Chapter 705

705.03 Annotation A joint checking account established under this section prior to the execution of a power of attorney creates a presumption of donative intent. When an agent acting under a power of attorney transfers funds deposited by the principal from a joint account for the agent’s own use, a presumption of fraud is created. When these two conflicting and inconsistent presumptions coexist, the circuit court is free to make a determination based upon the facts and the credibility of the witnesses. Extrinsic evidence may be admissible to determine the intent of the parties. Russ v. Russ, 2007 WI 83, 302 Wis. 2d 264, 734 N.W.2d 874, 05-2492.

705.04 705.04 Right of survivorship.

705.04(1) (1) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created. If there are 2 or more surviving parties, their ownership interests during lifetime shall remain subject to s. 705.03 (1); and the right of survivorship continues between the surviving parties.

705.04(2) (2) If the account is a P.O.D. account, on the death of the original payee or the survivor of 2 or more original payees, all of the following apply:

705.04(2)(a) (a) If there is one P.O.D. beneficiary and he or she survives, he or she is entitled to payment of all sums remaining on deposit.

705.04(2)(b) (b) If there are 2 or more P.O.D. beneficiaries and they all survive, they are entitled to payment of the sums on deposit in accordance with any written instructions that the owner filed with the financial institution or, if the owner left no written instructions, to payment in equal shares.

705.04(2)(c) (c) If 2 or more persons succeed to ownership of the account, there is no further right of survivorship unless the terms of the account expressly provide for survivorship or for the account’s continuance as a joint account.

705.04(2)(d) (d) Subject to the rights of financial institutions under s. 705.06 (1) (c), if any P.O.D. beneficiary predeceases the original payee or the survivor of 2 or more original payees, the amount to which the predeceased P.O.D. beneficiary would have been entitled passes to any of his or her issue who would take under s. 854.06 (3).

705.04(2)(e) (e) If no P.O.D. beneficiary or predeceased P.O.D. beneficiary’s issue who would take under s. 854.06 (3) survives the death of all owners, the account belongs to the estate of the deceased sole owner or the estate of the last to die of multiple owners.

705.04(2)(f) (f) Payment may be made to a minor P.O.D. beneficiary only in accordance with a procedure approved under ch. 54.

705.04(2)(g) (g) If the P.O.D. account is a marital account, this section applies only to the 50 percent of the account not owned by the surviving spouse named as a party on the account.

705.04(2g) (2g) Notwithstanding subs. (1) and (2), the department of health services may collect, from funds of a decedent that are held by the decedent immediately before death in a joint account or a P.O.D. account, an amount equal to the medical assistance that is recoverable under s. 49.496 (3) (a), an amount equal to aid under s. 49.68, 49.683, 49.685, or 49.785 that is recoverable under s. 49.682 (2) (a) or (am), or an amount equal to long-term community support services under s. 46.27, 2017 stats., that is recoverable under s. 46.27 (7g) (c) 1., 2017 stats., and that was paid on behalf of the decedent or the decedent’s spouse.

705.04(2m) (2m) Unless a marital property agreement under s. 766.58 provides otherwise, after deducting all payments and certifications made under s. 404.405 50 percent of the sums remaining on deposit at the death of a party to a marital account belongs to and may, upon the maturity of the account, be withdrawn by the surviving spouse and 50 percent belongs to and may, upon the maturity of the account, be withdrawn by the decedent’s estate. No financial institution is liable for any amount withdrawn under this subsection by a party who falsely claims to be the decedent’s spouse.

705.04(3) (3) Subject to s. 853.15, a right of survivorship arising from the express terms of the account or under this section, or a P.O.D. beneficiary designation, cannot be changed by will. Any transfers resulting from the application of this section are not to be considered testamentary dispositions.

705.04(4) (4) As to any deposit made on or after January 1, 1986, a surviving spouse who is not a party to the account may recover under s. 766.70 (6).

705.04 History History: 1973 c. 291; 1983 a. 186; 1985 a. 37 s. 187; 1995 a. 27 ss. 7065 to 7065c, 9126 (19); 1999 a. 9; 2005 a. 216, 387; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97; 2009 a. 177; 2013 a. 20; 2015 a. 55; 2019 a. 9.

705.04 Annotation A personal representative is not a “party” to an account held as a “joint account” by the decedent and another who survives; a bank that disburses the funds of the joint account to the personal representative is not entitled to immunity under s. 705.06 (2). Ixonia State Bank v. Schuelke, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992).

705.04 Annotation An annuity that transferred ownership from the owner to a “co-annuitant” on the owner’s death was a joint account under sub. (1). A joint account with right of survivorship will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis. 2d 853, 616 N.W.2d 118, 99-1211.

705.04 Annotation To rebut the presumption of survivorship raised by sub. (1), the inquiry turns on the intention for the joint account at the time it was created. However, it does not follow that evidence postdating the creation of the account that expresses the party’s post-creation intention is only probative of the party’s post-creation intention and is therefore irrelevant to the inquiry. The law of evidence embraces the common sense assumption that mental states, including intentions, can persist over time. Because a party’s intention for a joint account may persist after its creation and may manifest in the party’s post-creation statements and conduct, post-creation evidence of such manifestations may be relevant. Henke v. Estate of Klawitter, 2023 WI App 60, 409 Wis. 2d 696, 998 N.W.2d 579, 22-2036.

705.04 Annotation P.O.D.s May Thwart Testators’ Intent: It’s What Mom Wanted. Devitt. Wis. Law. Mar. 2013.

705.05 705.05 Designation and powers of agent.

705.05(1) (1) A party to an account, notwithstanding such party’s minority, or if the account has multiple parties, all of them acting in concert, may appoint one or more agents for purposes of making withdrawals from the account. The authority of an agent to make withdrawals from an account may be terminated by any party to the account upon written notice to the financial institution, and this shall not preclude a party’s liability for wrongful termination of such agency.

705.05(2) (2) The uses and purposes for which withdrawals may be made by an agent to an account shall be governed by agency principles of general application. The application of any sum withdrawn from an account shall only be subject to inquiry by a party to the account, and such party shall have the burden of proving breach of the agency relationship. A minor party may not disaffirm the appointment of an agent, but the period within which the minor party may inquire into the propriety of any withdrawal shall be governed by s. 893.16 or 893.18. Unless there is clear and convincing evidence of a different intent, if the agent is a spouse of a party, the sums so withdrawn may be used, but not by way of limitation, for the support and maintenance of either spouse or any common minor children.

705.05(3) (3) The parties to an account may provide, by the terms of the account or by independent written power of attorney which, if later, shall have precedence over the terms of the account, that the authority conferred upon an agent shall be exercisable notwithstanding any party’s legal disability. In such case the authority of the agent is also exercisable notwithstanding later uncertainty as to whether a party is dead or alive. Absent a written direction to the contrary, the foregoing power of withdrawal shall exist without the necessity of written provision if the agent is the spouse of a party, but in such a case funds so withdrawn, the application of which may be inquired into only as provided in sub. (2), may only be used for the support and maintenance of either spouse and any common minor children. This subsection shall apply to all accounts created prior to and after July 1, 1975.

705.05 History History: 1973 c. 291; 1979 c. 323 s. 33; 1993 a. 486.

705.06 705.06 Protection of financial institutions.

705.06(1) (1) In accordance with the terms of an account, and subject to this subchapter, ch. 112 and the duties prescribed for personal representatives in ch. 72 and unless otherwise ordered by a court of competent jurisdiction:

705.06(1)(a) (a) A financial institution may on request pay any sums on deposit in the account to any party or agent; and the financial institution shall not be required to look into the source of funds received for deposit or the proposed application of any funds withdrawn or requested to be withdrawn.

705.06(1)(b) (b) Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is under legal disability or is deceased at the time the payment is requested.

705.06(1)(c) (c) Any sums in a P.O.D. account may be paid, on request, to the P.O.D. beneficiary upon presentation to the financial institution of proof of death showing that the P.O.D. beneficiary survived all persons named as original payees of the account. If more than one P.O.D. beneficiary is named and at least one of them is predeceased, sums in the account may be paid to the surviving P.O.D. beneficiary or beneficiaries upon presentation of proof of death of the other beneficiary, without regard to claims by the issue of a predeceased beneficiary under s. 705.04 (2) (d). If none of the named beneficiaries survive, the sums in the account may be paid to the estate of the deceased sole owner or the estate of the owner who was the last to die of multiple owners, without regard to claims by the issue of a predeceased beneficiary under s. 705.04 (2) (d). If the P.O.D. account is a marital account, this paragraph applies only to the 50 percent of the account not owned by the surviving spouse named as a party on the account.

705.06(1)(d) (d) Any sums in a marital account may be paid, on request, to either party without regard to whether the other party is under legal disability or is deceased, unless the financial institution receives actual notice that the other party is deceased. After receipt of actual notice of the death of one party to a marital account, the financial institution may pay on request not more than 50 percent of the sums on deposit to the surviving party, and 50 percent of that amount to the personal representative of the deceased party or if applicable to any P.O.D. beneficiary of the deceased party’s interest, unless before payment is made the financial institution receives a verified statement under s. 865.201 or a certified copy of a certificate or recorded application concerning survivorship rights under s. 867.046, in which case the financial institution shall make payment as provided in that document.

705.06(2) (2) Payment made under this subchapter discharges the financial institution from all claims for amounts so withdrawn. If the institution has reason to believe that a dispute exists as to the rights of the parties to an account or their successors it may, but shall not be required to, refuse to pay funds in the account to any persons pending instructions from a court, or it may pay the proceeds to a court. An institution may but need not recognize the authority of an agent, other than one with continuing authority under s. 705.05 (3), until it knows of the fact of death or adjudication of incompetence of all parties appointing such agent and has reasonable opportunity to act.

705.06(3) (3) The protection provided by this section shall have no bearing on the rights of parties or their successors in disputes concerning the beneficial ownership of funds in or withdrawn from an account.

705.06 History History: 1973 c. 291; 1983 a. 186; 1987 a. 27; 1989 a. 331; 2005 a. 216.

705.06 Annotation A personal representative is not a “party” to an account held as a “joint account” by the decedent and another who survives; a bank that disburses the funds of the joint account to the personal representative is not entitled to immunity under this section. Ixonia State Bank v. Schuelke, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992).

705.06 Annotation Joint Bank Accounts in Wisconsin. O’Flaherty. 53 MLR 118 (1970).

705.07 705.07 Rights of creditors.

705.07(1) (1) Only the creditors of any living party to an account may subject the entire sums on deposit to their claims, as if such sums resulted solely from contributions made by the debtor party. If a joint or P.O.D. account requires the signatures of all of the parties for purposes of withdrawal, such account shall not be subject to the claims of creditors of a debtor party to the extent of the net contributions of the other parties to the account. Such other parties shall have the burden of proving their net contributions by clear and convincing evidence.

705.07(2) (2) For purposes of ch. 242, a debtor party shall be deemed to have made a transfer only at the time some other party withdraws all or part of the sums on deposit, or at the time of the debtor party’s death as to sums not previously withdrawn. In the case of a withdrawal while the debtor party is living, the sole grounds for determining any such transfer to be voidable shall be whether the debtor party is or will be thereby rendered insolvent under s. 242.05 (1) or whether the debtor party is engaged or is about to engage in a business or transaction for which the assets remaining in the debtor party’s hands after the transfer are unreasonably small under s. 242.04 (1) (b) 1. In the case of a transfer by reason of the death of the debtor party, the sole ground for determining any such transfer to be voidable shall be whether the debtor party’s estate subject to administration is insolvent under s. 242.02. For purposes of this subsection, the amount transferred shall be deemed to consist of those assets which the creditors of the debtor party could have made subject to their claims immediately prior to the transfer, less any sums which such creditors could have made so subject to their claims immediately after the transfer.

705.07 History History: 1973 c. 291; 1987 a. 192; 2023 a. 246.

705.08 705.08 Construction. This subchapter shall be construed in such a manner as to ensure reasonable certainty of legal result for those who establish a multiple-party or agency account.

705.08 History History: 1973 c. 291; 1989 a. 331.

705.09 705.09 Applicability of general transfers at death provisions. Chapter 854 applies to transfers at death under this subchapter.

705.09 History History: 1997 a. 188.

705.09 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

subch. II of ch. 705 SUBCHAPTER II

NONPROBATE TRANSFERS AT DEATH;
NONPROBATE TRANSFER OF REAL PROPERTY

705.10 705.10 Nonprobate transfers on death.

705.10(1) (1) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, online tool, as defined in s. 711.03 (18), deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection governs a written provision that:

705.10(1)(a) (a) Money or other benefits due, controlled by or owned by a decedent before death must be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later;

705.10(1)(b) (b) Money due or to become due under the instrument ceases to be payable in the event of death of the promisee or the promisor before payment or demand; or

705.10(1)(c) (c) Any property controlled by or owned by the decedent before death which is the subject of the instrument passes to a person whom the decedent designates either in the instrument or in a separate writing, including a will executed either before or at the same time as the instrument, or later.

705.10(2) (2) This section does not limit rights of creditors under other laws of this state.

705.10(3) (3) Chapter 854 applies to transfers at death under this section.

705.10(4) (4) A transfer under this section does not require confirmation in any procedure under s. 867.01, 867.02, or 867.03 or ch. 856 or 865. A transfer under this section may be confirmed under s. 867.046 (1m) or (2).

705.10 History History: 1989 a. 331; 1997 a. 188; 2005 a. 206 s. 5; 2005 a. 216 s. 35; Stats. 2005 s. 705.10; 2007 a. 97 s. 198; 2015 a. 300.

705.10 Annotation An annuity is an “other written instrument” under sub. (1). A contractual arrangement that creates a nonprobate transfer of property subject to this section will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis. 2d 853, 616 N.W.2d 118, 99-1211.

705.10 Annotation No provision of this section or s. 766.58 (3) permits parties to ignore ch. 854 or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity & Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254.

705.10 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

705.15 705.15 Nonprobate transfer of real property on death.

705.15(1b) (1b) In this section:

705.15(1b)(a) (a) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, government subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

705.15(1b)(b) (b) “Sole owner” means the owner of an interest in real property described in sub. (1m) (a) to (c).

705.15(1b)(c) (c) “TOD beneficiary” means a person designated as a beneficiary in a document that complies with sub. (2) (a).

705.15(1m) (1m) Any of the following interests in real property may be transferred without probate to a designated TOD beneficiary as provided in this section on the death of the sole owner or the last to die of the multiple owners:

705.15(1m)(a) (a) An interest in real property that is owned by one individual and is not concurrently owned by any other person.

705.15(1m)(b) (b) A fractional interest in real property that is owned by an individual as a tenant in common.

705.15(1m)(c) (c) An interest in real property that is owned by a spouse as marital property. This paragraph does not include an interest in real property owned as survivorship marital property.

705.15(1m)(d) (d) An interest in real property owned by spouses as survivorship marital property.

705.15(1m)(e) (e) An interest in real property owned by 2 or more individuals as joint tenants.

705.15(2) (2) 

705.15(2)(a) (a) A TOD beneficiary may be designated on a document that includes all of the following:

705.15(2)(a)1. 1. The name of the owner or owners of the interest in real property that will be transferred.

705.15(2)(a)2. 2. The name of the designated TOD beneficiary.

705.15(2)(a)3. 3. That the transfer is effective only upon the death of the owner or owners.

705.15(2)(a)4. 4. If the interest that will be transferred is an interest in real property owned by a spouse as marital property, the signatures of both spouses who have an interest in the marital property.

705.15(2)(b) (b) The designation of a TOD beneficiary may be made by use of the words “transfer on death” or “pay on death,” or the abbreviation “TOD” or “POD,” after the name of the owner or owners of the property and before the name of the TOD beneficiary or beneficiaries. The owner or owners may designate one or more persons as a primary TOD beneficiary and may designate one or more persons as a contingent TOD beneficiary if a primary TOD beneficiary does not survive the sole owner or the last to die of multiple owners. The designation may be included on the original document that passes the property interest to the owner or owners or may be made at a later time by the sole owner or all then surviving owners by executing and recording another document that designates a TOD beneficiary.

705.15(2)(c) (c) A TOD beneficiary designation is not effective unless the document on which the designation is made, and any fees required to record the document, are submitted for recording to the register of deeds office of the county in which the real property is located before the death of the sole owner or the last to die of multiple owners.

705.15(3) (3) The designation of a TOD beneficiary on a document does not affect ownership of the property until the death of the sole owner or the last to die of multiple owners regardless of whether the document provides otherwise. The designation may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the TOD beneficiary, by executing and recording another document that designates a different TOD beneficiary or no beneficiary. The recording of a document that designates a TOD beneficiary or no beneficiary revokes any designation made in a previously recorded document relating to the same property interest.

705.15(4) (4) On the death of the sole owner or the last to die of multiple owners, ownership of the interest in the real property passes, subject to any lien or encumbrance against the real property, to the designated TOD beneficiary or beneficiaries who survive all owners and to any predeceased beneficiary’s issue who would take under s. 854.06 (3). If no TOD beneficiary or predeceased TOD beneficiary’s issue who would take under s. 854.06 (3) survives the death of all owners, the interest in the real property passes to the estate of the deceased sole owner or the estate of the last to die of the multiple owners.

705.15(5) (5) A TOD beneficiary’s interest in the property on the death of the sole owner or the last to die of multiple owners may be confirmed as provided in s. 863.27, 865.201, or 867.046.

705.15(6) (6) Chapter 854 applies to transfers on death under this section.

705.15(7) (7) The capacity required to designate a TOD beneficiary or to revoke a designation of a TOD beneficiary is the same as the capacity to make or revoke a will under s. 853.01.

705.15(8) (8) Unless previously adjudicated in a formal testacy proceeding or otherwise barred, the claim of any claimant to recover real property transferred to a TOD beneficiary under this section is barred unless, by no later than 120 days after the death of the sole owner or the last to die of multiple owners, a complaint is filed in an action in which the relief demanded may confirm or change interests in the real property transferred under this section and a lis pendens is filed or recorded in each county where any part of the real property is located.

705.15 History History: 2005 a. 206; 2017 a. 332.

705.18 705.18 Nonprobate transfer of farming implements at death.

705.18(1) (1) In this section:

705.18(1)(a) (a) “Conscious presence” means within the range of any of an individual’s senses.

705.18(1)(am) (am) “Disinterested witness” means an individual who is not designated as a TOD beneficiary on a document that he or she is acting as a witness to under this section.