Introduction: EPIC—New Probate & Trust Legislation for the New Millennium

by Richard C. Lowe

This issue of the Michigan Bar Journal is devoted to the most important piece of legislation affecting probate and trust administration in over 20 years. As we begin this new millennium, it is indeed appropriate that we do so with a brand new, Y2K compliant statute governing the administration of estates and trusts.

The Estates and Protected Individuals Code (EPIC) was enacted into law in 1998 and becomes effective on April 1, 2000. The delay between EPlC’s enactment and its effective date was intentional; it was designed to give everyone an opportunity to learn the new rules and terminology provided in EPIC, as well as provide an opportunity for new probate court rules and forms to be drafted.

EPIC will replace the current Revised Probate Code (RPC) enacted in 1978. RPC was an imperfect and partial attempt to update Michigan’s 1939 Probate Code. The RPC contains some elements of the Uniform Probate Code (UPC). For example, the UPC concept of independent probate was added to Michigan law as part of the RPC. However, the UPC concepts that were adopted as part of the RPC were not smoothly integrated into the update of the 1939 Probate Code. One of the most important aspects of EPIC is that it is a true integration of the UPC while retaining unique and essential features of current Michigan law.

The articles in this month’s Bar Journal address many aspects of EPIC. Michigan’s new Prudent Investor Rule is discussed by M. Gayle Robinson. An overview of EPIC’s Trust Claims Procedures is given by Patricia Gormely Prince and Randy J. Soverinsky. Joan C. Von Handorf explains the procedures to transfer a decedent’s assets under EPIC. John E. Bos provides a discussion of drafting estate planning documents in light of EPIC. Finally, Catherine A. Jacobs offers an overview of the Self-Proved Will and Construction Rules Under EPIC. These articles are designed to alert you to many of the ways Michigan’s new probate code will impact probate and estate planning.

Preparation of EPIC has a very long history; the Probate and Estate Planning Section Council has been working on it for over seven years. There were many, many meetings at which there were healthy discussions. Many Probate and Estate Planning Section members and nonmembers provided ideas and input. The drafting, redrafting, debate, and consideration that paved the way for the enactment of EPIC involved sole practitioners, lawyers from small and large firms, attorneys from the UAW legal services staff, judges of probate, probate registers, and bank trust officers.

There was support for EPIC from the very groups that were most knowledgeable about the administration of estates and trusts in Michigan. The Michigan Probate Judges Association; the Council of the Probate and Estate Planning Section, the largest section of the State Bar of Michigan; and the Michigan Bankers Association all endorsed enactment of EPIC.

EPIC was prepared and enacted with the firm belief that Michigan citizens and Michigan courts will greatly benefit from having a body of law that generally follows a national pattern of estate laws and procedures. Our courts will have the benefit of decisions from other jurisdictions when interpreting EPIC. Michigan residents will benefit from the modernization of probate and trust law contained in EPIC, which will:

1.Reduce litigation because it eliminates ambiguities and inconsistencies in current law.

2.Simplify probate and trust procedure. This should reduce attorneys’ fees, since most attorneys generally charge on an hourly basis.

3.Revise and update the laws governing the distribution of property by a decedent who failed to execute a will. These revisions are based on empirical studies of preferences of the general population.

4.Increase the amount of allowances and exemptions. This will afford greater protection for surviving family members. Also, these allowances and exemptions will be indexed for inflation so that the amounts will not be eroded by inflation.

5.Provide new rules regarding the investment standards to be followed by fiduciaries.

6.Enact provisions that address responsibilities and obligations of fiduciaries that encounter environmental problems with estate assets.

7.Permit parents to name a guardian of a minor child without preparing a will solely for that purpose.

8.Encourage and facilitate nonprobate transfers at death.

9.Give more complete statutory guidance and protection to settling an estate that avoids probate.

10. Offer a nonprobate method for collecting up to $15,000 in assets.

Michigan probate and trust law is one of many examples that change is necessary and good. It will be a challenge for all of us to learn the new rules and concepts within EPIC; however, the benefits from EPIC will be well worth our investment of time.

One of the primary reasons EPIC was enacted into law is a generous man by the name of John Harvey Martin. John Martin was the tireless crusader for the drafting and enactment of EPIC. John has given in excess of 2,000 hours of his time on this project alone.

John is what I would describe as a one-man army. He was the reporter for the drafting committee. He was the one who organized the material and coordinated the work of various subcommittees. As if that weren’t enough, John, along with others, led EPlC’s charge through the difficult legislative process until it became enacted into law. John prepared outlines and made presentations to many different groups (in fact, John prepared the material from which this introduction was written). To this day, John is working on technical amendments to EPIC.

Finally, John wrote the Reporter’s Commentary to EPIC. The Reporter’s Commentary will be published by the Institute of Continuing Legal Education as a unique resource for Michigan practitioners. It contains an analysis of each section, its derivation, and highlights differences from prior law.

John truly is the ‘‘father of EPIC.’’ John, you are a loyal, faithful, and generous friend. We are forever grateful to you. Thank you.

Richard C. Lowe is a shareholder and past president of Fraser Trebilcock Davis & Foster, P.C., with offices in Lansing and Detroit. He is a member and chairperson of the Probate and Estate Planning Section of the State Bar of Michigan, as well as a member of the Taxation and Business Law Sections. He is also a member of the Taxation; Business Law; and Real Property, Probate and Trust Law Sections of the American Bar Association. Mr. Lowe is a certified public accountant, a former director of the Greater Lansing Estate Planning Council, and a frequent lecturer for ICLE.