2013 Wisconsin Act 92

1. With respect to payments received from a plan that maintains separate accounts or funds for its participants or account holders, such as defined contribution retirement plans, individual retirement accounts, Roth individual retirement accounts, and some types of deferred compensation plans, either the amount of the plan separate account or fund held for the benefit of the trust that, if the plan separate account or fund were a trust, would be allocated to income under pars. (b) and (d) for that accounting period, or 4 percent of the value of the plan account or fund on the first day of the accounting period. The trustee shall, in his or her discretion, choose the method of determining "plan income" under this subd. 1. a. subdivision, and may change the method of determining "plan income" under this subd. 1. a. subdivision for any subsequent accounting period.

2. With respect to payments received from a plan that does not maintain separate accounts or funds for its participants or account holders, such as defined benefit retirement plans and some types of deferred compensation plans, 4 percent of the total present value of the trust's interest in the plan as of the first day of the accounting period, based on reasonable actuarial assumptions as determined by the trustee.

92,268 Section 268. 701.20 (18) (c) 2. of the statutes is renumbered 701.1123 (3) and amended to read:

701.1123 (3) For each accounting period of a trust in which the trust receives a payment but no part of any payment is allocated to income under par. (b) sub. (2), the trustee shall allocate to income that portion of the aggregate value of all payments received by the trustee in that accounting period that is equal to the amount of plan income that is attributable to the trust's interest in the plan from which payment is received for that accounting period. The trustee shall allocate the balance of any payments to principal.

92,269 Section 269. 701.20 (18) (d) of the statutes is renumbered 701.1123 (5) and amended to read:

701.1123 (5) If, to obtain an estate or gift tax marital deduction for an interest in a trust, a trustee must allocate more of a payment to income than provided for by this subsection section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction.

92,270 Section 270. 701.20 (18) (e) of the statutes is renumbered 701.1123 (6) and amended to read:

701.1123 (6) This subsection section does not apply to payments a payment to which sub. (19) s. 701.1124 applies.

92,271 Section 271. 701.20 (19) of the statutes is renumbered 701.1124, and 701.1124 (1), as renumbered, is amended to read:

701.1124 (1) In this subsection section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to sub. (18) s. 701.1123, resources subject to sub. (20) s. 701.1125, timber subject to sub. (21) s. 701.1126, an activity subject to sub. (23) s. 701.1128, an asset subject to sub. (24) s. 701.1129, or any asset for which the trustee establishes a reserve for depreciation under sub. (27) s. 701.1132.

92,272 Section 272. 701.20 (20) of the statutes is renumbered 701.1125, and 701.1125 (1) (intro.) and (d), (3) and (4), as renumbered, are amended to read:

701.1125 (1) (intro.) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources in accordance with this subsection section, the trustee shall allocate them as follows:

(d) If an amount is received from a working interest or any other interest not provided for in subd. 1., 2. par. (a), (b), or 3. (c), 90 percent of the net amount received must be allocated to principal and the balance to income.

(3) This subsection section applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.

(4) If a trust owns an interest in minerals, water, or other natural resources on May 17, 2005, the trustee may allocate receipts from the interest as provided in this subsection section or in the manner used by the trustee before May 17, 2005. If the trust acquires an interest in minerals, water, or other natural resources after May 17, 2005, the trustee shall allocate receipts from the interest as provided in this subsection section.

92,273 Section 273. 701.20 (21) (title) of the statutes is repealed.

92,274 Section 274. 701.20 (21) of the statutes is renumbered 701.1126, and 701.1126 (1) (intro.), (c) and (d), (2), (3) and (4), as renumbered, are amended to read:

701.1126 (1) (intro.) To the extent that a trustee accounts for receipts from the sale of timber and related products in accordance with this subsection section, the trustee shall allocate the net receipts:

(c) To income or principal or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in subds. 1. pars. (a) and 2. (b).

(d) To principal to the extent that advance payments, bonuses, and other payments are not allocated under subd. 1., 2. par. (a), (b), or 3. (c).

(2) In determining net receipts to be allocated under par. (a) sub. (1), a trustee shall deduct and transfer to principal a reasonable amount for depletion.

(3) This subsection section applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.

(4) If a trust owns an interest in timberland on May 17, 2005, the trustee may allocate net receipts from the sale of timber and related products as provided in this subsection section or in the manner used by the trustee before May 17, 2005. If the trust acquires an interest in timberland after May 17, 2005, the trustee shall allocate net receipts from the sale of timber and related products as provided in this subsection section.

92,275 Section 275. 701.20 (22) of the statutes is renumbered 701.1127 and amended to read:

701.1127 Property not productive of income. (1) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the surviving spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under sub. (4) s. 701.1104 and distributes to the spouse from principal in accordance with the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by sub. (4) (a) s. 701.1104 (1). The trustee may decide which action or combination of actions to take.

(2) In cases not governed by par. (a) sub. (1), proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

92,276 Section 276. 701.20 (23) of the statutes is renumbered 701.1128, and 701.1128 (1) and (2), as renumbered, are amended to read:

701.1128 (1) In this subsection section, "derivative" means a contract or financial instrument or a combination of contracts and financial instruments that gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or another market indicator for an asset or a group of assets.

