Chapter 702

702.404 History History: 2023 a. 127.

702.405 702.405 Power to contract: presently exercisable power of appointment. A powerholder of a presently exercisable power of appointment may contract to do any of the following:

702.405(1) (1) Not to exercise the power.

702.405(2) (2) To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.

702.405 History History: 2023 a. 127.

702.406 702.406 Power to contract: power of appointment not presently exercisable. A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if all of the following apply:

702.406(1) (1) The powerholder is also the donor of the power.

702.406(2) (2) The powerholder reserved the power in a revocable trust.

702.406 History History: 2023 a. 127.

702.407 702.407 Remedy for breach of contract to appoint or not to appoint. The remedy for a powerholder’s breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.

702.407 History History: 2023 a. 127.

subch. V of ch. 702 SUBCHAPTER V

RIGHTS OF POWERHOLDER’S CREDITORS
IN APPOINTIVE PROPERTY

702.501 702.501 Creditor claim: general power created by powerholder.

702.501(1) (1) In this section, “power of appointment created by the powerholder” includes a power of appointment created in a transfer by another person to the extent the powerholder contributed value to the transfer.

702.501(2) (2) Appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of the powerholder or of the powerholder’s estate to the extent provided in ch. 242 and any other applicable law relating to fraudulent conveyances.

702.501(3) (3) Subject to sub. (2), appointive property subject to a general power of appointment created by a powerholder is not subject to a claim of a creditor of the powerholder or the powerholder’s estate to the extent the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder’s estate.

702.501(4) (4) Subject to subs. (2) and (3), and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of any of the following:

702.501(4)(a) (a) If the power of appointment is a presently exercisable power of appointment, the powerholder, to the same extent as if the powerholder owned the appointive property.

702.501(4)(b) (b) If the power of appointment is exercisable at the powerholder’s death, the powerholder’s estate, to the extent the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid.

702.501 History History: 2023 a. 127.

702.502 702.502 Creditor claim: general power not created by powerholder.

702.502(1) (1) Except as otherwise provided in sub. (2), appointive property subject to a general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of any of the following:

702.502(1)(a) (a) If the power of appointment is a presently exercisable power of appointment, the powerholder to the extent the powerholder’s property is insufficient.

702.502(1)(b) (b) If the power of appointment is exercisable at the powerholder’s death, the powerholder’s estate or revocable trust, subject to the right of a decedent to direct the source from which liabilities are paid, but only to the extent of the powerholder’s exercise of that general power of appointment and only to the extent that the claim of the creditor has been filed and allowed in the powerholder’s estate or filed with and approved by the trustee of a revocable trust but not paid because the assets of the estate or revocable trust are insufficient. For purposes of this paragraph, a revocable trust is a trust that is revocable, as defined in s. 701.0103 (22), by the powerholder or jointly by the powerholder and the powerholder’s spouse.

702.502(2) (2) Subject to s. 702.504 (3), a power of appointment created by a person other than the powerholder that is subject to an ascertainable standard relating to an individual’s health, education, support, or maintenance within the meaning of 26 USC 2041 (b) (1) (A) or 2514 (c) (1), is considered for purposes of this subchapter as a nongeneral power of appointment.

702.502(3) (3) If during the powerholder’s lifetime, the powerholder exercises a general power of appointment created by a person other than the powerholder, a creditor of the powerholder can reach the appointed interests to the same extent that under the law relating to fraudulent conveyances the creditor could reach property that the powerholder has owned and transferred during the powerholder’s lifetime.

702.502 History History: 2023 a. 127.

702.503 702.503 Power to withdraw.

702.503(1) (1) For purposes of this subchapter, and except as otherwise provided in sub. (2), a power to withdraw property from a trust is considered, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.

702.503(2) (2) On the lapse, release, or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of the following:

702.503(2)(a) (a) The amount referenced in section 2041 (b) (2) or 2514 (e) of the Internal Revenue Code.

702.503(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 considered to make a transfer to the trust pursuant to an election to split gifts under section 2513 (a) of the Internal Revenue Code.

702.503 History History: 2023 a. 127.

702.504 702.504 Creditor claim: nongeneral power of appointment.

702.504(1) (1) Except as otherwise provided in subs. (2) and (3), appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder’s estate.

702.504(2) (2) Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder’s estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of the law relating to fraudulent conveyances.

702.504(3) (3) For purposes of this subchapter, if the initial gift in default of appointment is to the powerholder or the powerholder’s estate, a nongeneral power of appointment is treated as a general power of appointment.

702.504 History History: 2023 a. 127.

702.505 702.505 Third parties in good faith protected. Any person acting without actual notice of claims of creditors under this subchapter incurs no liability to those creditors for transferring property that is subject to a power of appointment or that has been appointed. A purchaser without actual notice and for a valuable consideration takes an interest in property, legal or equitable, and takes the interest free of any rights that a powerholder’s creditor may have under this subchapter.

702.505 History History: 2023 a. 127.

subch. VI of ch. 702 SUBCHAPTER VI

MISCELLANEOUS PROVISIONS

702.601 702.601 Recording instruments relating to a power of appointment.

702.601(1) (1) Each of the following instruments relating to a power of appointment is entitled to be recorded as a conveyance upon compliance with s. 706.05 (1):

702.601(1)(a) (a) An instrument, other than a will, exercising a power of appointment.

702.601(1)(b) (b) An instrument expressing consent to exercise a power of appointment.

702.601(1)(c) (c) A disclaimer.

702.601(1)(d) (d) A release.

702.601(2) (2) If a power of appointment is exercised by a will, a certified copy of the will and of the certificate of probate thereof may be recorded.

702.601 History History: 2023 a. 127.

702.602 702.602 Uniformity of application and construction. In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

702.602 History History: 2023 a. 127.

702.603 702.603 Relation to electronic signatures in global and national commerce act.

702.603(1) (1) Except as provided in sub. (2), this chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 USC 7001, et seq.

702.603(2) (2) This chapter does not modify, limit, or supersede 15 USC 7001 (c) or authorize electronic delivery of any of the notices described in 15 USC 7003 (b).

702.603 History History: 2023 a. 127.

702.604 702.604 Applicability.

702.604(1) (1) 

702.604(1)(a) (a) This chapter applies to a power of appointment created before, on, or after March 23, 2024.

702.604(1)(b) (b) This chapter applies to a judicial proceeding concerning a power of appointment commenced on or after March 23, 2024.

702.604(1)(c) (c) This chapter applies to a judicial proceeding concerning a power of appointment commenced before March 23, 2024, unless the court finds that application of a particular provision of this chapter would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of this chapter does not apply and the superseded law applies.

702.604(1)(d) (d) A rule of construction or presumption in this chapter applies to an instrument executed before March 23, 2024, unless there is a clear indication of a contrary intent in the terms of the instrument.

702.604(1)(e) (e) Except as otherwise provided in pars. (a) to (d), this chapter does not apply to an action taken before March 23, 2024.

702.604(2) (2) If a right is acquired, extinguished, or barred on the expiration of a prescribed period that commenced under a law of this state other than this chapter before March 23, 2024, the law continues to apply to the right.

702.604 History History: 2023 a. 127.