) “First trust” means an irrevocable trust that has a discretionary trust provision that is exercised as described in subsection (1).
    • (b)“税收优惠”指联邦或州税收减免, 豁免, 排除, 或其他特定的税收属性. 税收优惠一词不包括设保人信托地位. 信托具有授予人信托地位的程度取决于该信托的资产是否得到处理, 用于联邦所得税, 根据国内税收法第671至679条由授予人或其他人拥有的, 26 USC 671到679.

总而言之, 密歇根州立法机构通过了PA 483, 自12月28日起生效, 2012, 哪项立法赋予受托人撤资的权力. The ability to “decant” allows a trustee to use their distribution power to “pour” funds from one trust into another trust with substantially similar provisions. 即使原来的信托是不可撤销的，也可以对信托进行醒酒或倾注资产. 信托的受托人由信托授权分配收入和本金, 或, 受益人，有时受托人认为符合受益人的最大利益. 除非信托明确禁止或有相反的语言, a trustee’s power to make the aforementioned distributions includes; (1) distributions in trust for permissible distributes, (2)在信托资产分配中创设任命权.