SB384: Bill Text

SB384,138,6 (5) A trustee may release the entire power conferred by par. (a) sub. (1) or may release only the power to adjust from income to principal or the power to adjust from principal to income if the trustee is uncertain about whether possessing or exercising the power will cause a result described in par. (c) 1. sub. (3) (a) to 6. (f) or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in par. (c) sub. (3). The release may be permanent or for a specified period, including a period measured by the life of an individual.

SB384,138,10 (6) Terms of a trust that limit the power of a trustee to make an adjustment between principal and income do not affect the application of this subsection unless it is clear from the terms of the trust that the terms are intended to deny the trustee the power of adjustment conferred by par. (a) sub. (1).

SB384,219 Section 219. 701.20 (4c) (title) of the statutes is renumbered 701.1105 (title).

SB384,220 Section 220. 701.20 (4c) (b) (intro.) of the statutes is renumbered 701.1105 (1) (intro.) and amended to read:

SB384,138,16 701.1105 (1) (intro.) A trustee may, but is not required to, obtain approval of a proposed action under sub. (4) (a) s. 701.1104 (1) by providing a written notice that complies with all of the following:

SB384,221 Section 221. 701.20 (4c) (b) 1. of the statutes is renumbered 701.1105 (1) (a).

SB384,222 Section 222. 701.20 (4c) (b) 2. of the statutes is renumbered 701.1105 (1) (b).

SB384,223 Section 223. 701.20 (4c) (b) 3. (intro.) of the statutes is renumbered 701.1105 (1) (c) and amended to read:

SB384,138,22 701.1105 (1) (c) Is given to all sui juris qualified beneficiaries who are any of the following:.

SB384,224 Section 224. 701.20 (4c) (b) 3. a., b. and c. of the statutes are repealed.

SB384,225 Section 225. 701.20 (4c) (b) 4. of the statutes is renumbered 701.1105 (1) (d), and 701.1105 (1) (d) (intro.) and 4., as renumbered, are amended to read:

SB384,139,2 701.1105 (1) (d) (intro.) States that it is given in accordance with this subsection section and discloses the following information:

SB384,139,4 4. The effective date of the proposed action if no objection is received from any beneficiary within the time specified in subd. 4. c. 3.

SB384,226 Section 226. 701.20 (4c) (c) of the statutes is renumbered 701.1105 (2) and amended to read:

SB384,139,10 701.1105 (2) If a trustee gives notice of a proposed action under this subsection section, the trustee is not required to give notice to a sui juris qualified beneficiary who consents to the proposed action in writing at any time before or after the proposed action is taken.

SB384,227 Section 227. 701.20 (4c) (d) of the statutes is renumbered 701.1105 (3) and amended to read:

SB384,139,15 701.1105 (3) A sui juris qualified beneficiary may object to the proposed action by giving a written objection to the trustee within the time specified in the notice under par. (b) 4. c. sub. (1) (d) 3.

SB384,228 Section 228. 701.20 (4c) (e) of the statutes is renumbered 701.1105 (4) and amended to read:

SB384,139,21 701.1105 (4) A trustee may decide not to take a proposed action after the trustee receives a written objection to the proposed action or at any other time for any other reason. In that case, the trustee shall give written notice to the sui juris qualified beneficiaries of the decision not to take the proposed action.

SB384,229 Section 229. 701.20 (4c) (f) of the statutes is renumbered 701.1105 (5) and amended to read:

SB384,140,6 701.1105 (5) If a trustee receives a written objection to a proposed action within the time specified in the notice under par. (b) 4. c. sub. (1) (d) 3., either the trustee or the qualified beneficiary making the written objection may petition the court to have the proposed action approved, modified, or prohibited. In the court proceeding, the qualified beneficiary objecting to the proposed action has the burden of proving that the proposed action should be modified or prohibited. A qualified beneficiary who did not make the written objection may oppose the proposed action in the court proceeding.

