AB1038: Bill Text

AB1038,32,23 1. The document does not exist when the will is executed, even if it.

AB1038,32,24 2. The document is changed after the will is executed and even if it.

AB1038,33,2 3. The document has no significance except for its effect on the disposition of property by the will.

AB1038, s. 89 Section 89. 854.01 of the statutes is renumbered 854.01 (intro.) and amended to read:

AB1038,33,5 854.01 Definition Definitions. (intro.) In this chapter, "governing :

AB1038,33,11 (2) "Governing instrument" means a will; a deed; a trust instrument; an insurance or annuity policy; a contract; a pension, profit-sharing, retirement, or similar benefit plan; a marital property agreement under s. 766.58 (3) (f); a beneficiary designation under s. 40.02 (8) (a); an instrument under ch. 705; an instrument that creates or exercises a power of appointment; or any other dispositive, appointive, or nominative instrument that transfers property at death.

AB1038, s. 90 Section 90. 854.01 (1) of the statutes is created to read:

AB1038,33,15 854.01 (1) "Extrinsic evidence" means evidence that would be inadmissible under the common law parole evidence rule or a similar doctrine because the evidence is not contained in the governing instrument to which it relates.

AB1038, s. 91 Section 91. 854.03 (2) (b) of the statutes is amended to read:

AB1038,33,21 854.03 (2) (b) Except as provided in sub. (5), if property is transferred under a governing instrument that establishes 2 or more co-owners with right of survivorship, and if it is not established that at least one of the co-owners survived did not survive the others by at least 120 hours, the property is transferred to the co-owners in proportion to their ownership interests.

AB1038, s. 92 Section 92. 854.03 (5) of the statutes is renumbered 854.03 (5) (am), and 854.03 (5) (am) 4., as renumbered, is amended to read:

AB1038,34,2 854.03 (5) (am) 4. The imposition of a 120-hour survival requirement would cause a nonvested property interest or a power of appointment to fail to be valid, or to be invalidated, under s. 700.16 or under the rule against perpetuities of the applicable jurisdiction.

AB1038, s. 93 Section 93. 854.03 (5) (am) 7. of the statutes is created to read:

AB1038,34,5 854.03 (5) (am) 7. The statute or governing instrument specifies that this statute, or one similar to it, does not apply.

AB1038, s. 94 Section 94. 854.03 (5) (am) 8. of the statutes is created to read:

AB1038,34,9 854.03 (5) (am) 8. The imposition of a 120-hour survival requirement would be administratively cumbersome and would not change the identity of the ultimate beneficiaries of the property or the property that each beneficiary would receive.

AB1038, s. 95 Section 95. 854.03 (5) (bm) of the statutes is created to read:

AB1038,34,14 854.03 (5) (bm) If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

AB1038, s. 96 Section 96. 854.03 (7) of the statutes is repealed.

AB1038, s. 97 Section 97. 854.04 (1) (a) of the statutes is amended to read:

AB1038,34,23 854.04 (1) (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "by representation",," "by right of representation," or "per stirpes",," the property is divided into equal shares for the designated person's surviving children of the designated person and for the designated person's deceased children who left surviving issue. Each surviving child and each deceased child who left surviving issue are allocated one share.

AB1038, s. 98 Section 98. 854.04 (3) (a) of the statutes is amended to read:

AB1038,35,8 854.04 (3) (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "per capita at each generation", ," the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor in that generation is and each deceased person in that generation who left surviving issue are allocated one share, and the. The shares of the deceased persons in that same generation who left surviving issue are combined for distribution allocation under par. (b).

AB1038, s. 99 Section 99. 854.04 (4) of the statutes is amended to read:

AB1038,35,13 854.04 (4) Per capita. Except as provided in sub. (6), if a statute or governing instrument calls for property to be distributed to a group or class "per capita", the property is divided into as many shares as there are surviving members of the group or class, and each member receives is allocated one share.

