New trust code's architect relishes counselor role

Douglas J. Levy

On the Stand

Estate and trust attorney Mark K. Harder celebrated five-plus years of hard work in drafting the new Michigan Trust Code (MTC) with some champagne he had shelved specifically for the document's finish.

Harder said the code, which Gov. Jennifer M. Granholm signed into law June 18, gives other trust attorneys reason to also say, "Cheers!"

"The aspect of having a comprehensive, modern, single-source statute will make their lives much easier," said Harder, who chaired the Michigan Trust Code Committee of the State Bar of Michigan Probate and Estate Planning Section. "That's true of estate planners, lawyers who settle decedents' estates where trusts are involved, trustees both individual and corporate, and their legal counsel.

"It's not uncommon to pick up a trust agreement that's been drafted by other lawyers or other law firms, or maybe it was drafted 50 years ago and documents were a lot shorter and less complete, and maybe there isn't an answer to something. Now people will have an answer to those things."

The MTC is modeled from the Uniform Trust Code (UTC), the first national codification of the law of trusts that has been adopted by 21 other states.

Harder said that in analyzing the UTC's regulations, he learned how Michigan laws were different, such as voluntary trust registration.

"You weren't required to register a trust with your local probate court," he said, "but you could do that if you wish. The UTC doesn't say anything about trust registration. We considered it and decided trust registration has some value."

Also, because of lack of case law, the UTC's provisions on creditors of a beneficiary were controversial in some corners of the country.

But, Harder said, "Michigan law in this area is well-established. We have a comprehensive body of case law that deals with that. ... As our committee looked at those provisions, we concluded that we really liked how current law was, our practitioners were used to it, the disability and elder law practitioners found the cases that we had to be favorable to their work representing their clients."

The MTC goes into effect April 1, 2010, and will affect all trusts governed by Michigan law that exist on or after June 18, 2009. This means lawyers will need to become familiar with it so they know how the rules apply to the documents they're now preparing.

Harder said his passion for drafting the MTC is a reflection of his 20-plus-year chosen field.

"[It's] a very personal practice," he said. "You are involved with your clients in some of the most intimate decisions they will make. You deal with them and are able to help them in some of the most stressful times of their lives.

"Remember how lawyers used to refer to themselves as attorneys and counselors at law?" he added. "This is a practice where you still get to be a counselor at law and help people and individuals. That's really how I view my role and my relationship with clients, to be that counselor to them."

Mark K. Harder

Firm: Warner Norcross & Judd LLP (Holland office)

Education: University of Iowa

Specialties: Family business and succession planning, trusts and estates, business and corporate services, tax law