SB384,230 Section 230. 701.20 (4c) (g) of the statutes is renumbered 701.1105 (6) and amended to read:

SB384,140,11 701.1105 (6) For purposes of this subsection section, a proposed action under sub. (4) s. 701.1104 includes a course of action or a decision not to take action under sub. (4) s. 701.1104.

SB384,231 Section 231. 701.20 (4g) (title) of the statutes is renumbered 701.1106 (title).

SB384,232 Section 232. 701.20 (4g) (a) (intro.) of the statutes is renumbered 701.1106 (1) (intro.) and amended to read:

SB384,140,16 701.1106 (1) (intro.) Subject to par. (d) sub. (4), a trust may be converted to a unitrust in any of the following ways:

SB384,233 Section 233. 701.20 (4g) (a) 1. (intro.) of the statutes is renumbered 701.1106 (1) (a) (intro.) and amended to read:

SB384,140,20 701.1106 (1) (a) (intro.) By the trustee, at his or her own discretion or at the request of a qualified beneficiary, if all of the following apply:

SB384,234 Section 234. 701.20 (4g) (a) 1. a. of the statutes is renumbered 701.1106 (1) (a) 1.

SB384,235 Section 235. 701.20 (4g) (a) 1. b. of the statutes is renumbered 701.1106 (1) (a) 2. and amended to read:

SB384,141,5 701.1106 (1) (a) 2. The trustee provides notice in the same manner as provided in sub. (4c) (b) s. 701.1105 (1) of the trustee's intention to convert the trust to a unitrust, and the notice advises how the unitrust will operate, including the fixed percentage under par. (c) 1. sub. (3) (a) and any other initial determinations under par. (c) 4. sub. (3) (d) that the trustee intends to follow.

SB384,236 Section 236. 701.20 (4g) (a) 1. c. of the statutes is repealed.

SB384,237 Section 237. 701.20 (4g) (a) 1. d. of the statutes is renumbered 701.1106 (1) (a) 3. and amended to read:

SB384,141,10 701.1106 (1) (a) 3. Every sui juris qualified beneficiary consents to the conversion to a unitrust in a writing delivered to the trustee.

SB384,238 Section 238. 701.20 (4g) (a) 1. e. of the statutes is renumbered 701.1106 (1) (a) 4.

SB384,239 Section 239. 701.20 (4g) (a) 2. (intro.) of the statutes is renumbered 701.1106 (1) (b) (intro.) and amended to read:

SB384,141,16 701.1106 (1) (b) (intro.) By a court on the petition of the trustee or a qualified beneficiary, if all of the following apply:

SB384,240 Section 240. 701.20 (4g) (a) 2. a. of the statutes is renumbered 701.1106 (1) (b) 1. and amended to read:

SB384,141,23 701.1106 (1) (b) 1. The trustee or qualified beneficiary has provided notice under sub. (4c) s. 701.1105 of the intention to request the court to convert the trust to a unitrust, and the notice advises how the unitrust will operate, including the fixed percentage under par. (c) 1. sub. (3) (a) and any other initial determinations under par. (c) 4. sub. (3) (d) that will be requested.

SB384,241 Section 241. 701.20 (4g) (a) 2. b. of the statutes is renumbered 701.1106 (1) (b) 2.

SB384,242 Section 242. 701.20 (4g) (b), (c), (d) and (e) of the statutes are renumbered 701.1106 (2), (3), (4) and (5), and 701.1106 (2), (3) (a), (b), (c), (d) 7., (f) (intro.) and 2., (g) (intro.), 1. and 3. and (h), (4) (a) (intro.) and 1. and (b) and (5), as renumbered, are amended to read:

SB384,142,8 701.1106 (2) In deciding whether to convert the trust to a unitrust under par. (a) 1. sub. (1) (a) and in determining the fixed percentage under sub. (3) (b) 1., the trustee shall consider all relevant factors under sub. (4) (b) 1. to 9. s. 701.1104 (2) (a) to (i).