AB1038, s. 100 Section 100. 854.04 (5) (intro.) of the statutes is amended to read:

AB1038,35,16 854.04 (5) Certain individuals disregarded. (intro.) For the purposes of this section subs. (1) to (3), all of the following apply:

AB1038, s. 101 Section 101. 854.04 (5) (b) of the statutes is amended to read:

AB1038,35,19 854.04 (5) (b) An individual who has a surviving ancestor who is an issue of the designated person is not entitled to allocated a share.

AB1038, s. 102 Section 102. 854.04 (6) of the statutes is amended to read:

AB1038,35,25 854.04 (6) Contrary intent. This section does not apply if If the transfer is made under a governing instrument and there is a finding of contrary intent of the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 103 Section 103. 854.05 (5) of the statutes is renumbered 854.05 (5) (a) and amended to read:

AB1038,36,7 854.05 (5) (a) This section does not apply to the extent that a If the person who executed the governing instrument, either expressly or as construed from extrinsic had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence, provides otherwise may be used to construe the intent.

AB1038,36,9 (b) A general directive to pay debts does not give rise to a presumption of exoneration.

AB1038, s. 104 Section 104. 854.06 (1) (b) of the statutes is repealed.

AB1038, s. 105 Section 105. 854.06 (4) (a) of the statutes is renumbered 854.06 (4) (a) (intro.) and amended to read:

AB1038,36,14 854.06 (4) (a) (intro.) This section Subsection (3) does not apply if there is a finding of contrary intent of the decedent any of the following applies:

AB1038,36,17 (bm) If the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 106 Section 106. 854.06 (4) (a) 1. of the statutes is created to read:

AB1038,36,20 854.06 (4) (a) 1. The governing instrument provides that a transfer to a predeceased beneficiary lapses.

AB1038, s. 107 Section 107. 854.06 (4) (b) of the statutes is renumbered 854.06 (4) (a) 2. and amended to read:

AB1038,37,3 854.06 (4) (a) 2. If the The governing instrument designates one or more persons, classes, or groups of people as contingent transferees, in which case those transferees take in preference to those under sub. (3). But if none of the contingent transferees survives, sub. (3) applies to the first group in the sequence of contingent transferees that has one or more transferees specified in sub. (2) who left surviving issue.

AB1038, s. 108 Section 108. 854.07 (3) of the statutes is amended to read:

AB1038,37,7 854.07 (3) If a governing instrument other than a will does not effectively dispose of an asset that is governed by the instrument, that asset shall be paid or distributed to the decedent's transferor's probate estate.

AB1038, s. 109 Section 109. 854.07 (4) of the statutes is amended to read:

AB1038,37,12 854.07 (4) This section does not apply if there is a finding of contrary intent of If the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 110 Section 110. 854.08 (5) (title) of the statutes is repealed and recreated to read:

AB1038,37,15 854.08 (5) (title) Property under guardianship, conservatorship, or power of attorney.

AB1038, s. 111 Section 111. 854.08 (5) of the statutes is renumbered 854.08 (5) (b) and amended to read:

AB1038,38,2 854.08 (5) (b) Subject to pars. (c) and (d) and sub. (6), if property that is the subject of a specific gift is sold or mortgaged by a guardian or, conservator, or agent of the person who executed the governing instrument, or if a condemnation award or insurance proceeds are paid to a guardian or, conservator, or agent, the specific beneficiary has the right to a general pecuniary transfer equivalent to the proceeds of the sale or the, mortgage, condemnation award, or the insurance proceeds, reduced by any amount expended or incurred to restore or repair the property or to reduce the indebtedness on the mortgage, if the funds are available under the governing instrument. This provision

AB1038,38,10 (c) Paragraph (b) does not apply if the person who executed the governing instrument with respect to a guardian or conservator if, subsequent to the sale or, mortgage, award, or receipt of insurance proceeds, the person who executed the governing instrument is adjudicated competent and survives such adjudication for a period of one year; but in such event a sale by a guardian or conservator within 2 years of that person's death is a sale by that person for purposes of sub. (2) the rights of the specific beneficiary shall be determined as though the proceeds were paid to the owner under sub. (2), (3), or (4).

