701.0503(2)(b)2.
2. In the case of a beneficiary who may receive income or principal of the trust at the trustee's discretion and who is a settlor or a spouse or minor child of the settlor, order the trustee to satisfy part or all of the liability without regard to whether the trustee has then exercised or may thereafter exercise the trustee's discretion in favor of the beneficiary.
701.0503(3)
(3) Trust for an individual with a disability. Subsection (2) does not apply to any trust for an individual with a disability.
701.0503(4)
(4) Subsequent modification of court's order. Any order entered by a court under
sub. (1) or
(2) may be modified upon application of an interested person.
701.0503(5)
(5) Exempt assets. Assets of a trust that are exempt from claims of creditors under other statutes are not subject to
sub. (1) or
(2).
701.0503 History
History: 2013 a. 92 ss.
97,
103 to
107,
111,
112; Stats. 2013 s. 701.0503.
701.0503 Annotation
Trust income that is income to the beneficiary under federal tax law is subject to a child support order regardless of whether a distribution is made to the beneficiary. Grohmann v. Grohmann,
189 Wis. 2d 532,
525 N.W.2d 261 (1995).
701.0503 Annotation
In not revealing that he was a trust beneficiary, a father failed to make proper financial disclosure at the time of a divorce as was required by s. 767.127. The rationale of
Grohmann is applicable to both grantor and nongrantor trusts if there is an obligation to report that trust's income as one's own because it is the obligation to report the income that makes the income reachable for calculations of a child support obligation. Stevenson v. Stevenson,
2009 WI App 29,
316 Wis. 2d 442,
765 N.W.2d 811,
07-2143.
701.0504
701.0504
Discretionary trusts; effect of standard. 701.0504(1)(1) For purposes of this subchapter, and except as provided in
sub. (3), a beneficiary's interest in a trust that is subject to the trustee's discretion does not constitute an interest in property or an enforceable right even if the discretion is expressed in the form of a standard of distribution or the beneficiary is then serving as sole trustee or cotrustee.
701.0504(2)
(2) Except as provided in this subchapter, a creditor or other claimant may not attach present or future distributions from a beneficiary's interest in property or an enforceable right, obtain an order from a court forcing the judicial sale of the interest or compelling the trustee to make distributions, or reach the interest or right by any other means, even if the trustee has abused the trustee's discretion.
701.0504(3)
(3) Subsections (1) and
(2) do not apply if a beneficiary is acting as sole trustee of a trust for his or her benefit and his or her discretion to make distributions to himself or herself is not limited by an ascertainable standard or the consent of a party holding an adverse interest to the beneficiary.
701.0504(4)(a)(a) Except as provided in
par. (b), this section does not limit the right of a beneficiary to maintain a judicial proceeding against a trustee for an abuse of discretion or failure to comply with a standard for distribution.
701.0504(4)(b)
(b) The right of a beneficiary described in
par. (a) may not be exercised by a creditor.
701.0504 History
History: 2013 a. 92.
701.0505
701.0505
Creditor's claim against settlor. 701.0505(1)(a)(a) Whether or not the terms of a trust include a spendthrift provision and except as provided in
par. (b), the following rules apply to claims of a settlor's creditors:
701.0505(1)(a)1.
1. During the lifetime of the settlor, the property of a revocable trust is subject to claims of the settlor's creditors.
701.0505(1)(a)2.
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. 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.
701.0505(1)(a)3.
3. After the death of a settlor, and subject to the settlor's right to direct the source from which liabilities will be paid, the property of a trust that was revocable at the settlor's death is subject to claims of the settlor's creditors, costs of administration of the settlor's estate, the expenses of the settlor's funeral and disposal of remains, and statutory allowances to a surviving spouse and children to the extent the settlor's probate estate is inadequate to satisfy those claims, costs, expenses, and allowances.
701.0505(1)(b)
(b) Assets of a trust that are exempt from claims of creditors under other statutes are not subject to
par. (a).
701.0505(2)
(2) For purposes of this subchapter, all of the following apply:
701.0505(2)(a)
(a) During the period the power may be exercised, the holder of a power of withdrawal is treated in the same manner as the settlor of a revocable trust to the extent of the property subject to the power.
701.0505(2)(b)
(b) A beneficiary of a trust may not be considered a settlor solely because of a lapse, waiver, or release of any of the following:
701.0505(2)(b)2.
2. The beneficiary's right to withdraw part of the trust property, to the extent that the value of the property affected by the lapse, waiver, or release in any year does not exceed the greater of the following:
701.0505(2)(b)2.b.
b. The amount referenced in section
2503 (b) of the Internal Revenue Code for each individual other than the beneficiary who makes a transfer to the trust or who is deemed to make a transfer to the trust pursuant to an election to split gifts under section
2513 (a) of the Internal Revenue Code.
701.0505(2)(c)
(c) A beneficiary of a trust is not a settlor, has not made a voluntary or involuntary transfer of the beneficiary's interest in the trust, and does not have the power to make a voluntary or involuntary transfer of the beneficiary's interest in the trust solely because the beneficiary holds, exercises, or allows in any capacity, any of the following:
701.0505(2)(c)1.
1. A presently exercisable power to consume, invade, appropriate, or distribute property to or for the benefit of the beneficiary if the power is any of the following:
701.0505(2)(c)1.a.
a. Exercisable only with the consent of another person holding an interest adverse to the beneficiary's interest.
701.0505(2)(c)2.
2. A presently exercisable power to appoint any property of the trust to or for the benefit of a person other than the beneficiary, a creditor of the beneficiary, the beneficiary's estate, or a creditor of the beneficiary's estate.
701.0505(2)(d)
(d) A beneficiary of a trust is not a settlor solely because the beneficiary is entitled to nondiscretionary distributions from the trust.
701.0505(2)(e)1.1. Contributions to the following trusts are not considered to have been contributed by the settlor:
701.0505(2)(e)1.a.
a. An irrevocable marital trust that is treated as qualified terminable interest property under section
2523 (f) of the Internal Revenue Code if after the death of the settlor's spouse the settlor is a beneficiary of the trust or an irrevocable trust that receives property from the trust.
701.0505(2)(e)1.b.
b. An irrevocable marital trust that is treated as a general power of appointment trust under section
2523 (e) of the Internal Revenue Code if after the death of the settlor's spouse the settlor is a beneficiary of the trust or an irrevocable trust that receives property from the trust.
701.0505(2)(e)1.c.
c. An irrevocable trust for the settlor's spouse if after the death of the settlor's spouse the settlor is a beneficiary of the trust or an irrevocable trust that receives property from the trust.
701.0505(2)(e)1.d.
d. An irrevocable trust for the benefit of a person, the settlor of which is the person's spouse, regardless of whether or when the person was the settlor of an irrevocable trust for the benefit of that spouse.
701.0505(2)(e)1.e.
e. An irrevocable trust for the benefit of a person to the extent that the property of the trust was subject to a general power of appointment in another person.
701.0505(2)(e)2.
2. A person who would otherwise be treated as a settlor of a trust described in
subd. 1. a. to
e. is not treated as a settlor of the trust.
701.0505(2)(e)3.
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 or general power of appointment.
701.0505(3)
(3) Any order entered by a court under this section is subject to modification upon application of an interested person.
701.0505 History
History: 2013 a. 92 ss.
99,
108 to
110.
701.0506(1)
(1) In this section, "mandatory distribution" means a distribution of income or principal that the trustee is required to make to a beneficiary under the terms of the trust, including a distribution upon termination of the trust. "Mandatory distribution" does not include a distribution subject to the exercise of the trustee's discretion even if any of the following applies:
701.0506(1)(a)
(a) The discretion is expressed in the form of a standard of distribution.
701.0506(1)(b)
(b) The terms of the trust authorizing a distribution couple language of discretion with language of direction.
701.0506(2)
(2) Whether or not a trust contains a spendthrift provision, a creditor or assignee of a beneficiary may reach a mandatory distribution of income or principal, including a distribution upon termination of the trust, if the trustee has not made the distribution to the beneficiary within a reasonable time after the designated distribution date.
701.0506 History
History: 2013 a. 92.
701.0507
701.0507
Personal obligations of trustee. Trust property is not subject to personal obligations of the trustee, even if the trustee becomes insolvent or bankrupt.
701.0507 History
History: 2013 a. 92.
701.0508(1)(a)1.1. A trustee who has a duty or power to pay the debts of a decedent may publish in the county in which the decedent resided, as a class 3 notice, under
ch. 985, a deadline for filing claims with the trustee. The deadline shall be the date that is 4 months after the date of the first insertion of the notice.
701.0508(1)(a)2.
2. Except as provided in
pars. (b) and
(c), if the trustee satisfies the requirements for the publication of the notice under
subd. 1., all claims, including claims of any state and any of its subdivisions, whether due or to become due, absolute or contingent, liquidated or unliquidated, are barred against the trustee, the trust property and any recipient of trust property unless filed with the trustee on or before the date specified in the notice under
subd. 1.
701.0508(1)(b)
(b) Notwithstanding
par. (a) 2., a claim that is not filed on or before the date specified in the notice under
par. (a) 1. is not barred if any of the following apply:
701.0508(1)(b)1.
1. The claim is a claim based on tort, on a marital property agreement that is subject to the time limitations under
s. 766.58 (13) (b) or
(c), on Wisconsin income, franchise, sales, withholding, gift, or death taxes, or on unemployment compensation contributions due or benefits overpaid; a claim for funeral or administrative expenses; a claim of this state under
s. 46.27 (7g),
49.496,
49.682, or
49.849; or a claim of the United States.
701.0508(1)(b)2.a.
a. On or before the date specified in the notice under
par. (a) 1., the trustee knew, or in the exercise of reasonable diligence should have known, of the existence of the potential claim and of the identity and mailing address of the potential claimant.
701.0508(1)(b)2.b.
b. At least 30 days before the date specified in the notice under
par. (a) 1., the trustee had not given notice to the potential claimant of the final day for filing his or her claim.
701.0508(1)(b)2.c.
c. At least 30 days before the date specified in the notice under
par. (a) 1., the claimant did not have actual knowledge of the date on which the claim would be barred.
701.0508(1)(c)
(c) If an action is pending against a decedent at the time of his or her death and the action survives, the plaintiff in that action may serve a notice of substitution of party defendant on the trustee and file proof of service of notice in the court. Filing of proof of service on or before the deadline for filing a claim under
par. (a) 1. gives the plaintiff the same rights against the trust as the filing of a claim. A judgment in any such action constitutes an adjudication for or against the trust.
701.0508(2)
(2) Effect of statute of limitations. A trustee shall not pay a claim that was barred by a statute of limitations at the time of the decedent's death. A claim not barred by a statute of limitations at the time of the decedent's death shall not be barred thereafter by a statute of limitations if the claim is filed with the trustee on or before the deadline for filing a claim under
sub. (1) (a) 1.
701.0508(3)(a)(a) A claim not barred by
sub. (1) (a) 2. because of the operation of
sub. (1) (b) 2. may be enforced against trust property only as provided in this subsection.
701.0508(3)(b)
(b) The claimant shall file the claim with the trustee within one year after the decedent's death and within 30 days after the earlier of the following:
701.0508(3)(b)1.
1. The date that the trustee gives notice to the potential claimant of the deadline for filing a claim under
sub. (1) (a) 1.
701.0508(3)(b)2.
2. The date that the claimant first acquires actual knowledge of the deadline for filing a claim under
sub. (1) (a) 1.
701.0508(3)(c)
(c) The claimant shall have the burden of establishing by the greater weight of the credible evidence that all of the circumstances under
sub. (1) (b) 2. existed.
701.0508(3)(d)
(d) This subsection does not extend the time for commencement of a claim beyond the time provided by any statute of limitations applicable to that claim.
701.0508(4)
(4) Satisfaction of claim from other property. Failure of a claimant timely to file a claim as provided in this section does not bar the claimant from satisfying the claim, if not otherwise barred, from property other than trust property.
701.0508 History
History: 1997 a. 188;
1999 a. 9;
2013 a. 20;
2013 a. 92 ss.
118,
119; Stats. 2013 s. 701.0508.
REVOCABLE TRUSTS
701.0601
701.0601
Capacity of settlor of revocable trust. The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
701.0601 History
History: 2013 a. 92.
701.0602
701.0602
Revocation or amendment of revocable trust. 701.0602(1)(1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2014.
701.0602(2)
(2) If a revocable trust is created or funded by more than one settlor, all of the following apply:
701.0602(2)(a)
(a) To the extent the trust consists of marital or community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses.
701.0602(2)(b)
(b) To the extent the trust consists of property other than marital or community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution.
701.0602(2)(c)
(c) Upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
701.0602(3)
(3) A settlor may revoke or amend a revocable trust by any of the following means:
