705.04(4)
(4) As to any deposit made on or after January 1, 1986, a surviving spouse who is not a party to the account may recover under
s. 766.70 (6).
705.04 Annotation
A personal representative is not a "party" to an account held as a "joint account" by the decedent and another who survives; a bank who disburses the funds of the joint account to the personal representative is not entitled to immunity under s. 705.06 (2). In Matter of Estate of Martz,
171 Wis. 2d 89,
491 N.W.2d 772 (Ct. App. 1992).
705.04 Annotation
An annuity that transferred ownership from the owner to a "co-annuitant" on the owner's death was a joint account under sub. (1). A joint account with right of survivorship will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151,
237 Wis. 2d 853,
616 N.W.2d 118,
99-1211.
705.05
705.05
Designation and powers of agent. 705.05(1)
(1) A party to an account, notwithstanding such party's minority, or if the account has multiple parties, all of them acting in concert, may appoint one or more agents for purposes of making withdrawals from the account. The authority of an agent to make withdrawals from an account may be terminated by any party to the account upon written notice to the financial institution, and this shall not preclude a party's liability for wrongful termination of such agency.
705.05(2)
(2) The uses and purposes for which withdrawals may be made by an agent to an account shall be governed by agency principles of general application. The application of any sum withdrawn from an account shall only be subject to inquiry by a party to the account, and such party shall have the burden of proving breach of the agency relationship. A minor party may not disaffirm the appointment of an agent, but the period within which the minor party may inquire into the propriety of any withdrawal shall be governed by
s. 893.16 or
893.18. Unless there is clear and convincing evidence of a different intent, if the agent is a spouse of a party, the sums so withdrawn may be used, but not by way of limitation, for the support and maintenance of either spouse or any common minor children.
705.05(3)
(3) The parties to an account may provide, by the terms of the account or by independent written power of attorney which, if later, shall have precedence over the terms of the account, that the authority conferred upon an agent shall be exercisable notwithstanding any party's legal disability. In such case the authority of the agent is also exercisable notwithstanding later uncertainty as to whether a party is dead or alive. Absent a written direction to the contrary, the foregoing power of withdrawal shall exist without the necessity of written provision if the agent is the spouse of a party, but in such a case funds so withdrawn, the application of which may be inquired into only as provided in
sub. (2), may only be used for the support and maintenance of either spouse and any common minor children. This subsection shall apply to all accounts created prior to and after July 1, 1975.
705.06
705.06
Protection of financial institutions. 705.06(1)
(1) In accordance with the terms of an account, and subject to this subchapter,
ch. 112 and the duties prescribed for personal representatives in
ch. 72 and unless otherwise ordered by a court of competent jurisdiction:
705.06(1)(a)
(a) A financial institution may on request pay any sums on deposit in the account to any party or agent; and the financial institution shall not be required to look into the source of funds received for deposit or the proposed application of any funds withdrawn or requested to be withdrawn.
705.06(1)(b)
(b) Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is under legal disability or is deceased at the time the payment is requested.
705.06(1)(c)
(c) Any sums in a P.O.D. account may be paid, on request, to the P.O.D. beneficiary upon presentation to the financial institution of proof of death showing that the P.O.D. beneficiary survived all persons named as original payees of the account. If more than one P.O.D. beneficiary is named and at least one of them is predeceased, sums in the account may be paid to the surviving P.O.D. beneficiary or beneficiaries upon presentation of proof of death of the other beneficiary, without regard to claims by the issue of a predeceased beneficiary under
s. 705.04 (2) (d). If none of the named beneficiaries survive, the sums in the account may be paid to the estate of the deceased sole owner or the estate of the owner who was the last to die of multiple owners, without regard to claims by the issue of a predeceased beneficiary under
s. 705.04 (2) (d). If the P.O.D. account is a marital account, this paragraph applies only to the 50 percent of the account not owned by the surviving spouse named as a party on the account.
705.06(1)(d)
(d) Any sums in a marital account may be paid, on request, to either party without regard to whether the other party is under legal disability or is deceased, unless the financial institution receives actual notice that the other party is deceased. After receipt of actual notice of the death of one party to a marital account, the financial institution may pay on request not more than 50% of the sums on deposit to the surviving party, and 50% of that amount to the personal representative of the deceased party or if applicable to any P.O.D. beneficiary of the deceased party's interest, unless before payment is made the financial institution receives a verified statement under
s. 865.201 or a certified copy of a certificate or recorded application concerning survivorship rights under
s. 867.046, in which case the financial institution shall make payment as provided in that document.
705.06(2)
(2) Payment made under this subchapter discharges the financial institution from all claims for amounts so withdrawn. If the institution has reason to believe that a dispute exists as to the rights of the parties to an account or their successors it may, but shall not be required to, refuse to pay funds in the account to any persons pending instructions from a court, or it may pay the proceeds to a court. An institution may but need not recognize the authority of an agent, other than one with continuing authority under
s. 705.05 (3), until it knows of the fact of death or adjudication of incompetence of all parties appointing such agent and has reasonable opportunity to act.
705.06(3)
(3) The protection provided by this section shall have no bearing on the rights of parties or their successors in disputes concerning the beneficial ownership of funds in or withdrawn from an account.
705.06 Annotation
A personal representative is not a "party" to an account held as a "joint account" by the decedent and another who survives; a bank who disburses the funds of the joint account to the personal representative is not entitled to immunity under this section. In Matter of Estate of Martz,
171 Wis. 2d 89,
491 N.W.2d 772 (Ct. App. 1992).
705.06 Annotation
Joint bank accounts in Wisconsin. O'Flaherty, 53 MLR 118.
705.07
705.07
Rights of creditors. 705.07(1)(1) Only the creditors of any living party to an account may subject the entire sums on deposit to their claims, as if such sums resulted solely from contributions made by the debtor party. If a joint or P.O.D. account requires the signatures of all of the parties for purposes of withdrawal, such account shall not be subject to the claims of creditors of a debtor party to the extent of the net contributions of the other parties to the account. Such other parties shall have the burden of proving their net contributions by clear and convincing evidence.
705.07(2)
(2) For purposes of
ch. 242, a debtor party shall be deemed to have made a transfer only at the time some other party withdraws all or part of the sums on deposit, or at the time of the debtor party's death as to sums not previously withdrawn. In the case of a withdrawal while the debtor party is living, the sole grounds for determining any such transfer to be fraudulent shall be whether the debtor party is or will be thereby rendered insolvent under
s. 242.05 (1) or whether the debtor party is engaged or is about to engage in a business or transaction for which the assets remaining in the debtor party's hands after the transfer are unreasonably small under
s. 242.04 (1) (b) 1. In the case of a transfer by reason of the death of the debtor party, the sole ground for determining any such transfer to be fraudulent shall be whether the debtor party's estate subject to administration is insolvent under
s. 242.02. For purposes of this subsection, the amount transferred shall be deemed to consist of those assets which the creditors of the debtor party could have made subject to their claims immediately prior to the transfer, less any sums which such creditors could have made so subject to their claims immediately after the transfer.
705.07 History
History: 1973 c. 291;
1987 a. 192.
705.08
705.08
Construction. This subchapter shall be construed in such a manner as to ensure reasonable certainty of legal result for those who establish a multiple-party or agency account.
705.08 History
History: 1973 c. 291;
1989 a. 331.
705.09
705.09
Applicability of general transfers at death provisions. Chapter 854 applies to transfers at death under this subchapter.
705.09 History
History: 1997 a. 188.
705.09 Annotation
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
NONPROBATE TRANSFERS AT DEATH;
NONPROBATE TRANSFER OF REAL PROPERTY
705.10
705.10
Nonprobate transfers on death. 705.10(1)
(1) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection governs a written provision that:
705.10(1)(a)
(a) Money or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent's death to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later;
705.10(1)(b)
(b) Money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or
705.10(1)(c)
(c) Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later.
705.10(2)
(2) This section does not limit rights of creditors under other laws of this state.
705.10(3)
(3) Chapter 854 applies to transfers at death under this section.
705.10 Note
NOTE: Sub. (4) was created as s. 705.20 (4) by
2005 Wis. Act 216 and renumbered by the revisor under s. 13.93 (1) (b).
705.10 History
History: 1989 a. 331;
1997 a. 188;
2005 a. 206 s.
5;
2005 a. 216 s.
35; Stats. 2005 s. 705.10; 13.93 (1) (b).
705.10 Note
NOTE: Sections 705.20 to 705.30 apply to registrations of securities in beneficiary form made before, on or after 5-11-90 by decedents dying after 5-11-90.
705.10 Annotation
An annuity is an "other written instrument" under sub. (1). A contractual arrangement that creates a nonprobate transfer of property subject to this section will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151,
237 Wis. 2d 853,
616 N.W.2d 118,
99-1211.
705.10 Annotation
No provision of s. 766.58 (3) or this section permits parties to ignore ch. 854, or to agree to prohibit court involvement in implementing a marital property agreement. That "Washington Will" provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes' Retirement System Annuity and Pension Board, 2006 WI 10,
288 Wis. 2d 62,
709 N.W.2d 360,
04-1254.
705.10 Annotation
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
705.15
705.15
Nonprobate transfer of real property on death. 705.15(1)(1) An interest in real property that is solely owned, owned by spouses as survivorship marital property, or owned by 2 or more persons as joint tenants may be transferred without probate to a designated TOD beneficiary as provided in this section on the death of the sole owner or the last to die of the multiple owners.
705.15(2)
(2) A TOD beneficiary may be designated on a deed that evidences ownership of the property interest in the owner or owners by including the words "transfer on death" or "pay on death," or the abbreviation "TOD" or "POD," after the name of the owner or owners of the property and before the name of the beneficiary or beneficiaries. The designation may be included on the original deed that passes the property interest to the owner or owners or may be made at a later time by the sole owner or all then surviving owners by executing and recording another deed that designates a TOD beneficiary. A TOD beneficiary designation is not effective unless the deed on which the designation is made is recorded.
705.15(3)
(3) The designation of a TOD beneficiary on a deed does not affect ownership of the property until the owner's death. The designation may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the beneficiary, by executing and recording another deed that designates a different beneficiary or no beneficiary. The recording of a deed that designates a TOD beneficiary or no beneficiary revokes any designation made in a previously recorded deed relating to the same property interest.
705.15(4)
(4) On the death of the sole owner or the last to die of multiple owners, ownership of the interest in the real property passes, subject to any lien or other encumbrance, to the designated TOD beneficiary or beneficiaries who survive all owners and to any predeceased beneficiary's issue who would take under
s. 854.06 (3). If no beneficiary or predeceased beneficiary's issue who would take under
s. 854.06 (3) survives the death of all owners, the interest in the real property passes to the estate of the deceased sole owner or the estate of the last to die of the multiple owners.
705.15(5)
(5) A TOD beneficiary's interest in the property on the death of the sole owner or the last to die of multiple owners may be confirmed as provided in
s. 863.27,
865.201, or
867.046.
705.15(6)
(6) Chapter 854 applies to transfers on death under this section.
705.15 History
History: 2005 a. 206.
TRANSFER ON DEATH SECURITY REGISTRATION
705.21
705.21
Definitions; transfer on death security registration. In
ss. 705.21 to
705.30:
705.21(2)
(2) "Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
705.21(5)
(5) "Devisee" means any person designated in a will to receive a disposition of real or personal property.
705.21(7)
(7) "Personal representative" has the meaning given in
s. 851.23.
705.21(9)
(9) "Register", including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
705.21(10)
(10) "Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
705.21(11)
(11) "Security" means a share, participation or other interest in property, in a business or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security and a security account.
705.21(12)
(12) "Security account" means any of the following:
705.21(12)(a)
(a) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner's death.
705.21(12)(am)
(am) An investment management or custody account with a trust company or a trust division of a bank with trust powers, including the securities in the account, a cash balance in the account, and cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death.
705.21(12)(b)
(b) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
705.21(13)
(13) "State" includes any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
705.21 History
History: 1989 a. 331;
2005 a. 10.
705.22
705.22
Registration in beneficiary form; sole or joint tenancy ownership. Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by 2 or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
705.22 History
History: 1989 a. 331.
705.23
705.23
Registration in beneficiary form; applicable law. A security may be registered in beneficiary form if the form is authorized by
ss. 705.21 to
705.30 or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by
ss. 705.21 to
705.30 or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which
ss. 705.21 to
705.30 or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
705.23 History
History: 1989 a. 331.
705.24
705.24
Origination of registration in beneficiary form. A security, whether evidenced by certificate or account, is registered in beneficiary form if the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
705.24 History
History: 1989 a. 331.
705.25
705.25
Form of registration in beneficiary form. Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD" or by the words "pay on death" or the abbreviation "POD", after the name of the registered owner and before the name of a beneficiary.
705.25 History
History: 1989 a. 331.
705.26
705.26
Effect of registration in beneficiary form. The designation of a TOD beneficiary on a registration in beneficiary form does not affect ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the beneficiary.
705.26 History
History: 1989 a. 331.
705.27
705.27
Ownership on death of owner. Subject to the rights of the registering entity under
s. 705.28 (2m), on the death of a sole owner or the last to die of multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners and to any predeceased beneficiary's issue who would take under
s. 854.06 (3). On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the successors to the ownership interest. Until division of the security after the death of all owners, multiple successors to the ownership interest hold their interests as tenants in common. If no beneficiary or predeceased beneficiary's issue who would take under
s. 854.06 (3) survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of multiple owners.
705.27 History
History: 1989 a. 331;
2005 a. 216.
705.28
705.28
Protection of registering entity. 705.28(1)
(1) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by
ss. 705.21 to
705.30.
705.28(2)
(2) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented upon death of the deceased owner as provided in
ss. 705.21 to
705.30.
705.28(2m)
(2m) If more than one beneficiary is named and at least one beneficiary is predeceased, a security registered in beneficiary form may be reregistered in the name of the surviving beneficiary with a proof of death of the other beneficiary, without regard to claims by the issue of a predeceased beneficiary under
s. 705.27 unless the registering entity receives written notice of a claim under
sub. (3) (b). If none of the beneficiaries survive, a security registered in beneficiary form may be reregistered in the name of the estate of the deceased sole owner or the estate of the owner who was last to die of multiple owners, without regard to claims by the issue of a predeceased beneficiary under
s. 705.27 unless the registering entity receives written notice of a claim under
sub. (3) (b).
705.28(3)(a)(a) Subject to
par. (b), a registering entity is discharged from all claims to a security by the estate, creditors, heirs or devisees of the deceased owner if it registers a transfer of a security in accordance with
s. 705.27 and does so in good faith reliance on the registration, on
ss. 705.21 to
705.30, and on information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity.
705.28(3)(b)
(b) The protections provided in this subchapter do not extend to a reregistration or payment made after a registering entity has received written notice from a claimant to an interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this subchapter. If the registering entity has reason to believe that a dispute exists as to the rights of the parties to a security registered in beneficiary form or their successors, the registering entity may refuse to reregister the security pending instructions from a court.
