(3) Enforcement; notice to attorney general. 701.10(3)(a)(a)
A proceeding to enforce a charitable trust may be brought by:
An established charitable entity named in the governing instrument to which income or principal must or may be paid under the terms of the trust;
The attorney general in the name of the state upon the attorney general's own information or, in the attorney general's discretion, upon complaint of any person;
Any settlor or group of settlors who contributed half or more of the principal; or
In a proceeding affecting a charitable trust, notice must be given to the attorney general, but, except as provided in sub. (2)
, notice need not be given where the income or principal must be paid exclusively to one or more established charitable entities named in the governing instrument.
(4) Established charitable entity.
As used in this section, "established charitable entity" means a corporation, unincorporated association or trust operated exclusively for a charitable purpose defined in sub. (1)
See s. 879.03 (2) (c)
on notice to the attorney general of probate proceedings affecting a charitable trust.
A trust for residents of a city cannot be enlarged as to the area only because the trustees believe the original restriction has become unfair. In re Charitable Trust, Oshkosh Foundation, 61 Wis. 2d 432
, 213 N.W.2d 54
Construction of a trust's terms to allow the majority of the proceeds to be used for a college seminar series for clergy was impermissible when that construction would increase the class of beneficiaries and divert the trust purpose from one providing living facilities for the original beneficiaries into one primarily for the educational benefit of clergy. In re Petition of Downer Home, 67 Wis. 2d 55
, 226 N.W.2d 444
If a trust instrument provides a specified procedure for altering administrative provisions of the trust, there is no reason to suppose the legislature intended that sub. (2) (b) be used to override such a procedure. League of Women Voters v. Madison Community Foundation, 2005 WI App 239
, 288 Wis. 2d 128
, 707 N.W.2d 285
Private foundations. 701.105(1)(a)(a)
In the administration of any trust which is a private foundation, as defined in section 509
of the internal revenue code, a charitable trust, as defined in section 4947
(a) (1) of the internal revenue code, or a split-interest trust as defined in section 4947
(a) (2) of the internal revenue code, all of the following acts shall be prohibited:
Engaging in any act of self-dealing as defined in section 4941
(d) of the internal revenue code, which would give rise to any liability for the tax imposed by section 4941
(a) of the internal revenue code.
Retaining any excess business holdings as defined in section 4943
(c) of the internal revenue code, which would give rise to any liability for the tax imposed by section 4943
(a) of the internal revenue code.
Making any investments which would jeopardize the carrying out of any of the exempt purposes of the trust, within the meaning of section 4944
of the internal revenue code, so as to give rise to any liability for the tax imposed by section 4944
(a) of the internal revenue code.
Making any taxable expenditures as defined in section 4945
(d) of the internal revenue code, which would give rise to any liability for the tax imposed by section 4945
(a) of the internal revenue code.
This subsection shall not apply either to those split-interest trusts or to amounts thereof which are not subject to the prohibitions applicable to private foundations by reason of the provisions of section 4947
of the internal revenue code.
In the administration of any trust which is a private foundation as defined in section 509
of the internal revenue code, or which is a charitable trust as defined in section 4947
(a) (1) of the internal revenue code, there shall be distributed, for the purposes specified in the trust instrument, for each taxable year, amounts at least sufficient to avoid liability for the tax imposed by section 4942
(a) of the internal revenue code.
(3) Subsections (1)
shall not apply to any trust to the extent that a court of competent jurisdiction shall determine that such application would be contrary to the terms of the instrument governing such trust and that the same may not properly be changed to conform to such subsections.
Nothing in this section shall impair the rights and powers of the courts or the attorney general of this state with respect to any trust.
History: 1971 c. 66
; 1991 a. 39
Honorary trusts; cemetery trusts. 701.11(1)
Except under sub. (2)
, where the owner of property makes a testamentary transfer in trust for a specific noncharitable purpose, and there is no definite or definitely ascertainable human beneficiary designated, no enforceable trust is created; but the transferee has power to apply the property to the designated purpose, unless the purpose is capricious. If the transferee refuses or neglects to apply the property to the designated purpose within a reasonable time and the transferor has not manifested an intention to make a beneficial gift to the transferee, a resulting trust arises in favor of the transferor's estate and the court is authorized to order the transferee to retransfer the property.
A trust may be created for maintaining, keeping in repair and preserving any grave, tomb, monument, gravestone or any cemetery. Any cemetery company, association or corporation may receive property in trust for any of those purposes and apply the income from the trust to the purpose stated in the creating instrument.
A trust described in sub. (2)
is invalid to the extent it was created for a capricious purpose or the purpose becomes capricious.
If the assets of any trust described in sub. (2)
are valued at less than $5,000 and the court finds that the cost of operating the trust will probably defeat the intent of the settlor or if the trustee, including a cemetery company, association or corporation, named in the creating instrument is improperly described, the court may order distribution of the assets on terms which will as nearly as possible carry out the settlor's intention.
History: 1989 a. 307
Future interests in revocable trusts. 701.115(1)(a)(a)
In par. (b)
, "revocable trust" means a trust that the grantor, at the time of death, was alone empowered to change or revoke, by law or under the instrument creating the trust, regardless of whether the grantor then had the capacity to exercise the power.
Unless a contrary intention is found, if a person has a future interest in property under a revocable trust and, under the terms of the trust, the person has the right to possession and enjoyment of the property at the grantor's death, the right to possession and enjoyment is contingent on the person's surviving the grantor. Extrinsic evidence may be used to show contrary intent.
History: 1997 a. 188
; 2005 a. 216
Revocation, modification and termination of trusts with consent of settlor. 701.12(1)
By written consent of the settlor and all beneficiaries of a trust or any part thereof, such trust or part thereof may be revoked, modified or terminated, except as provided under s. 445.125 (1) (a) 2.
For purposes of this section such consent may be given on behalf of a legally incapacitated, unascertained or unborn beneficiary by the court after a hearing in which the interests of such beneficiary are represented by a guardian ad litem. A guardian ad litem for such beneficiary may rely on general family benefit accruing to living members of the beneficiary's family as a basis for approving a revocation, modification or termination of a trust or any part thereof.
Nothing in this section shall prevent revocation, modification, or termination of a trust pursuant to its terms or otherwise in accordance with law or prevent conversion of a trust to a unitrust under s. 701.20 (4g)
That s. 701.18 allows removing a trustee for cause does not prevent removal of a trustee under this section with the approval of the settlor and all beneficiaries, without showing cause. Weinberger v. Bowen, 2000 WI App 264
, 240 Wis. 2d 55
, 622 N.W.2d 471
Modification and termination of trusts by court action. 701.13(1)(1)
Anticipation of directed accumulation of income.
When an accumulation of income is directed for the benefit of a beneficiary without other sufficient means to support or educate himself or herself, the court on the application of the beneficiary or the beneficiary's guardian may direct that a suitable sum from the income accumulated or to be accumulated be applied for the support or education of such person.
(2) Application of principal to income beneficiary.
Unless the creating instrument provides to the contrary, if a beneficiary is entitled to income or to have it applied for the beneficiary's benefit, the court may make an allowance from principal to or for the benefit of such beneficiary if the beneficiary's support or education is not sufficiently provided for, taking into account all other resources available to the beneficiary.
In the case of a living trust whose settlor is deceased and in the case of any testamentary trust, regardless in either case of spendthrift or similar protective provisions, a court with the consent of the trustee may order termination of the trust, in whole or in part, and the distribution of the assets that it considers appropriate if the court is satisfied that because of any substantial reason existing at the inception of a testamentary trust or, in the case of any trust, arising from a subsequent change in circumstances, including but not limited to the amount of principal in the trust, income produced by the trust and the cost of administering the trust, continuation of the trust, in whole or in part, is impractical. In any event, if the trust property is valued at less than $50,000, the court may order termination of the trust and the distribution of the assets that it considers appropriate.
(4) Marital deduction trusts.
In a trust where the income beneficiary also has a general power of appointment as defined in s. 702.01 (3)
or where all accumulated income and principal are payable to such beneficiary's estate, any termination, in whole or in part, of the trust under sub. (3)
can only be ordered in favor of such beneficiary.
In this subsection, "participate or intervene in any political campaign" includes the publishing or distributing of statements.
(b) Subsections (2)
do not apply to a trust under which a future interest is indefeasibly vested in any of the following:
The United States or a political subdivision for exclusively public purposes.
A corporation that is organized exclusively for religious, charitable, scientific, literary or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual and no substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation, and that does not participate or intervene in any political campaign on behalf of any candidate for public office.
A trustee or a fraternal society, order or association operating under the lodge system, provided the principal or income of such trust is to be used by such trustee or by such fraternal society, order or association exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children and animals, and no substantial part of the activities of such trustee or of such fraternal society, order or association is carrying on propaganda or otherwise attempting to influence legislation, and such trustee or such fraternal society, order, or association does not participate or intervene in any political campaign on behalf of any candidate for public office.
Any veteran's organization incorporated by act of congress, or of its departments or local chapters or posts, no part of the net earnings of which inures to the benefit of any private shareholder or individual.
(6) Other applicable law.
Nothing in this section shall prohibit modification or termination of any trust pursuant to its terms or limit the general equitable power of a court to modify or terminate a trust in whole or in part.
Circuit court procedure in trust proceedings. 701.14(1)(1)
A proceeding in the circuit court involving a living or testamentary trust may be commenced by a trustee or other person interested in the trust and, except as otherwise provided in this chapter, all probate procedure governing circuit courts, so far as it may be applicable, shall apply to such proceeding.
If notice of a trust proceeding to a person interested in the trust, to the person's representative or guardian ad litem as provided in s. 701.15
or to other persons, is required by law or deemed necessary by the court, the court shall order such notice to be given as prescribed in s. 879.05
except that service by publication shall not be required unless ordered by the court. The court may order both personal service and service by publication on designated persons. Proof of service shall be made as provided in s. 879.07
. Persons interested in the trust, on behalf of themselves, or their representatives or guardians ad litem as provided in s. 701.15
, on behalf of themselves and those whom they represent, may in writing waive service of notice and consent to the hearing of any matter without notice. Waiver of notice or an appearance by any person interested in the trust or the person's representative or guardian ad litem as provided in s. 701.15
is equivalent to timely service of notice.
(3) Attorney for person in military service.
At the time of filing a petition for a trust proceeding, an affidavit shall be filed setting forth the name of any person interested in the proceeding who is actively engaged in the military service of the United States. Whenever it appears by the affidavit or otherwise that any person in the active military service of the United States is interested in any trust proceeding and is not represented by an attorney, or by an attorney-in-fact who is duly authorized to act on the person's behalf in the matter, the court shall appoint an attorney to represent the person and protect the person's interest.
A proceeding involving a living trust shall be governed by ss. 801.50
so far as applicable and shall be regarded as a civil action for that purpose.
History: 1971 c. 66
; Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1977 c. 449
; 1991 a. 220
See s. 701.10 (3)
, which lists the persons who may start proceedings to enforce a charitable trust and requires notice be given to the attorney general of any proceeding affecting the trust.
Representation of others.
Except as otherwise provided in ss. 701.12
and 701.13 (1)
, in a trust proceeding in the circuit court:
(1) Power to create or extinguish.
The sole holder or all coholders of a power of revocation or a general power of appointment as defined in s. 702.01 (3)
may represent any or all persons whose interests are subject to such power.
(2) Guardian ad litem; virtual representation.
Subject to sub. (1)
, the court may appoint a guardian ad litem for any person interested who is legally incapacitated, unascertained or unborn if such person is not already represented by a fiduciary having no adverse interest in the proceeding. A guardian ad litem may represent 2 or more such persons where they have a substantially identical interest in the proceeding. The court may dispense with or terminate the appointment of a guardian ad litem for such person if there is a legally competent person who is a party to the proceeding and has a substantially identical interest in it.
Testamentary trustees. 701.16(1)
Appointment of original trustee. 701.16(1)(a)(a)
Trustee named in will.
A trustee who is named or whose appointment is provided for in a will derives the authority to carry out the trust from the will and assumes the office of trustee upon the issuance of letters of trust by the court as provided in s. 856.29
. A trustee named in a will may renounce the position by an instrument filed with the court having jurisdiction to admit the will to probate.
Other original trustee.
If a testamentary trust is created which fails to name a trustee, or the named trustee refuses to accept the position or predeceases the settlor and no alternate trustee is named in the will nor effective provision made for appointment of an alternate trustee, the court shall appoint a suitable person as trustee. Letters of trust shall be issued to such trustee as provided in s. 856.29
If it appears necessary, the court can appoint a special trustee until a regular trustee can be appointed. A special trustee may be appointed without notice and may be removed whenever the court so orders. Such special trustee shall give such bond as the court requires and shall have such powers as are conferred by the order of appointment and set forth in any letters of trust issued the special trustee.
If a trustee is authorized to carry out a trust created by will admitted to probate outside this state, but not also admitted to probate in this state, the foreign trustee may have recorded in the office of the register of deeds of a county in which part of the subject matter of the trust is located a certified copy of the letters of trust and filed with the register of probate of the same county a statement appointing the register of probate in his or her official capacity the trustee's resident agent for service of process. Thereafter the trustee may exercise all powers and have all the rights, remedies and defenses that the trustee would have if he or she received letters of trust from a circuit court of this state. Service of process shall be complete upon delivery of duplicate copies to the register of probate, one of which copies the register of probate shall promptly forward by registered mail to the foreign trustee.
Prior to the issuance of letters of trust to an original testamentary trustee under sub. (1)
or to a successor or added testamentary trustee under s. 701.17 (1)
, the court may require such trustee to give a bond in accordance with ch. 878
and conditioned on the faithful performance of such trustee's duties. If a settlor directs that a trustee serve without bond, the court shall give effect to this direction unless it determines that a bond is required by a change in the trustee's personal circumstances since the execution of the settlor's will. If the court requires a bond, and the trustee named in the will fails to furnish the required bond within a reasonable period of time after receiving notice of the bond requirement, the court may remove the trustee named in the will and appoint a successor trustee under s. 701.17
. No bond shall be required of a trust company bank, state bank or national banking association which is authorized to exercise trust powers and which has complied with s. 220.09
, nor shall a bond be required of a religious, charitable or educational corporation or society.
A testamentary trustee shall make and file a verified inventory of all property received from the settlor's personal representative or from any other source.
A testamentary trustee is required to make and file a verified account annually with the court, except as provided in pars. (am)
. If the trustee is accounting on a calendar-year basis, the court may not require the trustee to file the annual account prior to April 15. Production of securities and other assets for examination is not necessary upon the filing of an annual account unless the court determines such production is necessary to ascertain the correctness of an account filed for a particular trust. In the case of a testamentary charitable trust a copy of the annual account filed with the court shall be filed with the attorney general.
The annual accounting requirements under par. (a)
do not apply to corporate trustees or to corporate cotrustees if those trustees or cotrustees agree, in their initial consent to act as trustees or cotrustees or in a subsequent filing with the register in probate for the county that has jurisdiction over the trust, to provide annual accounts to all persons interested, as defined in s. 851.21
, who request those accounts by writing to the trustee or cotrustee. Each request is effective until the requester withdraws it or is no longer a person interested. A corporate trustee or cotrustee may withdraw its agreement by notifying the appropriate register in probate of its intent to do so.
Except in the case of a testamentary charitable trust, the court may dispense with the requirement of an annual accounting where, due to the size or nature of the trust property, the duration of the trust, the relationship of the trustee to the beneficiaries or other relevant factors, compliance with such requirement is unnecessary or unduly burdensome on the trustee. Whether or not an annual accounting is required a beneficiary may petition the court to require an accounting and the trustee may petition for approval of the trustee's accounts on a periodic basis.
Notwithstanding s. 879.47
, trustees and cotrustees may submit to courts accounts in the format that they normally use for accounts submitted to beneficiaries under this subsection, if all of the information required by the court is included.
(5) Final accounting.
A verified final account is required upon the termination of a testamentary trust. Upon the petition of a surviving or successor trustee, a beneficiary, a personal representative of a deceased trustee or on its own motion, the court may order a verified account filed upon the death, resignation or removal of a testamentary trustee. The court may require such proof of the correctness of a final account as it considers necessary.
No testamentary trustee or personal representative of a deceased trustee shall be discharged from further responsibility with respect to a testamentary trust until the court is satisfied upon notice and hearing that the requirements of this section have been met and it has received satisfactory proof that the trust property has been turned over to a successor or special trustee or, where the trust is terminated, distributed to the beneficiaries entitled to such property or turned over to a special trustee for distribution.