SB384,46,23
21(2) Notwithstanding ss. 54.20 (2) and 54.25 (2), a guardian of the estate may
22represent and bind the ward and a guardian of the person may represent and bind
23the ward if a guardian of the estate of the ward has not been appointed.
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24(3) An agent having authority to act with respect to the particular question or
25dispute may represent and bind the principal.
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1(4) A trustee may represent and bind the beneficiaries of the trust, except as
2to matters relating to the administration or distribution of the trust.
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3(5) A personal representative of a decedent's estate may represent and bind a
4person interested in the estate, except as to matters relating to the administration
5or distribution of the estate.
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6(6) A parent may represent and bind the parent's minor or unborn child. If a
7disagreement arises between parents seeking to represent the same minor child or
8unborn child, representation is determined as follows:
SB384,47,109
(a) If only one parent is a beneficiary of the trust that is the subject of the
10representation, that parent may represent the minor child or unborn child.
SB384,47,1311
(b) If both parents are beneficiaries of the trust that is the subject of the
12representation, the parent who is related to the settlor, other than by reason of being
13married to the other parent, may represent the minor child or unborn child.
SB384,47,1614
(c) Subject to s. 701.0301 (4), if neither parent is a beneficiary of the trust that
15is the subject of the representation, the parent who is the settlor of the trust that is
16the subject of the representation may represent the minor child or unborn child.
SB384,47,1917
(d) If neither parent is a beneficiary or settlor of the trust that is the subject
18of the representation, the parent who is a related to the settlor, other than by reason
19of being married to the other parent, may represent the minor child or unborn child.
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20(7) The order in which the representatives are listed in subs. (1) to (6) sets forth
21the priority that each such representative has relative to the others.
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22(8) If there is no representation by a person having a substantially identical
23interest under s. 710.0304, the trustee may appoint a representative to act if any of
24the following applies:
SB384,47,2525
(a) There is no one permitted to act under subs. (1) to (6).
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1(b) All of the people entitled to act under subs. (1) to (6) have declined to act.
SB384,48,32
(c) The trustee determines that the otherwise available representation under
3subs. (1) to (6) might be inadequate.
SB384,71
4Section
71. 701.0304 of the statutes is created to read:
SB384,48,12
5701.0304 Representation by person having substantially identical
6interest. Unless otherwise represented with respect to a particular question or
7dispute, a minor, incapacitated, or unborn individual or a person whose identity or
8location is unknown and not reasonably ascertainable may be represented by and
9bound by another person having a substantially identical interest with respect to the
10particular question or dispute, but only to the extent there is no conflict of interest
11between the representative and the person represented with respect to the
12particular question or dispute.
SB384,72
13Section
72. 701.0305 of the statutes is created to read:
SB384,48,20
14701.0305 Appointment of representative by a court. (1) If the court
15determines that an interest is not represented under this subchapter, or that the
16otherwise available representation might be inadequate, the court may appoint a
17representative or guardian ad litem to receive notice, give consent, and otherwise
18represent, bind, and act on behalf of the person who is not represented or whose
19representation might be inadequate. A representative or guardian ad litem may be
20appointed to represent several persons or interests.
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21(2) A representative or guardian ad litem may act on behalf of the individual
22represented with respect to any matter arising under this chapter, whether or not
23a judicial proceeding concerning the trust is pending.
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24(3) In making decisions, a representative or guardian ad litem may consider
25any general benefit accruing to the living members of the individual's family.
SB384,73
1Section
73. 701.04 of the statutes is repealed.
SB384,74
2Section
74. Subchapter IV (title) of chapter 701 [precedes 701.0401] of the
3statutes is created to read:
SB384,49,55
subchapter IV
SB384,49,86
creation, validity,
7
modification, and termination
8
of trust
SB384,75
9Section
75. 701.0401 of the statutes is created to read:
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10701.0401 Methods of creating a trust. A trust may be created by any of the
11following:
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12(1) A transfer of property to another person as trustee during the settlor's
13lifetime, by will, or by other disposition taking effect upon the settlor's death.
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14(2) A declaration by an owner of property that the owner holds identifiable
15property as trustee or declaration by any person who intends to create a trust with
16the expectation that property of the person or others will be transferred to the trust.
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17(3) An exercise of a power of appointment in favor of a trustee.
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18(4) A court pursuant to its statutory or equitable powers.
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19(5) A guardian of the estate or conservator acting with authority of the court,
20a representative payee, or an agent under a power of attorney that expressly grants
21authority to create the trust.
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22(6) Any other manner authorized by statute, regulation, common law, or other
23provision having the effect of law.
SB384,76
24Section
76. 701.0402 of the statutes is created to read:
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1701.0402 Requirements for creation. (1) A trust is created only if all of the
2following are satisfied:
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(a) The settlor of the trust has capacity, as defined in sub. (4), to create the trust,
4unless the trust is created by court order or by an agent, guardian of the estate,
5conservator, or representative payee with authority to act.
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(b) The settlor indicates an intention to create the trust; or a statute,
7regulation, common law, other provision having the effect of law, judgment, or decree
8creates or authorizes the creation of a trust.
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(c) The trust has a definite beneficiary or is one of the following:
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1. A charitable trust.
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2. A trust for the care of an animal, as provided in s. 701.0408.
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3. A trust for a noncharitable purpose, as provided in s. 701.0409.
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(d) The trustee has duties to perform.
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(e) The same person is not the sole trustee and sole beneficiary.
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15(2) A beneficiary is definite if the beneficiary can be ascertained at the time the
16trust is created or in the future.
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17(3) A power in a trustee or trust protector to select a beneficiary from an
18indefinite class is valid. If the power is not exercised within a reasonable time, the
19power fails and the property subject to the power passes to the persons who would
20have taken the property had the power not been conferred.
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21(4) The capacity required to create a trust is the same as the capacity to make
22a will.
SB384,77
23Section
77. 701.0403 of the statutes is created to read:
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24701.0403 Trusts created in other jurisdictions. A trust not created by will
25is validly created if its creation complies with the law of the jurisdiction in which the
1trust instrument was executed, or the law of the jurisdiction in which, at the time of
2creation, any of the following was satisfied:
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3(1) The settlor was domiciled, had a place of abode, or was a national.
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4(2) A trustee was domiciled or had a place of business.
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5(3) Any trust property was located.
SB384,78
6Section
78. 701.0404 of the statutes is created to read:
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7701.0404 Trust purposes. A trust may be created only to the extent its
8purposes are lawful and possible to achieve. A trust and its terms must be for the
9benefit of its beneficiaries or for a noncharitable, but otherwise valid, purpose as
10described in s. 701.0409.
SB384,79
11Section
79. 701.0405 of the statutes is created to read:
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12701.0405 Charitable purposes; enforcement.
(1) A charitable trust may
13be created for the relief of poverty, the advancement of education or religion, the
14promotion of health or governmental or municipal purposes, or other purposes the
15achievement of which is beneficial to the community.
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16(2) If the terms of a charitable trust do not indicate a particular charitable
17purpose or beneficiary, or designate persons or procedures for selecting charitable
18purposes or beneficiaries, the court may select one or more charitable purposes or
19beneficiaries. The selection must be consistent with the settlor's intention to the
20extent it can be ascertained.
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21(3) The settlor of a charitable trust or his or her designees, whether identified
22within or without the terms of the trust, or a charitable entity named in the trust
23instrument, or the attorney general, or a cotrustee, or such other person the court
24determines to have sufficient interest may maintain a proceeding to enforce the
25trust.
SB384,80
1Section
80. 701.0406 of the statutes is created to read:
SB384,52,4
2701.0406 Creation of trust induced by fraud, duress, or undue
3influence. A trust is void to the extent its creation was induced by fraud, duress,
4or undue influence.
SB384,81
5Section
81. 701.0407 of the statutes is created to read:
SB384,52,9
6701.0407 Evidence of oral trust. Except as required by a statute other than
7this chapter, a trust does not need to be evidenced by a trust instrument, but the
8creation of an oral trust and its terms may be established only by clear and
9convincing evidence.
SB384,82
10Section
82. 701.0408 of the statutes is created to read:
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11701.0408 Trust for care of animal. (1) A trust may be created to provide
12for the care of an animal alive during the settlor's lifetime. The trust terminates
13upon the death of the animal or, if the trust was created to provide for the care of more
14than one animal alive during the settlor's lifetime, upon the death of the last
15surviving animal.
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16(2) A trust authorized by this section may be enforced by a person appointed
17in the terms of the trust or, if no person is so appointed, by a person appointed by the
18court. A person having an interest in the welfare of the animal may request the court
19to appoint a person to enforce the trust or to remove a person appointed under this
20subsection.
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21(3) Property of a trust authorized by this section may be applied only to its
22intended use, except to the extent the court determines that the value of the trust
23property exceeds the amount required for the intended use. Property not required
24for the intended use must be distributed to the settlor, if then living, otherwise to the
25settlor's successors in interest.
SB384,83
1Section
83. 701.0409 of the statutes is created to read:
SB384,53,4
2701.0409 Noncharitable trust without ascertainable beneficiary. 3Except as otherwise provided in s. 701.0408 or by another statute, the following rules
4apply:
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5(1) A trust may be created for a noncharitable purpose without a definite or
6definitely ascertainable beneficiary or for a noncharitable but otherwise valid
7purpose to be selected by the trustee.
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8(2) A trust may be created for maintaining, keeping in repair, and preserving
9any grave, tomb, monument, gravestone, or any cemetery. Any cemetery authority
10under s. 157.061 (2) may receive property in trust for any of the purposes specified
11in this subsection and apply the income from the trust to the purpose stated in the
12trust instrument.