SB384,142,17 (3) (a) If a trust is converted to a unitrust under this subsection section by the trustee or a court, notwithstanding sub. (3) (a) 1. s. 701.1103 (1) (a) and 4. (d) and s. 701.21 701.1136 (4) the trustee shall make distributions in accordance with the creating trust instrument, except that any reference in the creating trust instrument to "income" means a fixed percentage of the net fair market value of the unitrust's assets, whether such assets otherwise would be considered income or principal under this section subchapter, averaged over a preceding period determined by the trustee, which is at least 3 years but not more than 5 years, or the period since the original trust was created, whichever is less.

SB384,142,22 (b) 1. Subject to subd. 2. b., if the trust is converted to a unitrust under par. (a) 1. sub. (1) (a), the trustee shall determine the fixed percentage to be applied under subd. 1. par. (a), and the notice under par. (a) 1. b. sub. (1) (a) 2. must state the fixed percentage. If the trust is converted to a unitrust under par. (a) 2. sub. (1) (b), the court shall determine the fixed percentage to be applied under subd. 1. par. (a).

SB384,142,24 2. Any fixed percentage under subd. 1. par. (a) that is determined by a trustee may not be less than 3 percent nor more than 5 percent.

SB384,143,3 (c) After a trust is converted to a unitrust, the trustee may, subject to the notice requirement under sub. (4c) s. 701.1105 and with the consent of every sui juris qualified beneficiary, do any of the following:

SB384,143,5 1. Convert the unitrust back to the original trust under the creating trust instrument.

SB384,143,7 2. Change the fixed percentage under subd. 1. par. (a), subject to subd. 2. b. par. (b) 2.

SB384,143,9 (d) 7. The averaging under subd. 1. par. (a) to a different preceding period, which is at least 3 years but not more than 5 years.

SB384,143,12 (f) (intro.) Unless otherwise provided by the creating trust instrument, the unitrust distribution is considered to have been paid from the following sources in the order of priority:

SB384,143,14 2. Ordinary income for federal income tax purposes that is not net income under subd. 6. a. 1.

SB384,143,16 (g) (intro.) A court may, on the petition of the trustee or a qualified beneficiary, do any of the following:

SB384,143,18 1. Change the fixed percentage that was determined under subd. 2. par. (b) by the trustee or by a prior court order.

SB384,143,20 3. Average the valuation of the unitrust's assets over a period other than that specified in subd. 1. par. (a).

SB384,143,24 (h) Conversion to a unitrust under this subsection section does not affect a provision in the creating trust instrument that directs or authorizes the trustee to distribute principal or that authorizes a beneficiary to withdraw a portion or all of the principal.

SB384,144,2 (4) (a) (intro.) A trust may not be converted under this subsection section to a unitrust if any of the following applies:

SB384,144,3 1. The creating trust instrument specifically prohibits the conversion.

SB384,144,9 (b) Notwithstanding subd. 1. par. (a), if a trust may not be converted to a unitrust solely because subd. 1. g. par. (a) 7. applies to a trustee, a cotrustee, if any, to whom subd. 1. g. par. (a) 7. does not apply may convert the trust to a unitrust under par. (a) 1. sub. (1) (a), unless prohibited by the creating instrument, or a court may convert the trust to a unitrust under par. (a) 2. sub. (1) (b) on the petition of a trustee or qualified beneficiary.

SB384,144,16 (5) A trustee may release the power conferred by par. (a) 1. sub. (1) (a) if the trustee is uncertain about whether possessing or exercising the power will cause a result described in par. (d) 1. b. sub. (4) (a) 2. to f. 6. or if the trustee determines that possessing or exercising the power will or may deprive the trust of a tax benefit or impose a tax burden not described in par. (d) 1. sub. (4) (a). The release may be permanent or for a specified period, including a period measured by the life of an individual.

SB384,243 Section 243. 701.20 (4j) of the statutes is renumbered 701.1107, and 701.1107 (1) and (2) (a), (e), (f) 2., (g) and (h), as renumbered, are amended to read:

SB384,144,24 701.1107 (1) In this subsection section, "express unitrust" means any trust that by its governing trust instrument requires the distribution at least annually of a unitrust amount equal to a fixed percentage of the net fair market value of the trust's assets, valued at least annually, other than a trust solely for charitable purposes or a charitable split-interest trust under section 664 (d) or 170 (f) (2) (B) of the Internal Revenue Code.

