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
P.O.D.'s May Thwart Testator's Intent: It's What Mom Wanted. Devitt. Wis. Law. March 2013.
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.
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 The application of any sum withdrawn from an account shall only be subject to inquiry by a party to the account, and such party shall have the burden of proving breach of the agency relationship.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
. Unless there is clear and convincing evidence of a different intent, if the agent is a spouse of a party, the sums so withdrawn may be used, but not by way of limitation, for the support and maintenance of either spouse or any common minor children.
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exist without the necessity of written provision if the agent is the spouse of a party, but in such a case funds so withdrawn, the application of which may be inquired into only as provided in sub.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.
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:
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.
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.
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.
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.
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.
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.
A personal representative is not a “party" to an account held as a “joint account" by the decedent and another who survives; a bank who disburses the funds of the joint account to the personal representative is not entitled to immunity under this section. In Matter of Estate of Martz, 171 Wis. 2d 89
, 491 N.W.2d 772
(Ct. App. 1992).
Joint bank accounts in Wisconsin. O'Flaherty, 53 MLR 118 (1970).
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.
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 fraudulent 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 fraudulent 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.
History: 1973 c. 291
; 1987 a. 192
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.
History: 1973 c. 291
; 1989 a. 331
Applicability of general transfers at death provisions.
applies to transfers at death under this subchapter.
History: 1997 a. 188
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
NONPROBATE TRANSFERS AT DEATH;
NONPROBATE TRANSFER OF REAL PROPERTY
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:
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;
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
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.
This section does not limit rights of creditors under other laws of this state.
applies to transfers at death under this section.
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
No provision of s. 766.58 (3) or this section 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 Employees' Retirement System Annuity and Pension Board, 2006 WI 10
, 288 Wis. 2d 62
, 709 N.W.2d 360
Wisconsin's New Probate Code. Erlanger. Wis. Law. Oct. 1998.
Nonprobate transfer of real property on death. 705.15(1b)(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.
“TOD beneficiary” means a person designated as a beneficiary in a document that complies with sub. (2) (a)
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:
An interest in real property that is owned by one individual and is not concurrently owned by any other person.
A fractional interest in real property that is owned by an individual as a tenant in common.
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.
An interest in real property owned by spouses as survivorship marital property.
An interest in real property owned by 2 or more individuals as joint tenants.
A TOD beneficiary may be designated on a document that includes all of the following:
The name of the owner or owners of the interest in real property that will be transferred.
That the transfer is effective only upon the death of the owner or owners.
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.
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.
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.
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.
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.
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
, or 867.046
applies to transfers on death under this section.
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
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.
History: 2005 a. 206
; 2017 a. 332
TRANSFER ON DEATH SECURITY REGISTRATION
Definitions; transfer on death security registration.
In ss. 705.21
“Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
“Devisee" means any person designated in a will to receive a disposition of real or personal property.
“Personal representative" has the meaning given in s. 851.23
“Register", including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
“Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
“Security" means a share, participation or other interest in property, in a business or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security and a security account.
“Security account" means any of the following:
A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner's death.
An investment management or custody account with a trust company or a trust division of a bank with trust powers, including the securities in the account, a cash balance in the account, and cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner's death.
A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
“State" includes any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
History: 1989 a. 331
; 2005 a. 10
Registration in beneficiary form; sole or joint tenancy ownership.
Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by 2 or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
History: 1989 a. 331
Registration in beneficiary form; applicable law.
A security may be registered in beneficiary form if the form is authorized by ss. 705.21
or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by ss. 705.21
or a similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which ss. 705.21
or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
History: 1989 a. 331
Origination of registration in beneficiary form.
A security, whether evidenced by certificate or account, is registered in beneficiary form if the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.