2013 Wisconsin Act 92

701.0302 Representation by holder of general power of appointment. To the extent there is no conflict of interest between a holder of a general power of appointment and a person represented with respect to the particular question or dispute, the holder may represent and bind the person whose interests, as a permissible appointee, a taker in default, or otherwise, are subject to the power.

92,70 Section 70. 701.0303 of the statutes is created to read:

701.0303 Representation by fiduciaries, parents, or a person appointed by a trustee. Except as provided in s. 701.0411, to the extent there is no conflict of interest between a representative and the person represented or among those being represented with respect to a particular question or dispute, all of the following apply:

(1) A conservator may represent and bind the estate that the conservator controls.

(2) Notwithstanding ss. 54.20 (2) and 54.25 (2), a guardian of the estate may represent and bind the ward and a guardian of the person may represent and bind the ward if a guardian of the estate of the ward has not been appointed.

(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.

(4) A trustee may represent and bind the beneficiaries of the trust, except as to matters relating to the administration or distribution of the trust.

(5) A personal representative of a decedent's estate may represent and bind a person interested in the estate, except as to matters relating to the administration or distribution of the estate.

(6) A parent may represent and bind the parent's minor or unborn child. If a disagreement arises between parents seeking to represent the same minor child or unborn child, representation is determined as follows:

(a) If only one parent is a beneficiary of the trust that is the subject of the representation, that parent may represent the minor child or unborn child.

(b) If both parents are beneficiaries of the trust that is the subject of the representation, the parent who is related to the settlor, other than by reason of being married to the other parent, may represent the minor child or unborn child.

(c) Subject to s. 701.0301 (4), if neither parent is a beneficiary of the trust that is the subject of the representation, the parent who is the settlor of the trust that is the subject of the representation may represent the minor child or unborn child.

(d) If neither parent is a beneficiary or settlor of the trust that is the subject of the representation, the parent who is related to the settlor, other than by reason of being married to the other parent, may represent the minor child or unborn child.

(7) The order in which the representatives are listed in subs. (1) to (6) sets forth the priority that each such representative has relative to the others.

(8) If there is no representation by a person having a substantially identical interest under s. 710.0304, the trustee may appoint a representative to act if any of the following applies:

(a) There is no one permitted to act under subs. (1) to (6).

(b) All of the people entitled to act under subs. (1) to (6) have declined to act.

(c) The trustee determines that the otherwise available representation under subs. (1) to (6) might be inadequate.

92,71 Section 71. 701.0304 of the statutes is created to read:

701.0304 Representation by person having substantially identical interest. Unless otherwise represented with respect to a particular question or dispute, a minor, incapacitated, or unborn individual or a person whose identity or location is unknown and not reasonably ascertainable may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to the particular question or dispute.

92,72 Section 72. 701.0305 of the statutes is created to read:

701.0305 Appointment of representative by a court. (1) If the court determines that an interest is not represented under this subchapter, or that the otherwise available representation might be inadequate, the court may appoint a representative or guardian ad litem to receive notice, give consent, and otherwise represent, bind, and act on behalf of the person who is not represented or whose representation might be inadequate. A representative or guardian ad litem may be appointed to represent several persons or interests.

(2) A representative or guardian ad litem may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.

(3) In making decisions, a representative or guardian ad litem may consider any general benefit accruing to the living members of the individual's family.

92,73 Section 73. 701.04 of the statutes is repealed.

92,74 Section 74. Subchapter IV (title) of chapter 701 [precedes 701.0401] of the statutes is created to read:

chapter 701

subchapter IV

creation, validity,
modification, and termination
of trust

92,75 Section 75. 701.0401 of the statutes is created to read:

701.0401 Methods of creating a trust. A trust may be created by any of the following:

(1) A transfer of property to another person as trustee during the settlor's lifetime, by will, or by other disposition taking effect upon the settlor's death.

(2) A declaration by an owner of property that the owner holds identifiable property as trustee or declaration by any person who intends to create a trust with the expectation that property of the person or others will be transferred to the trust.

(3) An exercise of a power of appointment in favor of a trustee.

(4) A court pursuant to its statutory or equitable powers.

(5) A guardian of the estate or conservator acting with authority of the court, a representative payee, or an agent under a power of attorney that expressly grants authority to create the trust.

(6) Any other manner authorized by statute, regulation, common law, or other provision having the effect of law.

92,76 Section 76. 701.0402 of the statutes is created to read:

701.0402 Requirements for creation. (1) A trust is created only if all of the following are satisfied:

(a) The settlor of the trust has capacity, as defined in sub. (4), to create the trust, unless the trust is created by court order or by an agent, guardian of the estate, conservator, or representative payee with authority to act.

(b) The settlor indicates an intention to create the trust; or a statute, regulation, common law, other provision having the effect of law, judgment, or decree creates or authorizes the creation of a trust.

(c) The trust has a definite beneficiary or is one of the following:

1. A charitable trust.

2. A trust for the care of an animal, as provided in s. 701.0408.

3. A trust for a noncharitable purpose, as provided in s. 701.0409.

(d) The trustee has duties to perform.

(e) The same person is not the sole trustee and sole beneficiary.

(2) A beneficiary is definite if the beneficiary can be ascertained at the time the trust is created or in the future.

(3) A power in a trustee or trust protector to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

(4) The capacity required to create a trust is the same as the capacity to make a will.

92,77 Section 77. 701.0403 of the statutes is created to read:

701.0403 Trusts created in other jurisdictions. A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation, any of the following was satisfied:

(1) The settlor was domiciled, had a place of abode, or was a national.

(2) A trustee was domiciled or had a place of business.

(3) Any trust property was located.

92,78 Section 78. 701.0404 of the statutes is created to read:

701.0404 Trust purposes. A trust may be created only to the extent its purposes are lawful and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries or for a noncharitable, but otherwise valid, purpose as described in s. 701.0409.

92,79 Section 79. 701.0405 of the statutes is created to read:

701.0405 Charitable purposes; enforcement.   (1) A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health or governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.

(2) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, or designate persons or procedures for selecting charitable purposes or beneficiaries, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent it can be ascertained.

  (3) The settlor of a charitable trust or his or her designees, whether identified within or without the terms of the trust, or a charitable entity named in the trust instrument, or the attorney general, or a cotrustee, or such other person the court determines to have sufficient interest may maintain a proceeding to enforce the trust.

92,80 Section 80. 701.0406 of the statutes is created to read:

701.0406 Creation of trust induced by fraud, duress, or undue influence. A trust is void to the extent its creation was induced by fraud, duress, or undue influence.

92,81 Section 81. 701.0407 of the statutes is created to read:

701.0407 Evidence of oral trust. Except as required by a statute other than this chapter, a trust does not need to be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.

92,82 Section 82. 701.0408 of the statutes is created to read:

701.0408 Trust for care of animal. (1) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

(2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed under this subsection.

(3) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

92,83 Section 83. 701.0409 of the statutes is created to read:

701.0409 Noncharitable trust without ascertainable beneficiary. Except as otherwise provided in s. 701.0408 or by another statute, the following rules apply:

(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee.

(2) A trust may be created for maintaining, keeping in repair, and preserving any grave, tomb, monument, gravestone, or any cemetery. Any cemetery authority under s. 157.061 (2) may receive property in trust for any of the purposes specified in this subsection and apply the income from the trust to the purpose stated in the trust instrument.

(3) A trust authorized by this section may be enforced by a trust protector with the power to enforce the trust. If there is not a trust protector with the power to enforce the trust, a court may appoint a trust protector with the power to enforce the trust under s. 701.0818.

(4) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Property not required for the intended use must be distributed to the settlor, if then living, otherwise to the settlor's successors in interest.

92,84 Section 84. 701.0410 of the statutes is created to read:

701.0410 Modification or termination of trust; proceedings for approval or disapproval. (1) In addition to the methods of termination prescribed by ss. 701.0411 to 701.0414, a trust terminates to the extent the trust is revoked or expires pursuant to its terms, no purpose of the trust remains to be achieved, or the purposes of the trust have become unlawful or impossible to achieve.

(2) A proceeding to approve or disapprove a proposed modification or termination under ss. 701.0411 to 701.0416, or a proposed trust combination or division under s. 701.0417, may be commenced by a trustee or beneficiary, and a proceeding to approve or disapprove a proposed modification or termination under s. 701.0411 may be commenced by the settlor. The settlor of a charitable trust may maintain a proceeding to modify the trust under s. 701.0413. A trustee does not have standing to oppose a proposed modification or termination commenced under s. 701.0411 (1).

(3) A trustee may not be compelled by a modification or termination under this section or under ss. 701.0411 to 701.0416 to make distributions to or for any beneficiary of a trust for an individual with a disability or to terminate the trust, during the lifetime of the individual with a disability. A court may modify the terms of a trust for an individual with a disability with retroactive effect or reform the terms of such trust to achieve the settlor's objective or, if because of circumstances not anticipated by the settlor, to otherwise further the purposes of the trust so that it does not result in trust property being countable as resources or income of the individual with a disability for purposes of public assistance.

92,85 Section 85. 701.0411 of the statutes is created to read:

701.0411 Modification or termination of noncharitable irrevocable trust by consent. (1) A noncharitable irrevocable trust may be modified or terminated, with or without court approval, upon consent of the settlor and all beneficiaries, even if the modification or termination is inconsistent with a material purpose of the trust. A settlor's power to consent to a trust's modification or termination may be exercised by a representative under s. 701.0303 only if the representative is specifically authorized to consent to a trust's modification or termination under a power of attorney, the terms of the trust, or by a court under a guardianship or conservatorship.

(2) (a) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust.

(b) A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

(3) A spendthrift provision in the terms of the trust is not presumed to constitute a material purpose of the trust.

(4) A court may not compel a beneficiary to consent to a modification or termination to satisfy a creditor of the beneficiary.

(5) Upon termination of a trust under sub. (1) or (2), the trustee shall distribute the trust property as agreed by the beneficiaries.

(6) If not all of the beneficiaries consent to a proposed modification or termination of the trust under sub. (1) or (2), the modification or termination may be approved by the court if the court is satisfied that all of the following apply:

(a) If all of the beneficiaries had consented, the trust could have been modified or terminated under this section.

(b) The interests of a beneficiary who does not consent will be adequately protected.