(2) To the extent that a trustee does not account under sub. (12) s. 701.1117 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.

92,277 Section 277. 701.20 (24) of the statutes is renumbered 701.1129, and 701.1129 (1), as renumbered, is amended to read:

701.1129 (1) In this subsection section, "asset-backed security" means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which sub. (10) s. 701.1115 or (18) 701.1123 applies.

92,278 Section 278. 701.20 (25) of the statutes is renumbered 701.1130, and 701.1130 (intro.), as renumbered, is amended to read:

701.1130 Disbursements from income. (intro.) A trustee shall make the following disbursements from income to the extent that they are not disbursements specified in sub. (5) (b) 2. s. 701.1110 (2) (b) or 3. (c):

92,279 Section 279. 701.20 (26) of the statutes is renumbered 701.1131, and 701.1131 (1) (a), (e) and (g), as renumbered, are amended to read:

701.1131 (1) (a) The remaining one-half of the disbursements described in sub. (25) (a) s. 701.1130 (1) and (b) (2).

(e) Premiums paid on a policy of insurance not described in sub. (25) (d) s. 701.1130 (4) of which the trust is the owner and beneficiary.

(g) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental laws or regulations law and other payments made to comply with those laws or regulations environmental law, statutory or common law claims by 3rd parties, and defending claims based on environmental matters.

92,280 Section 280. 701.20 (27) of the statutes is renumbered 701.1132, and 701.1132 (1) and (2) (c), as renumbered, are amended to read:

701.1132 (1) In this subsection section, "depreciation" means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.

(2) (c) Under this subsection section if the trustee is accounting under sub. (12) s. 701.1117 for the business or activity in which the asset is used.

92,281 Section 281. 701.20 (28) of the statutes is renumbered 701.1133, and 701.1133 (1), (2) (intro.) and (e) and (3), as renumbered, are amended to read:

701.1133 (1) If a trustee makes or expects to make a principal disbursement described in this subsection section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.

(2) (intro.) Principal disbursements to which par. (a) sub. (1) applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a 3rd party:

(e) Disbursements described in sub. (26) (a) 7. s. 701.1131 (1) (g).

(3) If the asset whose ownership gives rise to the disbursements becomes subject to a successive income interest after an income interest ends, a trustee may continue to transfer amounts from income to principal as provided in par. (a) sub. (1).

92,282 Section 282. 701.20 (29) (title) of the statutes is renumbered 701.1134 (title).

92,283 Section 283. 701.20 (29) (a) of the statutes is renumbered 701.1134 (1).

92,284 Section 284. 701.20 (29) (b) of the statutes is renumbered 701.1134 (2).

92,285 Section 285. 701.20 (29) (c) (intro.) of the statutes is renumbered 701.1134 (3) (intro.) and amended to read:

701.1134 (3) (intro.) A tax required to be paid by a trustee on the trust's share of an entity's taxable income must be paid proportionately as follows:

92,286 Section 286. 701.20 (29) (c) 1. of the statutes is renumbered 701.1134 (3) (a) and amended to read:

701.1134 (3) (a) From income to the extent that receipts from the entity are allocated only to income.

92,287 Section 287. 701.20 (29) (c) 2. (intro.) and a. of the statutes are consolidated, renumbered 701.1134 (3) (b) and amended to read:

701.1134 (3) (b) From principal to the extent that : 2. a. Receipts receipts from the entity are allocated only to principal.

92,288 Section 288. 701.20 (29) (c) 2. b. of the statutes is repealed.

92,289 Section 289. 701.20 (29) (d) of the statutes is repealed.

92,290 Section 290. 701.20 (30) of the statutes is renumbered 701.1135, and 701.1135 (1) (a), as renumbered, is amended to read:

701.1135 (1) (a) Elections and decisions, other than those described in par. (b) sub. (2), that the fiduciary makes from time to time regarding tax matters.

92,291 Section 291. 701.20 (31) of the statutes is repealed.

92,292 Section 292. 701.21 of the statutes is renumbered 701.1136, and 701.1136 (1), (2) and (4), as renumbered, are amended to read:

701.1136 (1) Distribution of income. Except as otherwise determined by the trustee or a court under s. 701.20 (4g) 701.1106 with respect to unitrust distributions, if a beneficiary is entitled to receive income from a trust, but the creating trust instrument fails to specify how frequently it is to be paid, the trustee shall distribute at least annually the income to which such beneficiary is entitled.

(2) Permitted accumulations. No provision directing or authorizing accumulation of trust income shall be is invalid.

(4) Disposition of accumulated income. Income not required to be distributed by the creating trust instrument, in the absence of a governing provision in the instrument, may, in the trustee's discretion, be held in reserve for future distribution as income or be added to principal subject to retransfer to income of the dollar amount originally transferred to principal; but at. At the termination of the income interest, any undistributed income shall be distributed as principal.

92,293 Section 293. 701.22 (title) of the statutes is repealed.

92,294 Section 294. 701.22 of the statutes is renumbered 701.0417 (4) and amended to read:

701.0417 (4) In case of a division of a trust assets into 2 or more trusts or shares, any distribution or allocation of assets as an equivalent of a dollar amount fixed by formula or otherwise shall be made at current fair market values unless the governing trust instrument expressly provided that another value may be used. If the governing trust instrument requires or permits a different value to be used, all assets property available for distribution, including cash, shall, unless otherwise expressly provided, be so distributed so that the assets property, including cash, distributed as such an equivalent will be is fairly representative of the net appreciation or depreciation in the value of the available property on the date or dates of distribution. A provision in the governing trust instrument that the trustee may fix values for purposes of distribution or allocation does not of itself constitute authorization to fix a value other than current fair market value.

92,295 Section 295. 701.23 of the statutes is repealed.

92,296 Section 296. 701.24 (title) of the statutes is renumbered 701.1205 (title).

92,297 Section 297. 701.24 (1) of the statutes is renumbered 701.1205 (1) and amended to read:

701.1205 (1) Except as otherwise provided in sub. (3) (2) and s. 701.19 (9) (a), ss. 701.01 to 701.19, 701.21, 701.22, and 701.23 are ss. 701.0602, 701.0813, and 701.0903 (4), this chapter is applicable to a trust existing on July 1, 1971 the effective date of this subsection .... [LRB inserts date], as well as a trust created after such date, and shall govern trustees acting under such trusts. If application of any provision of ss. 701.01 to 701.19, 701.21, 701.22, and 701.23 this chapter to a trust in existence on August 1, 1971 the effective date of this subsection .... [LRB inserts date], is unconstitutional, it shall not affect application of the provision to a trust created after that date.

92,298 Section 298. 701.24 (2) of the statutes is renumbered 701.1205 (2) and amended to read:

701.1205 (2) Section 701.20 Subchapter XI of this chapter applies to every a trust or decedent's estate existing on May 17, 2005 the effective date of this subsection .... [LRB inserts date], and to every a trust or decedent's estate created or coming into existence after that date, except as otherwise expressly provided in s. 701.20 subch. XI or by the decedent's will or the terms of the trust. With respect to a trust or decedent's estate existing on May 17, 2005, s. 701.20 (5) to (30) the effective date of this subsection .... [LRB inserts date], ss. 701.1110 to 701.1135 shall apply at the beginning of the trust's or estate's first accounting period, as defined in s. 701.20 701.1125 (2) (a), that begins on or after May 17, 2005 the effective date of this subsection .... [LRB inserts date].

92,299 Section 299. 701.24 (3) of the statutes is repealed.

92,300 Section 300. 701.25 of the statutes is renumbered 701.1204.

92,301 Section 301. 701.26 of the statutes is repealed.

92,302 Section 302. 702.01 (intro.) of the statutes is renumbered 702.02 (intro.).

92,303 Section 303. 702.01 (1) of the statutes is renumbered 702.02 (2) and amended to read:

702.02 (2) "Creating instrument" means the will, trust agreement, or other document which creates or reserves the power of appointment.

92,304 Section 304. 702.01 (2) of the statutes is renumbered 702.02 (4) and amended to read:

702.02 (4) "Donor" means the person who creates or reserves the power; "donee" means the person in whom the power is created or reserved; and "appointee" means the person to whom an interest is appointed of appointment.

92,305 Section 305. 702.01 (3) of the statutes is renumbered 702.02 (5) and amended to read:

702.02 (5) "General power of appointment" means a power exercisable in favor of the donee, the donee's estate, the donee's creditors, or the creditors of the donee's estate, whether or not it is also exercisable in favor of others. A power to appoint to any person or a power which of appointment that is not expressly restricted as to appointees may be exercised in favor of the donee or the donee's creditors if exercisable during lifetime, and in favor of the donee's estate or the creditors of the donee's estate if exercisable by will.

92,306 Section 306. 702.01 (4) of the statutes is renumbered 702.02 (6) and amended to read:

702.02 (6) "Power of appointment" means a power of appointment over to appoint legal or equitable interests in real or personal property. A power of appointment is a power created or reserved by a person having property subject to his or her disposition which enables the donee of the power of appointment to designate, within such limits as may be prescribed, the transferees of the property or the shares or the interests in which it shall be received; it. A power of appointment does not include a power of sale, a power of attorney, a power of revocation, or a power exercisable by a trustee or other, a directing party, as defined in s. 701.0103 (7), another fiduciary in his or her fiduciary capacity, or a trust protector, as defined in s. 701.0103 (31).

92,307 Section 307. 702.01 (5) of the statutes is renumbered 702.02 (7) and amended to read:

702.02 (7) "Special power of appointment" means a power of appointment exercisable only in favor of one or more persons not including the donee, the donee's estate, the donee's creditors or the creditors of the donee's estate and, when exercisable in favor of a class, so limited in size by description of the class that in the event of nonexercise of the power a court can make distribution to persons within the class if the donor has failed to provide for this contingency that is not a general power of appointment.

92,308 Section 308. 702.01 (6) of the statutes is repealed.

92,309 Section 309. 702.02 (1) of the statutes is created to read:

702.02 (1) "Appointee" means the person to whom an interest is appointed.