SB384,145,5 (2) (a) To the extent not otherwise provided for in the governing trust instrument, the unitrust amount of not less than 3 percent nor more than 5 percent may be determined by reference to the net fair market value of the trust's assets averaged over a preceding period determined by the trustee, which is at least 3 years but not more than 5 years.

SB384,145,9 (e) The governing trust instrument may grant discretion to the trustee to adopt a consistent practice of treating capital gains as part of the unitrust distribution, to the extent that the unitrust distribution exceeds the income determined as if the trust were not a unitrust, or it may specify the ordering of such classes of income.

SB384,145,11 (f) 2. Ordinary income for federal income tax purposes that is not net income under subd. 6. a. 1.

SB384,145,15 (g) The trust document instrument may provide that assets used by the trust beneficiary, such as a residence or tangible personal property, may be excluded from the net fair market value for computing the unitrust amount. Such use may be considered equivalent to the income or unitrust amount.

SB384,145,18 (h) In the absence of contrary provisions in the governing document trust instrument of an express unitrust, the provisions of sub. (4g) (c) 1., 4. s. 701.1106 (3) (a), (d), and 5. (e) apply.

SB384,244 Section 244. 701.20 (4k) of the statutes is renumbered 701.1108 and amended to read:

SB384,146,2 701.1108 Power to treat capital gains as part of a distribution. Unless prohibited by the governing instrument will or trust instrument, a trustee fiduciary may cause gains from the sale or exchange of estate or trust assets property, as determined for federal income tax purposes, to be taxed for federal income tax purposes as part of a distribution of income that has been increased by an adjustment from principal to income under sub. (4) s. 701.1104, of a unitrust distribution, of a fixed annuity distribution, or of a principal distribution to a beneficiary.

SB384,245 Section 245. 701.20 (4m) (title) of the statutes is renumbered 701.1109 (title).

SB384,246 Section 246. 701.20 (4m) (a) of the statutes is renumbered 701.1109 (1) and amended to read:

SB384,146,11 701.1109 (1) Nothing in this section subchapter creates a duty to make an adjustment under sub. (4) s. 701.1104 or to convert a trust to a unitrust under sub. (4g) s. 701.1106. Unless it determines that the decision to make an adjustment or to convert to a unitrust was an abuse of the fiduciary's discretion, a court may not grant relief from any decision a fiduciary makes regarding the exercise of a discretionary power conferred by sub. (4) s. 701.1104 or (4g) 701.1106.

SB384,247 Section 247. 701.20 (4m) (am) of the statutes is renumbered 701.1109 (2) and amended to read:

SB384,146,18 701.1109 (2) An action taken under sub. (4) s. 701.1104 or (4g) 701.1106 is not an abuse of a fiduciary's discretion if the fiduciary gave written notice of the proposed action under sub. (4c) s. 701.1105 and did not receive a timely written objection to the notice. It is not an abuse of discretion not to exercise the power to adjust under sub. (4) s. 701.1104 or to convert under sub. (4g) s. 701.1106.

SB384,248 Section 248. 701.20 (4m) (b) of the statutes is renumbered 701.1109 (3).

SB384,249 Section 249. 701.20 (4m) (c) of the statutes is renumbered 701.1109 (4), and 701.1109 (4) (c), as renumbered, is amended to read:

SB384,147,2 701.1109 (4) (c) To the extent that the court is unable, after applying subds. 1. pars. (a) and 2. (b), to place the beneficiaries, the trust, or both in the positions that they would have occupied had the discretion not been abused, the court may order the fiduciary to pay an appropriate amount from its own funds to one or more of the beneficiaries, the trust, or both.

SB384,250 Section 250. 701.20 (4m) (d) of the statutes is renumbered 701.1109 (5).

SB384,251 Section 251. 701.20 (5) of the statutes is renumbered 701.1110, and 701.1110 (1), (2) (intro.), (3), (4) and (5), as renumbered, are amended to read:

SB384,147,11 701.1110 (1) A fiduciary of an estate or of a terminating income interest shall determine the amount of net income and net principal receipts received from property specifically given to a beneficiary under the rules in subs. (7) ss. 701.1112 to (30) 701.1135 that apply to trustees and the rules in par. (e) sub. (5). The fiduciary shall distribute the net income and net principal receipts to the beneficiary who is to receive the specific property.

SB384,147,14 (2) (intro.) A fiduciary shall determine the remaining net income of a decedent's estate or a terminating income interest under the rules in subs. (7) ss. 701.1112 to (30) 701.1135 that apply to trustees and by:

SB384,147,24 (3) A fiduciary shall distribute to a beneficiary, including a trustee, who receives a pecuniary amount not determined by a pecuniary formula related to a transfer tax interest at the legal rate set forth in s. 138.04 on any unpaid portion of the pecuniary amount for the period commencing one year after the decedent's death or after the income interest in the trust ends. The interest under this paragraph subsection shall be distributed from net income determined under par. (b) sub. (2) or from principal to the extent that net income is insufficient. For purposes of this paragraph subsection, the deferred marital property elective share amount elected by a surviving spouse under s. 861.02 (1) is a bequest of a specific pecuniary amount of money not determined by a pecuniary formula related to a transfer tax.

SB384,148,4 (4) A fiduciary shall distribute the net income remaining after distributions required by par. (c) under subs. (1) to (3) in the manner described in sub. (6) s. 701.1111 to all other beneficiaries, including a beneficiary who receives a pecuniary amount determined by a pecuniary formula related to a transfer tax.

SB384,148,16 (5) A fiduciary may not reduce principal or income receipts from property described in par. (a) sub. (1) because of a payment described in sub. (25) s. 701.1130 or (26) 701.1131 to the extent that the will, the terms of the trust, or applicable law requires the fiduciary to make the payment from assets other than the property or to the extent that the fiduciary recovers or expects to recover the payment from a 3rd party. The net income and principal receipts from the property are determined by including all of the amounts the fiduciary receives or pays with respect to the property, whether those amounts accrued or became due before, on, or after the date of a decedent's death or an income interest's terminating event, and by making a reasonable provision for amounts that the fiduciary believes the estate or terminating income interest may become obligated to pay after the property is distributed.

SB384,252 Section 252. 701.20 (6) of the statutes is renumbered 701.1111, and 701.1111 (1), (2) (d) and (4), as renumbered, are amended to read:

SB384,149,2 701.1111 (1) Each beneficiary described in sub. (5) (d) s. 701.1110 (4) is entitled to receive a portion of the net income equal to the beneficiary's fractional interest in undistributed principal assets, using values as of the distribution date. If a fiduciary makes more than one distribution of assets to beneficiaries to whom this subsection section applies, each beneficiary, including one who does not receive part of the distribution, is entitled, as of each distribution date, to the net income the fiduciary has received after the date of death or terminating event or earlier distribution date but has not distributed as of the current distribution date.

SB384,149,5 (2) (d) The distribution date for purposes of this subsection section may be the date as of which the fiduciary calculates the value of the assets if that date is reasonably near the date on which assets are actually distributed.

SB384,149,9 (4) A trustee may apply the rules in this subsection section, to the extent that the trustee considers it appropriate, to net gain or loss realized after the date of death or terminating event or earlier distribution date from the disposition of a principal asset if this subsection section applies to the income from the asset.

SB384,253 Section 253. 701.20 (7) of the statutes is renumbered 701.1112, and 701.1112 (3), as renumbered, is amended to read:

SB384,149,15 701.1112 (3) An asset becomes subject to a successive income interest on the day after the preceding income interest ends, as determined under par. (d) sub. (4), even if there is an intervening period of administration to wind up the preceding income interest.