AB645: Bill Text

AB645, s. 154 Section 154. 853.33 of the statutes is repealed and recreated to read:

AB645,43,5 853.33 Gift of securities. Section 854.11 governs gifts of securities under a will.

AB645, s. 155 Section 155. 853.35 of the statutes is repealed and recreated to read:

AB645,43,9 853.35 Nonademption of specific gifts in certain instances. The rights of a beneficiary with respect to a specific gift that is destroyed, damaged, sold or condemned before the testator's death are governed by s. 854.08.

AB645, s. 156 Section 156. 853.40 of the statutes is repealed and recreated to read:

AB645,43,12 853.40 Disclaimer. A person to whom property would otherwise pass under a will may disclaim all or part of the property as provided in s. 854.13.

AB645, s. 157 Section 157. 853.41 of the statutes is created to read:

AB645,43,16 853.41 Applicability of general transfers at death provisions. Chapter 854 applies to transfers under wills, including transfers under a Wisconsin basic will or basic will with trust.

AB645, s. 158 Section 158. Subchapter II (title) of chapter 853 [precedes 853.50] of the statutes is created to read:

AB645,43,19 Chapter 853

AB645,43,21 Subchapter II Wisconsin basic wills

AB645, s. 159 Section 159. 853.50 (1) of the statutes is amended to read:

AB645,43,25 853.50 (1) "By right of representation" means that the issue of a deceased person inherit the share of an estate that their immediate ancestor would have inherited, if living according to the method specified in s. 854.04 (1).

AB645, s. 160 Section 160. 853.50 (3) of the statutes is amended to read:

AB645,44,5 853.50 (3) "Issue" means children, grandchildren, great-grandchildren, and lineal descendants of more remote degrees, including those who occupy that relation by reason of adoption under s. 851.51 854.20 and nonmarital children who are not legitimate and their lineal descendants to the extent provided by s. 852.05.

AB645, s. 161 Section 161. 853.51 (2) of the statutes is repealed and recreated to read:

AB645,44,7 853.51 (2) The witnesses shall comply with s. 853.03 (2).

AB645, s. 162 Section 162. 853.55 (Article 3) 3.3. of the statutes is repealed and recreated to read:

AB645,44,10 853.55 (Article 3) 3.3. BOND.

AB645,44,14 My signature in this box means I request that a bond, as set by law, be required for each individual personal representative or guardian named in this will. IF I DO NOT SIGN IN THIS BOX, I REQUEST THAT A BOND NOT BE REQUIRED FOR ANY OF THOSE PERSONS.

AB645,44,16 I sign my name to this Wisconsin Basic Will on ....... (date), at ........ (city), ........ (state).

AB645,44,17 Signature of Testator

AB645,44,19 STATEMENT OF WITNESSES (You must use two witnesses, who should be adults.)

AB645,44,23 I declare that the testator signed the will in front of me, acknowledged to me that this document was his or her will or acknowledged to me that the signature above is his or her signature. The testator appears to me to be of sound mind and not under undue influence.

AB645,44,24 Signature Residence Address:

AB645,44,25 Print Name

AB645,45,1 Here: Date Signed:

AB645,45,5 I declare that the testator signed the will in front of me, acknowledged to me that this document was his or her will or acknowledged to me that the signature above is his or her signature. The testator appears to me to be of sound mind and not under undue influence.

AB645,45,6 Signature Residence Address:

AB645,45,7 Print Name

AB645,45,8 Here: Date Signed:

AB645, s. 163 Section 163. 853.55 (NOTICE) 6. of the statutes is amended to read:

AB645,45,15 853.55 (NOTICE) 6. THE WITNESSES TO THIS WILL SHOULD NOT BE PEOPLE WHO MAY RECEIVE PROPERTY UNDER THIS WILL. YOU SHOULD READ AND CAREFULLY FOLLOW THE WITNESSING PROCEDURE DESCRIBED AT THE END OF THIS WILL. ALL OF THE WITNESSES MUST WATCH YOU SIGN THIS WILL. EACH WITNESS MUST SIGN HIS OR HER NAME WITH YOU AND THE OTHER WITNESS PRESENT.

AB645, s. 164 Section 164. 853.56 (Article 3) 3.4. of the statutes is repealed and recreated to read:

AB645,45,18 853.56 (Article 3) 3.4. BOND.

AB645,45,22 My signature in this box means I request that a bond, as set by law, be required for each individual personal representative, trustee or guardian named in this will. IF I DO NOT SIGN IN THIS BOX, I REQUEST THAT A BOND NOT BE REQUIRED FOR ANY OF THOSE PERSONS.

AB645,45,24 I sign my name to this Wisconsin Basic Will With Trust on ... (date), at..(city),.. (state).

AB645,45,25 Signature of Testator

AB645,46,2 STATEMENT OF WITNESSES (You must use two witnesses, who should be adults.)

AB645,46,6 I declare that the testator signed the will in front of me, acknowledged to me that this document was his or her will or acknowledged to me that the signature above is his or her signature. The testator appears to me to be of sound mind and not under undue influence.

AB645,46,7 Signature Residence Address:

AB645,46,8 Print Name

AB645,46,9 Here: Date Signed:

AB645,46,13 I declare that the testator signed the will in front of me, acknowledged to me that this document was his or her will or acknowledged to me that the signature above is his or her signature. The testator appears to me to be of sound mind and not under undue influence.

AB645,46,14 Signature Residence Address:

AB645,46,15 Print Name

AB645,46,16 Here: Date Signed:

AB645, s. 165 Section 165. 853.56 (NOTICE) 7. of the statutes is amended to read:

AB645,46,23 853.56 (NOTICE) 7. THE WITNESSES TO THIS WILL SHOULD NOT BE PEOPLE WHO MAY RECEIVE PROPERTY UNDER THIS WILL. YOU SHOULD READ AND CAREFULLY FOLLOW THE WITNESSING PROCEDURE DESCRIBED AT THE END OF THIS WILL. ALL OF THE WITNESSES MUST WATCH YOU SIGN THIS WILL. EACH WITNESS MUST SIGN HIS OR HER NAME WITH YOU AND THE OTHER WITNESS PRESENT.

AB645, s. 166 Section 166. 853.59 (form) (a) of the statutes is amended to read:

AB645,47,5 853.59 (form) (a) TO MY SPOUSE IF LIVING; IF NOT LIVING, THEN IN ONE TRUST TO PROVIDE FOR THE SUPPORT AND EDUCATION OF MY CHILDREN AND THE DESCENDANTS OF ANY DECEASED CHILD BY RIGHT OF REPRESENTATION UNTIL I HAVE NO LIVING CHILD UNDER 21 YEARS OF AGE.

AB645, s. 167 Section 167. 853.59 (form) (2) (a) of the statute is amended to read:

AB645,47,20 853.59 (form) (2) (a) As long as any child of mine under 21 years of age is living, the trustee shall distribute from time to time to or for the benefit of any one or more of my children and the descendants of any deceased child (the beneficiaries) by right of representation of any age as much, or all, of the principal or net income of the trust or both, as the trustee deems necessary for their health, support, maintenance and education. Any undistributed income shall be accumulated and added to the principal. "Education" includes, but is not limited to, college, vocational and other studies after high school, and reasonably related living expenses. Consistent with the trustee's fiduciary duties, the trustee may distribute trust income or principal in equal or unequal shares and to any one or more of the beneficiaries to the exclusion of other beneficiaries. In deciding on distributions, the trustee may take into account the beneficiaries' other income, outside resources or sources of support, including the capacity for gainful employment of a beneficiary who has completed his or her education.

AB645, s. 168 Section 168. Chapter 854 of the statutes is created to read:

AB645,47,24 Chapter 854 transfers at death — General rules

AB645,48,7 854.01 Definition. In this chapter, "governing instrument" means a will; a deed; a trust instrument; an insurance or annuity policy; a contract; a pension, profit-sharing, retirement or similar benefit plan; a marital property agreement under s. 766.58 (3) (f); a beneficiary designation under s. 40.02 (8) (a); an instrument under ch. 705; an instrument that creates or exercises a power of appointment or any other dispositive, appointive or nominative instrument that transfers property at death.

AB645,48,9 854.02 Scope. This chapter applies to all statutes and governing instruments that transfer property at death.

AB645,48,15 854.03 Requirement of survival by 120 hours. (1) Requirement of survival. Except as provided in sub. (5), if property is transferred to an individual under a statute or under a provision in a governing instrument that requires the individual to survive an event and it is not established that the individual survived the event by at least 120 hours, the individual is considered to have predeceased the event.

AB645,48,20 (2) Coowners with right of survivorship. (a) In this subsection, "coowners with right of survivorship" includes joint tenants, owners of survivorship marital property and other coowners of property or accounts that are held under circumstances that entitle one or more persons to all of the property or account upon the death of one or more of the others.

AB645,48,25 (b) Except as provided in sub. (5), if property is transferred under a governing instrument that establishes 2 or more coowners with survivorship, and if it is not established that at least one of the coowners survived the others by at least 120 hours, the property is transferred to the coowners in proportion to their ownership interests.

AB645,49,6 (3) Marital property. Except as provided in subs. (4) and (5), if a husband and wife die leaving marital property and it is not established that one survived the other by at least 120 hours, 50% of the marital property shall be distributed as if it were the husband's individual property and the husband had survived, and 50% of the marital property shall be distributed as if it were the wife's individual property and the wife had survived.

AB645,49,14 (4) Life insurance. Except as provided in sub. (5), if the insured and the beneficiary under a policy of life or accident insurance have both died and it is not established that one survived the other by at least 120 hours, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. If the policy is the marital property of the insured and of the insured's spouse and there is no alternative beneficiary except the estate or the personal representative of the estate, the proceeds shall be distributed as marital property in the manner provided in sub. (3).

AB645,49,16 (5) Exceptions. This section does not apply if any of the following conditions applies:

AB645,49,18 (a) The statute or governing instrument requires the individual to survive an event by a specified period.

AB645,49,20 (b) The statute or governing instrument indicates that the individual is not required to survive an event by any specified period.

AB645,49,22 (c) The statute or governing instrument deals with simultaneous deaths or deaths in a common disaster and the provision is relevant to the facts.

AB645,49,25 (d) The imposition of a 120-hour requirement would cause a nonvested property interest or a power of appointment to fail to be valid, or to be invalidated, under s. 700.16 or under the rule against perpetuities of the applicable jurisdiction.

AB645,50,3 (e) The application of this section to more than one statute or governing instrument would result in an unintended failure or unintended duplication of a transfer.

AB645,50,5 (f) The application of this section would result in the escheat of an intestate estate under s. 852.01 (3).

AB645,50,8 (6) Evidentiary standard. Unless the statute or governing instrument provides otherwise, proof that an individual survived the period required under subs. (1) to (4) must be by clear and convincing evidence.

AB645,50,10 (7) Extrinsic evidence. Extrinsic evidence may be used to construe a governing instrument affected by this section.

AB645,50,17 854.04 Representation; per stirpes; modified per stirpes; per capita at each generation; per capita. (1) By representation or per stirpes. (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "by representation", "by right of representation" or "per stirpes", the property is divided into equal shares for the children of the designated person. Each surviving child and each deceased child who left surviving issue are allocated one share.

AB645,50,20 (b) The share of each deceased child allocated a share under par. (a) is divided among that person's issue in the same manner as under par. (a), repeating until the property is fully allocated among surviving issue.

AB645,51,2 (2) Modified per stirpes. (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person by "modified per stirpes", the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor and each deceased person in that same generation who left surviving issue are allocated one share.

AB645,51,5 (b) The share of each deceased person allocated a share in par. (a) is divided among that person's issue in the same manner as under par. (a), repeating until the property is fully allocated.

AB645,51,12 (3) Per capita at each generation. (a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person "per capita at each generation", the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor in that generation is allocated one share, and the shares of the deceased persons in that same generation who left surviving issue are combined for distribution under par. (b).

AB645,51,16 (b) The combined share created under par. (a) is divided among the surviving issue of the persons whose shares were combined in the same manner as under par. (a), as though all of those issue were the issue of one person. The process is repeated until the property is fully allocated.

AB645,51,20 (4) Per capita. Except as provided in sub. (6), if a statute or governing instrument calls for property to be distributed to a group or class "per capita", the property is divided into as many shares as there are surviving members of the group or class, and each member receives one share.

AB645,51,22 (5) Certain individuals disregarded. For the purposes of this section, all of the following apply:

AB645,51,24 (a) An individual who is deceased and who left no surviving issue is disregarded.

AB645,52,2 (b) An individual who has a surviving ancestor who is an issue of the designated person is not entitled to a share.

AB645,52,6 (6) Contrary intent. This section does not apply if the transfer is made under a governing instrument and there is a finding of contrary intent of the person who executed the governing instrument. Extrinsic evidence may be used to construe that intent.

AB645,52,8 854.05 No exoneration of encumbered property. (1) Definitions. In this section:

AB645,52,9 (a) "Debt" includes accrued interest on the debt.

AB645,52,11 (b) "Encumbrance" includes mortgages, liens, pledges and other security agreements that are encumbrances on property.

AB645,52,15 (2) Generally. (a) Except as provided in sub. (5), all property that is specifically transferred by a governing instrument shall be assigned to the transferee without exoneration of a debt that is secured by an encumbrance on the property.

AB645,52,18 (b) If the debt that is secured by the encumbrance on the property is paid in whole or in part out of other assets, the specifically transferred property shall be assigned to the transferee only if any of the following applies: