701.0814 Discretionary powers; tax savings. (1) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. A court may not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.
(2) Subject to sub. (4), and unless the terms of the trust expressly indicate that a provision of this subsection does not apply, all of the following apply:
(a) A person other than a settlor who is a beneficiary and a trustee, directing party, or trust protector of a trust that confers on the trustee, directing party, or trust protector a power to make discretionary distributions to or for the trustee's, directing party's, or trust protector's personal benefit may exercise the power only in accordance with an ascertainable standard.
(b) A trustee, directing party, or trust protector may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee, directing party, or trust protector personally owes another person.
(3) A power whose exercise is limited or prohibited by sub. (2) may be exercised by a majority of the remaining trustees, directing parties, or trust protectors whose exercise of the power is not so limited or prohibited. If the power of all trustees, directing parties, or trust protectors is so limited or prohibited, the court may appoint a trustee, directing party, or trust protector with authority to exercise the power.
(4) Subsection (2) does not apply to any of the following:
(a) A power held by the settlor's spouse who is the trustee, directing party, or trust protector of a trust for which a marital deduction, as defined in section 2056
(b) (5) or 2523
(e) of the Internal Revenue Code, was previously allowed.
(b) A trust during a period when the trust may be revoked or amended by its settlor.
(c) A trust if contributions to the trust qualify for the annual exclusion under section 2503
(c) of the Internal Revenue Code.
701.0815 of the statutes is created to read:
701.0815 General powers of trustee.
(1) A trustee, without authorization by the court, may exercise the following powers:
(a) Powers conferred by the terms of the trust.
(b) Except as limited by the terms of the trust, all of the following powers:
1. All powers over the trust property that an unmarried, competent owner has over individually owned property.
2. Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property.
3. Any other powers conferred by this chapter.
(2) The exercise of a power is subject to the fiduciary duties prescribed by this chapter.
701.0816 of the statutes is created to read:
701.0816 Specific powers of trustee. Without limiting the authority conferred by s. 701.0815, a trustee may do all of the following:
(1) Collect trust property and accept or reject additions to the trust property from a settlor or any other person.
(2) Acquire or sell property, for cash or on credit, at public or private sale.
(3) Exchange, partition, or otherwise change the character of trust property.
(4) Deposit trust money in an account in a regulated financial-service institution.
(5) Borrow money, with or without security, and mortgage or pledge trust property for a period within or extending beyond the duration of the trust.
(6) With respect to an interest in a proprietorship, partnership, limited liability company, business trust, corporation, or other form of business or enterprise, continue the business or other enterprise and take any action that may be taken by shareholders, members, or property owners, including merging, dissolving, or otherwise changing the form of business organization or contributing additional capital.
(7) With respect to a stock or other security, exercise the rights of an absolute owner, including the right to do any of the following:
(a) Vote, or give proxies to vote, with or without power of substitution, or enter into or continue a voting trust agreement.
(b) Hold a stock or other security in the name of a nominee or in other form without disclosure of the trust so that title may pass by delivery.
(c) Pay calls, assessments, and other sums chargeable or accruing against the stock or other security, and sell or exercise stock subscription or conversion rights.
(d) Deposit the stock or other security with a depository or other regulated financial-service institution.
(8) With respect to an interest in real property, construct, or make ordinary or extraordinary repairs to, alterations to, or improvements in, buildings or other structures, demolish improvements, raze existing or erect new party walls or buildings, subdivide or develop land, dedicate land to public use or grant public or private easements, and make or vacate plats and adjust boundaries.
(9) Enter into a lease for any purpose as lessor or lessee, including a lease or other arrangement for exploration and removal of natural resources, with or without the option to purchase or renew, for a period within or extending beyond the duration of the trust.
(10) Grant an option involving a sale, lease, or other disposition of trust property or acquire an option for the acquisition of property, including an option exercisable beyond the duration of the trust, and exercise an option so acquired.
(11) Insure the property of the trust against damage or loss and insure the trustee, the trustee's agents, any directing party, any trust protector, and the beneficiaries against liability arising from the administration of the trust.
(12) Abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration.
(13) With respect to possible liability for violation of environmental law, do any of the following:
(a) Inspect or investigate property the trustee holds or has been asked to hold, or property owned or operated by an organization in which the trustee holds or has been asked to hold an interest, for the purpose of determining the application of environmental law with respect to the property.
(b) Take action to prevent, abate, or otherwise remedy any actual or potential violation of any environmental law affecting property held directly or indirectly by the trustee, whether taken before or after the assertion of a claim or the initiation of governmental enforcement.
(c) Decline to accept property into trust or disclaim any power with respect to property that is or may be burdened with liability for violation of environmental law.
(d) Compromise claims against the trust that may be asserted for an alleged violation of environmental law.
(e) Pay the expense of any inspection, review, abatement, or remedial action to comply with environmental law.
(14) Pay or contest any claim, settle a claim by or against the trust, and release, in whole or in part, a claim belonging to the trust.
(15) Pay taxes; assessments; compensation of the trustee, a directing party, a trust protector, and employees and agents of the trust; and other expenses incurred in the administration of the trust.
(16) Exercise elections with respect to federal, state, and local taxes.
(17) Select a mode of payment under any employee benefit or retirement plan, annuity, or life insurance payable to the trustee, exercise rights thereunder, including exercise of the right to indemnification for expenses and against liabilities, and take appropriate action to collect the proceeds.
(18) Make loans out of trust property, including loans to a beneficiary on terms and conditions the trustee considers to be fair and reasonable under the circumstances. The trustee has a lien on future distributions for repayment of loans under this subsection.
(19) Pledge trust property to guarantee loans made by others to the beneficiary.
(20) Appoint a trustee to act in another jurisdiction with respect to trust property located in the other jurisdiction, confer upon the appointed trustee all of the powers and duties of the appointing trustee, require that the appointed trustee furnish security, and remove any trustee so appointed.
(21) Pay an amount distributable to a beneficiary who is under a legal disability or who the trustee reasonably believes is incapacitated, by paying it directly to the beneficiary, applying it for the beneficiary's benefit, or by doing any of the following:
(a) Paying the amount to the beneficiary's conservator or the beneficiary's guardian of the estate.
(b) Paying the amount to the beneficiary's custodian under the Uniform Transfers to Minors Act under ss. 54.854 to 54.898 or the Uniform Custodial Trust Act under ss. 54.950 to 54.988, and, for that purpose, creating a custodianship or custodial trust.
(c) If the trustee does not know of a conservator, guardian of the estate, custodian, or custodial trustee, paying the amount to an adult relative or other person having legal or physical care or custody of the beneficiary or to the guardian of the person of the beneficiary, to be expended on the beneficiary's behalf.
(d) Managing the amount as a separate fund on the beneficiary's behalf, subject to the beneficiary's continuing right to withdraw the distribution.
(22) On distribution of trust property or the division or termination of a trust, make distributions in divided or undivided interests, allocate particular assets in proportionate or disproportionate shares, value the trust property for those purposes, and adjust for resulting differences in valuation.
(23) Resolve a dispute concerning the interpretation of the trust or its administration by mediation, arbitration, or other procedure for alternative dispute resolution.
(24) Prosecute or defend an action, claim, or judicial proceeding in any jurisdiction to protect trust property or the trustee, a directing party, or a trust protector in the performance of the trustee's, directing party's or trust protector's duties.
(25) Sign and deliver contracts and other instruments that are useful to achieve or facilitate the exercise of the trustee's, directing party's or trust protector's powers.
(26) On termination of the trust, exercise the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to it.
Create or fund a plan under section 529
of the Internal Revenue Code, or other college savings vehicle, for a beneficiary's benefit.
701.0817 of the statutes is created to read:
701.0817 Distribution upon termination.
(1) Upon termination or partial termination of a trust, the trustee may send a proposal for distribution to the beneficiaries of the trust. The right of any beneficiary to whom the proposal is sent to object to the proposed distribution terminates if the beneficiary does not notify the trustee of an objection within 30 days after the proposal was sent but only if the proposal informed the beneficiary of the right to object and of the time allowed for objection.
(2) Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed within a reasonable time to distribute the trust property to the persons entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.
(3) A release by a beneficiary of a trustee from liability for breach of trust is invalid to the extent any of the following applies:
(a) The release was induced by improper conduct of the trustee.
(b) The beneficiary, at the time of the release, did not know of the beneficiary's rights or of the material facts relating to the breach.
701.0818 of the statutes is created to read:
701.0818 Trust protectors. (1) Appointment. A settlor in a trust instrument, a court in a trust instrument or court order, or interested persons in a nonjudicial settlement agreement may provide for the appointment of a trust protector, whether referred to as a trust protector, another title, or no title. A trust protector has only the powers granted to the trust protector in the trust instrument, court order, or nonjudicial settlement agreement.
(2) Trust protector powers; legal capacity. (a) A settlor in a trust instrument, a court in a trust instrument or court order, or interested persons in a nonjudicial settlement agreement may specify the legal capacity in which a particular power is exercisable by a trust protector and whether a power granted to the trust protector in a capacity other than a fiduciary capacity must be exercised in good faith.
(b) If the settlor, court, or interested persons do not specify the legal capacity in which a particular power is exercisable by the trust protector, all of the following apply:
1. The power is exercisable in a fiduciary capacity if it is a power to do any of the following:
a. Interpret or enforce the terms of the trust at the request of the trustee.
b. Review and approve the trustee's reports or accounting.
c. Resolve disputes between the trustee or a directing party and a beneficiary.
d. Consent to or veto distributions to a beneficiary.
e. Consent to or veto investment actions.
2. If it is not a power described in subd. 1. a. to e., the power is exercisable in a nonfiduciary capacity, including a power to do any of the following:
a. Modify or amend the trust instrument to respond to opportunities related to, or changes in, restraints on alienation or other state laws restricting the terms of a trust, the distribution of trust property, or the administration of the trust.
b. Modify or amend the trust instrument to achieve a different tax status or to respond to changes in federal or state law.
c. Change the principal place of administration, the tax situs of the trust, or the governing law of the trust.
d. Eliminate or modify the interests of a beneficiary, add a new beneficiary or class of beneficiaries, or select a beneficiary from an indefinite class.
e. Modify the terms of a power of appointment granted under the trust.
f. Remove, replace, or appoint a trustee, trust protector, or directing party or a successor trustee, trust protector, or directing party.
g. Terminate the trust.
h. Appoint assets to a new trust under s. 701.0418.
i. Advise the trustee on matters concerning a beneficiary, including whether to provide information to a beneficiary under s. 701.0813.
j. Correct errors or ambiguities in the terms of the trust that might otherwise require court construction or defeat the settlor's intent.
3. Notwithstanding subds. 1. and 2., a trust protector who is also the settlor may exercise any power granted to the trust protector in the trust protector's personal interests.
4. Notwithstanding subd. 2., a trust protector who is also a qualified beneficiary may exercise any power granted to the trust protector that is exercisable in a nonfiduciary capacity in the trust protector's personal interests.
(c) Notwithstanding pars. (a) and (b) and any provision in the trust instrument to the contrary, a trust protector who is also serving as the trustee or a directing party shall exercise any power granted to the trust protector in a fiduciary capacity.