AB1038, s. 112 Section 112. 854.08 (5) (a) of the statutes is created to read:

AB1038,38,13 854.08 (5) (a) In this subsection, "agent" means an agent under a durable power of attorney, as defined in s. 243.07 (1) (a).

AB1038, s. 113 Section 113. 854.08 (5) (d) of the statutes is created to read:

AB1038,38,19 854.08 (5) (d) Paragraph (b) does not apply with respect to an agent if the person who executed the governing instrument is competent at the time of the sale, mortgage, award, or receipt of insurance proceeds but in such event the rights of the specific beneficiary shall be determined as though the proceeds were paid to the owner under sub. (2), (3), or (4).

AB1038, s. 114 Section 114. 854.08 (6) (a) (intro.) and 2. of the statutes are consolidated, renumbered 854.08 (6) (ag) and amended to read:

AB1038,39,2 854.08 (6) (ag) This section is inapplicable if any of the following applies: 2. The the person who executed the governing instrument gives property during the person's lifetime to the specific beneficiary with the intent of satisfying the specific gift. Extrinsic evidence may be used to construe that intent and the requirement under s. 854.09 (1) is satisfied.

AB1038, s. 115 Section 115. 854.08 (6) (a) 1. of the statutes is renumbered 854.08 (6) (ar) and amended to read:

AB1038,39,9 854.08 (6) (ar) The If the person who executed the governing instrument, either expressly or as construed from extrinsic evidence, shows the had an intent that a contrary to any provision in this section, then that provision is inapplicable to the transfer fail under the particular circumstances. Extrinsic evidence may be used to construe the intent.

AB1038, s. 116 Section 116. 854.09 (3) of the statutes is amended to read:

AB1038,39,16 854.09 (3) If the transferee fails to survive the person who executed the governing instrument, the gift is treated as a full or partial satisfaction of the transfer and his or her issue take a substitute transfer under intestacy or under a governing instrument, the issue receive the same transfer that the named transferee would have received had the transferee survived, unless the transferor has declared otherwise in a document, either expressly or as construed from extrinsic evidence.

AB1038, s. 117 Section 117. 854.11 (4) of the statutes is amended to read:

AB1038,39,21 854.11 (4) Contrary intent. This section does not apply if there is a finding of contrary intent of If the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is inapplicable to the transfer. Extrinsic evidence may be used to construe that the intent.

AB1038, s. 118 Section 118. 854.12 of the statutes is created to read:

AB1038,39,25 854.12 Debt to transferor. (1) Heir under intestacy. (a) If an heir owes a debt to the decedent, the amount of the indebtedness shall be offset against the intestate share of the debtor heir.

AB1038,40,7 (b) In contesting an offset under par. (a), the debtor heir shall have the benefit of any defense that would be available to the debtor heir in a direct proceeding by the personal representative for the recovery of the debt, except that the debtor heir may not defend on the basis that the debt was discharged in bankruptcy or on the basis that the relevant statute of limitations has expired. If the debtor fails to survive the decedent, the court may not include the debt in computing any intestate shares of the debtor's issue.

AB1038,40,13 (2) Transferee under revocable governing instrument. (a) Subject to par. (c), if a transferee under a revocable governing instrument survives the transferor and is indebted to the transferor, the amount of the indebtedness shall be treated as an offset against the property to which the debtor transferee is entitled. If multiple revocable governing instruments transfer property to the debtor, the debt shall be equitably allocated against the various instruments.

AB1038,40,20 (b) Subject to par. (c), in contesting an offset under par. (a), the debtor shall have the benefit of any defense that would be available to the transferee in a direct proceeding for the recovery of the debt, except that the transferee may not defend on the basis that the debt was discharged in bankruptcy, unless that discharge occurred before the execution of the governing instrument, or on the basis that the relevant statute of limitations has expired. If the transferee fails to survive the decedent, the debt may not be included in computing the entitlement of alternate beneficiaries.

AB1038,40,23 (c) If the person who executed the governing instrument had an intent contrary to any provision in this subsection, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

AB1038,41,2 (3) Property not distributed because of offset. The property not distributed to the debtor becomes part of the residue of the entity that holds the debt. If the debt is not held by an entity, then the property not distributed to the debtor becomes part of the residue of the decedent's probate estate.

AB1038, s. 119 Section 119. 854.13 (title) of the statutes is amended to read:

AB1038,41,4 854.13 (title) Disclaimer of transfers at death.

AB1038, s. 120 Section 120. 854.13 (2) (a) of the statutes is renumbered 854.13 (2) (a) 2.

AB1038, s. 121 Section 121. 854.13 (2) (a) 1. of the statutes is created to read:

AB1038,41,8 854.13 (2) (a) 1. In this paragraph, "person" includes a person who is unborn or whose identity is unascertained.

AB1038, s. 122 Section 122. 854.13 (2) (gm) of the statutes is created to read:

AB1038,41,14 854.13 (2) (gm) Disclaimer by trustee. The trustee of a trust named as a recipient of property under a governing instrument may disclaim that property on behalf of the trust if the trust authorizes disclaimer by the trustee. If the trust does not authorize disclaimer by the trustee, the trustee's power to disclaim is subject to the approval of the court.

AB1038, s. 123 Section 123. 854.13 (2) (h) of the statutes is amended to read:

AB1038,41,21 854.13 (2) (h) After death. A person's right to disclaim survives the person's death and may be exercised by the person's personal representative or special administrator upon receiving approval from the court having jurisdiction of the person's estate after hearing upon notice to all persons interested in the disclaimed property, if the personal representative or special administrator has not taken any action which that would bar the right to disclaim under sub. (11) (11g).

AB1038, s. 124 Section 124. 854.13 (2) (i) of the statutes is created to read:

AB1038,41,25 854.13 (2) (i) Disclaimer of inter vivos transfers. A person who is a recipient of property under an inter vivos governing instrument, as defined in s. 700.27 (1) (c), may disclaim the property as provided in s. 700.27.

AB1038, s. 125 Section 125. 854.13 (4) (c) of the statutes is amended to read:

AB1038,42,5 854.13 (4) (c) Future right to income or profits principal. Notwithstanding pars. (a) and (b), an instrument disclaiming the future right to receive discretionary or mandatory distributions of income or profits principal from any source may be executed and delivered at any time.

AB1038, s. 126 Section 126. 854.13 (7) (title) of the statutes is amended to read:

AB1038,42,7 854.13 (7) (title) Devolution in general.

AB1038, s. 127 Section 127. 854.13 (7) (a) of the statutes is amended to read:

AB1038,42,22 854.13 (7) (a) In general. Unless the transferor of the property or donee of the power has otherwise provided Subject to pars. (bm) and (c) and subs. (8), (9), and (10), unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, the disclaimed property devolves as if the disclaimant had died before the decedent or before the effective date of the transfer under the governing instrument. If the disclaimed interest is a remainder contingent on surviving to the time of distribution, the disclaimed interest passes as if the disclaimant had died immediately before the time for distribution. If the disclaimant is an appointee under a power exercised by a governing instrument, the disclaimed property devolves as if the disclaimant had died before the effective date of the exercise of the power. If the disclaimant is a taker in default under a power created by a governing instrument, the disclaimed property devolves as if the disclaimant had predeceased the donee of the power. This paragraph is subject to subs. (8), (9) and (10).

AB1038, s. 128 Section 128. 854.13 (7) (b) of the statutes is repealed.

AB1038, s. 129 Section 129. 854.13 (7) (bm) and (c) of the statutes are created to read: