AB490: Bill Text

AB490,43,23 (3) Notwithstanding any contractual provision or other agreement between the trustee and the agent to the contrary, by accepting the delegation of a trust function pursuant to s. 701.0807 or 881.01 (10), or otherwise, from the trustee of a trust having a principal place of administration in this state, the agent submits personally to the jurisdiction of the courts of this state regarding any matter involving the trust.

AB490,44,3 (4) This section does not preclude other methods of obtaining jurisdiction over a trustee, directing party, trust protector, beneficiary, or other person receiving property from the trust.

AB490,64 Section 64. 701.0203 of the statutes is created to read:

AB490,44,11 701.0203 Subject matter jurisdiction. (1) The circuit court assigned to exercise probate jurisdiction has exclusive jurisdiction of proceedings in this state brought by a trustee, trust protector, directing party, or beneficiary concerning the administration of a trust. Except as otherwise provided in this chapter, and as applicable, the probate procedure described in ch. 879 applies to a proceeding brought by a trustee, trust protector, directing party, or beneficiary concerning the administration of a trust.

AB490,44,13 (2) This section does not preclude judicial or nonjudicial alternative dispute resolution, including nonjudicial settlement agreements described in s. 701.0111.

AB490,65 Section 65. 701.0204 of the statutes is created to read:

AB490,44,19 701.0204 Venue. (1) Except as provided in sub. (2), venue for a judicial proceeding involving a trust may be in the county of this state in which the trust's principal place of administration is or will be located or, if the trust is a testamentary trust and the decedent's estate is not yet closed, in the county of this state in which the decedent's estate is being administered.

AB490,44,21 (2) If a trust has no trustee, venue for a judicial proceeding for the appointment of a trustee is in any of the following:

AB490,44,22 (a) A county of this state in which a beneficiary resides.

AB490,44,23 (b) A county of this state in which any trust property is located.

AB490,44,25 (c) A county of this state in which the holder of trust property maintains an office.

AB490,45,3 (d) If the trust is a testamentary trust and the decedent's estate is not yet closed, in the county of this state in which the decedent's estate is being administered.

AB490,45,6 (3) Venue for a judicial proceeding involving a trust is also governed by ss. 801.50 to 801.62, as applicable, and the proceeding is regarded as a civil action for that purpose.

AB490,66 Section 66. 701.03 of the statutes is repealed.

AB490,67 Section 67. Subchapter III (title) of chapter 701 [precedes 701.0301] of the statutes is created to read:

AB490,45,10 chapter 701

AB490,45,11 subchapter iii

AB490,45,12 Representation

AB490,68 Section 68. 701.0301 of the statutes is created to read:

AB490,45,17 701.0301 Representation: basic effect. (1) Notice, information, an accounting, or a report given to a person who may represent and bind another person under this subchapter is a substitute for and has the same effect as notice, information, an accounting, or a report given directly to the other person.

AB490,45,21 (2) The consent of a person who may represent and bind another person under this subchapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative in writing before the consent would otherwise have become effective.

AB490,45,24 (3) Except as provided in ss. 701.0411 and 701.0602, a person who under this subchapter may represent a settlor who lacks capacity may receive notice and may give a binding consent on the settlor's behalf.

AB490,46,2 (4) A settlor may not represent and bind a beneficiary under this subchapter with respect to the termination or modification of a trust under s. 701.0411 (1).

AB490,46,6 (5) A trustee is not liable for giving notice, information, an accounting, or a report to a beneficiary who is represented by another person under this subchapter and nothing in this subchapter prohibits the trustee from giving notice, information, an accounting, or a report to the person represented.

AB490,69 Section 69. 701.0302 of the statutes is created to read:

AB490,46,12 701.0302 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.

AB490,70 Section 70. 701.0303 of the statutes is created to read:

AB490,46,18 701.0303 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:

AB490,46,20 (1) A conservator may represent and bind the estate that the conservator controls.

AB490,46,23 (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.

AB490,46,25 (3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.

AB490,47,2 (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.

AB490,47,5 (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.

AB490,47,8 (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:

AB490,47,10 (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.

AB490,47,13 (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.

AB490,47,16 (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.

AB490,47,19 (d) If neither parent is a beneficiary or settlor of the trust that is the subject of the representation, the parent who is a related to the settlor, other than by reason of being married to the other parent, may represent the minor child or unborn child.

AB490,47,21 (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.

AB490,47,24 (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:

AB490,47,25 (a) There is no one permitted to act under subs. (1) to (6).

AB490,48,1 (b) All of the people entitled to act under subs. (1) to (6) have declined to act.

AB490,48,3 (c) The trustee determines that the otherwise available representation under subs. (1) to (6) might be inadequate.

AB490,71 Section 71. 701.0304 of the statutes is created to read:

AB490,48,12 701.0304 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.

AB490,72 Section 72. 701.0305 of the statutes is created to read:

AB490,48,20 701.0305 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.

AB490,48,23 (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.

AB490,48,25 (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.

AB490,73 Section 73. 701.04 of the statutes is repealed.

AB490,74 Section 74. Subchapter IV (title) of chapter 701 [precedes 701.0401] of the statutes is created to read:

AB490,49,4 chapter 701

AB490,49,5 subchapter IV

AB490,49,8 creation, validity, modification, and termination of trust

AB490,75 Section 75. 701.0401 of the statutes is created to read:

AB490,49,11 701.0401 Methods of creating a trust. A trust may be created by any of the following:

AB490,49,13 (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.

AB490,49,16 (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.

AB490,49,17 (3) An exercise of a power of appointment in favor of a trustee.

AB490,49,18 (4) A court pursuant to its statutory or equitable powers.

AB490,49,21 (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.

AB490,49,23 (6) Any other manner authorized by statute, regulation, common law, or other provision having the effect of law.

AB490,76 Section 76. 701.0402 of the statutes is created to read:

AB490,50,2 701.0402 Requirements for creation. (1) A trust is created only if all of the following are satisfied:

AB490,50,5 (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.

AB490,50,8 (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.

AB490,50,9 (c) The trust has a definite beneficiary or is one of the following:

AB490,50,10 1. A charitable trust.

AB490,50,11 2. A trust for the care of an animal, as provided in s. 701.0408.

AB490,50,12 3. A trust for a noncharitable purpose, as provided in s. 701.0409.

AB490,50,13 (d) The trustee has duties to perform.

AB490,50,14 (e) The same person is not the sole trustee and sole beneficiary.

AB490,50,16 (2) A beneficiary is definite if the beneficiary can be ascertained at the time the trust is created or in the future.

AB490,50,20 (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.

AB490,50,22 (4) The capacity required to create a trust is the same as the capacity to make a will.

AB490,77 Section 77. 701.0403 of the statutes is created to read:

AB490,51,2 701.0403 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:

AB490,51,3 (1) The settlor was domiciled, had a place of abode, or was a national.

AB490,51,4 (2) A trustee was domiciled or had a place of business.

AB490,51,5 (3) Any trust property was located.

AB490,78 Section 78. 701.0404 of the statutes is created to read:

AB490,51,10 701.0404 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.

AB490,79 Section 79. 701.0405 of the statutes is created to read:

AB490,51,15 701.0405 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.

AB490,51,20 (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.

AB490,51,25   (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.

AB490,80 Section 80. 701.0406 of the statutes is created to read:

AB490,52,4 701.0406 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.

AB490,81 Section 81. 701.0407 of the statutes is created to read: