SB759: Bill Text

SB759,49 Section 49 . 701.0302 of the statutes is renumbered 701.0302 (2) and amended to read:

SB759,18,12 701.0302 (2) To the extent there is no conflict of interest between a holder of a general power of appointment powerholder and a person the persons represented with respect to the particular question or dispute, the holder powerholder of a nongeneral power of appointment other than a broad limited power of appointment may represent and bind the person all persons or all members of a class of persons, including permissible appointees and takers in default, whose interests, as a permissible appointee, a taker in default, or otherwise, are subject to may be limited by the exercise or nonexercise of the power.

SB759,50 Section 50 . 701.0302 (1) of the statutes is created to read:

SB759,18,21 701.0302 (1) The powerholder of a general power of appointment exercisable in favor of the powerholder or the powerholder's estate or the powerholder of a broad limited power of appointment may represent and bind all persons, including permissible appointees and takers in default, whose interests may be eliminated by the exercise or nonexercise of the power. For purposes of this subsection, a general power of appointment does not include powers of appointment exercisable only in favor of the creditors of the powerholder, the creditors of the powerholder's estate, or both.

SB759,51 Section 51 . 701.0303 (4) of the statutes is amended to read:

SB759,18,24 701.0303 (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.

SB759,52 Section 52 . 701.0303 (5) of the statutes is amended to read:

SB759,19,3 701.0303 (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.

SB759,53 Section 53 . 701.0303 (6) (intro.) of the statutes is amended to read:

SB759,19,9 701.0303 (6) (intro.) A parent may represent and bind the parent's minor or unborn child, such child's minor and unborn issue, and the minor and unborn issue of a then deceased child. If a disagreement arises between parents seeking to represent the same minor child or unborn child individual, representation is determined as follows:

SB759,54 Section 54 . 701.0303 (6) (a) of the statutes is amended to read:

SB759,19,14 701.0303 (6) (a) If only one parent is a beneficiary of the trust that is the subject of the representation, that parent may represent and bind the minor child or unborn child, such child's minor and unborn issue, and the minor and unborn issue of a then deceased child.

SB759,55 Section 55 . 701.0303 (6) (b) of the statutes is amended to read:

SB759,19,20 701.0303 (6) (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 and bind the minor child or unborn child, such child's minor and unborn issue, and the minor and unborn issue of a then deceased child.

SB759,56 Section 56 . 701.0303 (6) (c) of the statutes is amended to read:

SB759,20,2 701.0303 (6) (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 and bind the minor child or unborn child, such child's minor and unborn issue, and the minor and unborn issue of a then deceased child.

SB759,57 Section 57 . 701.0303 (6) (d) of the statutes is amended to read:

SB759,20,8 701.0303 (6) (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 and bind the minor child or unborn child, such child's minor and unborn issue, and the minor and unborn issue of a then deceased child.

SB759,58 Section 58 . 701.0303 (6) (e) of the statutes is created to read:

SB759,20,12 701.0303 (6) (e) If an individual that is the subject of the representation is eligible to be represented by more than one ancestor under this subsection, the individual's nearest ancestor may represent and bind such individual.

SB759,59 Section 59 . 701.0304 of the statutes is renumbered 701.0304 (1).

SB759,60 Section 60 . 701.0304 (2) of the statutes is created to read:

SB759,20,15 701.0304 (2) (a) In this subsection:

SB759,20,19 1. “Contingent successor remainder beneficiary” means a beneficiary who would succeed to the interest of a presumptive remainder beneficiary if the presumptive remainder beneficiary and all of the current beneficiaries failed to take such interest.

SB759,20,22 2. “More remote contingent successor remainder beneficiary” means any contingent successor remainder beneficiary whose interest arises only upon the failure of the interest of another contingent successor remainder beneficiary.

SB759,21,3 (b) A presumptive remainder beneficiary or a person authorized to represent the presumptive remainder beneficiary under sub. (1) may represent and bind a contingent successor remainder beneficiary or a more remote contingent successor remainder beneficiary for the same purposes, in the same circumstances, and to the same extent as an ascertainable beneficiary may represent and bind a minor or person who is incapacitated, unborn, or not reasonably ascertainable.

SB759,21,9 (c) If a presumptive remainder beneficiary does not represent a more remote contingent successor remainder beneficiary, a contingent successor remainder beneficiary may represent and bind a more remote contingent successor remainder beneficiary for the same purposes, in the same circumstances, and to the same extent as an ascertainable beneficiary may represent and bind a minor or person who is incapacitated, unborn, or not reasonably ascertainable.

SB759,21,13 (d) A contingent successor remainder beneficiary or a more remote contingent successor remainder beneficiary may be represented under pars. (b) and (c) whether or not the contingent successor remainder beneficiary or more remote contingent successor remainder beneficiary lacks capacity.

SB759,21,17 (e) Under pars. (b) and (c), the difference between a beneficiary's interest as a presumptive remainder beneficiary or contingent successor remainder beneficiary does not constitute a conflict of interest as to any more remote contingent successor remainder beneficiary.

