Feed for /1997/statutes/statutes/705 PDF
705.03 Annotation Withdrawal of funds from joint account by either party while both are alive may not later be subjected to inquiry by other party's estate. Matter of Estate of Frank, 140 W (2d) 429, 410 NW (2d) 621 (Ct. App. 1987).
705.03 Annotation The transfer of separately owned property of one spouse into a joint account in both spouses' names changes the character of the ownership interest of the entire property to marital property. In Matter of Estate of Lloyd, 170 W (2d) 240, 487 NW (2d) 644 (Ct. App. 1992).
705.04 705.04 Right of survivorship.
705.04(1) (1) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created. If there are 2 or more surviving parties, their ownership interests during lifetime shall remain subject to s. 705.03 (1); and the right of survivorship continues between the surviving parties.
705.04(2) (2) If the account is a P.O.D. account, on the death of the original payee or the survivor of 2 or more original payees, any sums remaining on deposit belong to the P.O.D. beneficiaries if surviving, or to the survivor of them if one or more die before the original payee. Payment may be made to a minor P.O.D. beneficiary, however, only in accordance with a procedure approved in ch. 880. If 2 or more P.O.D. beneficiaries survive, they shall be entitled to payment of the sums on deposit in accordance with such written instructions as may have been filed with the financial institution, and if none, to payment in equal shares. There is no right of survivorship in the event of the death of one of 2 or more P.O.D. beneficiaries after their entitlement to payment has matured unless the terms of the account expressly provide for survivorship or for the account's continuance as a joint account.
705.04(2g) (2g) Notwithstanding subs. (1) and (2), the department of health and family services may collect, from funds of a decedent that are held by the decedent immediately before death in a joint account or a P.O.D. account, an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), an amount equal to aid under 49.68, 49.683 or 49.685 that is recoverable under s. 49.682 (2) (a) or an amount equal to long-term community support services under s. 46.27 that is recoverable under s. 46.27 (7g) (c) 1. and that was paid on behalf of the decedent or the decedent's spouse.
705.04(2m) (2m) Unless a marital property agreement under s. 766.58 provides otherwise, after deducting all payments and certifications made under s. 404.405 50% of the sums remaining on deposit at the death of a party to a marital account belongs to and may, upon the maturity of the account, be withdrawn by the surviving spouse and 50% belongs to and may, upon the maturity of the account, be withdrawn by the decedent's estate. No financial institution is liable for any amount withdrawn under this subsection by a party who falsely claims to be the decedent's spouse.
705.04(3) (3) Subject to s. 853.15, a right of survivorship arising from the express terms of the account or under this section, or a P.O.D. beneficiary designation, cannot be changed by will. Any transfers resulting from the application of this section are not to be considered testamentary dispositions.
705.04(4) (4) As to any deposit made on or after January 1, 1986, a surviving spouse who is not a party to the account may recover under s. 766.70 (6).
705.04 History History: 1973 c. 291; 1983 a. 186; 1985 a. 37 s. 187; 1995 a. 27 ss. 7065 to 7065c, 9126 (19).
705.04 Annotation See note to sec. 705.06 citing In Matter of Estate of Martz, 171 W (2d) 89, 491 NW (2d) 772 (Ct. App. 1992).
705.05 705.05 Designation and powers of agent.
705.05(1) (1) A party to an account, notwithstanding such party's minority, or if the account has multiple parties, all of them acting in concert, may appoint one or more agents for purposes of making withdrawals from the account. The authority of an agent to make withdrawals from an account may be terminated by any party to the account upon written notice to the financial institution, and this shall not preclude a party's liability for wrongful termination of such agency.
705.05(2) (2) The uses and purposes for which withdrawals may be made by an agent to an account shall be governed by agency principles of general application. The application of any sum withdrawn from an account shall only be subject to inquiry by a party to the account, and such party shall have the burden of proving breach of the agency relationship. A minor party may not disaffirm the appointment of an agent, but the period within which the minor party may inquire into the propriety of any withdrawal shall be governed by s. 893.16 or 893.18. Unless there is clear and convincing evidence of a different intent, if the agent is a spouse of a party, the sums so withdrawn may be used, but not by way of limitation, for the support and maintenance of either spouse or any common minor children.
705.05(3) (3) The parties to an account may provide, by the terms of the account or by independent written power of attorney which, if later, shall have precedence over the terms of the account, that the authority conferred upon an agent shall be exercisable notwithstanding any party's legal disability. In such case the authority of the agent is also exercisable notwithstanding later uncertainty as to whether a party is dead or alive. Absent a written direction to the contrary, the foregoing power of withdrawal shall exist without the necessity of written provision if the agent is the spouse of a party, but in such a case funds so withdrawn, the application of which may be inquired into only as provided in sub. (2), may only be used for the support and maintenance of either spouse and any common minor children. This subsection shall apply to all accounts created prior to and after July 1, 1975.
705.05 History History: 1973 c. 291; 1979 c. 323 s. 33; 1993 a. 486.
705.06 705.06 Protection of financial institutions.
705.06(1) (1) In accordance with the terms of an account, and subject to this subchapter, ch. 112 and the duties prescribed for personal representatives in ch. 72 and unless otherwise ordered by a court of competent jurisdiction:
705.06(1)(a) (a) A financial institution may on request pay any sums on deposit in the account to any party or agent; and the financial institution shall not be required to look into the source of funds received for deposit or the proposed application of any funds withdrawn or requested to be withdrawn.
705.06(1)(b) (b) Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is under legal disability or is deceased at the time the payment is requested.
705.06(1)(c) (c) Any sums in a P.O.D. account may be paid, on request, to the P.O.D. beneficiary upon presentation to the financial institution of proof of death showing that the P.O.D. beneficiary survived all persons named as original payees.
705.06(1)(d) (d) Any sums in a marital account may be paid, on request, to either party without regard to whether the other party is under legal disability or is deceased, unless the financial institution receives actual notice that the other party is deceased. After receipt of actual notice of the death of one party to a marital account, the financial institution may pay on request not more than 50% of the sums on deposit to the surviving party, and 50% of that amount to the personal representative of the deceased party or if applicable to any P.O.D. beneficiary of the deceased party's interest, unless before payment is made the financial institution receives a verified statement under s. 865.201 or a certified copy of a certificate or recorded application concerning survivorship rights under s. 867.046, in which case the financial institution shall make payment as provided in that document.
705.06(2) (2) Payment made under this subchapter discharges the financial institution from all claims for amounts so withdrawn. If the institution has reason to believe that a dispute exists as to the rights of the parties to an account or their successors it may, but shall not be required to, refuse to pay funds in the account to any persons. An institution may but need not recognize the authority of an agent, other than one with continuing authority under s. 705.05 (3), until it knows of the fact of death or adjudication of incompetence of all parties appointing such agent and has reasonable opportunity to act. The protection provided by this section shall have no bearing on the rights of parties or their successors in disputes concerning the beneficial ownership of funds in or withdrawn from an account.
705.06 History History: 1973 c. 291; 1983 a. 186; 1987 a. 27; 1989 a. 331.
705.06 Annotation A personal representative is not a "party" to an account held as a "joint account" by the decedent and another who survives; a bank who disburses the funds of the joint account to the personal representative is not entitled to immunity under this section. In Matter of Estate of Martz, 171 W (2d) 89, 491 NW (2d) 772 (Ct. App. 1992).
705.06 Annotation Joint bank accounts in Wisconsin. O'Flaherty, 53 MLR 118.
705.07 705.07 Rights of creditors.
705.07(1)(1) Only the creditors of any living party to an account may subject the entire sums on deposit to their claims, as if such sums resulted solely from contributions made by the debtor party. If a joint or P.O.D. account requires the signatures of all of the parties for purposes of withdrawal, such account shall not be subject to the claims of creditors of a debtor party to the extent of the net contributions of the other parties to the account. Such other parties shall have the burden of proving their net contributions by clear and convincing evidence.
705.07(2) (2) For purposes of ch. 242, a debtor party shall be deemed to have made a transfer only at the time some other party withdraws all or part of the sums on deposit, or at the time of the debtor party's death as to sums not previously withdrawn. In the case of a withdrawal while the debtor party is living, the sole grounds for determining any such transfer to be fraudulent shall be whether the debtor party is or will be thereby rendered insolvent under s. 242.05 (1) or whether the debtor party is engaged or is about to engage in a business or transaction for which the assets remaining in the debtor party's hands after the transfer are unreasonably small under s. 242.04 (1) (b) 1. In the case of a transfer by reason of the death of the debtor party, the sole ground for determining any such transfer to be fraudulent shall be whether the debtor party's estate subject to administration is insolvent under s. 242.02. For purposes of this subsection, the amount transferred shall be deemed to consist of those assets which the creditors of the debtor party could have made subject to their claims immediately prior to the transfer, less any sums which such creditors could have made so subject to their claims immediately after the transfer.
705.07 History History: 1973 c. 291; 1987 a. 192.
705.08 705.08 Construction. This subchapter shall be construed in such a manner as to ensure reasonable certainty of legal result for those who establish a multiple-party or agency account.
