701.0205
701.0205
Notice. If notice of a judicial proceeding involving a trust to an interested person, to the person's representative or guardian ad litem, or to other persons, is required by law or deemed necessary by the court, the court shall order such notice to be given as prescribed in s.
879.05 except that service by publication may not be required unless ordered by the court. The court may order both personal service and service by publication on designated persons. Proof of service shall be made as provided in s.
879.07. Interested persons, on behalf of themselves, or their representatives or guardians ad litem, on behalf of the representative or guardian ad litem and the interested person the representative or guardian ad litem represents, may in writing waive service of notice and consent to the hearing of any matter without notice. Waiver of notice or an appearance by any interested person or the interested person's representative or guardian ad litem is equivalent to timely service of notice.
701.0205 History
History: 2013 a. 92 s.
194.
701.0206
701.0206
Attorney for person in military service. At the time of filing a petition for a judicial proceeding involving a trust, the petitioner shall file an affidavit setting forth the name of any interested person who is actively engaged in the military service of the United States. Whenever it appears by the affidavit or otherwise that any person in the active military service of the United States is an interested person and is not represented by an attorney, or by an attorney-in-fact who is duly authorized to act on the interested person's behalf in the matter, the court shall appoint an attorney to represent the interested person and protect the person's interest.
701.0206 History
History: 2013 a. 92 s.
195.
REPRESENTATION
701.0301
701.0301
Representation: basic effect. 701.0301(1)(1)
Notice, information, an accounting, or a report given to a person who may represent and bind another person under this subchapter is a substitute for and has the same effect as notice, information, an accounting, or a report given directly to the other person.
701.0301(2)
(2) The consent of a person who may represent and bind another person under this subchapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative in writing before the consent would otherwise have become effective.
701.0301(3)
(3) Except as provided in ss.
701.0411 and
701.0602, a person who under this subchapter may represent a settlor who lacks capacity may receive notice and may give a binding consent on the settlor's behalf.
701.0301(4)
(4) A settlor may not represent and bind a beneficiary under this subchapter with respect to the termination or modification of a trust under s.
701.0411 (1).
701.0301(5)
(5) A trustee is not liable for giving notice, information, an accounting, or a report to a beneficiary who is represented by another person under this subchapter and nothing in this subchapter prohibits the trustee from giving notice, information, an accounting, or a report to the person represented.
701.0301 History
History: 2013 a. 92.
701.0302
701.0302
Representation by holder of general power of appointment. To the extent there is no conflict of interest between a holder of a general power of appointment and a person represented with respect to the particular question or dispute, the holder may represent and bind the person whose interests, as a permissible appointee, a taker in default, or otherwise, are subject to the power.
701.0302 History
History: 2013 a. 92.
701.0303
701.0303
Representation by fiduciaries, parents, or a person appointed by a trustee. Except as provided in s.
701.0411, to the extent there is no conflict of interest between a representative and the person represented or among those being represented with respect to a particular question or dispute, all of the following apply:
701.0303(1)
(1) A conservator may represent and bind the estate that the conservator controls.
701.0303(2)
(2) Notwithstanding ss.
54.20 (2) and
54.25 (2), a guardian of the estate may represent and bind the ward and a guardian of the person may represent and bind the ward if a guardian of the estate of the ward has not been appointed.
701.0303(3)
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.
701.0303(4)
(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.
701.0303(5)
(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.
701.0303(6)
(6) A parent may represent and bind the parent's minor or unborn child. If a disagreement arises between parents seeking to represent the same minor child or unborn child, representation is determined as follows:
701.0303(6)(a)
(a) If only one parent is a beneficiary of the trust that is the subject of the representation, that parent may represent the minor child or unborn child.
701.0303(6)(b)
(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 the minor child or unborn child.
701.0303(6)(c)
(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 the minor child or unborn child.
701.0303(6)(d)
(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 the minor child or unborn child.
701.0303(7)
(7) The order in which the representatives are listed in subs.
(1) to
(6) sets forth the priority that each such representative has relative to the others.
701.0303(8)
(8) If there is no representation by a person having a substantially identical interest under s.
701.0304, the trustee may appoint a representative to act if any of the following applies:
701.0303(8)(c)
(c) The trustee determines that the otherwise available representation under subs.
(1) to
(6) might be inadequate.
701.0303 History
History: 2013 a. 92,
151.
701.0304
701.0304
Representation by person having substantially identical interest. Unless otherwise represented with respect to a particular question or dispute, a minor, incapacitated, or unborn individual or a person whose identity or location is unknown and not reasonably ascertainable may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to the particular question or dispute.
701.0304 History
History: 2013 a. 92.
701.0305
701.0305
Appointment of representative by a court. 701.0305(1)(1)
If the court determines that an interest is not represented under this subchapter, or that the otherwise available representation might be inadequate, the court may appoint a representative or guardian ad litem to receive notice, give consent, and otherwise represent, bind, and act on behalf of the person who is not represented or whose representation might be inadequate. A representative or guardian ad litem may be appointed to represent several persons or interests.
701.0305(2)
(2) A representative or guardian ad litem may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.
701.0305(3)
(3) In making decisions, a representative or guardian ad litem may consider any general benefit accruing to the living members of the individual's family.
701.0305 History
History: 2013 a. 92.
CREATION, VALIDITY, MODIFICATION,
AND TERMINATION OF TRUST
701.0401
701.0401
Methods of creating a trust. A trust may be created by any of the following:
701.0401(1)
(1) A transfer of property to another person as trustee during the settlor's lifetime, by will, or by other disposition taking effect upon the settlor's death.
701.0401(2)
(2) A declaration by an owner of property that the owner holds identifiable property as trustee or declaration by any person who intends to create a trust with the expectation that property of the person or others will be transferred to the trust.
701.0401(3)
(3) An exercise of a power of appointment in favor of a trustee.
701.0401(4)
(4) A court pursuant to its statutory or equitable powers.
701.0401(5)
(5) A guardian of the estate or conservator acting with authority of the court, a representative payee, or an agent under a power of attorney that expressly grants authority to create the trust.
701.0401(6)
(6) Any other manner authorized by statute, regulation, common law, or other provision having the effect of law.
701.0401 History
History: 2013 a. 92.
701.0402
701.0402
Requirements for creation. 701.0402(1)(1)
A trust is created only if all of the following are satisfied:
701.0402(1)(a)
(a) The settlor of the trust has capacity, as defined in sub.
(4), to create the trust, unless the trust is created by court order or by an agent, guardian of the estate, conservator, or representative payee with authority to act.
701.0402(1)(b)
(b) The settlor indicates an intention to create the trust; or a statute, regulation, common law, other provision having the effect of law, judgment, or decree creates or authorizes the creation of a trust.
701.0402(1)(c)
(c) The trust has a definite beneficiary or is one of the following:
701.0402(1)(e)
(e) The same person is not the sole trustee and sole beneficiary.
701.0402(2)
(2) A beneficiary is definite if the beneficiary can be ascertained at the time the trust is created or in the future.
701.0402(3)
(3) A power in a trustee or trust protector to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.
701.0402(4)
(4) The capacity required to create a trust is the same as the capacity to make a will.
701.0402 History
History: 2013 a. 92.
701.0403
701.0403
Trusts created in other jurisdictions. A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation, any of the following was satisfied:
701.0403(1)
(1) The settlor was domiciled, had a place of abode, or was a national.
701.0403(2)
(2) A trustee was domiciled or had a place of business.
701.0403 History
History: 2013 a. 92.
701.0404
701.0404
Trust purposes. A trust may be created only to the extent its purposes are lawful and possible to achieve. A trust and its terms must be for the benefit of its beneficiaries or for a noncharitable, but otherwise valid, purpose as described in s.
701.0409.
701.0404 History
History: 2013 a. 92.
701.0405
701.0405
Charitable purposes; enforcement. 701.0405(1)(1)
A charitable trust may be created for the relief of poverty, the advancement of education or religion, the promotion of health or governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community.
701.0405(2)
(2) If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, or designate persons or procedures for selecting charitable purposes or beneficiaries, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor's intention to the extent it can be ascertained.
701.0405(3)
(3) The settlor of a charitable trust or his or her designees, whether identified within or without the terms of the trust, or a charitable entity named in the trust instrument, or the attorney general, or a cotrustee, or such other person the court determines to have sufficient interest may maintain a proceeding to enforce the trust.
701.0405 History
History: 2013 a. 92.
701.0406
701.0406
Creation of trust induced by fraud, duress, or undue influence. A trust is void to the extent its creation was induced by fraud, duress, or undue influence.
701.0406 History
History: 2013 a. 92.
701.0407
701.0407
Evidence of oral trust. Except as required by a statute other than this chapter, a trust does not need to be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence.
701.0407 History
History: 2013 a. 92.
701.0408
701.0408
Trust for care of animal. 701.0408(1)(1)
A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the 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.
701.0408(2)
(2) A 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. 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.
701.0408(3)
(3) Property of a 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 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.
701.0408 History
History: 2013 a. 92.
701.0409
701.0409
Noncharitable trust without ascertainable beneficiary. Except as otherwise provided in s.
701.0408 or by another statute, the following rules apply:
701.0409(1)
(1) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee.
701.0409(2)
(2) A trust may be created for maintaining, keeping in repair, and preserving any grave, tomb, monument, gravestone, or any cemetery. Any cemetery authority under s.
157.061 (2) may receive property in trust for any of the purposes specified in this subsection and apply the income from the trust to the purpose stated in the trust instrument.
701.0409(3)
(3) A trust authorized by this section may be enforced by a trust protector with the power to enforce the trust. If there is not a trust protector with the power to enforce the trust, a court may appoint a trust protector with the power to enforce the trust under s.
701.0818.
701.0409(4)
(4) Property of a 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 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.
