AB490: Bill Text

AB490,169,3 (b) At any time or times release the donee's power of appointment in any one or more of the following respects:

AB490,169,4 1. As to the whole or any part of the property which is subject thereto ;.

AB490,169,6 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 ;.

AB490,169,8 3. So as to limit in any other respect the extent to or manner in which it the power of appointment may be exercised.

AB490,169,9 (3) (a) Delivery to any person specified in the creating instrument;.

AB490,169,12 (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;.

AB490,169,14 (c) Delivery to any person, other than the donee, who could be adversely affected by an exercise of the power; or of appointment.

AB490,317 Section 317. 702.11 of the statutes is amended to read:

AB490,169,19 702.11 Irrevocability of creation, exercise and release of powers 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.

AB490,318 Section 318. 702.13 (title), (1) (intro.), (a), (b) and (c) and (2) of the statutes are amended to read:

AB490,169,25 702.13 (title) Recording instruments relating to powers a power of appointment. (1) (intro.) Any of the following instruments relating to powers a power of appointment is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):

AB490,170,1 (a) An instrument, other than a will, exercising a power ; of appointment.

AB490,170,2 (b) An instrument expressing consent to exercise;.

AB490,170,3 (c) A disclaimer;.

AB490,170,5 (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.

AB490,319 Section 319. 702.15 (intro.), (1) and (2) of the statutes are amended to read:

AB490,170,10 702.15 Disposition when a special power of appointment is unexercised. (intro.) 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:

AB490,170,12 (1) If the creating instrument contains an express gift in default, then in accordance with the terms of such gift;.

AB490,170,18 (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; or.

AB490,320 Section 320. 702.15 (3) of the statutes is renumbered 702.15 (3) (a) and amended to read:

AB490,170,24 702.15 (3) (a) If 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. But if

AB490,171,5 (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).

AB490,321 Section 321. 702.17 (1), (2) and (5) of the statutes are amended to read:

AB490,171,13 702.17 (1) General policy: general power of appointment. 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 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.

AB490,171,23 (2) During lifetime of the donee. If the donee has an unexercised general power of the kinds specified in sub. (1) appointment, and can presently exercise such a 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.

AB490,172,4 (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.

AB490,322 Section 322. 702.17 (3) of the statutes is renumbered 702.17 (3) (a) and amended to read:

AB490,172,15 702.17 (3) (a) If Except as provided in par. (b), if the donee has at the time of his or her the donee's death a general power of the kinds specified in sub. (1) 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.

AB490,323 Section 323. 702.17 (3) (b) of the statutes is created to read:

AB490,172,20 702.17 (3) (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.

AB490,324 Section 324. 702.17 (6) of the statutes is created to read:

AB490,172,24 702.17 (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.

AB490,325 Section 325. 702.21 of the statutes is amended to read:

AB490,173,3 702.21 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.

AB490,326 Section 326. 766.55 (2) (bm) of the statutes, as created by 2013 Wisconsin Act 20, is amended to read:

AB490,173,11 766.55 (2) (bm) An obligation incurred by a spouse that is recoverable under s. 46.27 (7g), 49.496, 49.682, or 49.849 may be satisfied from all property that was the property of that spouse immediately before that spouse's death and from all property that was marital property at any time within 5 years before that spouse applied for public assistance, as defined in s. 49.849 (1) (e), or while that spouse was eligible for public assistance, as defined in s. 49.849 (1) (e).

AB490,327 Section 327. 766.575 (1) (e) of the statutes is amended to read:

AB490,173,14 766.575 (1) (e) "Trustee" has the meaning given under s. 701.01 (8) 701.0103 (28).

AB490,328 Section 328. 840.01 (1) of the statutes is amended to read:

AB490,173,23 840.01 (1) Except as provided in sub. (2), "interest in real property" includes estates in, powers of appointment under ch. 702 over, present and future rights to, title to, and interests in real property, including, without limitation by enumeration, security interests and liens on land, easements, profits, rights of appointees under powers of appointment, rights under covenants running with the land, powers of termination, and homestead rights. The interest may be an interest that was formerly designated legal or equitable. The interest may be surface, subsurface, suprasurface, riparian, or littoral.

AB490,329 Section 329. 853.17 (2) of the statutes is amended to read:

AB490,174,4 853.17 (2) This section does not prevent the court from requiring the contract beneficiary to elect under s. 853.15 in order to take property under the will; nor does it apply to naming a testamentary trustee as designated by a life insurance policy under s. 701.09.

AB490,330 Section 330. 853.32 (3) of the statutes is amended to read:

AB490,174,8 853.32 (3) Transfers to living trusts. The validity and implementation of a will provision that purports to transfer or appoint property to a living trust are governed by s. 701.08 701.0419.

AB490,331 Section 331. 853.34 (3) of the statutes is created to read:

AB490,174,18 853.34 (3) Assets transferred to trusts created by will. If a trustee of a trust created by a testator's will is designated as the beneficiary of a transfer under another governing instrument, as defined in s. 854.01 (2), at the death of the testator or at the death of a 3rd party, the transfer of any assets under that other governing instrument to the trustee does not cause the transferred assets to be included in the property administered as part of the testator's estate. The transferred assets are not subject to taxes, debts, or charges enforceable against the testator's estate to any greater extent than if the proceeds were payable to a beneficiary other than the testator's estate.

AB490,332 Section 332. 853.61 (2) (a) of the statutes is amended to read:

AB490,174,21 853.61 (2) (a) In addition to any powers conferred upon trustees by law, the trustee shall have all the powers listed in s. 701.16 ss. 701.0815 and 701.0816.

AB490,333 Section 333. 854.13 (1) (c), (2) (a) 2. and (d), (4) (e), (5) (b), (7) (a) and (10) (a) of the statutes are amended to read:

AB490,174,25 854.13 (1) (c) "Power of appointment" has the meaning given in s. 702.01 (4) 702.02 (6).

AB490,175,7 (2) (a) 2. A person who is an heir, recipient of property, or beneficiary under a governing instrument, donee of a power of appointment created by a governing instrument, appointee under a power of appointment exercised by a governing instrument, taker in default under a power of appointment created by a governing instrument, or person succeeding to disclaimed property may disclaim any property, including contingent or future interests or the right to receive discretionary distributions, by delivering a written instrument of disclaimer under this section.

AB490,175,12 (d) Partial disclaimer. Property may be disclaimed in whole or in part, except that a partial disclaimer of property passing by a governing instrument or by the exercise of a power of appointment may not be made if partial disclaimer is expressly prohibited by the governing instrument or by the instrument exercising the power of appointment.

AB490,175,17 (4) (e) Interests arising by disclaimer. Notwithstanding pars. (a) and (b), a person whose interest in property arises by disclaimer or by default of exercise of a power of appointment created by a governing instrument may disclaim at any time not later than 9 months after the day on which the prior instrument of disclaimer is delivered, or the date of death of the donee of the power of appointment.

AB490,175,20 (5) (b) Delivery to trustee. If the trustee of any trust to which the interest or power of appointment relates does not receive the instrument of disclaimer under par. (a), a copy shall also be delivered to the trustee.

AB490,176,7 (7) (a) In general. 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. 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 of appointment 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 of appointment. If the disclaimant is a taker in default under a power of appointment created by a governing instrument, the disclaimed property devolves as if the disclaimant had predeceased the donee of the power of appointment.

AB490,176,17 (10) (a) Subsequent interest not held by disclaimant. Unless the governing instrument provides otherwise, either expressly or as construed from extrinsic evidence, upon the disclaimer of a preceding interest, a subsequent interest not held by the disclaimant and limited to take effect in possession or enjoyment after the termination of the interest that is disclaimed accelerates to take effect as if the disclaimant had died immediately before the time when the disclaimed interest would have taken effect in possession or enjoyment or, if the disclaimant is an appointee under a power of appointment and that power of appointment has been exercised by a power of appointment, as if the disclaimant had died before the effective date of the exercise of the power of appointment.

AB490,334 Section 334. 854.23 (5) (b) of the statutes is amended to read:

AB490,177,2 854.23 (5) (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.19 (11) 701.1012 and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the account, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of a claimed lack of entitlement under this chapter.

AB490,335 Section 335. 859.18 (5) (a) of the statutes is amended to read:

AB490,177,5 859.18 (5) (a) The availability of a trust described under s. 701.07 (3) 701.0505 (1) is subject to s. 701.07 (3) 701.0505 (1).

AB490,336 Section 336. 859.18 (5) (b) of the statutes is amended to read:

AB490,177,8 859.18 (5) (b) The availability of a spendthrift trust described under s. 701.06 subch. V of ch. 701 is subject to s. 701.06 subch. V of ch. 701.

AB490,337 Section 337. 861.015 (2) of the statutes is amended to read:

AB490,177,17 861.015 (2) For purposes of this section, property subject to a directive is valued by its clear market value on the date of the decedent's death. Satisfaction of the nonholding spouse's marital property interest in the property subject to the directive shall be based on that value, plus any income from the property subject to the directive after the death of the decedent and before satisfaction. For purposes of determining the income from the property subject to a directive, such property shall be treated as a legacy or devise of property other than money under s. 701.20 701.1115.

AB490,338 Section 338. 861.11 (5) (b) of the statutes is amended to read:

AB490,178,2 861.11 (5) (b) Notwithstanding sub. (2), in addition to the protections afforded a financial institution under ss. 701.19 (11) 701.1012 and 710.05 and chs. 112 and 705 a financial institution is not liable for having transferred an account included in the augmented deferred marital property estate under s. 861.03 to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of a governing instrument, regardless of whether the financial institution received written notice of an intent to file, or the filing of, a petition for the deferred marital property elective share amount.

AB490,339 Section 339. 865.08 (6) of the statutes is amended to read:

AB490,178,13 865.08 (6) If the will of the decedent provides for a testamentary trust, letters of trust shall be issued by the probate registrar to the trustee upon admission of the will to informal probate at the same time that letters are granted to the personal representative. The probate registrar shall determine if bond shall be required and, if so, the amount thereof, and for such purpose the probate registrar shall have the authority granted to the court by, and shall proceed pursuant to s. 701.16 (2) 701.0702. Thereafter, the trustee shall continue to be interested in the estate, and beneficiaries of the testamentary trust shall cease to be interested in the estate except under s. 851.21 (3). The trust shall be administered under supervision of the court under ch. 701.

AB490,340 Section 340. 867.03 (2g) (a) of the statutes, as affected by 2013 Wisconsin Act 20, is amended to read:

AB490,178,25 867.03 (2g) (a) By accepting the decedent's property under this section the heir, trustee, or guardian assumes a duty to apply the property transferred for the payment of obligations according to priorities established under s. 859.25 and to distribute any balance to those persons designated in the appropriate governing instrument, as defined in s. 854.01, of the decedent or if there is no governing instrument, according to the rules of intestate succession under ch. 852, subject to par. (b). An heir or guardian may publish a notice to creditors in the same manner and with the same effect as a trustee under s. 701.065 701.0508. This paragraph does not prohibit any appropriate person from requesting administration of the decedent's estate under s. 856.07 or ch. 865.

AB490,341 Section 341. 879.03 (2) (c) of the statutes is amended to read:

AB490,179,3 879.03 (2) (c) The attorney general where a charitable trust, as defined in s. 701.01 (2) 701.0103 (4), is involved, and in all cases mentioned in s. 852.01 (3).

AB490,342 Section 342. 879.47 of the statutes is renumbered 879.47 (1) and amended to read:

AB490,179,14 879.47 (1) The attorney for any person desiring to file any paper in court is responsible for the preparation of the paper. Except as provided in s. 701.16 (4) (d) sub. (2), all papers shall be legibly written on substantial paper and shall state the title of the proceeding in which they are filed and the character of the paper. Either uniform forms or computer-generated forms, if the forms exactly recreate the original forms in wording, format and substance, shall be used. If papers are not so written or if uniform forms or computer-generated forms that exactly recreate the original forms in wording, format and substance are not used, the court may refuse to receive and file them. The court shall show on all papers the date of their filing.

AB490,343 Section 343. 881.01 (1) (title) of the statutes is repealed and recreated to read:

AB490,179,16 881.01 (1) (title) Definitions.

AB490,344 Section 344. 881.01 (1) (a) of the statutes is renumbered 881.01 (1) (a) (intro.) and amended to read:

AB490,179,20 881.01 (1) (a) (intro.) "Beneficiary," with respect to a guardianship of the estate," means any of the following:

AB490,179,22 3. With respect to guardianship of the estate, a ward for whom a guardian of the estate has been appointed and, with respect to a conservator, means.

AB490,179,24 4. With respect to a conservatorship, a person for whose estate a conservator has been appointed.

AB490,345 Section 345. 881.01 (1) (a) 1. and 2. of the statutes are created to read:

AB490,180,1 881.01 (1) (a) 1. With respect to a will, a beneficiary, as defined in s. 851.03.

AB490,180,2 2. With respect to a trust, a beneficiary, as defined in s. 701.0103 (3).

AB490,346 Section 346. 881.01 (1) (b) of the statutes is amended to read:

AB490,180,10 881.01 (1) (b) "Fiduciary" means a personal representative, trustee, conservator, or guardian of the estate, a directing party, as defined in s. 701.0103 (7), who has the power to direct the trustee's investment decisions, a trust protector, as defined in s. 701.0103 (31), who has a power exercisable in a fiduciary capacity over the investment of trust assets, and any other person to whom a court appoints a power over the investment of the assets of a decedent's estate, a trust, a conservatorship, or a guardianship of the estate.

AB490,347 Section 347. 881.01 (4) of the statutes is renumbered 881.01 (4) (a) and amended to read:

AB490,180,16 881.01 (4) (a) General rule. A fiduciary shall diversify investments unless the fiduciary reasonably determines that, because of special circumstances, the purposes of the estate, trust, conservatorship, or guardianship are better served without diversifying.

AB490,348 Section 348. 881.01 (4) (b) of the statutes is created to read:

AB490,180,20 881.01 (4) (b) Special rule for assets collected by a fiduciary. 1. For purposes of this paragraph, an "asset that is collected by the fiduciary" means an asset that the fiduciary did not exercise discretion over to acquire or purchase.