Michigan Laws 700.1046 – Qualified affidavit; requirements
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Terms Used In Michigan Laws 700.1046
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Creditor: means , with respect to a transferor, a person who has a claim whether directly or indirectly. See Michigan Laws 700.1042
- Disposition: means a transfer of property that either creates a new fiduciary relation between at least 1 trustee and a trust beneficiary or newly subjects property to a preexisting fiduciary relation between at least 1 trustee and a trust beneficiary. See Michigan Laws 700.1042
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fiduciary: A trustee, executor, or administrator.
- Oath: A promise to tell the truth.
- oath: shall be construed to include the word "affirmation" in all cases where by law an affirmation may be substituted for an oath; and in like cases the word "sworn" shall be construed to include the word "affirmed". See Michigan Laws 8.3k
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Person: means that term as defined in section 1106 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1042
- Property: means that term as defined in section 1106 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1042
- Qualified disposition: means , subject to subparagraphs (iii) and (iv), a disposition after which both subparagraphs (i) and (ii) apply to the subject property:
(i) The subject property is owned by 1 or more trustees at least 1 of whom is a qualified trustee. See Michigan Laws 700.1042Settlor: means that term as defined in section 7103 of the estates and protected individuals code, 1998 PA 386, MCL 700. See Michigan Laws 700.1042 Transferor: means any of the following, as applicable:
(i) A person and, for more than 1 owner of undivided interests, each of several persons, who, as a beneficial owner of certain property, or as the holder of a general power of appointment over certain property, directly or indirectly, makes a disposition of the property or causes a disposition to be made. See Michigan Laws 700.1042
(1) Except as provided in subsection (6), for purposes of this section, a “qualified affidavit” means an affidavit in which the transferor states that at the time of the transfer of the property to the trust all of the following apply:
(a) The transferor has full right, title, and authority to transfer the property to the trust.
(b) The transfer of the property to the trust will not render the transferor insolvent.
(c) The transferor does not intend to defraud a creditor by transferring the property to the trust.
(d) The transferor does not know of or have reason to know of any pending or threatened court actions against the transferor, except for those court actions identified by the transferor on an attachment to the affidavit.
(e) The transferor is not involved in any administrative proceedings, except for those administrative proceedings identified on an attachment to the affidavit.
(f) The transferor is not currently in arrears on a child support obligation by more than 30 days.
(g) The transferor does not contemplate filing for relief under the bankruptcy code, 11 USC 101 to 1532.
(h) The property being transferred to the trust was not derived from unlawful activities.
(2) The transferor shall sign a qualified affidavit before a qualified disposition is made.
(3) A qualified affidavit is defective if it materially fails to meet the criteria set forth in subsection (1), except that a qualified affidavit is not defective because of any of the following:
(a) Nonsubstantive variances from the language set forth in subsection (1).
(b) Statements or representations in addition to those set forth in subsection (1) if the statements or representations do not contradict those required by subsection (1).
(c) Technical errors in administering an oath if the errors were not the fault of the transferor and the transferor reasonably relied on another person to prepare or administer the oath.
(4) A qualified affidavit is not required in any of the following circumstances:
(a) From the settlor for a fiduciary qualified disposition.
(b) From a transferor who is not the settlor of the qualified disposition, except to the extent the transferor is a beneficiary of the qualified disposition and the property subject to the qualified disposition was not previously subject to a qualified disposition with respect to which the transferor signed a qualified affidavit.
(c) In connection with dispositions that are part of, required by, or the direct result of a prior qualified disposition supported by a qualified affidavit that otherwise complies with the requirements of subsection (1).
(5) If a qualified affidavit is required by this section, and a transferor fails to timely sign a qualified affidavit or signs a defective affidavit, the failure or defect may be considered as evidence in an action described in section 5(2) to the extent permitted by the Michigan rules of evidence, but the validity of the qualified disposition is not affected in any other way because of the failure or defect.
(6) If subsection (4)(b) applies, the required affidavit must omit the statements described subsection (1)(a) and (c), and include a statement that the qualified disposition is not intended to defraud any creditor.