Feed for /statutes/statutes/702 PDF
702.05(5)(b) (b) Some other documentation of the donee purporting to exercise the power of appointment if the power of appointment is exercisable other than by a will.
Effective date note NOTE: Sub. (5) is created eff. 7-1-14 by 2013 Wis. Act 92.
702.05 History History: 1971 c. 66; 1977 c. 309; 2005 a. 253; 2013 a. 92.
702.05 Annotation A warranty deed grants a present fee simple interest. A purported reservation of a power of appointment in a warranty deed is ineffective. Powers may be reserved and a lesser interests granted, but not by warranty deed. Lucareli v. Lucareli, 2000 WI App 133, 237 Wis. 2d 487, 614 N.W.2d 60, 99-1679.
702.07 702.07 Power of appointment to be construed as exclusive. The donee of any power of appointment may appoint the whole or any part of the appointive assets to any one or more of the permissible appointees and exclude others, except to the extent that the donor specifies either a minimum share or amount to be appointed to each permissible appointee or to designated appointees, or a maximum share or amount appointable to any one or more appointees.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.07Powers to be construed as exclusive. The donee of any power may appoint the whole or any part of the appointive assets to any one or more of the permissible appointees and exclude others, except to the extent that the donor specifies either a minimum share or amount to be appointed to each permissible appointee or to designated appointees, or a maximum share or amount appointable to any one or more appointees.
702.07 History History: 2013 a. 92.
702.08 702.08 Disclaimer of a power of appointment. The donee of any power of appointment may disclaim all or part of the power of appointment as provided under s. 700.27 or 854.13.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.08Disclaimer of powers. The donee of any power may disclaim all or part of the power as provided under s. 700.27 or 854.13.
702.08 History History: 1977 c. 309; 1997 a. 188; 2005 a. 216; 2013 a. 92.
702.09 702.09 Release of a power of appointment.
702.09(1) (1) Unless the creating instrument expressly provides that the power of appointment cannot be released or expressly restricts the time, manner, or scope of release, the donee of any power of appointment may do any of the following:
702.09(1)(a) (a) At any time completely release the donee's power of appointment.
702.09(1)(b) (b) At any time or times release the donee's power of appointment in any one or more of the following respects:
702.09(1)(b)1. 1. As to the whole or any part of the property which is subject thereto.
702.09(1)(b)2. 2. As to any one or more persons or objects, or classes of persons or objects, in whose favor such power of appointment is exercisable.
702.09(1)(b)3. 3. So as to limit in any other respect the extent to or manner in which the power of appointment may be exercised.
Effective date note NOTE: Section 702.09 (title) and (1) are shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 they read:
Effective date text 702.09Release of powers. (1) Except as the creating instrument expressly provides that the power cannot be released or expressly restricts the time, manner or scope of release, the donee of any power may:
Effective date text (a) At any time completely release the donee's power;
Effective date text (b) At any time or times release the donee's power in any one or more of the following respects:
Effective date text 1. As to the whole or any part of the property which is subject thereto;
Effective date text 2. As to any one or more persons or objects, or classes of persons or objects, in whose favor such power is exercisable;
Effective date text 3. So as to limit in any other respect the extent to or manner in which it may be exercised.
702.09(2) (2) A release may be effected, either with or without consideration, by written instrument signed by the donee and delivered.
702.09(3) (3) Delivery of a release may be accomplished in any of the following manners, but this subsection is permissive and does not preclude a determination that a release has been delivered in some other manner:
702.09(3)(a) (a) Delivery to any person specified in the creating instrument.
702.09(3)(b) (b) Delivery to a trustee or to one of several trustees of the property to which the power of appointment relates, or filing with the court having jurisdiction over the trust.
702.09(3)(c) (c) Delivery to any person, other than the donee, who could be adversely affected by an exercise of the power of appointment.
702.09(3)(d) (d) Recording in the office of register of deeds in the county where the property is located.
Effective date note NOTE: Sub. (3) is shown as affected eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text (3) Delivery of a release may be accomplished in any of the following manners, but this subsection is permissive and does not preclude a determination that a release has been delivered in some other manner:
Effective date text (a) Delivery to any person specified in the creating instrument;
Effective date text (b) Delivery to a trustee or to one of several trustees of the property to which the power relates, or filing with the court having jurisdiction over the trust;
Effective date text (c) Delivery to any person, other than the donee, who could be adversely affected by an exercise of the power; or
Effective date text (d) Recording in the office of register of deeds in the county where the property is located.
702.09 History History: 1993 a. 301, 486; 2013 a. 92.
702.11 702.11 Irrevocability of creation, exercise and release of a power of appointment. The creation, exercise or release of a power of appointment is irrevocable unless the power to revoke is reserved in the creation, exercise or release of the power of appointment.
Effective date note NOTE: This section is shown as amended eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.11Irrevocability of creation, exercise and release of powers. The creation, exercise or release of a power is irrevocable unless the power to revoke is reserved in the creation, exercise or release of the power.
702.11 History History: 2013 a. 92.
702.13 702.13 Recording instruments relating to a power of appointment.
702.13(1)(1) Any of the following instruments relating to a power of appointment is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):
702.13(1)(a) (a) An instrument, other than a will, exercising a power of appointment.
702.13(1)(b) (b) An instrument expressing consent to exercise.
702.13(1)(c) (c) A disclaimer.
702.13(1)(d) (d) A release.
702.13(2) (2) If a power of appointment is exercised by a will, a certified copy of the will and of the certificate of probate thereof may be recorded.
Effective date note NOTE: This section is shown as affected eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.13 Recording instruments relating to powers. (1) Any of the following instruments relating to powers is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):
Effective date text (a) An instrument, other than a will, exercising a power;
Effective date text (b) An instrument expressing consent to exercise;
Effective date text (c) A disclaimer;
Effective date text (d) A release.
Effective date text (2) If a power is exercised by a will, a certified copy of the will and of the certificate of probate thereof may be recorded.
702.13 History History: 1971 c. 41 s. 11; 1977 c. 309; 2013 a. 92.
702.15 702.15 Disposition when a special power of appointment is unexercised. If the donee of a special power of appointment fails to exercise effectively the special power of appointment, the interests which might have been appointed under the special power of appointment pass in one of the following ways:
702.15(1) (1) If the creating instrument contains an express gift in default, then in accordance with the terms of such gift.
702.15(2) (2) If the creating instrument contains no express gift in default and does not clearly indicate that the permissible appointees are to take only if the donee exercises the special power of appointment, then to the permissible appointees equally, but if the special power of appointment is to appoint among a class such as "relatives," "issue," or "heirs," then to those persons who would have taken had there been an express gift to the described class.
702.15(3) (3)
702.15(3)(a)(a) Except as provided in par. (b), if the creating instrument contains no express gift in default and clearly indicates that the permissible appointees are to take only if the donee exercises the special power of appointment, then by reversion to the donor or the donor's estate.
702.15(3)(b) (b) If the creating instrument expressly states that there is no reversion in the donor, then any language in the creating instrument indicating or stating that the permissible appointees are to take only if the donee exercises the special power of appointment is to be disregarded and the interests shall pass in accordance with sub. (2).
Effective date note NOTE: This section is shown as affected eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.15Disposition when special power is unexercised. If the donee of a special power fails to exercise effectively the power, the interests which might have been appointed under the power pass:
Effective date text (1) If the creating instrument contains an express gift in default, then in accordance with the terms of such gift;
Effective date text (2) If the creating instrument contains no express gift in default and does not clearly indicate that the permissible appointees are to take only if the donee exercises the power, then to the permissible appointees equally, but if the power is to appoint among a class such as "relatives," "issue" or "heirs," then to those persons who would have taken had there been an express gift to the described class; or
Effective date text (3) If the creating instrument contains no express gift in default and clearly indicates that the permissible appointees are to take only if the donee exercises the power, then by reversion to the donor or the donor's estate. But if the creating instrument expressly states that there is no reversion in the donor, then any language in the creating instrument indicating or stating that the permissible appointees are to take only if the donee exercises the power is to be disregarded and the interests shall pass in accordance with sub. (2).
702.15 History History: 1993 a. 486; 2013 a. 92.
702.17 702.17 Rights of creditors of the donee.
702.17(1) (1) General policy: general power of appointment. If the donee has a general power of appointment, any interest which the donee has power to appoint or has appointed is to be treated as property of the donee for purposes of satisfying claims of the donee's creditors, as provided in this section.
702.17(2) (2)During lifetime of the donee. If the donee has an unexercised general power of appointment, and can presently exercise the general power of appointment in favor of the donee or the donee's creditors, any creditor of the donee may by appropriate proceedings reach any interest which the donee could appoint, to the extent that the donee's individual assets are insufficient to satisfy the creditor's claim. Such an interest is to be treated as property of the donee within ch. 816. If the donee has exercised such a general power of appointment, the creditor can reach the appointed interests to the same extent that under the law relating to fraudulent conveyances the creditor could reach property which the donee has owned and transferred.
702.17(3) (3)At death of the donee.
702.17(3)(a)(a) Except as provided in par. (b), if the donee has at the time of the donee's death a general power of appointment, whether or not the donee exercises the general power of appointment, any creditor of the donee may reach any interest which the donee could have appointed or has appointed, to the extent that the claim of the creditor has been filed and allowed in the donee's estate or filed with and approved by the trustee of a trust that is revocable, as defined in s. 701.0103 (22), by the donee or jointly by the donee and the donee's spouse but not paid because the assets of the estate or revocable trust are insufficient.
702.17(3)(b) (b) If the donee fails to exercise a general power of appointment, in whole or in part, that the donee has at the time of the donee's death and neither the donee nor the donee's spouse is the donor of the power, a creditor of the donee may not reach an interest subject to the power, to the extent the power was not exercised.
702.17(4) (4)Assignment for benefit of creditors. Under a general assignment by the donee for the benefit of the donee's creditors, the assignee may exercise any right which a creditor of the donee would have under sub. (2).
702.17(5) (5)Third parties in good faith protected. Any person acting without actual notice of claims of creditors under this section incurs no liability to such creditors in transferring property which is subject to a power of appointment or which has been appointed; and a purchaser without actual notice and for a valuable consideration of any interest in property, legal or equitable, takes such interest free of any rights which a creditor of the donee might have under this section.
702.17(6) (6)General policy: special power of appointment. If the donee has a special power of appointment, property subject to the donee's special power of appointment is exempt from a claim of a creditor of the donee or the donee's estate.
Effective date note NOTE: This section is shown as affected eff. 7-1-14 by 2013 Wis. Act 92. Prior to 7-1-14 it reads:
Effective date text 702.17Rights of creditors of the donee. (1)General policy. If the donee has either a general power or an unclassified power which is unlimited as to permissible appointees except for exclusion of the donee, the donee's estate, the donee's creditors and the creditors of the donee's estate, or a substantially similar exclusion, any interest which the donee has power to appoint or has appointed is to be treated as property of the donee for purposes of satisfying claims of the donee's creditors, as provided in this section.
Effective date text (2)During lifetime of the donee. If the donee has an unexercised power of the kinds specified in sub. (1), and can presently exercise such a power, any creditor of the donee may by appropriate proceedings reach any interest which the donee could appoint, to the extent that the donee's individual assets are insufficient to satisfy the creditor's claim. Such an interest is to be treated as property of the donee within ch. 816. If the donee has exercised such a power, the creditor can reach the appointed interests to the same extent that under the law relating to fraudulent conveyances the creditor could reach property which the donee has owned and transferred.
Effective date text (3)At death of the donee. If the donee has at the time of his or her death a power of the kinds specified in sub. (1), whether or not the donee exercises the power, any creditor of the donee may reach any interest which the donee could have appointed or has appointed, to the extent that the claim of the creditor has been filed and allowed in the donee's estate but not paid because the assets of the estate are insufficient.
Effective date text (4)Assignment for benefit of creditors. Under a general assignment by the donee for the benefit of the donee's creditors, the assignee may exercise any right which a creditor of the donee would have under sub. (2).
Effective date text (5)Third parties in good faith protected. Any person acting without actual notice of claims of creditors under this section incurs no liability to such creditors in transferring property which is subject to a power or which has been appointed; and a purchaser without actual notice and for a valuable consideration of any interest in property, legal or equitable, takes such interest free of any rights which a creditor of the donee might have under this section.
702.17 History History: Sup. Ct. Order, 67 Wis. 2d 585, 777 (1975); 1975 c. 218; 1993 a. 486; 2013 a. 92.
702.19 702.19 Matters governed by common law. As to all matters within the scope of those sections of ch. 232, 1963 stats., which have been repealed, and not within this chapter or any other applicable statute, the common law is to govern. This section is not intended to restrict in any manner the meaning of any provision of this chapter or any other applicable statute.
702.19 History History: 1983 a. 192 s. 304.
702.21 702.21 Applicability of chapter. The provisions of this chapter are applicable to any power of appointment existing on May 16, 1965, as well as a power of appointment created after such date.
Loading...
Loading...
2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)