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13(3) A trust authorized by this section may be enforced by a trust protector with
14the power to enforce the trust. If there is not a trust protector with the power to
15enforce the trust, a court may appoint a trust protector with the power to enforce the
16trust under s. 701.0818.
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17(4) Property of a trust authorized by this section may be applied only to its
18intended use, except to the extent the court determines that the value of the trust
19property exceeds the amount required for the intended use. Property not required
20for the intended use must be distributed to the settlor, if then living, otherwise to the
21settlor's successors in interest.
SB384,84
22Section
84. 701.0410 of the statutes is created to read:
SB384,54,2
23701.0410 Modification or termination of trust; proceedings for
24approval or disapproval. (1) In addition to the methods of termination prescribed
25by ss. 701.0411 to 701.0414, a trust terminates to the extent the trust is revoked or
1expires pursuant to its terms, no purpose of the trust remains to be achieved, or the
2purposes of the trust have become unlawful or impossible to achieve.
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3(2) A proceeding to approve or disapprove a proposed modification or
4termination under ss. 701.0411 to 701.0416, or a proposed trust combination or
5division under s. 701.0417, may be commenced by a trustee or beneficiary, and a
6proceeding to approve or disapprove a proposed modification or termination under
7s. 701.0411 may be commenced by the settlor. The settlor of a charitable trust may
8maintain a proceeding to modify the trust under s. 701.0413. A trustee does not have
9standing to oppose a proposed modification or termination commenced under s.
10701.0411 (1).
SB384,54,19
11(3) A trustee may not be compelled by a modification or termination under this
12section or under ss. 701.0411 to 701.0416 to make distributions to or for any
13beneficiary of a trust for an individual with a disability or to terminate the trust,
14during the lifetime of the individual with a disability. A court may modify the terms
15of a trust for an individual with a disability with retroactive effect or reform the
16terms of such trust to achieve the settlor's objective or, if because of circumstances
17not anticipated by the settlor, to otherwise further the purposes of the trust so that
18it does not result in trust property being countable as resources or income of the
19individual with a disability for purposes of public assistance.
SB384,85
20Section
85. 701.0411 of the statutes is created to read:
SB384,55,4
21701.0411 Modification or termination of noncharitable irrevocable
22trust by consent. (1) A noncharitable irrevocable trust may be modified or
23terminated, with or without court approval, upon consent of the settlor and all
24beneficiaries, even if the modification or termination is inconsistent with a material
25purpose of the trust. A settlor's power to consent to a trust's modification or
1termination may be exercised by a representative under s. 701.0303 only if the
2representative is specifically authorized to consent to a trust's modification or
3termination under a power of attorney, the terms of the trust, or by a court under a
4guardianship or conservatorship.
SB384,55,7
5(2) (a) A noncharitable irrevocable trust may be terminated upon consent of all
6of the beneficiaries if the court concludes that continuance of the trust is not
7necessary to achieve any material purpose of the trust.
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(b) A noncharitable irrevocable trust may be modified upon consent of all of the
9beneficiaries if the court concludes that modification is not inconsistent with a
10material purpose of the trust.
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11(3) A spendthrift provision in the terms of the trust is not presumed to
12constitute a material purpose of the trust.
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13(4) A court may not compel a beneficiary to consent to a modification or
14termination to satisfy a creditor of the beneficiary.
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15(5) Upon termination of a trust under sub. (1) or (2), the trustee shall distribute
16the trust property as agreed by the beneficiaries.
SB384,55,19
17(6) If not all of the beneficiaries consent to a proposed modification or
18termination of the trust under sub. (1) or (2), the modification or termination may
19be approved by the court if the court is satisfied that all of the following apply:
SB384,55,2120
(a) If all of the beneficiaries had consented, the trust could have been modified
21or terminated under this section.
SB384,55,2322
(b) The interests of a beneficiary who does not consent will be adequately
23protected.
SB384,56,2
24(7) A party proposing to modify or terminate a trust under sub. (1) or (2) shall
25give notice of the proposed modification or termination to the settlor, if living, the
1trustee, each trust protector, each directing party, and each beneficiary at least 30
2days before the proposed effective date of the modification or termination.
SB384,86
3Section
86. 701.0412 of the statutes is created to read:
SB384,56,9
4701.0412 Modification or termination because of unanticipated
5circumstances or inability to administer trust effectively. (1) The court may
6modify the administrative or dispositive terms of a trust or terminate the trust if,
7because of circumstances not anticipated by the settlor, modification or termination
8will further the purposes of the trust. To the extent practicable, the court shall make
9the modification in accordance with the settlor's probable intention.
SB384,56,12
10(2) The court may modify the administrative terms of a trust if continuation
11of the trust on its existing terms would be impracticable or wasteful or impair the
12trust's administration.