AB490: Bill Text

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.

AB490,180,25 2. Notwithstanding par. (a), a fiduciary may retain an asset that is collected by the fiduciary until the fiduciary reasonably determines that it is advisable to dispose of the asset. While the asset is being retained, the fiduciary has a duty to exercise discretion at reasonable intervals to determine the advisability of continuing to retain or disposing of the asset that was collected.

AB490,181,4 3. At any time while an asset that is collected by the fiduciary is being retained, a beneficiary may file an application with a court that has jurisdiction over the fiduciary to compel the fiduciary to sell the asset and invest the sale proceeds in accordance with this section.

AB490,181,10 4. If a beneficiary files an application under subd. 3., the court shall conduct a hearing after giving notice to all interested persons, as determined by the court. After the hearing, the court shall enter an order directing the fiduciary to retain or sell the asset that is being retained based on what the court finds to be in accordance with the terms and purposes of the estate, trust, conservatorship, or guardianship of the estate and the interests of the beneficiaries.

AB490,349 Section 349. 881.05 of the statutes is repealed.

AB490,350 Section 350. 893.33 (4r) of the statutes, as created by 2013 Wisconsin Act 20, is amended to read:

AB490,181,15 893.33 (4r) This section applies to liens of the department of health services on real property under ss. 46.27 (7g), 49.496, 49.682, 49.848, and 49.849.

AB490,351 Section 351 . Initial applicability.

AB490,181,24 (1) Estate recovery changes. The treatment of sections 46.27 (7g) (a) 5. a. and b., (c) 2m. b. and 6m. b., and (g), 49.496 (1) (cm) 1. and 2., (3m) (aj) 2. and (dm) 2., and (6m), 49.682 (1) (e) 1. and 2., (2) (bm) 2. and (fm) 2., and (5), 49.849 (1) (d) 1. and 2., (2) (c), and (7), and 766.55 (2) (bm) of the statutes, the renumbering and amendment of section 49.849 (4) (c) 2. of the statutes, and the creation of section 49.849 (4) (c) 2. a., b., and c. of the statutes first apply to the recovery of public assistance as defined in section 49.849 (1) (e) of the statutes, provided to individuals who die on October 1, 2013.

AB490,182,4 (2) Divestment and asset verification changes. The treatment of sections 49.45 (4m) (a) 3. b. and d. and 49.453 (2) (a) (intro.) and (b) (intro.) and (4c) (c) of the statutes first applies to determinations of initial eligibility for Medical Assistance for individuals who apply for Medical Assistance on July 2, 2013.

AB490,352 Section 352. Effective dates. This act takes effect on the first day of the 7th month beginning after publication, except as follows:

AB490,182,14 (1) Estate recovery changes. The treatment of sections 20.435 (4) (im) and (in) and (7) (im), 46.27 (7g) (a) 5. a. and b., (c) 2m. b. and 6m. b., and (g), 46.286 (7), 49.496 (1) (cm) 1. and 2., (3m) (aj) 2. and (dm) 2., and (6m), 49.4962, 49.682 (1) (e) 1. and 2., (2) (bm) 2. and (fm) 2., and (5), 49.848, 49.849 (1) (d) 1. and 2., (2) (c), and (7), 59.43 (1) (w), 701.065 (5), 766.55 (2) (bm), and 893.33 (4r) of the statutes, the renumbering and amendment of section 49.849 (4) (c) 2. of the statutes, the creation of section 49.849 (4) (c) 2. a., b., and c. of the statutes, and Section 351 (1) of this act take effect on the day after publication.

AB490,182,17 (2) Divestment and asset verification changes. The treatment of sections 49.45 (4m) (a) 3. b. and d. and 49.453 (2) (a) (intro.) and (b) (intro.) and (4c) (c) of the statutes and Section 351 (2) of this act take effect on the day after publication.

AB490,182,18 (End)