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:
701.0602(3)(a)
(a) By substantial compliance with a method provided in the terms of the trust.
701.0602(3)(b)
(b) If the terms of the trust do not provide a method, by any of the following means:
701.0602(3)(b)1.
1. A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust.
701.0602(3)(b)2.
2. Any other method manifesting clear and convincing evidence of the settlor's intent.
701.0602(4)
(4) Upon revocation of a revocable trust, the trustee shall transfer the trust property as the settlor directs. However, with respect to marital or community property, the trustee shall transfer the property to both spouses as marital or community property.
701.0602(5)
(5) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the power of attorney.
701.0602(6)
(6) A guardian of the estate or a conservator of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the guardianship or conservatorship.
701.0602(7)
(7) A trustee who does not know that a trust has been revoked or amended is not liable for distributions made and other actions taken on the assumption that the trust had not been amended or revoked, or for distributions made pursuant to sub.
(5).
701.0602 History
History: 2013 a. 92.
701.0603
701.0603
Settlor's powers; powers of withdrawal. 701.0603(1)(1)
While a trust is revocable, the rights of the beneficiaries are subject to the control of, and the duties of the trustee, a directing party, and a trust protector are owed exclusively to, the settlor.
701.0603(2)
(2) If a revocable trust has more than one settlor, the duties of the trustee, a directing party, and a trust protector are owed to all of the settlors.
701.0603(3)
(3) During the period in which a power of withdrawal may be exercised, the holder of the power has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.
701.0603 History
History: 2013 a. 92.
701.0604
701.0604
Limitation on action contesting validity of revocable trust; distribution of trust property. 701.0604(1)(1)
A person must commence a judicial proceeding to contest the validity of a trust that was revocable immediately before the settlor's death within the earlier of the following:
701.0604(1)(b)
(b) Four months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding. Except as provided in s.
701.0813 (2), a trustee is not liable to any person for not providing the information described in this paragraph.
701.0604(2)
(2) Upon the death of the settlor of a trust that was revocable immediately before the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless one of the following applies:
701.0604(2)(a)
(a) The trustee knows of a pending judicial proceeding contesting the validity of the trust.
701.0604(2)(b)
(b) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
701.0604(3)
(3) A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
701.0604 History
History: 2013 a. 92.
OFFICE OF TRUSTEE
701.0701
701.0701
Accepting or declining trusteeship. 701.0701(1)(1)
Except as provided in sub.
(3), a person designated as trustee accepts the trusteeship by doing any of the following:
701.0701(1)(a)
(a) Substantially complying with a method of acceptance provided in the terms of the trust.
701.0701(1)(b)
(b) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by accepting delivery of the trust property, exercising powers or performing duties as trustee, or otherwise indicating acceptance of the trusteeship.
701.0701(2)
(2) A person designated as trustee who has not yet accepted the trusteeship may decline the trusteeship. A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is considered to have rejected the trusteeship.
701.0701(3)
(3) A person designated as trustee, without accepting the trusteeship, may do any of the following:
701.0701(3)(a)
(a) Act to preserve the trust property if, within a reasonable time after acting, the person sends a declination of the trusteeship in writing to the settlor or, if the settlor is dead or incapacitated, to the designated cotrustee, or, if none, to the successor trustee, or, if none, to a distributee or a permissible distributee of the trust.
701.0701(3)(b)
(b) Inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose.
701.0701 History
History: 2013 a. 92.
701.0702(1)(1)
A trustee shall give bond to secure performance of the trustee's duties only if the court finds that a bond is needed to protect the interests of the beneficiaries or is required by the terms of the trust and the court has not dispensed with the requirement.
701.0702(2)
(2) The court may specify the amount of a bond, its liabilities, and whether sureties are necessary. The court may modify or terminate a bond at any time.
701.0702(3)
(3) A court may not require a bond from a trust company bank, state bank, or national bank that is authorized to exercise trust powers and that has complied with s.
220.09 or
223.02 nor shall a bond be required of a religious, charitable, or educational corporation or society.
701.0702 History
History: 2013 a. 92.
701.0703(1)(1)
Cotrustees may act only by majority decision.
701.0703(2)
(2) If a vacancy occurs in a cotrusteeship, as provided under s.
701.0704, a majority of the remaining cotrustees may act for the trust.
701.0703(3)
(3) A cotrustee shall participate in the performance of a trustee's function unless the cotrustee is unavailable to perform the function because of absence, illness, disqualification under other law, or the cotrustee is otherwise temporarily incapacitated or the cotrustee has properly delegated the performance of the function to another trustee.
701.0703(4)
(4) If a cotrustee is unavailable to perform duties because of absence, illness, disqualification under other law, or the cotrustee is otherwise temporarily incapacitated, and prompt action is necessary to achieve the purposes of the trust or to avoid injury to the trust property, the remaining cotrustee or a majority of the remaining cotrustees may act for the trust.
701.0703(5)
(5) A trustee may delegate to a cotrustee a function unless the delegation is expressly prohibited by the terms of the trust. Unless a delegation is irrevocable, a trustee may revoke a delegation previously made.
701.0703(6)
(6) Except as provided in sub.
(7), a trustee who does not join in an action of another trustee is not liable for the action.
701.0703(7)
(7) Each trustee shall exercise reasonable care to do all of the following:
701.0703(7)(a)
(a) Prevent a cotrustee from committing a material breach of trust.
701.0703(7)(b)
(b) Compel a cotrustee to redress a material breach of trust.
701.0703(8)
(8) A dissenting trustee who joins in an action at the direction of the majority of the trustees and who notified all cotrustees of the dissent at or before the time of the action is not liable for the action unless the action is a material breach of trust.
701.0703 History
History: 2013 a. 92.
701.0704
701.0704
Vacancy in trusteeship; appointment of successor. 701.0704(1)(1)
A vacancy in a trusteeship exists if any of the following occurs:
701.0704(1)(a)
(a) A person designated as trustee declines the trusteeship.
701.0704(1)(b)
(b) A person designated as trustee cannot be identified or does not exist.
701.0704(1)(f)
(f) A guardian or conservator is appointed for an individual serving as trustee.
701.0704(2)
(2) If one or more cotrustees remain in office, a vacancy in a trusteeship does not need to be filled. A vacancy in a trusteeship shall be filled if the trust has no remaining trustee.
701.0704(3)
(3) A vacancy in a trusteeship that is required to be filled shall be filled in the following order of priority:
701.0704(3)(a)
(a) By a person designated in the terms of the trust to act as successor trustee.