705.08 History History: 1973 c. 291; 1989 a. 331.
705.09 705.09 Applicability of general transfers at death provisions. Chapter 854 applies to transfers at death under this subchapter.
705.09 History History: 1997 a. 188.
705.09 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998
subch. II of ch. 705 SUBCHAPTER II
NONPROBATE TRANSFERS AT DEATH
705.20 705.20 Nonprobate transfers on death.
705.20(1) (1) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employe benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection governs a written provision that:
705.20(1)(a) (a) Money or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later;
705.20(1)(b) (b) Money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or
705.20(1)(c) (c) Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later.
705.20(2) (2) This section does not limit rights of creditors under other laws of this state.
705.20(3) (3)Chapter 854 applies to transfers at death under this section.
705.20 History History: 1989 a. 331; 1997 a. 188.
705.20 Note NOTE: Sections 705.20 to 705.30 apply to registrations of securities in beneficiary form made before, on or after 5-11-90 by decedents dying after 5-11-90.
705.20 Annotation Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998
subch. III of ch. 705 SUBCHAPTER III
TRANSFER ON DEATH
SECURITY REGISTRATION
705.21 705.21 Definitions; transfer on death security registration. In ss. 705.21 to 705.30:
705.21(2) (2) "Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
705.21(5) (5) "Devisee" means any person designated in a will to receive a disposition of real or personal property.
705.21(6) (6) "Heir" has the meaning given in s. 851.09.
705.21(7) (7) "Personal representative" has the meaning given in s. 851.23.
705.21(8) (8) "Property" has the meaning given in s. 851.27.
705.21(9) (9) "Register", including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
705.21(10) (10) "Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
705.21(11) (11) "Security" means a share, participation or other interest in property, in a business or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security and a security account.
705.21(12) (12) "Security account" means any of the following:
705.21(12)(a) (a) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner's death.
705.21(12)(b) (b) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
705.21(13) (13) "State" includes any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
705.21 History History: 1989 a. 331.
705.22 705.22 Registration in beneficiary form; sole or joint tenancy ownership. Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by 2 or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
705.22 History History: 1989 a. 331.
705.23 705.23 Registration in beneficiary form; applicable law. A security may be registered in beneficiary form if the form is authorized by ss. 705.21 to 705.30 or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by ss. 705.21 to 705.30 or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which ss. 705.21 to 705.30 or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
705.23 History History: 1989 a. 331.
705.24 705.24 Origination of registration in beneficiary form. A security, whether evidenced by certificate or account, is registered in beneficiary form if the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
705.24 History History: 1989 a. 331.
705.25 705.25 Form of registration in beneficiary form. Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD" or by the words "pay on death" or the abbreviation "POD", after the name of the registered owner and before the name of a beneficiary.
705.25 History History: 1989 a. 331.
705.26 705.26 Effect of registration in beneficiary form. The designation of a TOD beneficiary on a registration in beneficiary form does not affect ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the beneficiary.
705.26 History History: 1989 a. 331.
705.27 705.27 Ownership on death of owner. On death of a sole owner or the last to die of multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survive the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of multiple owners.
705.27 History History: 1989 a. 331.
705.28 705.28 Protection of registering entity.
705.28(1) (1) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by ss. 705.21 to 705.30.
705.28(2) (2) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented upon death of the deceased owner as provided in ss. 705.21 to 705.30.
705.28(3) (3) A registering entity is discharged from all claims to a security by the estate, creditors, heirs or devisees of the deceased owner if it registers a transfer of a security in accordance with s. 705.27 and does so in good faith reliance on the registration, on ss. 705.21 to 705.30, and on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of ss. 705.21 to 705.30 do not extend to a reregistration or payment made after a registering entity has received written notice from a claimant to an interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under ss. 705.21 to 705.30.
705.28(4) (4) The protection provided by ss. 705.21 to 705.30 to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
705.28 History History: 1989 a. 331.
705.29 705.29 Nontestamentary transfer on death.
705.29(1) (1) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and ss. 705.21 to 705.30 and is not testamentary.
705.29(2) (2)Sections 705.21 to 705.30 do not limit the rights of creditors of security owners against beneficiaries and other transferees under other laws of this state.
705.29 History History: 1989 a. 331.
705.30 705.30 Terms, conditions and forms for registration.
705.30(1)(1) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for registration in beneficiary form and for implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving a problem concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take in the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters "LDPS", standing for "lineal descendants per stirpes". This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.
705.30(2) (2) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
705.30(2)(a) (a) Sole owner - sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
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