AB1038, s. 18
8Section
18. 701.19 (10) of the statutes is repealed and recreated to read:
AB1038,13,119
701.19
(10) Restriction on exercise of powers. (a) Except as provided in par.
10(c), a person may not exercise any of the following powers conferred upon him or her
11in his or her capacity as trustee:
AB1038,13,1412
1. The power to make discretionary distributions of trust principal or income
13if the distributions are to himself or herself or for the discharge of his or her legal
14obligations.
AB1038,13,1615
2. The power to make discretionary allocations of receipts or expenses as
16between principal and income if the allocations are in his or her favor.
AB1038,13,2217
(b) If a power under par. (a) is conferred upon more than one person as trustee,
18a person who is not disqualified to act under par. (a) may exercise the power for the
19benefit of the person who is disqualified to act, unless the creating instrument
20expressly provides otherwise. A special trustee appointed by a court may exercise
21a power under par. (a) for the benefit of the disqualified person if no other trustee is
22qualified to exercise the power.
AB1038,13,2323
(c) Paragraph (a) does not apply if any of the following applies:
AB1038,13,2524
1. The person is also the settlor of the trust, and the trust may be revoked or
25amended by the settlor.
AB1038,14,5
12. The terms of the creating instrument specifically limit the scope of the power
2to expenditures and distributions of income or principal on the basis of an
3ascertainable standard relating to the person's health, maintenance, support, or
4education such that the person would not be subject to tax under section
2041 or
2514 5of the Internal Revenue Code as a result of having or exercising the power.
AB1038,14,86
3. The person is the spouse, widow, or widower of the settlor of the trust, and
7a marital deduction has been allowed for federal gift or estate tax purposes with
8respect to the trust property that is subject to the power.
AB1038,14,109
4. The creating instrument negates the application of par. (a) with respect to
10the power or indicates that provisions that are similar to par. (a) do not apply.
AB1038,14,1111
(d) Section 701.24 (3) governs the applicability of this statute.
AB1038,14,2214
701.20
(5) (c) A fiduciary shall distribute to a beneficiary, including a trustee,
15who receives a pecuniary amount not determined by a pecuniary formula interest at
16the legal rate set forth in s. 138.04 on any unpaid portion of the pecuniary amount
17for the period commencing one year after the decedent's death or after the income
18interest in the trust ends. The interest under this paragraph shall be distributed
19from net income determined under par. (b) or from principal to the extent that net
20income is insufficient.
For purposes of this paragraph, the deferred marital property
21elective share amount elected by a surviving spouse under s. 861.02 (1) is a bequest
22of a specific amount of money not determined by a pecuniary formula.
AB1038,15,7
1701.24 (title)
Applicability of ss. 701.01 to 701.23. (1) Except as otherwise
2provided in
sub. (3) and s. 701.19 (9) (a)
and (10), ss. 701.01 to 701.19, 701.21, 701.22,
3and 701.23 are applicable to a trust existing on July 1, 1971, as well as a trust created
4after such date
, and shall govern trustees acting under such trusts. If application
5of any provision of ss. 701.01 to 701.19, 701.21, 701.22 , and 701.23 to a trust in
6existence on August 1, 1971, is unconstitutional, it shall not affect application of the
7provision to a trust created after that date.
AB1038, s. 21
8Section
21. 701.24 (3) of the statutes is created to read:
AB1038,15,159
701.24
(3) Sections 701.06 (6) (b), (c), and (d) and 701.19 (10) are applicable to
10a trust existing on the effective date of this subsection .... [revisor inserts date], as
11well as a trust created after that date, and shall govern trustees acting under such
12trusts. If application of any provision of s. 701.06 (6) (b), (c), or (d) or 701.19 (10) to
13a trust in existence on the effective date of this subsection .... [revisor inserts date],
14is unconstitutional, it shall not affect application of the provision to a trust created
15after that date.
AB1038, s. 22
16Section
22. 701.26 (title) of the statutes is amended to read:
AB1038,15,17
17701.26 (title)
Disclaimers of nonprobate transfers at death.
AB1038, s. 23
18Section
23. 701.26 of the statutes is renumbered 701.26 (1) and amended to
19read:
AB1038,15,2120
701.26
(1) A
person recipient may disclaim, under s. 854.13, any of the
21following:
AB1038,15,2322
(a)
An All or part of an interest in a joint tenancy, upon the death of another
23joint tenant.
AB1038,15,2524
(b)
An All or part of an interest in survivorship marital property, upon the death
25of the other spouse.
