Chapter 701

701.0602(4) (4) Upon revocation of a revocable trust, the trustee shall transfer the trust property to the settlor or 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 or as both spouses direct.

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701.0602(7) (7) A trustee who does not know that a trust has been revoked or amended is not liable for distributions made and other actions taken on the assumption that the trust had not been amended or revoked, or for distributions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; 2023 a. 127.

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)(a) (a) One year after the settlor’s death.

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.

701.0605 701.0605 Future interests in trust. Subject to s. 701.1204, unless a contrary intention is found, if a person has a future interest in property under a revocable trust and, under the terms of the trust, the person has the right to possession and enjoyment of the property at the settlor’s death, the right to possession and enjoyment is contingent on the person surviving the settlor. Extrinsic evidence may be used to show contrary intent.

701.0605 History History: 2023 a. 127.

subch. VII of ch. 701 SUBCHAPTER VII

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 701.0702 Trustee’s bond.

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.

701.0702 History History: 2013 a. 92; 2023 a. 127.

701.0703 701.0703 Cotrustees.

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)(c) (c) A trustee resigns.

701.0704(1)(d) (d) A trustee is disqualified or removed.

701.0704(1)(e) (e) A trustee dies.

701.0704(1)(f) (f) A guardian or conservator is appointed for an individual serving as trustee.

701.0704(1)(g) (g) Any other event occurs resulting in no person acting 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.

701.0704(3)(b) (b) By a person appointed by unanimous agreement of the qualified beneficiaries, except that, if the trust is a trust for an individual with a disability, the person appointed under this paragraph may not be the individual with a disability, his or her spouse, or a relative of the individual with a disability who is legally responsible for his or her support.

701.0704(3)(c) (c) By a person appointed by the court.

701.0704(4) (4) Whether or not a vacancy in a trusteeship exists or is required to be filled, the court may appoint an additional trustee, directing party, or trust protector whenever the court considers the appointment necessary for the administration of the trust.

701.0704 History History: 2013 a. 92; 2023 a. 127.

701.0705 701.0705 Resignation of trustee.

701.0705(1) (1) A trustee may resign in any of the following manners:

701.0705(1)(a) (a) Upon at least 30 days’ notice to the qualified beneficiaries, the settlor, if living, each cotrustee, each trust protector, and each directing party.

701.0705(1)(b) (b) With the approval of the court.

701.0705(2) (2) In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property.

701.0705(3) (3) Any liability of a resigning trustee or of any sureties on the trustee’s bond for acts or omissions of the trustee is not discharged or affected by the trustee’s resignation.

701.0705 History History: 2013 a. 92.

701.0706 701.0706 Removal of trustee.

701.0706(1) (1) The settlor, a cotrustee, or a qualified beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

701.0706(2) (2) The court may remove a trustee if any of the following applies:

701.0706(2)(a) (a) The trustee has committed a material breach of trust.

701.0706(2)(b) (b) A lack of cooperation among cotrustees substantially impairs the administration of the trust.

701.0706(2)(c) (c) Removal of the trustee is appropriate because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively.

701.0706(2)(d) (d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the removal is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

701.0706(3) (3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under s. 701.1001 (2) as may be necessary to protect the trust property or the interests of the beneficiaries.

701.0706 History History: 2013 a. 92; 2023 a. 127.

701.0707 701.0707 Delivery of property by former trustee.

701.0707(1) (1) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.

701.0707(2) (2) A trustee who has resigned or been removed shall proceed within a reasonable time to deliver the trust property within the trustee’s possession to the cotrustee, successor trustee, or other person entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.

701.0707 History History: 2013 a. 92; 2023 a. 127.

701.0708 701.0708 Compensation of trustee.

701.0708(1) (1) If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances.

701.0708(2) (2) If the terms of a trust specify the trustee’s compensation or refer to another ascertainable source for determining that compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if any of the following applies:

701.0708(2)(a) (a) The duties of the trustee are substantially different from those contemplated when the trust was created.