SB759,61 Section 61 . 701.0305 (1) of the statutes is renumbered 701.0305.

SB759,62 Section 62 . 701.0305 (2) of the statutes is renumbered 701.0307 (1).

SB759,63 Section 63 . 701.0305 (3) of the statutes is renumbered 701.0307 (2).

SB759,64 Section 64 . 701.0306 of the statutes is created to read:

SB759,22,2 701.0306 Designated representative. (1) If specifically nominated in the trust instrument, one or more persons may be designated to represent and bind a beneficiary and receive any notice, information, accounting, or report. The trust instrument may also authorize any one or more persons to designate one or more persons to represent and bind a beneficiary and receive any notice, information, accounting, or report.

SB759,22,4 (2) Except as otherwise provided in this chapter, a person designated in sub. (1) may not represent and bind a beneficiary while that person is serving as trustee.

SB759,22,7 (3) Except as otherwise provided in this chapter, a person designated in sub. (1) may not represent and bind another beneficiary if the person designated also is a beneficiary, unless one of the following applies:

SB759,22,8 (a) That person was named by the settlor.

SB759,22,9 (b) That person is one of the following:

SB759,22,10 1. The beneficiary's spouse.

SB759,22,11 2. A grandparent or descendant of a grandparent of the beneficiary.

SB759,22,12 3. A grandparent or descendant of a grandparent of the beneficiary's spouse.

SB759,65 Section 65 . 701.0307 (title) of the statutes is created to read:

SB759,22,14 701.0307 (title) Role of a representative or guardian ad litem.

SB759,66 Section 66 . 701.0308 of the statutes is created to read:

SB759,22,19 701.0308 Liability of representative. No representative or guardian ad litem is liable to the beneficiary whose interests are represented, or to anyone claiming through that beneficiary, for any actions or omissions to act made in good faith.

SB759,67 Section 67 . 701.0401 (5m) of the statutes is created to read:

SB759,22,25 701.0401 (5m) A declaration of an intent to create a trust with the intention that the trust will later be funded by assets of the person who created the trust or by another person with legal authority to fund the trust. The person making the declaration is considered to have created the trust, regardless of whether the person funds the trust with the person's own assets.

SB759,68 Section 68. 701.0402 (1) (e) of the statutes is amended to read:

SB759,23,3 701.0402 (1) (e) The same person is not the sole trustee and sole beneficiary, and there are no remainder beneficiaries other than the person's estate.

SB759,69 Section 69 . 701.0405 (1) of the statutes is repealed.

SB759,70 Section 70 . 701.0408 of the statutes is amended to read:

SB759,23,10 701.0408 Trust for care of animal. (1) A An animal trust may be created to provide for the care of an animal alive during the settlor's lifetime. The animal trust terminates upon the death of the animal or, if the animal 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.

SB759,23,15 (2) A An animal 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 an animal protector. 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 an animal protector.

SB759,23,20 (3) Property of a an animal 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 animal 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.

SB759,71 Section 71 . 701.0410 (2) of the statutes is amended to read:

SB759,24,4 701.0410 (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 Except as provided in s. 701.0411 (1m), a trustee does not have standing to oppose a proposed modification or termination commenced under s. 701.0411 (1).

SB759,72 Section 72 . 701.0410 (3) of the statutes is amended to read:

SB759,24,14 701.0410 (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 that has an individual with a disability as a beneficiary 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.

SB759,73 Section 73 . 701.0411 (1) of the statutes is amended to read:

SB759,24,23 701.0411 (1) A Except as provided in sub. (1m), 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.

SB759,74 Section 74 . 701.0411 (1m) of the statutes is created to read:

SB759,25,3 701.0411 (1m) A trust described in 42 USC 1396p (d) (4) may be terminated or modified under sub. (1) only with consent of the trustee, and is not considered revocable because it lacks ascertainable remainder beneficiaries.

SB759,75 Section 75 . 701.0411 (2) (intro.) of the statutes is created to read:

SB759,25,6 701.0411 (2) (intro.) With the approval of the court, any of the following may occur:

SB759,76 Section 76 . 701.0411 (2) (a) of the statutes is amended to read:

SB759,25,10 701.0411 (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.

SB759,77 Section 77 . 701.0411 (2) (b) of the statutes is amended to read:

SB759,25,14 701.0411 (2) (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.

SB759,78 Section 78. 701.0411 (7) of the statutes is amended to read:

SB759,25,20 701.0411 (7) A party proposing to modify or terminate a trust under sub. (1) or, (2), or (6) shall give notice of the proposed modification or termination to the settlor, if living, the trustee, each trust protector, each directing party, and each beneficiary at least 30 days before the proposed effective date of the modification or termination.

SB759,79 Section 79 . 701.0414 (4) of the statutes is amended to read:

SB759,25,25 701.0414 (4) The court may modify or terminate a trust or remove the trustee and appoint a different trustee if it determines that the value of the trust property is insufficient to justify the cost of administration even if the trust property has a total value in excess of the amount described in sub. (2).

SB759,80 Section 80. 701.0415 of the statutes is amended to read:

SB759,26,8 701.0415 Reformation to correct mistakes. The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's intent intention if it is proved by clear and convincing evidence that both what the settlor's intent intention was and that the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. A party petitioning the court for action under this section shall give notice of the proceeding to the settlor, if living, the trustee, each trust protector, each directing party, and the qualified beneficiaries.

SB759,81 Section 81 . 701.0416 of the statutes is amended to read:

SB759,26,16 701.0416 Modification or termination to achieve settlor's tax objectives. To achieve the settlor's tax objectives, the court may modify the terms of a trust or terminate a trust in a manner that is not contrary to the settlor's probable intent. The court may provide that the modification or termination has retroactive effect. A party petitioning the court for action under this section shall give notice of the proceeding to the settlor, if living, the trustee, each trust protector, each directing party, and the qualified beneficiaries.

SB759,82 Section 82 . 701.0418 of the statutes is repealed.

SB759,83 Section 83 . 701.0505 (1) (a) 2. of the statutes is amended to read:

SB759,27,4 701.0505 (1) (a) 2. With respect to an irrevocable trust that is not a trust for an individual with a disability, upon application of a judgment creditor of the settlor, the court may, if the trust instrument requires or authorizes the trustee to make payments of income or principal to or for the settlor, order the trustee to satisfy part or all of the judgment out of part or all of the payments of income or principal as they are due, presently or in the future, or which are payable in the trustee's discretion. A settlor's right to receive reimbursement for income taxation arising from grantor trust treatment of the trust pursuant to sections 671 to 679 of the Internal Revenue Code is not considered a right to income or principal for purposes of this section. If a trust has more than one settlor, the amount the judgment creditor of a particular settlor may reach may not exceed the settlor's interest in the trust.

SB759,84 Section 84 . 701.0505 (2) (e) 3. of the statutes is amended to read:

SB759,27,9 701.0505 (2) (e) 3. For purposes of this paragraph, notwithstanding s. 701.0103 (3), “beneficiary" means a person who satisfies s. 701.0103 (3) (a) or (b) and who is designated in a trust instrument or through the exercise of a special nongeneral or general power of appointment.

SB759,85 Section 85 . 701.0508 of the statutes is repealed and recreated to read:

SB759,27,17 701.0508 Debts of deceased settlor. (1) Deadline on claims. A claimant must assert a claim for payment of a debt of a deceased settlor within the time for such claims under applicable law. For purposes of this section, a debt incurred by a trustee of a revocable trust before the death of a settlor of the revocable trust shall be treated in the same manner as a debt of the settlor. A trustee of a trust that was revocable at the settlor's death may shorten the time period and set a deadline for filing claims with the trustee by doing any of the following:

SB759,27,24 (a) Publishing a legal notice as a class 3 notice under ch. 985 in the county in which the deceased settlor resided. The legal notice shall identify the name, address, and any other contact information of the trustee or other person with whom claims must be filed. The deadline for a claim by any claimant who is not known by the trustee shall be the earlier of the date that is 4 months after the date of the first insertion of the legal notice or, if sub. (6) is applicable, the deadline prescribed under s. 859.01.

SB759,28,7 (b) Giving notice to a potential claimant. The notice shall include a copy of the legal notice, if published, and shall identify the name, address, and any other contact information of the trustee or other person with whom claims must be filed and shall state that any claim by the potential claimant must be filed not later than the date that is 30 days from the date notice is given to the potential claimant or the deadline specified in the legal notice. If a legal notice has not been published, the deadline shall be 4 months from the date the trustee provides notice to the potential claimant.

SB759,28,12 (c) Publishing a legal notice and not giving a separate notice to a potential claimant who is known to the trustee. The deadline for a claim when a legal notice has been published but notice is not given to a known potential claimant is the later of the date that is one year from the date of the settlor's death or the deadline specified in the legal notice.

SB759,28,19 (2) Exceptions to deadlines on claims. A claim that is not filed on or before an applicable deadline specified under sub. (1) is not barred if the claim is a claim based on tort, a marital property agreement that is subject to the time limitations under s. 766.58 (13) (b) or (c), Wisconsin income, franchise, sales, withholding, gift, or death taxes, unemployment compensation contributions due or benefits overpaid, funeral or administrative expenses, a claim of this state under s. 46.27 (7g), 2017 stats., or s. 49.496, 49.682, or 49.849, or a claim of the United States.

SB759,28,22 (3) Filing of claims. (a) A claim is considered filed if the claimant provides notice of the claim to the trustee or other person with whom claims must be filed as prescribed under s. 701.0508 (1) (a) or (b).

SB759,28,24 (b) A claim is considered filed if the deceased settlor is subject to a probate proceeding in this state and a claim is filed with the court under ch. 859.