AB1038,16,2
1(c)
An All or part of an interest that is created by a nontestamentary instrument
2and transferred at death, upon the death that causes the transfer.
AB1038, s. 24
3Section
24. 701.26 (1) (d) of the statutes is created to read:
AB1038,16,54
701.26
(1) (d) All or part of any other interest transferred under a governing
5instrument, as defined in s. 854.01 (2).
AB1038, s. 25
6Section
25. 701.26 (2) of the statutes is created to read:
AB1038,16,87
701.26
(2) A recipient may disclaim, under s. 700.27, all or part of any interest
8transferred under an inter vivos governing instrument, as defined in s. 700.27 (1) (c).
AB1038, s. 26
9Section
26. 702.03 (1) of the statutes is amended to read:
AB1038,16,1710
702.03
(1) Unless
the person who executed it had a contrary intention
is found,
11if a governing instrument, as defined in s. 854.01
, creating (2), or an inter vivos
12governing instrument, as defined in s. 700.27 (1) (c), creates a power of appointment
13that expressly requires that the power be exercised by any type of reference to the
14power or its source,
it is presumed that the donor's intention in requiring the
15reference
was is presumed to be to prevent an inadvertent exercise of the power.
16Extrinsic evidence
, as defined in s. 854.01 (1), may be used to
show contrary construe
17the intent.
AB1038, s. 27
18Section
27. 702.08 of the statutes is amended to read:
AB1038,16,20
19702.08 Disclaimer of powers. The donee of any power may disclaim all or
20part of the power as provided under s.
700.27 or 854.13.
AB1038, s. 28
21Section
28. 705.04 (2) of the statutes is renumbered 705.04 (2) (intro.) and
22amended to read:
AB1038,17,323
705.04
(2) (intro.) If the account is a P.O.D. account, on the death of the original
24payee or the survivor of 2 or more original payees,
any sums remaining on deposit
25belong to the P.O.D. beneficiaries if surviving, or to the survivor of them if one or more
1die before the original payee. Payment may be made to a minor P.O.D. beneficiary,
2however, only in accordance with a procedure approved in ch. 880.
all of the following
3apply:
AB1038,17,7
4(b) If
there are 2 or more P.O.D. beneficiaries
and they all survive, they
shall
5be are entitled to payment of the sums on deposit in accordance with
such any written
6instructions
as may have been that the owner filed with the financial institution
, and 7or, if
none the owner left no written instructions, to payment in equal shares.
There
AB1038,17,11
8(c) If 2 or more persons succeed to ownership of the account, there is no
further 9right of survivorship
in the event of the death of one of 2 or more P.O.D. beneficiaries
10after their entitlement to payment has matured unless the terms of the account
11expressly provide for survivorship or for the account's continuance as a joint account.
AB1038, s. 29
12Section
29. 705.04 (2) (a) of the statutes is created to read:
AB1038,17,1413
705.04
(2) (a) If there is one P.O.D. beneficiary and he or she survives, he or she
14is entitled to payment of all sums remaining on deposit.
AB1038, s. 30
15Section
30. 705.04 (2) (d) of the statutes is created to read:
AB1038,17,2016
705.04
(2) (d) Subject to the rights of financial institutions under s. 705.06 (1)
17(c), if any P.O.D. beneficiary predeceases the original payee or the survivor of 2 or
18more original payees, the amount to which the predeceased P.O.D. beneficiary would
19have been entitled passes to any of his or her issue who would take under s. 854.06
20(3).
AB1038, s. 31
21Section
31. 705.04 (2) (e) of the statutes is created to read:
AB1038,17,2522
705.04
(2) (e) If no P.O.D. beneficiary or predeceased P.O.D. beneficiary's issue
23who would take under s. 854.06 (3) survives the death of all owners, the account
24belongs to the estate of the deceased sole owner or the estate of the last to die of
25multiple owners.
AB1038, s. 32
1Section
32. 705.04 (2) (f) and (g) of the statutes are created to read:
AB1038,18,32
705.04
(2) (f) Payment may be made to a minor P.O.D. beneficiary only in
3accordance with a procedure approved under ch. 880.
AB1038,18,64
(g) If the P.O.D. account is a marital account, this section applies only to the
550 percent of the account not owned by the surviving spouse named as a party on the
6account.
