SB368: Bill Text

SB368,42,20 (c) If the document described in par. (a) is not located by the personal representative, or delivered to the personal representative or circuit court with jurisdiction over the matter, within 30 days after the appointment of the personal representative, the personal representative may dispose of tangible personal property according to the provisions of the will as if no such document exists. If a valid document is located after some or all of the tangible personal property has been disposed of, the document controls the distribution of the property described in it, but the personal representative incurs no liability for the prior distribution or sale of the property, as long as the time specified in this paragraph has elapsed.

SB368,42,22 (d) The duties and liability of a person who has custody of a document described in par. (a), or information about such a document, are governed by s. 856.05.

SB368,42,24 (e) Beneficiaries under a document that is described in par. (a) are not interested parties for purposes of s. 879.03.

SB368,43,3 (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.

SB368, s. 154 Section 154. 853.325 of the statutes is created to read:

SB368,43,11 853.325 Effect of reference to acts or events. A will may dispose of property by reference to acts or events that have significance apart from their effect on the disposition of property under the will and that do not occur solely for the purpose of determining the disposition of property under the will. Reference to the execution or revocation of another individual's will fulfills the requirements under this section. This section applies whether the acts or events occur before or after execution of the will or before or after the testator's death.

SB368, s. 155 Section 155. 853.33 of the statutes is repealed and recreated to read:

SB368,43,14 853.33 Gift of securities. Section 854.11 governs gifts of securities under a will.

SB368, s. 156 Section 156. 853.35 of the statutes is repealed and recreated to read:

SB368,43,18 853.35 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.

SB368, s. 157 Section 157. 853.40 of the statutes is repealed and recreated to read:

SB368,43,21 853.40 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.

SB368, s. 158 Section 158. 853.41 of the statutes is created to read:

SB368,43,25 853.41 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.

SB368, s. 159 Section 159. Subchapter II (title) of chapter 853 [precedes 853.50] of the statutes is created to read:

SB368,44,3 Chapter 853

SB368,44,5 Subchapter II Wisconsin basic wills

SB368, s. 160 Section 160. 853.50 (1) of the statutes is amended to read:

SB368,44,9 853.50 (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).

SB368, s. 161 Section 161. 853.50 (3) of the statutes is amended to read:

SB368,44,14 853.50 (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.

SB368, s. 162 Section 162. 853.51 (intro.) of the statutes is renumbered 853.51 (1) (intro.).

SB368, s. 163 Section 163. 853.51 (1) of the statutes is renumbered 853.51 (1) (a), and 853.51 (1) (a) 1., as renumbered, is amended to read:

SB368,44,20 853.51 (1) (a) 1. Complete the blanks, boxes and lines according to substantially in accordance with the instructions. Any failure to comply with instructions described under s. 853.54 (3) does not affect the validity of the will.

SB368, s. 164 Section 164. 853.51 (1) (bc) of the statutes is created to read:

SB368,44,22 853.51 (1) (bc) The witnesses shall comply with s. 853.03 (2).

SB368, s. 165 Section 165. 853.51 (2) of the statutes is repealed.

SB368, s. 166 Section 166. 853.51 (2m) of the statutes is created to read:

SB368,45,3 853.51 (2m) Any failure to comply with the instructions in a Wisconsin basic will or basic will with trust, other than the requirements for the testator's and witnesses' signatures, does not affect the validity of the will.

SB368, s. 167 Section 167. 853.55 (NOTICE) 6. of the statutes is amended to read:

SB368,45,10 853.55 (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.

SB368, s. 168 Section 168. 853.55 (NOTICE) 9. of the statutes is amended to read:

SB368,45,13 853.55 (NOTICE) 9. THIS WILL TREATS ADOPTED CHILDREN AS IF THEY ARE NATURAL BIRTH CHILDREN.

SB368, s. 169 Section 169. 853.55 (Article 3) 3.3. of the statutes is repealed and recreated to read:

SB368,45,16 853.55 (Article 3) 3.3. BOND.

SB368,45,20 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.

SB368,45,22 I sign my name to this Wisconsin Basic Will on ....... (date), at ........ (city), ........ (state).

SB368,45,23 Signature of Testator

SB368,45,25 STATEMENT OF WITNESSES (You must use two witnesses, who should be adults.)

SB368,46,4 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.

SB368,46,5 Signature Residence Address:

SB368,46,6 Print Name

SB368,46,7 Here: Date Signed:

SB368,46,11 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.

SB368,46,12 Signature Residence Address:

SB368,46,13 Print Name

SB368,46,14 Here: Date Signed:

SB368, s. 170 Section 170. 853.56 (NOTICE) 7. of the statutes is amended to read:

SB368,46,21 853.56 (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.

SB368, s. 171 Section 171. 853.56 (NOTICE) 9. of the statutes is amended to read:

SB368,46,24 853.56 (NOTICE) 9. THIS WILL TREATS ADOPTED CHILDREN AS IF THEY ARE NATURAL BIRTH CHILDREN.

SB368, s. 172 Section 172. 853.56 (Article 3) 3.4. of the statutes is repealed and recreated to read:

SB368,47,3 853.56 (Article 3) 3.4. BOND.

SB368,47,7 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.

SB368,47,9 I sign my name to this Wisconsin Basic Will With Trust on ... (date), at..(city),.. (state).

SB368,47,10 Signature of Testator

SB368,47,12 STATEMENT OF WITNESSES (You must use two witnesses, who should be adults.)

SB368,47,16 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.

SB368,47,17 Signature Residence Address:

SB368,47,18 Print Name

SB368,47,19 Here: Date Signed:

SB368,47,23 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.

SB368,47,24 Signature Residence Address:

SB368,47,25 Print Name

SB368,48,1 Here: Date Signed:

SB368, s. 173 Section 173. 853.59 (form) (a) of the statutes is amended to read:

SB368,48,7 853.59 (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.

SB368, s. 174 Section 174. 853.59 (form) (2) (a) of the statute is amended to read:

SB368,48,22 853.59 (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.

SB368, s. 175 Section 175. Chapter 854 of the statutes is created to read:

SB368,49,3 Chapter 854 transfers at death — General rules

SB368,49,10 854.01 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.

SB368,49,12 854.02 Scope. This chapter applies to all statutes and governing instruments that transfer property at death.

SB368,49,18 854.03 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.

SB368,49,23 (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.

SB368,50,3 (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.

SB368,50,9 (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.

SB368,50,17 (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).

SB368,50,19 (5) Exceptions. This section does not apply if any of the following conditions applies:

SB368,50,21 (a) The statute or governing instrument requires the individual to survive an event by a specified period.

SB368,50,23 (b) The statute or governing instrument indicates that the individual is not required to survive an event by any specified period.

SB368,50,25 (c) The statute or governing instrument deals with simultaneous deaths or deaths in a common disaster and the provision is relevant to the facts.

SB368,51,3 (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.

SB368,51,6 (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.

SB368,51,8 (f) The application of this section would result in the escheat of an intestate estate under s. 852.01 (3).

SB368,51,11 (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.

SB368,51,13 (7) Extrinsic evidence. Extrinsic evidence may be used to construe a governing instrument affected by this section.