AB1038, s. 33
7Section
33. 705.06 (1) (c) of the statutes is amended to read:
AB1038,18,208
705.06
(1) (c) Any sums in a P.O.D. account may be paid, on request, to the
9P.O.D. beneficiary upon presentation to the financial institution of proof of death
10showing that the P.O.D. beneficiary survived all persons named as original payees
11of the account. If more than one P.O.D. beneficiary is named and at least one of them
12is predeceased, sums in the account may be paid to the surviving P.O.D. beneficiary
13or beneficiaries upon presentation of proof of death of the other beneficiary, without
14regard to claims by the issue of a predeceased beneficiary under s. 705.04 (2) (d). If
15none of the named beneficiaries survive, the sums in the account may be paid to the
16estate of the deceased sole owner or the estate of the owner who was the last to die
17of multiple owners, without regard to claims by the issue of a predeceased beneficiary
18under s. 705.04 (2) (d). If the P.O.D. account is a marital account, this paragraph
19applies only to the 50 percent of the account not owned by the surviving spouse
20named as a party on the account.
AB1038, s. 34
21Section
34. 705.06 (2) of the statutes is amended to read:
AB1038,19,522
705.06
(2) Payment made under this subchapter discharges the financial
23institution from all claims for amounts so withdrawn. If the institution has reason
24to believe that a dispute exists as to the rights of the parties to an account or their
25successors it may, but shall not be required to, refuse to pay funds in the account to
1any persons
pending instructions from a court, or it may pay the proceeds to a court.
2An institution may but need not recognize the authority of an agent, other than one
3with continuing authority under s. 705.05 (3), until it knows of the fact of death or
4adjudication of incompetence of all parties appointing such agent and has reasonable
5opportunity to act.
AB1038,19,8
6(3) The protection provided by this section shall have no bearing on the rights
7of parties or their successors in disputes concerning the beneficial ownership of funds
8in or withdrawn from an account.
AB1038, s. 35
9Section
35. 705.20 (4) of the statutes is created to read:
AB1038,19,1210
705.20
(4) A transfer under this section does not require confirmation in any
11procedure under s. 867.01, 867.02, or 867.03 or ch. 856 or 865. A transfer under this
12section may be confirmed under s. 867.046 (1m) or (2).
AB1038, s. 36
13Section
36. 705.27 of the statutes is amended to read:
AB1038,20,2
14705.27 Ownership on death of owner.
On Subject to the rights of the
15registering entity under s. 705.28 (2m), on the death of a sole owner or the last to die
16of multiple owners, ownership of securities registered in beneficiary form passes to
17the beneficiary or beneficiaries who survive all owners
and to any predeceased
18beneficiary's issue who would take under s. 854.06 (3). On proof of death of all owners
19and compliance with any applicable requirements of the registering entity, a security
20registered in beneficiary form may be reregistered in the name of the
beneficiary or
21beneficiaries who survive the death of all owners successors to the ownership
22interest. Until division of the security after the death of all owners, multiple
23beneficiaries surviving the death of all owners successors to the ownership interest 24hold their interests as tenants in common. If no beneficiary
or predeceased
25beneficiary's issue who would take under s. 854.06 (3) survives the death of all
1owners, the security belongs to the estate of the deceased sole owner or the estate of
2the last to die of multiple owners.
AB1038, s. 37
3Section
37. 705.28 (2m) of the statutes is created to read:
AB1038,20,134
705.28
(2m) If more than one beneficiary is named and at least one beneficiary
5is predeceased, a security registered in beneficiary form may be reregistered in the
6name of the surviving beneficiary with a proof of death of the other beneficiary,
7without regard to claims by the issue of a predeceased beneficiary under s. 705.27
8unless the registering entity receives written notice of a claim under sub. (3) (b). If
9none of the beneficiaries survive, a security registered in beneficiary form may be
10reregistered in the name of the estate of the deceased sole owner or the estate of the
11owner who was last to die of multiple owners, without regard to claims by the issue
12of a predeceased beneficiary under s. 705.27 unless the registering entity receives
13written notice of a claim under sub. (3) (b).
AB1038, s. 38
14Section
38. 705.28 (3) of the statutes is renumbered 705.28 (3) (a) and
15amended to read:
AB1038,20,2216
705.28
(3) (a)
A Subject to par. (b), a registering entity is discharged from all
17claims to a security by the estate, creditors, heirs or devisees of the deceased owner
18if it registers a transfer of a security in accordance with s. 705.27 and does so in good
19faith reliance on the registration, on ss. 705.21 to 705.30, and on information
20provided to it by affidavit of the personal representative of the deceased owner, or by
21the surviving beneficiary or by the surviving beneficiary's representatives, or other
22information available to the registering entity.
AB1038,21,6
23(b) The protections
of ss. 705.21 to 705.30 provided in this subchapter do not
24extend to a reregistration or payment made after a registering entity has received
25written notice from a claimant to an interest in the security objecting to
1implementation of a registration in beneficiary form. No other notice or other
2information available to the registering entity affects its right to protection under
ss.
3705.21 to 705.30 this subchapter. If the registering entity has reason to believe that
4a dispute exists as to the rights of the parties to a security registered in beneficiary
5form or their successors, the registering entity may refuse to reregister the security
6pending instructions from a court.
AB1038, s. 39
7Section
39. 766.31 (1) (title) of the statutes is created to read:
AB1038,21,88
766.31
(1) (title)
General.
AB1038, s. 40
9Section
40. 766.31 (2) (title) of the statutes is created to read:
AB1038,21,1010
766.31
(2) (title)
Presumption.
AB1038, s. 41
11Section
41. 766.31 (3) of the statutes is renumbered 766.31 (3) (intro.) and
12amended to read:
AB1038,21,1513
766.31
(3) Spouse's interest in marital property. (intro.) Each spouse has a
14present undivided one-half interest in each item of marital property,
but the subject
15to all of the following:
AB1038,21,20
16(a) Terminable interest in deferred employment benefit plan. As provided in s.
17766.62 (5), the marital property interest of the nonemployee spouse in a deferred
18employment benefit plan or in assets in an individual retirement account that are
19traceable to the rollover of a deferred employment benefit plan terminates at the
20death of the nonemployee spouse if he or she predeceases the employee spouse.
AB1038, s. 42
21Section
42. 766.31 (3) (b) of the statutes is created to read:
AB1038,22,222
766.31
(3) (b)
Division based on aggregate value at death. 1. Spouses may
23provide in a marital property agreement that at the death of a spouse some or all of
24their marital property will be divided based on aggregate value rather than divided
1item by item. However, at the death of a spouse, a marital property agreement is not
2necessary for a division of marital property that is not item by item.
AB1038,22,63
2. The surviving spouse and the successor in interest to the decedent's share
4of marital property may enter into an agreement providing that some or all of the
5marital property in which each has an interest will be divided based on aggregate
6value rather than divided item by item.
AB1038, s. 43
7Section
43. 766.31 (4) (title) of the statutes is created to read:
AB1038,22,88
766.31
(4) (title)
Classification of income.
AB1038, s. 44
9Section
44. 766.31 (5) (title) of the statutes is created to read:
AB1038,22,1010
766.31
(5) (title)
Transfer to a trust.
AB1038, s. 45
11Section
45. 766.31 (6) (title) of the statutes is created to read:
AB1038,22,1212
766.31
(6) (title)
Property owned at determination date.
AB1038, s. 46
13Section
46. 766.31 (6) of the statutes is renumbered 766.31 (6) (a) and
14amended to read:
AB1038,22,1915
766.31
(6) (a)
Date of marriage same as determination date. Property owned
16at a If the date of marriage
which occurs after 12:01 a.m. on January 1, 1986, is the
17same as the determination date, the property owned at the determination date is
18individual property of the owning spouse
if, at the marriage, both spouses are
19domiciled in this state.
AB1038, s. 47
20Section
47. 766.31 (6) (b) of the statutes is created to read:
AB1038,22,2321
766.31
(6) (b)
Date of marriage prior to determination date. If the date of
22marriage precedes the determination date, the property owned at the determination
23date is not classified by this chapter but is subject to all of the following:
AB1038,22,2424
1. Subsections (8) and (9) govern property owned at the time of marriage.
AB1038,23,3
12. Subsections (8) and (9) govern property acquired while the spouses were
2married but before the determination date if the property would have been
3individual property had it been acquired after the determination date.
AB1038,23,64
3. Subsections (8) and (9) and s. 861.02 govern property acquired while the
5spouses were married but before the determination date if the property would have
6been marital property had it been acquired after the determination date.
AB1038, s. 48
7Section
48. 766.31 (7) (title) of the statutes is created to read:
AB1038,23,88
766.31
(7) (title)
Individual property after determination date.
AB1038, s. 49
9Section
49. 766.31 (7p) (title) of the statutes is created to read:
AB1038,23,1010
766.31
(7p) (title)
Unilateral statement.
AB1038, s. 50
11Section
50. 766.31 (8) (title) of the statutes is created to read:
AB1038,23,1212
766.31
(8) (title)
Rights in property acquired before determination date.
AB1038, s. 51
13Section
51. 766.31 (9) (title) of the statutes is created to read: