Date of enactment:
2023 Senate Bill 759 Date of publication*:
2023 WISCONSIN ACT
AN ACT to repeal 701.0110 (1) (a), (b) and (c), 701.0405 (1) and 701.0418; to renumber 701.0304, 701.0305 (1),
701.0305 (2), 701.0305 (3), 701.0602 (3) (b) 1., 701.0602 (3) (b) 2. and 701.0802 (5); to renumber and amend
701.0103 (24), 701.0110 (1) (intro.), 701.0302, 711.04 (1) and 766.58 (13) (b); to consolidate, renumber and amend
701.0602 (3) (intro.), (a) and (b) (intro.); to amend 30.541 (3) (d) 1. a., 101.9211 (4) (a) 1., 342.17 (4) (a) 1., 700.16
(1) (c), 700.27 (1) (d), 701.0103 (4), 701.0103 (9), 701.0103 (18), 701.0103 (21) (intro.), 701.0103 (23), 701.0103
(27), 701.0103 (30), 701.0109 (title), 701.0109 (3), 701.0110 (2), 701.0110 (3), 701.0111 (4), 701.0111 (5) (d),
701.0111 (6), 701.0203 (1), 701.0302 (title), 701.0303 (4), 701.0303 (5), 701.0303 (6) (intro.), 701.0303 (6) (a),
701.0303 (6) (b), 701.0303 (6) (c), 701.0303 (6) (d), 701.0402 (1) (e), 701.0408, 701.0410 (2), 701.0410 (3),
701.0411 (1), 701.0411 (2) (a), 701.0411 (2) (b), 701.0411 (7), 701.0414 (4), 701.0415, 701.0416, 701.0505 (1) (a)
2., 701.0505 (2) (e) 3., 701.0602 (1), 701.0602 (4), 701.0702 (3), 701.0706 (2) (c), 701.0706 (2) (d), 701.0707 (2),
701.0813 (1), (2) (d) and (3) (a) (intro.), 701.0813 (2) (a), 701.0813 (3) (b), 701.0813 (5), 701.0817 (3) (b), 701.1005
(1), 701.1005 (2), 701.1009 (2), 701.1105 (1) (b), 701.1136 (1), 711.04 (2), 711.05 (2) (b), 711.06 (2) (intro.), 711.06
(2) (b), 711.07 (3) (b), 711.13, 766.01 (9) (a), 766.31 (7) (b), 766.58 (13) (c), 766.59 (1), 766.63 (1), 851.21 (2) (e),
854.13 (1) (c), 856.29, 859.02 (3) and 865.08 (6); to repeal and recreate 701.0103 (21) (a) and (b), 701.0508,
701.0818 (2) (b) 2. h. and chapter 702; and to create 701.0102 (12m), 701.0103 (1m), 701.0103 (1n), 701.0103 (3)
(c), 701.0103 (3m), 701.0103 (3r), 701.0103 (3u), 701.0103 (3x), 701.0103 (5g), 701.0103 (5w), 701.0103 (11p),
701.0103 (15m), 701.0103 (17m), 701.0103 (19r), 701.0103 (19v), 701.0103 (21m), 701.0103 (23m), 701.0109 (5),
701.0111 (5) (m), 701.0111 (7), 701.0113, 701.0201 (3) (km), 701.0201 (4), 701.0302 (1), 701.0303 (6) (e), 701.0304
(2), 701.0306, 701.0307 (title), 701.0308, 701.0401 (5m), 701.0411 (1m), 701.0411 (2) (intro.), 701.0509, 701.0605,
701.0704 (1) (g), 701.0802 (5) (b), 701.0802 (9), 701.0813 (3) (c), 701.0813 (6) and (7), 701.0815 (3), 701.0816 (29),
701.0816 (30), subchapter XIII of chapter 701 [precedes 701.1301], 711.03 (4m), 711.04 (1) (b), 711.04 (1) (c),
711.04 (1) (d), 766.01 (9) (e), 766.01 (9) (f), 766.31 (7) (g), 766.58 (7) (c), 766.58 (13) (b) 2. and 3., 766.625, 766.70
(3) (dm), 814.66 (1) (o) and 905.03 (2m) of the statutes; relating to: trust administration, the Uniform Powers of
Appointment Act, the Uniform Trust Decanting Act, disclosure of certain digital property, and the classification of
certain digital property as individual property for purposes of determining marital property.
The people of the state of Wisconsin, represented in
senate and assembly, do enact as follows:
SECTION 1. 30.541 (3) (d) 1. a. of the statutes is
amended to read:
30.541 (3) (d) 1. a. Evidence satisfactory to the
department of the appointment of a trustee in bankruptcy,
of a certification of trust under s. 701.1013 or the appoint-
ment of a trustee, or of the issuance of domiciliary letters
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 2023 Senate Bill 759
testamentary or other letters authorizing the administra-
tion of a decedent’s estate, letters of guardianship, con-
servatorship, special administration, or letters of trust.
SECTION 2. 101.9211 (4) (a) 1. of the statutes is
amended to read:
101.9211 (4) (a) 1. Evidence satisfactory to the
department of the appointment of a trustee in bankruptcy,
of a certification of trust under s. 701.1013 or the appoint-
ment of a trustee, or of the issuance of domiciliary letters
testamentary or other letters authorizing the administra-
tion of a decedent’s estate, letters of guardianship, con-
servatorship, special administration, or letters of trust.
SECTION 3. 342.17 (4) (a) 1. of the statutes is
amended to read:
342.17 (4) (a) 1. Evidence satisfactory to the depart-
ment of the issuance of the letters testamentary or other
letters authorizing the administration of an estate, letters
of guardianship, or letters of trust, appointment of a
trustee in bankruptcy, of a certification of trust under s.
701.1013 or the appointment of a testamentary trustee, or
of the appointment of the trustee in bankruptcy issuance
of domiciliary letters or other letters authorizing the
administration of a decedent’s estate, guardianship, con-
servatorship, special administration, or trust;
SECTION 4. 700.16 (1) (c) of the statutes is amended
to read:
700.16 (1) (c) If a future interest or trust is created by
exercise of a power of appointment, the permissible
period is computed from the time the power of appoint-
ment is exercised if the power of appointment is a general
power of appointment, as defined in s. 702.02 (5)
702.102 (7), even if the general power of appointment is
exercisable only by will. In the case of other powers of
appointment the permissible period is computed from the
time the power of appointment is created but facts at the
time the power of appointment is exercised are consid-
ered in determining whether the power of alienation is
suspended beyond a life or lives in being at the time of
creation of the power of appointment plus 30 years.
SECTION 5. 700.27 (1) (d) of the statutes is amended
to read:
700.27 (1) (d) “Power of appointment” has the mean-
ing given in s. 702.02 (6) 702.102 (15).
SECTION 6. 701.0102 (12m) of the statutes is created
to read:
701.0102 (12m) An account that is part of a qualified
ABLE program under section 529A (b) of the Internal
Revenue Code.
SECTION 7. 701.0103 (1m) of the statutes is created
to read:
701.0103 (1m) “Animal protector” means a person
appointed in an animal trust to enforce the trust on behalf
of the animal or, if no such person is appointed in the
trust, a person appointed by the court for that purpose.
SECTION 8. 701.0103 (1n) of the statutes is created to
read:
701.0103 (1n) “Animal trust” means a trust or an
interest in a trust created to provide for the care of one or
more animals.
SECTION 9. 701.0103 (3) (c) of the statutes is created
to read:
701.0103 (3) (c) Is an identified charitable organiza-
tion that will or may receive distributions under the terms
of the trust.
SECTION 10. 701.0103 (3m) of the statutes is created
to read:
701.0103 (3m) “Broad limited power of appoint-
ment” has the meaning given in s. 702.102 (4).
SECTION 11. 701.0103 (3r) of the statutes is created
to read:
701.0103 (3r) “Charitable interest” means an interest
in a trust that satisfies any of the following:
(a) It is held by an identified charitable organization
and makes the organization a qualified beneficiary.
(b) It benefits only charitable organizations and, if
the interest were held by an identified charitable organi-
zation, would make the organization a qualified benefi-
ciary.
(c) It is held solely for charitable purposes and, if the
interest were held by an identified charitable organiza-
tion, would make the organization a qualified benefi-
ciary.
SECTION 12. 701.0103 (3u) of the statutes is created
to read:
701.0103 (3u) “Charitable organization” means any
of the following:
(a) A person, other than an individual, organized and
operated exclusively for charitable purposes.
(b) A government or governmental subdivision,
agency, or instrumentality, to the extent it holds funds
exclusively for a charitable purpose.
SECTION 13. 701.0103 (3x) of the statutes is created
to read:
701.0103 (3x) “Charitable purpose” means the relief
of poverty, the advancement of education or religion, the
promotion of health, a municipal or other governmental
purpose, or another purpose the achievement of which is
beneficial to the community.
SECTION 14. 701.0103 (4) of the statutes is amended
to read:
701.0103 (4) “Charitable trust” means a trust, or por-
tion of a trust, created for a charitable purpose described
in s. 701.0405 (1). This subsection does not apply in s.
701.1201.
SECTION 15. 701.0103 (5g) of the statutes is created
to read:
701.0103 (5g) “Court” means the court that is identi-
fied in s. 701.0203 (1).
SECTION 16. 701.0103 (5w) of the statutes is created
to read:
701.0103 (5w) “Current beneficiary” means a bene-
ficiary that on the date the beneficiary’s qualification is − 3 − 2023 Wisconsin Act 2023 Senate Bill 759
determined is a distributee or permissible distributee of
trust income or principal or is the holder of a presently
exercisable general power of appointment.
SECTION 17. 701.0103 (9) of the statutes is amended
to read:
701.0103 (9) “General power of appointment” has
the meaning given in s. 702.02 (5) 702.102 (7).
SECTION 18. 701.0103 (11p) of the statutes is created
to read:
701.0103 (11p) “Identified charitable organization”
means a charitable organization that is expressly desig-
nated to receive distributions under the terms of a charita-
ble trust and that is not subject to a right of substitution
by the settlor or by any other party prior to the charitable
organization becoming a current beneficiary.
SECTION 19. 701.0103 (15m) of the statutes is cre-
ated to read:
701.0103 (15m) “Issue” has the meaning given in s.
851.13.
SECTION 20. 701.0103 (17m) of the statutes is cre-
ated to read:
701.0103 (17m) “Powerholder” has the meaning
given in s. 702.102 (14).
SECTION 21. 701.0103 (18) of the statutes is amended
to read:
701.0103 (18) “Power of appointment” has the
meaning given in s. 702.02 (6) 702.102 (15).
SECTION 22. 701.0103 (19r) of the statutes is created
to read:
701.0103 (19r) “Presently exercisable power of
appointment” has the meaning given in s. 702.102 (16).
SECTION 23. 701.0103 (19v) of the statutes is created
to read:
701.0103 (19v) “Presumptive remainder benefi-
ciary” means, without considering the existence or exer-
cise of a power of appointment, other than a power of
appointment that has been irrevocably exercised and
notice of the exercise has been given to the trustee, a ben-
eficiary that on the date the beneficiary’s qualification is
determined, would be any of the following:
(a) A distributee or permissible distributee of trust
income or principal if the interests of any current benefi-
ciary terminated on that date without causing the trust to
terminate.
(b) A distributee or permissible distributee of trust
income or principal if the trust terminated on that date.
(c) If the terms of the trust do not provide for its termi-
nation, a distributee or permissible distributee of income
or principal of the trust if all the current beneficiaries of
the trust were deceased or no longer exist.
SECTION 24. 701.0103 (21) (intro.) of the statutes is
amended to read:
701.0103 (21) (intro.) “Qualified beneficiary” means
a beneficiary who that, on the date on which the benefi-
ciary’s qualification is determined, satisfies is any of the
following:
SECTION 25. 701.0103 (21) (a) and (b) of the statutes
are repealed and recreated to read:
701.0103 (21) (a) A current beneficiary.
(b) A presumptive remainder beneficiary.
SECTION 26. 701.0103 (21m) of the statutes is cre-
ated to read:
701.0103 (21m) “Record” means information that is
inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceiv-
able form.
SECTION 27. 701.0103 (23) of the statutes is amended
to read:
701.0103 (23) “Settlor” Except as otherwise pro-
vided in ss. 701.0113 and 701.1325, “settlor” means a
person, including a testator, who creates or contributes
property to a trust. If more than one person creates or
contributes property to a trust, each person is a settlor of
the portion of the trust property attributable to that per-
son’s contribution except to the extent another person has
the power to revoke the trust or withdraw that portion.
SECTION 28. 701.0103 (23m) of the statutes is cre-
ated to read:
701.0103 (23m) “Sign” means, with present intent to
authenticate or adopt a record, to do any of the following:
(a) Execute or adopt a tangible symbol.
(b) Attach to or logically associate with the record an
electronic symbol, sound, or process.
SECTION 29. 701.0103 (24) of the statutes is renum-
bered 701.0103 (16m) and amended to read:
701.0103 (16m) “Special “Nongeneral power of
appointment” has the meaning given in s. 702.02 (7)
702.102 (11).
SECTION 30. 701.0103 (27) of the statutes is amended
to read:
701.0103 (27) “Terms of a trust” means the manifes-
tation of the settlor’s intent regarding a trust’s provisions
as expressed in the trust instrument or, as may be estab-
lished by other evidence that would be admissible in a
judicial proceeding, or as may be established by court
order or nonjudicial settlement agreement.
SECTION 31. 701.0103 (30) of the statutes is amended
to read:
701.0103 (30) “Trust instrument” means an instru-
ment, including any amendments or modifications to the
instrument under s. 701.0111 or subch. IV, that is exe-
cuted a record signed by the settlor that contains terms of
to create a trust or is created under a statute, judgment, or
decree that orders property to be transferred to a trustee
to be administered for the benefit of a beneficiary, or by
any person to create a 2nd trust as provided under subch.
XIII, that contains some or all of the terms of the trust, and
includes any amendments or modifications.
SECTION 32. 701.0109 (title) of the statutes is
amended to read:
701.0109 (title) Methods and waiver of notice;
waiver. − 4 −2023 Wisconsin Act 2023 Senate Bill 759
SECTION 33. 701.0109 (3) of the statutes is amended
to read:
701.0109 (3) Notice under this chapter or, the send-
ing of a document, or the right to object granted under this
chapter may be waived by the person to be notified or,
sent the document, or who has the right to object.
SECTION 34. 701.0109 (5) of the statutes is created to
read:
701.0109 (5) If notice is given to a trustee and more
than one person is serving as trustee, notice given to any
trustee is considered to be given to all persons serving as
trustee, except that if a corporate trustee or an attorney
licensed to practice in this state is serving as a trustee,
notice must be given to all such corporate trustees and
attorney trustees.
SECTION 35. 701.0110 (1) (intro.) of the statutes is
renumbered 701.0110 (1) and amended to read:
701.0110 (1) A An identified charitable organiza-
tion that is expressly designated to receive distributions
under the terms of a charitable trust and that is not subject
to a right of substitution by the settlor or by any other
party prior to the charitable organization becoming a dis-
tributee or permissible distributee of trust income or prin-
cipal has the rights of a qualified beneficiary under this
chapter if the identified charitable organization, on the
date on which the identified charitable organization’s
qualification is being determined, satisfies one of the fol-
lowing: is a current beneficiary or a presumptive remain-
der beneficiary.
SECTION 36. 701.0110 (1) (a), (b) and (c) of the
statutes are repealed.
SECTION 37. 701.0110 (2) of the statutes is amended
to read:
701.0110 (2) A An animal protector or a person
appointed to enforce a trust created for the care of an ani-
mal or another a noncharitable purpose without an ascer-
tainable beneficiary as provided in either s. 701.0408 or
701.0409 has the rights of a qualified beneficiary under
this chapter.
SECTION 38. 701.0110 (3) of the statutes is amended
to read:
701.0110 (3) The attorney general of this state has the
rights of a qualified beneficiary under this chapter with
respect to a charitable trust having its principal place of
administration in this state only when the charitable inter-
est to be represented would qualify under sub. (1) but
there is no identified charitable organization has been
expressly designated to receive distribution under the
terms of a charitable trust that would qualify under sub.
(1).
SECTION 39. 701.0111 (4) of the statutes is amended
to read:
701.0111 (4) A nonjudicial settlement agreement is
valid only to the extent it includes terms and conditions
that could be properly approved, ordered, directed, or
otherwise determined by a court under this chapter or
other applicable law.
SECTION 40. 701.0111 (5) (d) of the statutes is
amended to read:
701.0111 (5) (d) The resignation or appointment of
a trustee or the removal of a trustee and replacement with
a suitable successor trustee.
SECTION 41. 701.0111 (5) (m) of the statutes is cre-
ated to read:
701.0111 (5) (m) The modification or termination of
a trust.
SECTION 42. 701.0111 (6) of the statutes is amended
to read:
701.0111 (6) Any interested person or other person
affected may request a court to approve a nonjudicial set-
tlement agreement, to determine whether the representa-
tion as provided in subch. III was adequate, or to deter-
mine whether the agreement contains terms and
conditions the court could have properly approved,
ordered, directed, or otherwise determined.
SECTION 43. 701.0111 (7) of the statutes is created to
read:
701.0111 (7) Notice of any nonjudicial settlement
agreement shall be given to the settlor, if living, the
trustee, each trust protector, and each directing party at
least 30 days before the proposed effective date of the
nonjudicial settlement agreement. Notice is considered
to be waived by any person who is a party to the agree-
ment.
SECTION 44. 701.0113 of the statutes is created to
read:
701.0113 Insurable interest of trustee. (1) In this
section:
(a) “Relative” means a spouse or individual related
within the 1st, 2nd, or 3rd degree of kinship under s.
990.001 (16).
(b) “Settlor” means a person that executes a trust
instrument and includes a person for whom a fiduciary or
agent is acting.
(2) A trustee of a trust has an insurable interest in the
life of an individual insured under a life insurance policy
that is owned by the trustee of the trust acting in a fidu-
ciary capacity or that designates the trust itself as the
owner if, on the date the policy is issued, all of the follow-
ing apply:
(a) The insured is any of the following:
1. A settlor of the trust.
2. An individual in whom a settlor of the trust has, or
would have had if living at the time the policy was issued,
an insurable interest.
(b) The life insurance proceeds are primarily for the
benefit of one or more trust beneficiaries who have any
of the following:
1. An insurable interest in the life of the insured. − 5 − 2023 Wisconsin Act 2023 Senate Bill 759
2. A substantial interest engendered by love or affec-
tion in the continuation of the life of the insured and, if
not included under subd. 1., the beneficiary is a relative
or stepchild of the insured.
SECTION 45. 701.0201 (3) (km) of the statutes is cre-
ated to read:
701.0201 (3) (km) Releasing a trustee, directing
party, trust protector, or other person acting in a fiduciary
capacity from liability for an action relating to the trust.
SECTION 46. 701.0201 (4) of the statutes is created to
read:
701.0201 (4) Except as otherwise provided in this
chapter, and as applicable, the probate procedure
described in ch. 879 applies to a proceeding brought by
a trustee, trust protector, directing party, or beneficiary
concerning the administration of a trust.
SECTION 47. 701.0203 (1) of the statutes is amended
to read:
701.0203 (1) The circuit court assigned to exercise
probate jurisdiction has exclusive jurisdiction of pro-
ceedings in this state brought by a trustee, trust protector,
directing party, or beneficiary concerning the administra-
tion of a trust. Except as otherwise provided in this chap-
ter, and as applicable, the probate procedure described in
ch. 879 applies to a proceeding brought by a trustee, trust
protector, directing party, or beneficiary concerning the
administration of a trust.
SECTION 48. 701.0302 (title) of the statutes is
amended to read:
701.0302 (title) Representation by holder of gen-
eral power of appointment powerholder of certain
powers of appointment.
SECTION 49. 701.0302 of the statutes is renumbered
701.0302 (2) and amended to read:
701.0302 (2) To the extent there is no conflict of
interest between a holder of a general power of appoint-
ment powerholder and a person the persons represented
with respect to the particular question or dispute, the
holder powerholder of a nongeneral power of appoint-
ment other than a broad limited power of appointment
may represent and bind the person all persons or all mem-
bers of a class of persons, including permissible appoin-
tees and takers in default, whose interests, as a permissi-
ble appointee, a taker in default, or otherwise, are subject
to may be limited by the exercise or nonexercise of the
power.
SECTION 50. 701.0302 (1) of the statutes is created to
read:
701.0302 (1) The powerholder of a general power of
appointment exercisable in favor of the powerholder or
the powerholder’s estate or the powerholder of a broad
limited power of appointment may represent and bind all
persons, including permissible appointees and takers in
default, whose interests may be eliminated by the exer-
cise or nonexercise of the power. For purposes of this
subsection, a general power of appointment does not
include powers of appointment exercisable only in favor
of the creditors of the powerholder, the creditors of the
powerholder’s estate, or both.
SECTION 51. 701.0303 (4) of the statutes is amended
to read:
701.0303 (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.
SECTION 52. 701.0303 (5) of the statutes is amended
to read:
701.0303 (5) A personal representative of a dece-
dent’s estate may represent and bind a person interested
in the estate, except as to matters relating to the adminis-
tration or distribution of the estate.
SECTION 53. 701.0303 (6) (intro.) of the statutes is
amended to read:
701.0303 (6) (intro.) A parent may represent and
bind the parent’s minor or unborn child, such child’s
minor and unborn issue, and the minor and unborn issue
of a then deceased child. If a disagreement arises
between parents seeking to represent the same minor
child or unborn child individual, representation is deter-
mined as follows:
SECTION 54. 701.0303 (6) (a) of the statutes is
amended to read:
701.0303 (6) (a) If only one parent is a beneficiary of
the trust that is the subject of the representation, that par-
ent may represent and bind the minor child or unborn
child, such child’s minor and unborn issue, and the minor
and unborn issue of a then deceased child.
SECTION 55. 701.0303 (6) (b) of the statutes is
amended to read:
701.0303 (6) (b) If both parents are beneficiaries of
the trust that is the subject of the representation, the par-
ent who is related to the settlor, other than by reason of
being married to the other parent, may represent and bind
the minor child or unborn child, such child’s minor and
unborn issue, and the minor and unborn issue of a then
deceased child.
SECTION 56. 701.0303 (6) (c) of the statutes is
amended to read:
701.0303 (6) (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 and
bind the minor child or unborn child, such child’s minor
and unborn issue, and the minor and unborn issue of a
then deceased child.
SECTION 57. 701.0303 (6) (d) of the statutes is
amended to read:
701.0303 (6) (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 rea-
son of being married to the other parent, may represent
and bind the minor child or unborn child, such child’s − 6 −2023 Wisconsin Act 2023 Senate Bill 759
minor and unborn issue, and the minor and unborn issue
of a then deceased child.
SECTION 58. 701.0303 (6) (e) of the statutes is created
to read:
701.0303 (6) (e) If an individual that is the subject of
the representation is eligible to be represented by more
than one ancestor under this subsection, the individual’s
nearest ancestor may represent and bind such individual.
SECTION 59. 701.0304 of the statutes is renumbered
701.0304 (1).
SECTION 60. 701.0304 (2) of the statutes is created to
read:
701.0304 (2) (a) In this subsection:
1. “Contingent successor remainder beneficiary”
means a beneficiary who would succeed to the interest of
a presumptive remainder beneficiary if the presumptive
remainder beneficiary and all of the current beneficiaries
failed to take such interest.
2. “More remote contingent successor remainder
beneficiary” means any contingent successor remainder
beneficiary whose interest arises only upon the failure of
the interest of another contingent successor remainder
beneficiary.
(b) A presumptive remainder beneficiary or a person
authorized to represent the presumptive remainder bene-
ficiary under sub. (1) may represent and bind a contingent
successor remainder beneficiary or a more remote con-
tingent successor remainder beneficiary for the same
purposes, in the same circumstances, and to the same
extent as an ascertainable beneficiary may represent and
bind a minor or person who is incapacitated, unborn, or
not reasonably ascertainable.
(c) If a presumptive remainder beneficiary does not
represent a more remote contingent successor remainder
beneficiary, a contingent successor remainder benefi-
ciary may represent and bind a more remote contingent
successor remainder beneficiary for the same purposes,
in the same circumstances, and to the same extent as an
ascertainable beneficiary may represent and bind a minor
or person who is incapacitated, unborn, or not reasonably
ascertainable.
(d) A contingent successor remainder beneficiary or
a more remote contingent successor remainder benefi-
ciary may be represented under pars. (b) and (c) whether
or not the contingent successor remainder beneficiary or
more remote contingent successor remainder beneficiary
lacks capacity.
(e) Under pars. (b) and (c), the difference between a
beneficiary’s interest as a presumptive remainder benefi-
ciary or contingent successor remainder beneficiary does
not constitute a conflict of interest as to any more remote
contingent successor remainder beneficiary.
SECTION 61. 701.0305 (1) of the statutes is renum-
bered 701.0305.
SECTION 62. 701.0305 (2) of the statutes is renum-
bered 701.0307 (1).
SECTION 63. 701.0305 (3) of the statutes is renum-
bered 701.0307 (2).
SECTION 64. 701.0306 of the statutes is created to
read:
701.0306 Designated representative. (1) If specifi-
cally nominated in the trust instrument, one or more per-
sons may be designated to represent and bind a benefi-
ciary and receive any notice, information, accounting, or
report. The trust instrument may also authorize any one
or more persons to designate one or more persons to rep-
resent and bind a beneficiary and receive any notice,
information, accounting, or report.
(2) Except as otherwise provided in this chapter, a
person designated in sub. (1) may not represent and bind
a beneficiary while that person is serving as trustee.
(3) Except as otherwise provided in this chapter, a
person designated in sub. (1) may not represent and bind
another beneficiary if the person designated also is a ben-
eficiary, unless one of the following applies:
(a) That person was named by the settlor.
(b) That person is one of the following:
1. The beneficiary’s spouse.
2. A grandparent or descendant of a grandparent of
the beneficiary.
3. A grandparent or descendant of a grandparent of
the beneficiary’s spouse.
SECTION 65. 701.0307 (title) of the statutes is created
to read:
701.0307 (title) Role of a representative or
guardian ad litem.
SECTION 66. 701.0308 of the statutes is created to
read:
701.0308 Liability of representative. No represen-
tative or guardian ad litem is liable to the beneficiary
whose interests are represented, or to anyone claiming
through that beneficiary, for any actions or omissions to
act made in good faith.
SECTION 67. 701.0401 (5m) of the statutes is created
to read:
701.0401 (5m) A declaration of an intent to create a
trust with the intention that the trust will later be funded
by assets of the person who created the trust or by another
person with legal authority to fund the trust. The person
making the declaration is considered to have created the
trust, regardless of whether the person funds the trust
with the person’s own assets.
SECTION 68. 701.0402 (1) (e) of the statutes is
amended to read:
701.0402 (1) (e) The same person is not the sole
trustee and sole beneficiary, and there are no remainder
beneficiaries other than the person’s estate.
SECTION 69. 701.0405 (1) of the statutes is repealed.
SECTION 70. 701.0408 of the statutes is amended to
read:
701.0408 Trust for care of animal. (1) A An ani-
mal trust may be created to provide for the care of an ani- − 7 − 2023 Wisconsin Act 2023 Senate Bill 759
mal alive during the settlor’s lifetime. The animal trust
terminates upon the death of the animal or, if the animal
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.
(2) A An animal 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 an animal protector. 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 per-
son appointed under this subsection an animal protector.
(3) Property of a an animal 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 ani-
mal 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.
SECTION 71. 701.0410 (2) of the statutes is amended
to read:
701.0410 (2) A proceeding to approve or disapprove
a proposed modification or termination under ss.
701.0411 to 701.0416, or a proposed trust combination or
division under s. 701.0417, may be commenced by a
trustee or beneficiary, and a proceeding to approve or dis-
approve a proposed modification or termination under s.
701.0411 may be commenced by the settlor. The settlor
of a charitable trust may maintain a proceeding to modify
the trust under s. 701.0413. A Except as provided in s.
701.0411 (1m), a trustee does not have standing to
oppose a proposed modification or termination com-
menced under s. 701.0411 (1).
SECTION 72. 701.0410 (3) of the statutes is amended
to read:
701.0410 (3) A trustee may not be compelled by a
modification or termination under this section or under
ss. 701.0411 to 701.0416 to make distributions to or for
any beneficiary of a trust for an individual with a disabil-
ity or to terminate the trust, during the lifetime of the indi-
vidual with a disability. A court may modify the terms of
a trust for that has an individual with a disability as a ben-
eficiary with retroactive effect or reform the terms of
such trust to achieve the settlor’s objective or, if because
of circumstances not anticipated by the settlor, to other-
wise further the purposes of the trust so that it does not
result in trust property being countable as resources or
income of the individual with a disability for purposes of
public assistance.
SECTION 73. 701.0411 (1) of the statutes is amended
to read:
701.0411 (1) A Except as provided in sub. (1m), a
noncharitable irrevocable trust may be modified or ter-
minated, with or without court approval, upon consent of
the settlor and all beneficiaries, even if the modification
or termination is inconsistent with a material purpose of
the trust. A settlor’s power to consent to a trust’s modifi-
cation or termination may be exercised by a representa-
tive under s. 701.0303 only if the representative is specif-
ically authorized to consent to a trust’s modification or
termination under a power of attorney, the terms of the
trust, or by a court under a guardianship or conservator-
ship.
SECTION 74. 701.0411 (1m) of the statutes is created
to read:
701.0411 (1m) A trust described in 42 USC 1396p
(d) (4) may be terminated or modified under sub. (1) only
with consent of the trustee, and is not considered revoca-
ble because it lacks ascertainable remainder beneficia-
ries.
SECTION 75. 701.0411 (2) (intro.) of the statutes is
created to read:
701.0411 (2) (intro.) With the approval of the court,
any of the following may occur:
SECTION 76. 701.0411 (2) (a) of the statutes is
amended to read:
701.0411 (2) (a) A noncharitable irrevocable trust
may be terminated upon consent of all of the beneficia-
ries if the court concludes that continuance of the trust is
not necessary to achieve any material purpose of the trust.
SECTION 77. 701.0411 (2) (b) of the statutes is
amended to read:
701.0411 (2) (b) A noncharitable irrevocable trust
may be modified upon consent of all of the beneficiaries
if the court concludes that modification is not inconsis-
tent with a material purpose of the trust.
SECTION 78. 701.0411 (7) of the statutes is amended
to read:
701.0411 (7) A party proposing to modify or termi-
nate a trust under sub. (1) or, (2), or (6) shall give notice
of the proposed modification or termination to the settlor,
if living, the trustee, each trust protector, each directing
party, and each beneficiary at least 30 days before the pro-
posed effective date of the modification or termination.
SECTION 79. 701.0414 (4) of the statutes is amended
to read:
701.0414 (4) The court may modify or terminate a
trust or remove the trustee and appoint a different trustee
if it determines that the value of the trust property is insuf-
ficient to justify the cost of administration even if the trust
property has a total value in excess of the amount
described in sub. (2).
SECTION 80. 701.0415 of the statutes is amended to
read:
701.0415 Reformation to correct mistakes. The
court may reform the terms of a trust, even if unambigu-
ous, to conform the terms to the settlor’s intent intention
if it is proved by clear and convincing evidence that both
what the settlor’s intent intention was and that the terms
of the trust were affected by a mistake of fact or law,
whether in expression or inducement. A party petition-
ing the court for action under this section shall give notice − 8 −2023 Wisconsin Act 2023 Senate Bill 759
of the proceeding to the settlor, if living, the trustee, each
trust protector, each directing party, and the qualified
beneficiaries.
SECTION 81. 701.0416 of the statutes is amended to
read:
701.0416 Modification or termination to achieve
settlor’s tax objectives. To achieve the settlor’s tax
objectives, the court may modify the terms of a trust or
terminate a trust in a manner that is not contrary to the set-
tlor’s probable intent. The court may provide that the
modification or termination has retroactive effect. A
party petitioning the court for action under this section
shall give notice of the proceeding to the settlor, if living,
the trustee, each trust protector, each directing party, and
the qualified beneficiaries.
SECTION 82. 701.0418 of the statutes is repealed.
SECTION 83. 701.0505 (1) (a) 2. of the statutes is
amended to read:
701.0505 (1) (a) 2. With respect to an irrevocable
trust that is not a trust for an individual with a disability,
upon application of a judgment creditor of the settlor, the
court may, if the trust instrument requires or authorizes
the trustee to make payments of income or principal to or
for the settlor, order the trustee to satisfy part or all of the
judgment out of part or all of the payments of income or
principal as they are due, presently or in the future, or
which are payable in the trustee’s discretion. A settlor’s
right to receive reimbursement for income taxation aris-
ing from grantor trust treatment of the trust pursuant to
sections 671 to 679 of the Internal Revenue Code is not
considered a right to income or principal for purposes of
this section. If a trust has more than one settlor, the
amount the judgment creditor of a particular settlor may
reach may not exceed the settlor’s interest in the trust.
SECTION 84. 701.0505 (2) (e) 3. of the statutes is
amended to read:
701.0505 (2) (e) 3. For purposes of this paragraph,
notwithstanding s. 701.0103 (3), “beneficiary” means a
person who satisfies s. 701.0103 (3) (a) or (b) and who is
designated in a trust instrument or through the exercise of
a special nongeneral or general power of appointment.
SECTION 85. 701.0508 of the statutes is repealed and
recreated to read:
701.0508 Debts of deceased settlor. (1) DEADLINE
ON CLAIMS. A claimant must assert a claim for payment
of a debt of a deceased settlor within the time for such
claims under applicable law. For purposes of this section,
a debt incurred by a trustee of a revocable trust before the
death of a settlor of the revocable trust shall be treated in
the same manner as a debt of the settlor. A trustee of a
trust that was revocable at the settlor’s death may shorten
the time period and set a deadline for filing claims with
the trustee by doing any of the following:
(a) Publishing a legal notice as a class 3 notice under
ch. 985 in the county in which the deceased settlor
resided. The legal notice shall identify the name, address,
and any other contact information of the trustee or other
person with whom claims must be filed. The deadline for
a claim by any claimant who is not known by the trustee
shall be the earlier of the date that is 4 months after the
date of the first insertion of the legal notice or, if sub. (6)
is applicable, the deadline prescribed under s. 859.01.
(b) Giving notice to a potential claimant. The notice
shall include a copy of the legal notice, if published, and
shall identify the name, address, and any other contact
information of the trustee or other person with whom
claims must be filed and shall state that any claim by the
potential claimant must be filed not later than the date that
is 30 days from the date notice is given to the potential
claimant or the deadline specified in the legal notice. If
a legal notice has not been published, the deadline shall
be 4 months from the date the trustee provides notice to
the potential claimant.
(c) Publishing a legal notice and not giving a separate
notice to a potential claimant who is known to the trustee.
The deadline for a claim when a legal notice has been
published but notice is not given to a known potential
claimant is the later of the date that is one year from the
date of the settlor’s death or the deadline specified in the
legal notice.
(2) EXCEPTIONS TO DEADLINES ON CLAIMS. A claim
that is not filed on or before an applicable deadline speci-
fied under sub. (1) is not barred if the claim is a claim
based on tort, a marital property agreement that is subject
to the time limitations under s. 766.58 (13) (b) or (c), Wis-
consin income, franchise, sales, withholding, gift, or
death taxes, unemployment compensation contributions
due or benefits overpaid, funeral or administrative
expenses, a claim of this state under s. 46.27 (7g), 2017
stats., or s. 49.496, 49.682, or 49.849, or a claim of the
United States.
(3) FILING OF CLAIMS. (a) A claim is considered filed
if the claimant provides notice of the claim to the trustee
or other person with whom claims must be filed as pre-
scribed under sub. (1) (a) or (b).
(b) A claim is considered filed if the deceased settlor
is subject to a probate proceeding in this state and a claim
is filed with the court under ch. 859.
(c) If an action is pending against a deceased settlor
at the time of the settlor’s death and the action survives,
the plaintiff in that action may serve a notice of substitu-
tion of party defendant on the trustee and file proof of ser-
vice of notice in the court. Filing of proof of service on
or before the deadline for filing a claim under sub. (1)
gives the plaintiff the same rights against the trust as the
filing of a claim.
(4) EFFECT OF STATUTE OF LIMITATIONS. (a) A claim
that was barred by a statute of limitations at the time of
the deceased settlor’s death is barred and the claimant
may not pursue a claim against the trustee, the trust prop-
erty, or recipients with respect to trust property. − 9 − 2023 Wisconsin Act 2023 Senate Bill 759
(b) A claim not barred by a statute of limitations at
the time of the settlor’s death shall not be barred there-
after by a statute of limitations if the claim is filed on or
before the deadline for filing a claim under sub. (1).
(c) A claim that is not filed or is filed after the dead-
line for filing a claim under sub. (1) is barred and the
claimant may not pursue a claim against the trustee, the
trust property, or recipients with respect to trust property.
(d) The deadlines established under sub. (1) do not
extend the time for commencement of a claim beyond the
time provided by any statute of limitations applicable to
that claim.
(5) SATISFACTION OF CLAIM FROM OTHER PROPERTY.
Failure of a claimant timely to file a claim as provided in
this section does not bar the claimant from satisfying the
claim, if not otherwise barred, from property other than
trust property.
(6) COORDINATION WITH PROBATE. If a legal notice has
been published with respect to the estate of a deceased
settlor who died domiciled in this state, property of a trust
that was revocable at the settlor’s death shall be treated
as property of the estate solely for purposes of adminis-
tering claims under ch. 859. The trustee shall be subject
to the jurisdiction of the court in which the estate admin-
istration is pending. A personal representative, as
defined in s. 851.23, shall provide notice to the trustee
regarding claims filed against the estate. A claim barred
under ch. 859 may not be satisfied from property of a trust
that was revocable at the settlor’s death. The trustee and
qualified beneficiaries shall have standing to file an
objection, offset, or counterclaim with respect to claims
filed against the estate. Nothing in this subsection causes
property of the trust that otherwise would be exempt from
claims to be subject to claims filed against the settlor’s
estate. If the trust is not referenced in a deceased settlor’s
will, the trustee of a trust that was revocable at the sett-
lor’s death shall provide notice to a personal representa-
tive of the settlor’s estate, if any, of the existence of such
trust.
SECTION 86. 701.0509 of the statutes is created to
read:
701.0509 Procedures for claims for debts of a
deceased settlor; revocable trusts. (1) SCOPE OF APPLI-
CABILITY. The procedures under this section apply only
to claims against a trust that was revocable by the settlor
until the settlor’s death.
(2) FORM AND VERIFICATION OF CLAIMS; TRUSTEE
RESPONSE TO CLAIMS. (a) General requirements. A claim
shall be in writing, shall describe the nature and amount
of the claim, if ascertainable, shall identify the name,
address, and any other contact information of the
claimant, and shall be sworn to by the claimant or a per-
son on the claimant’s behalf that the amount is justly due,
or if not yet due, when it will or may become due, that no
payments have been made on the claim that are not cred-
ited, and that there are no offsets to the knowledge of the
affiant, except as stated in the claim.
(b) Requirements when claim founded on written
instrument. If a claim is founded on a written instrument
that is available, the original instrument or a copy of the
original instrument shall be attached to the claim.
(c) Trustee response to a claim. A trustee does not
need to respond to a claim until after the expiration of the
deadline for filing a claim against the trust under s.
701.0508. Within 30 days after the later of the receipt of
the claim or 30 days after the expiration of the deadline,
the trustee shall make a good faith determination of
whether the claim is valid, absolute, contingent, or
invalid, or whether the trustee will object to the claim,
and the trustee shall inform the claimant of the determi-
nation. If the trustee decides to object to the claim, the
claim may be compromised as provided in sub. (10) or
contested as provided under sub. (11). If the trustee deter-
mines the claim is invalid, the claimant may object to that
determination under sub. (11). If the trustee fails to
respond within the applicable period, the claim shall be
presumed valid and the claimant may seek enforcement
under sub. (11).
(3) CLAIMS NOT DUE. If a claim will become due at
some future time, the trustee may, or the court with
respect to a contested claim may order the trustee to, do
any of the following:
(a) Pay the claim in full.
(b) Pay the claim at the present value and in the same
manner as in the case of an absolute claim that has been
allowed.
(c) Retain sufficient funds to satisfy the claim upon
maturity.
(d) Obtain a bond to be given by the distributees for
payment in satisfaction of the claim and order the trust to
be administered as if the claim had not been filed.
(4) SECURED CLAIMS. (a) When a claimant holds any
security for a claim, the security shall be described in the
written claim given to the trustee. The security is suffi-
ciently described if the security document is described by
date and by the recording or filing data.
(b) Payment of the claim shall be made on the basis
of one of the following:
1. If the creditor surrenders the security, the full
amount of the claim.
2. If the creditor realizes on the security before
receiving payment, upon the full amount of the claim
allowed less the fair value of the security.
(5) CONTINGENT CLAIMS. If the amount or validity of
a claim cannot be determined until some time in the
future, the claim is a contingent claim regardless of
whether the claim is based on an event that occurred in
the past or on an event that may occur in the future.
Except for claims of the type not required to be filed
under s. 701.0508 (2), contingent claims must be filed − 10 −2023 Wisconsin Act 2023 Senate Bill 759
with the trustee as provided under sub. (2). If the trustee
determines the claim to be valid subject to the contin-
gency, the determination shall state the nature of the con-
tingency. If the trustee determines the claim to be valid
and absolute before distribution of the trust, the claim
shall be paid in the same manner as absolute claims of the
same class. In all other cases the trustee, or the court in
the case of a contested claim, may provide for the pay-
ment of contingent claims in any of the following meth-
ods:
(a) The claimant and trustee may determine, by
agreement, arbitration, or compromise, the value of the
claim, according to its probable present worth, and it
shall be paid in the same manner as a valid and absolute
claim.
(b) The trustee may, or the court may order the trustee
to, in the case of a contested claim, make distribution of
the trust but retain sufficient funds to pay the claim if and
when the same becomes absolute. For this purpose, the
trust may not be required to remain intact longer than 2
years after distribution of the remainder of the trust has
been made, and if the claim has not become absolute
within that time, distribution shall be made to the dis-
tributees of the retained funds, after paying any costs and
expenses accruing during such period, but the distribu-
tees shall be liable to the claimant to the extent provided
in sub. (6), if the contingent claim thereafter becomes
absolute. When distribution is so made to distributees,
the trustee or the court may require the distributees to
give bond for the satisfaction of their liability to the con-
tingent claimant.
(c) The trustee may require, or the court, in the case
of a contested claim, may order, distribution of the trust
as though the contingent claim did not exist, but the dis-
tributees shall be liable to the claimant as limited by sub.
(7), if the contingent claim thereafter becomes absolute.
The trustee or the court may require the distributees to
give bond for the satisfaction of their liability to the con-
tingent claimant.
(d) Any other method the trustee determines or the
court, in the case of a contested claim, orders.
(6) PAYMENT OF CONTINGENT CLAIMS BY DISTRIBU-
TEES. If a contingent claim is filed and the trustee deter-
mines the claim to be valid subject to the contingency and
all of the assets of the trust, including the fund set apart
for the payment of the claim, have been distributed, the
claimant may recover on the claim against those distribu-
tees, or the persons who furnish bond for the distributees,
whose distributive shares have been increased by reason
of the fact that the amount of the claim as finally deter-
mined was not paid prior to final distribution, if a pro-
ceeding for the claim is commenced in court within 6
months after the claim becomes absolute. A distributee
or the person who furnishes bond for the distributee shall
not be liable for an amount exceeding that person’s pro-
portionate share of the trust subject to the claim, nor for
an amount greater than the value of the property that that
person received from the trust, the value to be determined
as of the time of distribution to the distributee.
(7) PRIORITY OF PAYMENT OF CLAIMS AND
ALLOWANCES. (a) Classes and priority. At the time a
claim is determined to be valid, the claim shall be classi-
fied in one of the categories under subds. 1. to 8. The
trustee shall pay an absolute claim if the trustee reason-
ably believes the assets of the trust are sufficient to pay
the claim. If the applicable assets of the trust are insuffi-
cient to pay the claim in full, the trustee shall make pay-
ment in the following order:
1. Costs and expenses of administration.
2. Reasonable funeral and burial expenses.
3. Provisions for the family of the deceased settlor
under ss. 861.31, 861.33, and 861.35, which sections are
incorporated by reference and applied as if the trust is an
estate.
4. Reasonable and necessary expenses of the last ill-
ness of the deceased settlor, including compensation of
persons attending the deceased settlor.
5. All debts, charges, or taxes owing to the United
States, this state, or a governmental subdivision or
municipality of this state.
6. Wages, including pension, welfare, and vacation
benefits, due to employees that have been earned within
3 months before the date of the death of the deceased sett-
lor, not to exceed $300 in value to each employee.
7. Property assigned to the surviving spouse or sur-
viving domestic partner under s. 861.41, which section is
incorporated by reference and applied as if the trust is an
estate.
8. All other claims allowed.
(b) No preference within classes. Preference shall not
be given in the payment of any claim over any other claim
of the same class, nor shall a claim due and payable be
entitled to a preference over a claim not due.
(8) EXECUTION AND LEVIES PROHIBITED. Garnish-
ment, attachment, or execution shall not issue against,
nor shall any levy be made against, any property of the
trust under any judgment or cause of action against a
deceased settlor or the trustee, but this subsection shall
not be construed to prevent the enforcement of mort-
gages, pledges, liens, or other security agreements upon
real or personal property in an appropriate proceeding.
(9) QUALIFIED BENEFICIARIES AND CLAIMANTS MAY BE
INFORMED OF CLAIMS. After the deadline for filing a claim
against the trust under s. 701.0508, any qualified benefi-
ciary or claimant may make a written request to the
trustee for a statement listing all claims that have been
filed against the trust. The statement provided by the
trustee shall show each claim, the name of the claimant,
a brief description of the basis of the claim, the amount
claimed, and the trustee’s determination of whether the
claim is valid, absolute, contingent, or invalid, or whether
the trustee will object to the claim in whole or in part. The − 11 − 2023 Wisconsin Act 2023 Senate Bill 759
trustee shall provide notice of the statement to the
requester, including any representative under subch. III
within 5 business days of the receipt of the request. The
requester shall, within 5 business days of receiving notice
of the statement from the trustee, inform the trustee
whether the requester agrees or objects to the trustee’s
determination on whether to allow the claim in whole or
in part or whether to object to the claim. Failure on the
part of any party to comply with this subsection does not
affect the jurisdiction of the court to intervene in the
administration of the claim.
(10) COMPROMISE OF CLAIMS. When a claim against
a trust has been filed and payment of the claim is pending,
the claimant and trustee may, if it appears to be in the best
interest of the trust, compromise the claim, whether due
or not due, absolute or contingent, or liquidated or unliq-
uidated. If an objection to the claim has been filed by a
qualified beneficiary or another claimant, no compro-
mise of the claim may be made without the consent of the
objector.
(11) CONTEST AND ENFORCEMENT OF CLAIMS; COURT
PROCEDURE. (a) Initiation. Any person may initiate a
court proceeding to contest or enforce a claim, object to
denial of a claim, or assert an offset or counterclaim,
including the trustee, a qualified beneficiary or represen-
tative under subch. III on behalf of a qualified benefi-
ciary, or a claimant. Such persons may initiate the court
proceeding by petitioning the court to exercise jurisdic-
tion over the claim and any objection, offset, or counter-
claim. The petition shall be served upon or mailed to each
person who has standing to object to the claim and filed
with the court within 60 days after the trustee’s response
or failure to respond to the claim under sub. (2) (c), or, in
the case of an objection by a qualified beneficiary or rep-
resentative of the qualified beneficiary or another poten-
tial claimant, within 30 days after the copy of the claim
was mailed to or served upon the objector. The trustee
shall not be obligated to assert any offset or counterclaim
in court and may, if the trustee deems it to be in the best
interest of the trust, assert the offset or counterclaim in
any separate action otherwise authorized by law outside
the court proceedings. Any offset or counterclaim so
asserted shall be deemed denied by the original claimant.
(b) Procedure. If any claim, offset, or counterclaim
is contested, the court may require the issues to be made
definite, fix a date for pretrial conference, and direct the
manner in which pleadings, if any, shall be exchanged.
The court shall set a time for trial upon its own motion or
upon the motion of any party.
(12) PROMPT JUDGMENT. The hearing on any con-
tested claim, offset, or counterclaim may be adjourned
from time to time, but the hearing shall be concluded as
soon as practicable.
(13) JUDGMENT ON CLAIMS. The court shall enter a
judgment on contested claims and any offsets and coun-
terclaims asserted, stating how much was allowed for or
against the trust in each case. The judgment shall set a
date by which payment shall be made. If the balance as
to any claimant is in favor of the trust, the payment of the
claim may be enforced as with any other judgment.
(14) DELAY OF PAYMENT OF CLAIMS WHEN FUNDS ARE
INSUFFICIENT. If it appears at any time that the trust is or
may be insolvent, that there are insufficient funds on
hand for payment of claims in full, or that there is other
good cause for delaying payment, the trustee shall pro-
vide notice of the delay to the claimants and any other
person with standing to object and may petition the court
for any order that the trustee deems necessary.
(15) CLAIMANT’S ACTION FOR PROPERTY FRAUDU-
LENTLY TRANSFERRED BY DECEASED SETTLOR. Whenever
there is reason to believe that the assets of the trust may
be insufficient to pay the deceased settlor’s debts, and the
deceased settlor transferred any property with intent to
defraud the deceased settlor’s creditors or to avoid any
duty, or executed conveyances void as against creditors,
any claimant whose claim has been allowed may, on
behalf of all, bring an action to reach any property and
subject it to sale. The claimant’s action shall not be
brought to trial until the insufficiency of the assets of the
trust is ascertained. If it is found likely that the assets may
be insufficient, the action shall be brought to trial. If the
action is tried, any property that ought to be subjected to
the payment of the debts of the deceased settlor shall be
sold in the action and the net proceeds used to pay such
debts and to reimburse the claimant for the reasonable
expenses and attorney fees incurred by the claimant in
such action, as approved by the court.
(16) ENCUMBERED ASSETS; PAYMENT OF DEBT. (a)
Rights of secured claimants not affected. Nothing in this
subchapter shall affect or prevent any action or proceed-
ing to enforce any mortgage, pledge, lien, or other secu-
rity agreement against property of the trust.
(b) Payment. When any property in the trust is
encumbered by mortgage, pledge, lien, or other security
agreement, the trustee may pay the encumbrance or any
part of the encumbrance, renew or extend any obligation
secured by the encumbrance, or may convey or transfer
the encumbered assets to the creditor in satisfaction of the
claimant’s lien, in whole or in part, whether or not the
holder of the encumbrance has filed a claim.
(17) TORT CLAIMS. (a) Filed within time limited. If
a claim based on a cause of action in tort or for contribu-
tion resulting from a cause of action in tort is filed on or
before the deadline for filing a claim under s. 701.0508,
the claimant will receive the same protection in regard to
payment as a claimant who has filed a required claim.
(b) Not filed within time limited. A cause of action
against a deceased settlor in tort or for contribution
resulting from a cause of action in tort is not defeated by
failure to file the claim or commence or continue an
action against the trustee on or before the deadline for fil-
ing a claim under s. 701.0508 against a trust, but the fail- − 12 −2023 Wisconsin Act 2023 Senate Bill 759
ure to file the claim with the trustee relieves the trustee of
all responsibility to protect the rights of the claimant, and
the claimant shall not be granted any of the protections
under sub. (5). If the claim is determined to be valid and
absolute through court−approved settlement or adjudica-
tion and a certified copy of the settlement or judgment is
filed with the trustee and there are sufficient funds in the
trust to pay the claim, the claim shall be paid prior to the
distribution of the trust. After the trust has been distrib-
uted or if there are not sufficient funds in the trust, a
claimant whose claim has been determined to be valid
and absolute through court−approved settlement or
through adjudication may proceed against the distribu-
tees, but no distributee may be liable for an amount
greater than that allowed under sub. (6).
(18) PAYMENT OF UNFILED CLAIMS. A trustee may pay
a debt of a deceased settlor prior to the expiration of the
deadline for filing claims under s. 701.0508 whether or
not a claim is filed if the trustee reasonably believes that
the debt is owed and that the assets of the trust are suffi-
cient to satisfy all of the deceased settlor’s debts.
(19) LAST ILLNESS AND FUNERAL EXPENSE OF
DECEASED SPOUSE. The reasonable expense of the last ill-
ness and funeral may, if properly presented, be paid by
the trustee of a deceased settlor’s trust and, if so paid,
shall be recognized as valid expenditures even though the
surviving spouse of the deceased settlor could have been
held liable for the expense.
SECTION 87. 701.0602 (1) of the statutes is amended
to read:
701.0602 (1) Unless the terms of a trust expressly
provide that the trust is irrevocable, there is a rebuttable
presumption that the settlor may revoke or amend the
trust. This subsection does not apply to a trust created
under an instrument executed before July 1, 2014.
SECTION 88. 701.0602 (3) (intro.), (a) and (b) (intro.)
of the statutes are consolidated, renumbered 701.0602
(3) (intro.) and amended to read:
701.0602 (3) (intro.) A settlor may revoke or amend
a revocable trust by any of the following means: (a) By
substantial compliance with a method provided in the
terms of the trust. (b) (intro.) If, or, if the terms of the trust
do not provide a method, by any of the following means:
SECTION 89. 701.0602 (3) (b) 1. of the statutes is
renumbered 701.0602 (3) (am).
SECTION 90. 701.0602 (3) (b) 2. of the statutes is
renumbered 701.0602 (3) (bm).
SECTION 91. 701.0602 (4) of the statutes is amended
to read:
701.0602 (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 prop-
erty to both spouses as marital or community property or
as both spouses direct.
SECTION 92. 701.0605 of the statutes is created to
read:
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 sett-
lor’s death, the right to possession and enjoyment is con-
tingent on the person surviving the settlor. Extrinsic evi-
dence may be used to show contrary intent.
SECTION 93. 701.0702 (3) of the statutes is amended
to read:
701.0702 (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 nor shall a bond be required of
a religious, charitable, or educational corporation or soci-
ety.
SECTION 94. 701.0704 (1) (g) of the statutes is cre-
ated to read:
701.0704 (1) (g) Any other event occurs resulting in
no person acting as trustee.
SECTION 95. 701.0706 (2) (c) of the statutes is
amended to read:
701.0706 (2) (c) The court determines that removal
Removal of the trustee best serves the interests of the ben-
eficiaries is appropriate because of unfitness, unwilling-
ness, or persistent failure of the trustee to administer the
trust effectively.
SECTION 96. 701.0706 (2) (d) of the statutes is
amended to read:
701.0706 (2) (d) There has been a substantial change
of circumstances or removal is requested by all of the
qualified beneficiaries, the court finds that the removal of
the trustee best serves the interests of all of the beneficia-
ries and is not inconsistent with a material purpose of the
trust, and a suitable cotrustee or successor trustee is avail-
able.
SECTION 97. 701.0707 (2) of the statutes is amended
to read:
701.0707 (2) A trustee who has resigned or been
removed shall proceed expeditiously within a reasonable
time to deliver the trust property within the trustee’s pos-
session 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.
SECTION 98. 701.0802 (5) of the statutes is renum-
bered 701.0802 (5) (a).
SECTION 99. 701.0802 (5) (b) of the statutes is cre-
ated to read:
701.0802 (5) (b) A trust company acting in any fidu-
ciary capacity with respect to a trust may purchase any
service or product, including insurance or securities
underwritten or otherwise distributed by the trust com- − 13 − 2023 Wisconsin Act 2023 Senate Bill 759
pany or by an affiliate, through or directly from the trust
company or an affiliate of a syndicate or selling group
that includes the trust company of an affiliate, provided
the purchase otherwise complies with the prudent inves-
tor rule in s. 881.01 and with s. 881.015. Compensation
for the service or product must be reasonable and not pro-
hibited by the instrument governing the fiduciary rela-
tionship. The compensation for the service or product
may be in addition to the compensation that the trust com-
pany is otherwise entitled to receive.
SECTION 100. 701.0802 (9) of the statutes is created
to read:
701.0802 (9) A trustee is not liable for releasing
information, including a copy of all or any portion of the
trust instrument, to any deceased settlor’s heir−at−law or
other person indicating that the person is not a benefi-
ciary of the trust if the trustee reasonably believes that
doing so will not harm the beneficiaries of the trust and
that doing so will reduce the likelihood of litigation
involving the trust.
SECTION 101. 701.0813 (1), (2) (d) and (3) (a) (intro.)
of the statutes are amended to read:
701.0813 (1) A trustee shall keep the distributees or
permissible distributees of trust income or principal, cur-
rent beneficiaries and other qualified presumptive
remainder beneficiaries who so request, reasonably
informed about the administration of the trust. Unless
unreasonable under the circumstances, a trustee shall
promptly respond to a qualified beneficiary’s request for
information related to the administration of the trust.
(2) (d) Notify the distributees or permissible distribu-
tees of trust income or principal, current beneficiaries
and other qualified presumptive remainder beneficiaries
who so request, of any change in the method or rate of the
trustee’s compensation.
(3) (a) (intro.) At Subject to par. (c), at least annually
and upon the termination of a trust, a trustee shall send to
the distributees or permissible distributees of trust
income or principal, current beneficiaries and to other
qualified presumptive remainder beneficiaries who
request it, all of the following:
SECTION 102. 701.0813 (2) (a) of the statutes is
amended to read:
701.0813 (2) (a) Upon the request of a qualified ben-
eficiary for a copy of the trust instrument, promptly fur-
nish to the qualified beneficiary either a copy of the por-
tions of the trust instrument relating to the interest of the
qualified beneficiary or a copy of the trust instrument or,
upon the request of a settlor for a copy of the trust instru-
ment, promptly furnish to the settlor a copy of the trust
instrument.
SECTION 103. 701.0813 (3) (b) of the statutes is
amended to read:
701.0813 (3) (b) Upon Subject to par. (c), upon a
vacancy in a trusteeship, unless a cotrustee remains in
office, the former trustee shall send a report containing
the information described under par. (a) 1. to the qualified
beneficiaries. A personal representative or guardian may
send the qualified beneficiaries a report containing the
information described in par. (a) 1. on behalf of a
deceased or incapacitated trustee.
SECTION 104. 701.0813 (3) (c) of the statutes is cre-
ated to read:
701.0813 (3) (c) A trustee may limit the report to a
qualified beneficiary of a specific dollar amount or spe-
cific property to information that relates to the specific
dollar amount or specific property.
SECTION 105. 701.0813 (5) of the statutes is amended
to read:
701.0813 (5) Subsections (2) (b) and, (c), and (d) and
(3) do not apply to a trustee who accepts a trusteeship
before July 1, 2014, to an irrevocable trust created before
July 1, 2014, or to a revocable trust that becomes irrevo-
cable before July 1, 2014.
SECTION 106. 701.0813 (6) and (7) of the statutes are
created to read:
701.0813 (6) The trustee has no duty to provide infor-
mation about the administration of the trust to the settlor,
but the trustee may provide such information if the
trustee chooses to do so.
(7) The trust instrument may expand, restrict, elimi-
nate, or otherwise vary the right of a beneficiary or class
of beneficiaries to be informed of the beneficiary’s inter-
est in a trust or to receive any or all information concern-
ing the trust, and may do so for any period of time, includ-
ing for the lifetime of a beneficiary or a class of
beneficiaries. If there is no current acting representative
of such a beneficiary or class of beneficiaries in accord-
ance with the trust instrument, and a provision to appoint
such a representative is not provided for in the trust
instrument, the trustee may appoint a representative for
a beneficiary or class of beneficiaries whose rights to
information have been restricted or eliminated by the
trust instrument.
SECTION 107. 701.0815 (3) of the statutes is created
to read:
701.0815 (3) A trustee has no power to give war-
ranties in a sale, mortgage, or lease that are binding on the
trustee personally.
SECTION 108. 701.0816 (29) of the statutes is created
to read:
701.0816 (29) Fund a trust or account that meets the
requirements under 42 USC 1396p (d) (4) (A) or (C) for
the benefit of an individual with a disability.
SECTION 109. 701.0816 (30) of the statutes is created
to read:
701.0816 (30) Fund an account that is part of an
ABLE program under section 529A of the Internal Rev-
enue Code for a beneficiary’s benefit.
SECTION 110. 701.0817 (3) (b) of the statutes is
amended to read: − 14 −2023 Wisconsin Act 2023 Senate Bill 759
701.0817 (3) (b) The beneficiary, at the time of the
release, did not know of the beneficiary’s rights or have
a reasonable opportunity to know of the material facts
relating to the breach.
SECTION 111. 701.0818 (2) (b) 2. h. of the statutes is
repealed and recreated to read:
701.0818 (2) (b) 2. h. Exercise a decanting power
under subch. XIII or direct an authorized fiduciary, as
defined in s. 701.1302 (1), to exercise a decanting power
under subch. XIII.
SECTION 112. 701.1005 (1) of the statutes is amended
to read:
701.1005 (1) A beneficiary may not commence a
proceeding against a trustee for breach of trust more than
one year after the earlier of either the date on which the
beneficiary or a representative of the beneficiary waived
the right to a report under s. 701.0813 (4) or the date on
which the beneficiary or a representative of the benefi-
ciary was sent a report or other record that adequately dis-
closed the existence of a potential claim for breach of
trust.
SECTION 113. 701.1005 (2) of the statutes is amended
to read:
701.1005 (2) A report or other record adequately dis-
closes the existence of a potential claim for breach of trust
if it provides sufficient information so that the benefi-
ciary or representative knows of the potential claim or
should have inquired into its existence.
SECTION 114. 701.1009 (2) of the statutes is amended
to read:
701.1009 (2) At the time of the consent, release, or
ratification, the beneficiary did not have knowledge or a
reasonable opportunity to obtain knowledge of the bene-
ficiary’s rights or of the material facts relating to the
breach.
SECTION 115. 701.1105 (1) (b) of the statutes is
amended to read:
701.1105 (1) (b) Is given in the manner provided in
ch. 879, except that notice by publication is not required
s. 701.0109.
SECTION 116. 701.1136 (1) of the statutes is amended
to read:
701.1136 (1) DISTRIBUTION OF INCOME. Except as
otherwise determined by the trustee or a court under s.
701.1106 with respect to unitrust distributions, if a bene-
ficiary is entitled to receive income from a trust, but the
trust instrument fails to specify how frequently it is to be
paid a current beneficiary is to receive income from the
trust, the trustee shall distribute at least annually the
income to which such the current beneficiary is entitled
at least annually.
SECTION 117. Subchapter XIII of chapter 701 [pre-
cedes 701.1301] of the statutes is created to read:
CHAPTER 701
SUBCHAPTER XIII
UNIFORM TRUST DECANTING ACT
701.1301 Short title. This subchapter may be cited
as the Uniform Trust Decanting Act.
701.1302 Definitions. In this subchapter:
(1) “Authorized fiduciary” means any of the follow-
ing:
(a) A trustee, a directing party, or another fiduciary,
other than a settlor, that has discretion to distribute or
direct a trustee to distribute part or all of the principal of
the first trust to one or more current beneficiaries.
(b) A special fiduciary appointed under s. 701.1309.
(c) A special−needs fiduciary under s. 701.1313.
(d) A trust protector who has been granted a decant-
ing power, which may be exercised in a fiduciary or non-
fiduciary capacity, under s. 701.0818 (2) (b) 2. h.
(2) “Decanting power” means the power of an autho-
rized fiduciary under this subchapter to distribute prop-
erty of a first trust to one or more 2nd trusts or to modify
the terms of the first trust.
(3) “Expanded distributive discretion” means a dis-
cretionary power of distribution that is not limited to an
ascertainable standard or a reasonably definite standard.
(4) “First trust” means a trust over which an autho-
rized fiduciary may exercise the decanting power.
(5) “First−trust instrument” means the trust instru-
ment for a first trust.
(6) “Reasonably definite standard” means a clearly
measurable standard under which a holder of a power of
distribution is legally accountable within the meaning of
section 674 (b) (5) (A) of the Internal Revenue Code and
any applicable regulations.
(7) “Second trust” means any of the following:
(a) A first trust after modification under this sub-
chapter.
(b) A trust to which a distribution of property from
a first trust is or may be made under this subchapter.
(8) “Second−trust instrument” means the trust instru-
ment for a 2nd trust.
701.1303 Scope. (1) Except as otherwise provided
in subs. (2) and (3), this subchapter applies to an express
trust that is irrevocable or revocable by the settlor only
with the consent of the trustee or a person holding an
adverse interest.
(2) This subchapter does not apply to a trust held
solely for charitable purposes.
(3) Subject to s. 701.1315, a trust instrument may
restrict or prohibit exercise of the decanting power.
(4) This subchapter does not limit the power of an
authorized fiduciary or other person to distribute or
appoint property in further trust or to modify a trust under
the trust instrument, law of this state other than this sub-
chapter, common law, a court order, or a nonjudicial set-
tlement agreement.
(5) This subchapter does not affect the ability of a set-
tlor to provide in a trust instrument for the distribution of
the trust property or appointment in further trust of the
trust property or for modification of the trust instrument. − 15 − 2023 Wisconsin Act 2023 Senate Bill 759
701.1304 Fiduciary duty. (1) In exercising the
decanting power, an authorized fiduciary shall act in
accordance with its fiduciary duties, including the duty to
act in accordance with the purposes of the first trust. If
a trustee or other authorized fiduciary is directed by
another authorized fiduciary to exercise the decanting
power, the trustee or other directed authorized fiduciary
shall act to comply with the exercise of the decanting
power and the trustee or other directed authorized fidu-
ciary shall not be liable for the action regardless of any
fiduciary duty that the trustee or other directed authorized
fiduciary might otherwise have.
(2) This subchapter does not create or imply a duty
to exercise the decanting power or to inform beneficiaries
about the applicability of this subchapter.
(3) Except as otherwise provided in a first−trust
instrument, for purposes of this subchapter and ss.
701.0801 and 701.0802 (2), the terms of the first trust are
deemed to include the decanting power.
701.1305 Application; governing law. This sub-
chapter applies to a trust created before, on, or after the
effective date of this section .... [LRB inserts date], if any
of the following applies:
(1) The trust has its principal place of administration
in this state, including a trust whose principal place of
administration has been changed to this state.
(2) The trust provides by its trust instrument that it is
governed by the law of this state or is governed by the law
of this state for the purpose of any of the following:
(a) Administration, including administration of a
trust whose governing law for purposes of administration
has been changed to the law of this state.
(b) Construction of terms of the trust.
(c) Determining the meaning or effect of terms of the
trust.
701.1306 Reasonable reliance. A trustee or other
person that reasonably relies on the validity of a distribu-
tion of part or all of the property of a trust to another trust,
or a modification of a trust, under this subchapter, law of
this state other than this subchapter, or the law of another
jurisdiction is not liable to any person for any action or
failure to act as a result of the reliance.
701.1307 Notice; exercise of decanting power. (1)
In this section, a notice period begins on the day notice
is given under sub. (3) and ends 30 days after the day
notice is given.
(2) Except as otherwise provided in this subchapter,
an authorized fiduciary may exercise the decanting
power without the consent of any person and without
court approval.
(3) Except as otherwise provided in sub. (6), an
authorized fiduciary shall give notice of the intended
exercise of the decanting power not later than 30 days
before the exercise to all of the following:
(a) Each settlor of the first trust, if living or then in
existence.
(b) Each qualified beneficiary of the first trust.
(c) Each holder of a presently exercisable power of
appointment over any part or all of the first trust.
(d) Each person that currently has the right to remove
or replace the authorized fiduciary.
(e) Each directing party, trust protector, or other fidu-
ciary of the first trust.
(f) Each directing party, trust protector, or other fidu-
ciary of the 2nd trust.
(g) If s. 701.1314 (2) applies, the attorney general.
(4) An authorized fiduciary is not required to give
notice under sub. (3) to a person that is not known to the
fiduciary or is known to the fiduciary but cannot be
located by the fiduciary after reasonable diligence.
(5) A notice under sub. (3) must do all of the follow-
ing:
(a) Specify the manner in which the authorized fidu-
ciary intends to exercise the decanting power.
(b) Specify the proposed effective date for exercise
of the power.
(c) Include a copy of the first−trust instrument.
(d) Include a copy of all 2nd−trust instruments.
(6) The decanting power may be exercised before
expiration of the notice period under sub. (1) if all per-
sons entitled to receive notice waive the period in a
signed record.
(7) The receipt of notice, waiver of the notice period,
or expiration of the notice period does not affect the right
of a person to file an application under s. 701.1309 assert-
ing any of the following:
(a) That an attempted exercise of the decanting
power is ineffective because it did not comply with this
subchapter or was an abuse of discretion or breach of
fiduciary duty.
(b) That s. 701.1322 applies to the exercise of the
decanting power.
(8) An exercise of the decanting power is not ineffec-
tive because of the failure to give notice to one or more
persons under sub. (3) if the authorized fiduciary acted
with reasonable care to comply with sub. (3).
701.1309 Court involvement. (1) On application
of an authorized fiduciary, a person entitled to notice
under s. 701.1307 (3), a beneficiary, or with respect to a
charitable interest the attorney general or other person
that has standing to enforce the charitable interest, the
court may do any of the following:
(a) Provide instructions to the authorized fiduciary
regarding whether a proposed exercise of the decanting
power is permitted under this subchapter and consistent
with the fiduciary duties of the authorized fiduciary.
(b) Appoint a special fiduciary and authorize the spe-
cial fiduciary to determine whether the decanting power
should be exercised under this subchapter and to exercise
the decanting power.
(c) Approve an exercise of the decanting power. − 16 −2023 Wisconsin Act 2023 Senate Bill 759
(d) Determine that a proposed or attempted exercise
of the decanting power is ineffective for any of the fol-
lowing reasons:
1. After applying s. 701.1322, the proposed or
attempted exercise does not or did not comply with this
subchapter.
2. The proposed or attempted exercise would be or
was an abuse of the fiduciary’s discretion or a breach of
fiduciary duty.
3. The proposed or attempted exercise is expressly
prohibited under the terms of the first trust.
(e) Determine the extent to which s. 701.1322 applies
to a prior exercise of the decanting power.
(f) Provide instructions to the trustee regarding the
application of s. 701.1322 to a prior exercise of the
decanting power.
(g) Order other relief to carry out the purposes of this
subchapter.
(2) On application of an authorized fiduciary, the
court may approve any of the following:
(a) An increase in the fiduciary’s compensation
under s. 701.1316.
(b) A modification under s. 701.1318 of a provision
granting a person the right to remove or replace the fidu-
ciary.
701.1310 Formalities. An exercise of the decanting
power must be made in a record signed by an authorized
fiduciary. The signed record must, directly or by refer-
ence to the notice required by s. 701.1307, identify the
first trust and the 2nd trust or trusts and state the property
of the first trust being distributed to each 2nd trust and the
property, if any, that remains in the first trust.
701.1311 Decanting power under expanded dis-
tributive discretion. (1) In this section:
(a) “Noncontingent right” means a right that is not
subject to the exercise of discretion or the occurrence of
a specified event that is not certain to occur. The term
does not include a right held by a beneficiary if any per-
son has discretion to distribute property subject to the
right to any person other than the beneficiary or the bene-
ficiary’s estate.
(b) “Successor beneficiary” means a beneficiary that
is not a qualified beneficiary on the date the beneficiary’s
qualification is determined. The term does not include a
person that is a beneficiary only because the person holds
a nongeneral power of appointment.
(c) “Vested interest” means any of the following:
1. A right to a mandatory distribution that is a non-
contingent right as of the date of the exercise of the
decanting power.
2. A current and noncontingent right, annually or
more frequently, to a mandatory distribution of income,
a specified dollar amount, or a percentage of value of
some or all of the trust property.
3. A current and noncontingent right, annually or
more frequently, to withdraw income, a specified dollar
amount, or a percentage of value of some or all of the trust
property.
4. A presently exercisable general power of appoint-
ment.
5. A right to receive an ascertainable part of the trust
property on the trust’s termination that is not subject to
the exercise of discretion or to the occurrence of a speci-
fied event that is not certain to occur.
(2) Subject to sub. (3) and s. 701.1314, an authorized
fiduciary that has expanded distributive discretion over
the principal of a first trust for the benefit of one or more
current beneficiaries may exercise the decanting power
over the principal of the first trust.
(3) Subject to s. 701.1313, in an exercise of the
decanting power under this section, a 2nd trust may not
do any of the following:
(a) Include as a current beneficiary a person that is
not a current beneficiary of the first trust, except as other-
wise provided in sub. (4).
(b) Include as a presumptive remainder beneficiary
or successor beneficiary a person that is not a current ben-
eficiary, presumptive remainder beneficiary, or succes-
sor beneficiary of the first trust, except as otherwise pro-
vided in sub. (4).
(c) Reduce or eliminate a vested interest.
(d) Fail to be a trust described in 42 USC 1396p (d)
(4) (A) or (C) if the first trust is a trust described in 42
USC 1396p (d) (4) (A) or (C).
(4) Subject to sub. (3) (c) and s. 701.1314, in an exer-
cise of the decanting power under this section, a 2nd trust
may be a trust created or administered under the law of
any jurisdiction and may do any of the following:
(a) Retain a power of appointment granted in the first
trust.
(b) Omit a power of appointment granted in the first
trust, other than a presently exercisable general power of
appointment.
(c) Create or modify a power of appointment if the
powerholder is a current beneficiary of the first trust and
the authorized fiduciary has expanded distributive dis-
cretion to distribute principal to the beneficiary.
(d) Create or modify a power of appointment if the
powerholder is a presumptive remainder beneficiary or
successor beneficiary of the first trust, but the exercise of
the power may take effect only after the powerholder
becomes, or would have become if then living, a current
beneficiary.
(5) A power of appointment described in sub. (4) (a)
to (d) may be general or nongeneral. The class of permis-
sible appointees in favor of which the power may be exer-
cised may be broader than or different from the beneficia-
ries of the first trust.
(6) If an authorized fiduciary has expanded distribu-
tive discretion over part but not all of the principal of a
first trust, the fiduciary may exercise the decanting power
under this section over that part of the principal over − 17 − 2023 Wisconsin Act 2023 Senate Bill 759
which the authorized fiduciary has expanded distributive
discretion.
701.1312 Decanting power under limited dis-
tributive discretion. (1) In this section, “limited dis-
tributive discretion” means a discretionary power of dis-
tribution that is limited to an ascertainable standard or a
reasonably definite standard.
(2) An authorized fiduciary that has limited distribu-
tive discretion over the principal of the first trust for the
benefit of one or more current beneficiaries may exercise
the decanting power over the principal of the first trust.
(3) Under this section and subject to s. 701.1314, a
2nd trust may be created or administered under the law
of any jurisdiction. Under this section, the 2nd trusts, in
the aggregate, must grant each beneficiary of the first
trust beneficial interests that are substantially similar to
the beneficial interests of the beneficiary in the first trust.
(3m) Notwithstanding sub. (3), an authorized fidu-
ciary exercising the decanting power under this section
may grant to a beneficiary of the 2nd trust a testamentary
power of appointment exercisable in favor of the credi-
tors of the beneficiary’s estate, but only if the authorized
fiduciary concludes the granting of such power will be
unlikely to adversely affect the beneficial interest of the
presumptive remainder beneficiaries of the first trust.
(4) A power to make a distribution under a 2nd trust
for the benefit of a beneficiary who is an individual is
substantially similar to a power under the first trust to
make a distribution directly to the beneficiary. A distri-
bution is for the benefit of a beneficiary if any of the fol-
lowing applies:
(a) The distribution is applied for the benefit of the
beneficiary.
(b) The beneficiary is under a legal disability or the
trustee reasonably believes the beneficiary is incapaci-
tated, and the distribution is made as permitted under this
chapter.
(c) The distribution is made as permitted under the
terms of the first−trust instrument and the 2nd−trust
instrument for the benefit of the beneficiary.
(5) If an authorized fiduciary has limited distributive
discretion over part but not all of the principal of a first
trust, the fiduciary may exercise the decanting power
under this section over that part of the principal over
which the authorized fiduciary has limited distributive
discretion.
701.1313 Trust for beneficiary with disability. (1)
In this section:
(a) “Beneficiary with a disability” means a benefi-
ciary of a first trust who the special−needs fiduciary
believes in good faith is an individual with a disability.
(b) “Special−needs fiduciary” means, with respect to
a trust that has a beneficiary with a disability, any of the
following:
1. A trustee or other fiduciary, other than a settlor, that
has discretion to distribute part or all of the principal of
a first trust to one or more current beneficiaries.
2. If no trustee or fiduciary has discretion under subd.
1., a trustee or other fiduciary, other than a settlor, that has
discretion to distribute part or all of the income of the first
trust to one or more current beneficiaries.
3. If no trustee or fiduciary has discretion under
subds. 1. and 2., a trustee or other fiduciary, other than a
settlor, that is required to distribute part or all of the
income or principal of the first trust to one or more cur-
rent beneficiaries.
(c) “Special−needs trust” means a trust the trustee
believes would not be considered a resource for purposes
of determining whether an individual with a disability is
eligible for the supplemental security income program or
the medical assistance program.
(2) A special−needs fiduciary may exercise the
decanting power under s. 701.1311 over the principal of
a first trust as if the fiduciary had authority to distribute
principal to a beneficiary with a disability subject to
expanded distributive discretion if all of the following
apply:
(a) A 2nd trust is a special−needs trust that benefits
the beneficiary with a disability.
(b) The special−needs fiduciary determines that
exercise of the decanting power will further the purposes
of the first trust.
(3) In an exercise of the decanting power under this
section, the following rules apply:
(a) Notwithstanding s. 701.1311 (3) (b), the interest
in the 2nd trust of a beneficiary with a disability may do
any of the following:
1. Be an account in a pooled trust for the benefit of
the beneficiary with a disability described in 42 USC
1396p (d) (4) (C) that includes the trust retention provi-
sions permitted by 42 USC 1396p (d) (4) (C) (iv).
2. Contain payback provisions complying with reim-
bursement requirements of Medicaid law under 42 USC
1396p (d) (4) (A) or (C).
(b) Section 701.1311 (3) (c) does not apply to the
interests of the beneficiary with a disability.
(c) Except as affected by any change to the interests
of the beneficiary with a disability or by the effects on
remainder beneficiaries of a transfer to a 2nd trust under
par. (a), if the special needs fiduciary has limited distribu-
tive discretion over the principal of the 2nd trust, or if
there are 2 or more 2nd trusts, the 2nd trusts in the aggre-
gate must grant each other beneficiary of the first trust
beneficial interests in the 2nd trusts that are substantially
similar to the beneficiary’s beneficial interests in the first
trust.
701.1314 Protection of charitable interest. (1) In
this section: − 18 −2023 Wisconsin Act 2023 Senate Bill 759
(a) “Determinable charitable interest” means an
interest that is all of the following:
1. A charitable interest.
2. Entitled to receive a mandatory distribution cur-
rently, periodically, on the occurrence of a specified
event, or after the passage of a specified time.
3. Unconditional or held solely for charitable pur-
poses.
(b) “Unconditional” means not subject to the occur-
rence of a specified event that is not certain to occur, other
than a requirement in a trust instrument that a charitable
organization be in existence or qualify under a particular
provision of the Internal Revenue Code, on the date of the
distribution, if the charitable organization meets the
requirement on the date of determination.
(2) The attorney general may represent and bind a
charitable interest only when the attorney general has the
rights of a qualified beneficiary as provided in s.
701.0110 (3).
(3) If a first trust contains a charitable interest, the
2nd trust or trusts may not do any of the following:
(a) Diminish the charitable interest.
(b) Diminish the interest of an identified charitable
organization that holds the charitable interest.
(c) Alter any charitable purpose stated in the first−
trust instrument.
(d) Alter any condition or restriction related to the
charitable interest.
(3m) Notwithstanding subs. (3) and (5), if the first
trust is an account in a pooled trust described in 42 USC
1396p (d) (4) (C), the 2nd trust may be an account in
another pooled trust described in 42 USC 1396p (d) (4)
(C) or a trust described in 42 USC 1396p (d) (4) (A)
regardless of any of the following:
(a) Any effect on a charitable interest in property that
is permitted to be retained in the first trust under 42 USC
1396p (d) (4) (C) (iv).
(b) Any effect the trust retention and Medicaid reim-
bursement provisions of the 2nd trust may have on a char-
itable interest in the first trust.
(c) Any change in the identified charitable organiza-
tion.
(d) Any change in the governing law or principal
place of administration of the trust.
(4) If there are 2 or more 2nd trusts, the 2nd trusts
shall be treated as one trust for purposes of determining
whether the exercise of the decanting power diminishes
the charitable interest or diminishes the interest of an
identified charitable organization for purposes of sub.
(3).
(5) If a first trust contains a determinable charitable
interest, the 2nd trust or trusts that include a charitable
interest pursuant to sub. (3) must be administered under
the law of this state unless any of the following applies:
(a) The attorney general, after receiving notice under
s. 701.1307, fails to object in a signed record delivered to
the authorized fiduciary within the notice period.
(b) The attorney general consents in a signed record
to the 2nd trust or trusts being administered under the law
of another jurisdiction.
(c) The court approves the exercise of the decanting
power.
(d) The identified charitable organization consents in
a signed record delivered to the authorized fiduciary.
(6) This subchapter does not limit the powers and
duties of the attorney general under the laws of this state
other than this subchapter.
701.1315 Trust limitation on decanting. (1) An
authorized fiduciary may not exercise the decanting
power to the extent the first−trust instrument expressly
prohibits exercise of any of the following:
(a) The decanting power.
(b) A power granted by state law to the fiduciary to
distribute part or all of the principal of the trust to another
trust or to modify the trust.
(2) Exercise of the decanting power is subject to any
restriction in the first−trust instrument that expressly
applies to exercise of any of the following:
(a) The decanting power.
(b) A power granted by state law to a fiduciary to dis-
tribute part or all of the principal of the trust to another
trust or to modify the trust.
(3) A general prohibition of the amendment or revo-
cation of a first trust, a spendthrift clause, or a clause
restraining the voluntary or involuntary transfer of a ben-
eficiary’s interest does not preclude exercise of the
decanting power.
(4) Subject to subs. (1) and (2), an authorized fidu-
ciary may exercise the decanting power under this sub-
chapter even if the first−trust instrument permits the
authorized fiduciary or another person to modify the
first−trust instrument or to distribute part or all of the
principal of the first trust to another trust.
(5) If a first−trust instrument contains an express
restriction described in sub. (2), the provision must be
included in the 2nd−trust instrument.
701.1316 Change in compensation. (1) If a first−
trust instrument specifies an authorized fiduciary’s com-
pensation, the fiduciary may not exercise the decanting
power to increase the fiduciary’s compensation above the
specified compensation unless any of the following
applies:
(a) All qualified beneficiaries of the 2nd trust consent
to the increase in a signed record.
(b) The increase is approved by the court.
(2) If a first−trust instrument does not specify an
authorized fiduciary’s compensation, the fiduciary may
not exercise the decanting power to increase the fiducia- − 19 − 2023 Wisconsin Act 2023 Senate Bill 759
ry’s compensation above the compensation permitted by
this chapter unless any of the following applies:
(a) All qualified beneficiaries of the 2nd trust consent
to the increase in a signed record.
(b) The increase is approved by the court.
(3) A change in an authorized fiduciary’s compensa-
tion that is incidental to other changes made by the exer-
cise of the decanting power is not an increase in the fidu-
ciary’s compensation for purposes of subs. (1) and (2).
(4) This section does not apply to a decanting from
a first trust that is a pooled trust described in 42 USC
1396p (d) (4) (C), or to a decanting to a 2nd trust that is
a pooled trust described in 42 USC 1396p (d) (4) (C).
701.1317 Relief from liability and indemnifica-
tion. (1) Except as otherwise provided in this section, a
2nd−trust instrument may not relieve an authorized fidu-
ciary from liability for breach of trust to a greater extent
than the first−trust instrument unless any of the following
applies:
(a) All the qualified beneficiaries of the 2nd trust con-
sent to the relief from liability in a signed record.
(b) The relief from liability is approved by the court.
(2) A 2nd−trust instrument may provide for indemni-
fication of an authorized fiduciary of the first trust or
another person acting in a fiduciary capacity under the
first trust for any liability or claim that would have been
payable from the first trust if the decanting power had not
been exercised.
(3) Absent consent of all qualified beneficiaries or
the approval of the court, the 2nd−trust instrument may
not reduce the aggregate fiduciary liability of all fiducia-
ries of the 2nd trust.
(4) Subject to sub. (3), a 2nd−trust instrument may
divide and reallocate fiduciary powers among fiducia-
ries, including one or more trustees, directing parties,
trust protectors, or other persons, and relieve a fiduciary
from liability for an act or failure to act of another fidu-
ciary as permitted by law of this state other than this sub-
chapter.
701.1318 Removal or replacement of authorized
fiduciary. (1) An authorized fiduciary may not exercise
the decanting power to modify a provision in a first−trust
instrument granting another person power to remove or
replace the fiduciary unless any of the following applies:
(a) The person holding the power consents to the
modification in a signed record and the modification
applies only to the person.
(b) The person holding the power and the qualified
beneficiaries of the 2nd trust consent to the modification
in a signed record and the modification grants a substan-
tially similar power to another person.
(c) The court approves the modification and the mod-
ification grants a substantially similar power to another
person.
(2) This section does not apply to a decanting from
a first trust that is a pooled trust described in 42 USC
1396p (d) (4) (C), or to a decanting to a 2nd trust that is
a pooled trust described in 42 USC 1396p (d) (4) (C).
701.1319 Tax−related limitations. (1) In this sec-
tion:
(a) “Grantor trust” means a trust as to which a settlor
of a first trust is considered the owner under sections 671
to 677 of the Internal Revenue Code or section 679 of the
Internal Revenue Code.
(b) “Nongrantor trust” means a trust that is not a
grantor trust.
(c) “Qualified benefits property” means property
subject to the minimum distribution requirements of sec-
tion 401 (a) (9) of the Internal Revenue Code, and any
applicable regulations, or to any similar requirements
that refer to section 401 (a) (9) of the Internal Revenue
Code or the regulations.
(2) An exercise of the decanting power is subject to
the following limitations:
(a) If a first trust contains property that qualified, or
would have qualified but for provisions of this sub-
chapter other than this section, for a marital deduction for
purposes of the gift or estate tax under the Internal Rev-
enue Code or a state gift, estate, or inheritance tax, the
2nd−trust instrument must not include or omit any term
that, if included in or omitted from the trust instrument
for the trust to which the property was transferred, would
have prevented the transfer from qualifying for the
deduction, or would have reduced the amount of the
deduction, under the same provisions of the Internal Rev-
enue Code or state law under which the transfer qualified.
(b) If the first trust contains property that qualified,
or would have qualified but for provisions of this sub-
chapter other than this section, for a charitable deduction
for purposes of the income, gift, or estate tax under the
Internal Revenue Code or a state income, gift, estate, or
inheritance tax, the 2nd−trust instrument must not
include or omit any term that, if included in or omitted
from the trust instrument for the trust to which the prop-
erty was transferred, would have prevented the transfer
from qualifying for the deduction, or would have reduced
the amount of the deduction, under the same provisions
of the Internal Revenue Code or state law under which the
transfer qualified.
(c) If the first trust contains property that qualified,
or would have qualified but for provisions of this sub-
chapter other than this section, for the exclusion from the
gift tax described in section 2503 (b) of the Internal Rev-
enue Code, the 2nd−trust instrument must not include or
omit a term that, if included in or omitted from the trust
instrument for the trust to which the property was trans-
ferred, would have prevented the transfer from qualify-
ing under section 2503 (b) of the Internal Revenue Code.
If the first trust contains property that qualified, or would
have qualified but for provisions of this subchapter other
than this section, for the exclusion from the gift tax
described in the Internal Revenue Code section 2503 (b) − 20 −2023 Wisconsin Act 2023 Senate Bill 759
by application of section 2503 (c) of the Internal Revenue
Code, the 2nd−trust instrument must not include or omit
a term that, if included or omitted from the trust instru-
ment for the trust to which the property was transferred,
would have prevented the transfer from qualifying under
section 2503 (c) of the Internal Revenue Code.
(d) If the property of the first trust includes shares of
stock in an S corporation, as defined in section 1361 of
the Internal Revenue Code, and the first trust is, or but for
provisions of this subchapter other than this section
would be, a permitted shareholder under any provision of
section 1361 of the Internal Revenue Code, an authorized
fiduciary may exercise the power with respect to part or
all of the S−corporation stock only if any 2nd trust receiv-
ing the stock is a permitted shareholder under section
1361 (c) (2) of the Internal Revenue Code. If the property
of the first trust includes shares of stock in an S corpora-
tion and the first trust is, or but for provisions of this sub-
chapter other than this section would be, a qualified sub-
chapter S trust within the meaning of section 1361 (d) of
the Internal Revenue Code, the 2nd−trust instrument
must not include or omit a term that prevents the 2nd trust
from qualifying as a qualified subchapter S trust.
(e) If the first trust contains property that qualified, or
would have qualified but for provisions of this sub-
chapter other than this section, for a zero inclusion ratio
for purposes of the generation−skipping transfer tax
under section 2642 (c) of the Internal Revenue Code, the
2nd−trust instrument must not include or omit a term that,
if included in or omitted from the first−trust instrument,
would have prevented the transfer to the first trust from
qualifying for a zero inclusion ratio under section 2642
(c) of the Internal Revenue Code.
(f) If the first trust is directly or indirectly the benefi-
ciary of qualified benefits property, the 2nd−trust instru-
ment may not include or omit any term that, if included
in or omitted from the first−trust instrument, would have
increased the minimum distributions required with
respect to the qualified benefits property under section
401 (a) (9) of the Internal Revenue Code and any applica-
ble regulations, or any similar requirements that refer to
section 401 (a) (9) of the Internal Revenue Code or the
regulations. If an attempted exercise of the decanting
power violates this paragraph, the trustee is deemed to
have held the qualified benefits property and any rein-
vested distributions of the property as a separate share
from the date of the exercise of the power and s. 701.1322
applies to the separate share.
(g) If the first trust qualifies as a grantor trust because
of the application of section 672 (f) (2) (A) of the Internal
Revenue Code, the 2nd trust may not include or omit a
term that, if included in or omitted from the first−trust
instrument, would have prevented the first trust from
qualifying under section 672 (f) (2) (A) of the Internal
Revenue Code.
(h) In this paragraph, “tax benefit” means a federal
or state tax deduction, exemption, exclusion, or other
benefit not otherwise listed in this section, except for a
benefit arising from being a grantor trust. Subject to par.
(i), a 2nd−trust instrument may not include or omit a term
that, if included in or omitted from the first−trust instru-
ment, would have prevented qualification for a tax bene-
fit if all of the following apply:
1. The first−trust instrument expressly indicates an
intent to qualify for the benefit or the first−trust instru-
ment clearly is designed to enable the first trust to qualify
for the benefit.
2. The transfer of property held by the first trust or the
first trust qualified, or but for provisions of this sub-
chapter other than this section, would have qualified for
the tax benefit.
(i) Subject to par. (d), all of the following apply:
1. Except as otherwise provided in par. (g), the 2nd
trust may be a nongrantor trust, even if the first trust is a
grantor trust.
2. Except as otherwise provided in par. (j), the 2nd
trust may be a grantor trust, even if the first trust is a non-
grantor trust.
(j) An authorized fiduciary may not exercise the
decanting power if a settlor objects in a signed record
delivered to the fiduciary within the notice period and
any of the following applies:
1. The first trust and a 2nd trust are both grantor
trusts, in whole or in part, the first trust grants the settlor
or another person the power to cause the first trust to
cease to be a grantor trust, and the 2nd trust does not grant
an equivalent power to the settlor or other person.
2. The first trust is a nongrantor trust and a 2nd trust
is a grantor trust, in whole or in part, with respect to the
settlor, unless any of the following applies:
a. The settlor has the power at all times to cause the
2nd trust to cease to be a grantor trust.
b. The first−trust instrument contains a provision
granting the settlor or another person a power that would
cause the first trust to cease to be a grantor trust and the
2nd−trust instrument contains the same provision.
701.1320 Duration of 2nd trust. (1) Subject to sub.
(2), a 2nd trust may have a duration that is the same as or
different from the duration of the first trust.
(2) To the extent that property of a 2nd trust is attrib-
utable to property of the first trust, the property of the 2nd
trust is subject to any rules governing maximum perpetu-
ity, accumulation, or suspension of the power of aliena-
tion that apply to property of the first trust.
701.1321 Need to distribute not required. An
authorized fiduciary may exercise the decanting power
whether or not under the first trust’s discretionary distri-
bution standard the fiduciary would have made or could
have been compelled to make a discretionary distribution
of principal at the time of the exercise. − 21 − 2023 Wisconsin Act 2023 Senate Bill 759
701.1322 Saving provision. (1) If exercise of the
decanting power would be effective under this sub-
chapter except that the 2nd−trust instrument in part does
not comply with this subchapter, the exercise of the
power is effective and the following rules apply with
respect to the principal of the 2nd trust attributable to the
exercise of the power:
(a) A provision in the 2nd−trust instrument that is not
permitted under this subchapter is void to the extent nec-
essary to comply with this subchapter.
(b) A provision required by this subchapter to be in
the 2nd−trust instrument that is not contained in the
instrument is deemed to be included in the instrument to
the extent necessary to comply with this subchapter.
(2) If a trustee or other fiduciary of a 2nd trust deter-
mines that sub. (1) applies to a prior exercise of the
decanting power, the fiduciary shall take corrective
action consistent with the fiduciary’s duties.
701.1323 Trust for care of animal. (1) The decant-
ing power may be exercised over an animal trust that has
an animal protector to the extent the trust could be
decanted under this subchapter if each animal that bene-
fits from the trust were an individual, if the animal protec-
tor consents in a signed record to the exercise of the
power.
(2) An animal protector has the rights under this sub-
chapter of a qualified beneficiary.
(3) Notwithstanding any other provision of this sub-
chapter, if a first trust is an animal trust, in an exercise of
the decanting power, the 2nd trust must provide that trust
property may be applied only to its intended purpose for
the period the first trust benefitted the animal.
701.1324 Terms of 2nd trust. A reference in this
chapter to a trust instrument or terms of the trust includes
a 2nd−trust instrument and the terms of the 2nd trust.
701.1325 Settlor. (1) For purposes of law of this
state other than this subchapter and subject to sub. (2), a
settlor of a first trust is deemed to be the settlor of the 2nd
trust with respect to the portion of the principal of the first
trust subject to the exercise of the decanting power.
(2) In determining settlor intent with respect to a 2nd
trust, the intent of a settlor of the first trust, a settlor of the
2nd trust, and the authorized fiduciary may be consid-
ered.
701.1326 Later−discovered property. (1) Except
as otherwise provided in sub. (3), if exercise of the
decanting power was intended to distribute all the princi-
pal of the first trust to one or more 2nd trusts, later−dis-
covered property belonging to the first trust and property
paid to or acquired by the first trust after the exercise of
the power is part of the trust estate of the 2nd trust or
trusts.
(2) Except as otherwise provided in sub. (3), if exer-
cise of the decanting power was intended to distribute
less than all the principal of the first trust to one or more
2nd trusts, later−discovered property belonging to the
first trust or property paid to or acquired by the first trust
after exercise of the power remains part of the trust estate
of the first trust.
(3) An authorized fiduciary may provide in an exer-
cise of the decanting power or by the terms of a 2nd trust
for disposition of later−discovered property belonging to
the first trust or property paid to or acquired by the first
trust after exercise of the power.
701.1327 Obligations. A debt, liability, or other
obligation enforceable against property of a first trust is
enforceable to the same extent against the property when
held by the 2nd trust after exercise of the decanting
power.
SECTION 118. Chapter 702 of the statutes is repealed
and recreated to read:
CHAPTER 702
UNIFORM POWERS OF APPOINTMENT
ACT
SUBCHAPTER I
GENERAL PROVISIONS
702.101 Short title. This act may be cited as the Uni-
form Powers of Appointment Act.
702.102 Definitions. In this chapter:
(1) “Appointee” means a person to which a power-
holder makes an appointment of appointive property.
(2) “Appointive property” means the property or
property interest subject to a power of appointment.
(3) “Blanket−exercise clause” means a clause in an
instrument that exercises a power of appointment and is
not a specific−exercise clause. “Blanket−exercise
clause” includes a clause that does any of the following:
(a) Expressly uses the words “any power” in exercis-
ing a power of appointment the powerholder has.
(b) Expressly uses the words “any property” in
appointing any property over which a powerholder has a
power of appointment.
(c) Disposes of all property subject to disposition by
the powerholder.
(4) “Broad limited power of appointment” means a
power of appointment exercisable in favor of anyone
other than the powerholder, the powerholder’s estate, the
powerholder’s creditors, or the creditors of the power-
holder’s estate.
(5) “Donor” means a person that creates a power of
appointment.
(6) “Exclusionary power of appointment” means a
power of appointment exercisable in favor of one or more
permissible appointees to the exclusion of the other per-
missible appointees.
(7) “General power of appointment” means a power
of appointment exercisable in favor of the powerholder,
the powerholder’s estate, a creditor of the powerholder,
or a creditor of the powerholder’s estate.
(8) “Gift−in−default clause” means a clause that
identifies a taker in default of appointment. − 22 −2023 Wisconsin Act 2023 Senate Bill 759
(9) “Impermissible appointee” means a person that
is not a permissible appointee.
(10) “Instrument” means a writing.
(11) “Nongeneral power of appointment” means a
power of appointment that is not a general power of
appointment.
(12) “Permissible appointee” means a person in
whose favor a powerholder may exercise a power of
appointment.
(13) “Person” means an individual, estate, trust, busi-
ness or nonprofit entity, public corporation, government
or governmental subdivision, agency, or instrumentality,
or other legal entity.
(14) “Powerholder” means a person in which a donor
creates a power of appointment.
(15) “Power of appointment” means a power that
enables a powerholder acting in a nonfiduciary capacity
to designate a recipient of an ownership interest in or
another power of appointment over the appointive prop-
erty. “Power of appointment” does not include a power
of attorney.
(16) “Presently exercisable power of appointment”
means a power of appointment exercisable by the power-
holder at the relevant time. “Presently exercisable power
of appointment” includes a power of appointment that is
not exercisable until the occurrence of a specified event,
the satisfaction of an ascertainable standard, or the pas-
sage of a specified time, and only after the occurrence of
the specified event, the satisfaction of the ascertainable
standard, or the passage of the specified time, but does
not include a power exercisable only at the powerhold-
er’s death.
(17) “Specific−exercise clause” means a clause in an
instrument that specifically refers to and exercises a par-
ticular power of appointment.
(18) “Taker in default of appointment” means a per-
son that takes all or part of the appointive property to the
extent the powerholder does not effectively exercise the
power of appointment.
(19) “Terms of the instrument” means the manifesta-
tion of the intent of the maker of the instrument regarding
the instrument’s provisions as expressed in the instru-
ment or as may be established by other evidence that
would be admissible in a legal proceeding.
702.103 Governing law. Unless the terms of the
instrument creating a power of appointment manifest a
contrary intent, the creation, revocation, or amendment
of a power of appointment is governed by the law of the
donor’s domicile at the relevant time. The exercise,
release, or disclaimer of a power of appointment, or the
revocation or amendment of an exercise, release, or dis-
claimer of a power of appointment is governed by the law
of the powerholder’s domicile at the relevant time.
702.104 Common law and principles of equity.
The common law and principles of equity supplement
this chapter, except to the extent modified by this chapter
or any other state law.
702.105 Default rules. The terms of a governing
instrument prevail over any provision of this subchapter.
SUBCHAPTER II
CREATION, REVOCATION, AND AMEND-
MENT
OF POWER OF APPOINTMENT
702.201 Creation of power of appointment. (1) A
power of appointment is created only if the instrument
creating the power satisfies all of the following:
(a) The instrument is valid under applicable law.
(b) Except as provided in sub. (2), the instrument
governs the disposition of the appointive property.
(c) The terms of the instrument manifest the donor’s
intent to create in a powerholder a power of appointment
over the appointive property exercisable in favor of a per-
missible appointee.
(2) Subsection (1) (b) does not apply to a power of
appointment that is created by the exercise of a power of
appointment.
(3) A power of appointment may not be created in a
deceased individual.
(4) A power of appointment may be created in an
unborn or unascertained powerholder.
702.202 Nontransferability. A powerholder may
not transfer a power of appointment. If a powerholder
dies without exercising or releasing a power of appoint-
ment, the power lapses.
702.203 Presumption of unlimited authority. Sub-
ject to ss. 702.204 and 702.205, and unless the terms of
the instrument creating a power of appointment manifest
a contrary intent, a power of appointment is all of the fol-
lowing:
(1) A presently exercisable power of appointment.
(2) An exclusionary power of appointment.
(3) A general power of appointment.
702.204 Exception to presumption of unlimited
authority. Unless the terms of the instrument creating a
power of appointment manifest a contrary intent, the
power is a nongeneral power of appointment if all of the
following apply:
(1) The power is exercisable only at the powerhold-
er’s death.
(2) The permissible appointees of the power are a
defined and limited class that does not include the power-
holder’s estate, the powerholder’s creditors, or the credi-
tors of the powerholder’s estate.
702.205 Rules of classification. (1) In this section,
“adverse party” means a person with a substantial benefi-
cial interest in appointive property that would be affected
adversely by a powerholder’s exercise or nonexercise of
a power of appointment in favor of the powerholder, the
powerholder’s estate, a creditor of the powerholder, or a
creditor of the powerholder’s estate. − 23 − 2023 Wisconsin Act 2023 Senate Bill 759
(2) If a powerholder may exercise a power of
appointment only with the consent or joinder of an
adverse party, the power is a nongeneral power of
appointment.
(3) If the permissible appointees of a power of
appointment are not defined and limited, the power is an
exclusionary power of appointment.
702.206 Power to revoke or amend. A donor may
revoke or amend a power of appointment only to the
extent that any of the following applies:
(1) The instrument creating the power is revocable by
the donor.
(2) The donor reserves a power of revocation or
amendment over the power of appointment in the instru-
ment.
SUBCHAPTER III
EXERCISE OF POWER OF APPOINTMENT
702.301 Requisites for exercise of power of
appointment. (1) (a) A power of appointment is exer-
cised only if all of the following apply:
1. The instrument exercising the power is valid under
applicable law.
2. The terms of the instrument exercising the power
do all of the following:
a. Manifest the powerholder’s intent to exercise the
power.
b. Subject to s. 702.304, satisfy the requirements of
exercise, if any, imposed by the donor.
(b) A power of appointment is exercised under par.
(a) only to the extent the appointment is a permissible
exercise of the power.
(2) If the donor requires the consent of the donor or
any other person for the exercise of a power of appoint-
ment, the consent must be expressed in the instrument
exercising the power of appointment or in a separate writ-
ten instrument, signed in either case by the persons whose
consent is required. If any person whose consent is
required dies or becomes legally incapable of consenting,
the power of appointment may be exercised by the pow-
erholder without the consent of that person unless the
terms of the instrument creating the power of appoint-
ment manifest a contrary intent.
(3) (a) Except as provided in par. (b) and unless the
terms of the instrument creating a power of appointment
manifest a contrary intent, if a power of appointment is
vested in 2 or more persons, the joint powerholders may
only exercise the power of appointment unanimously.
(b) If a power of appointment is vested in 2 or more
persons and one or more of the joint powerholders die,
become incapable of exercising the power of appoint-
ment, or renounce, release, or disclaim the power of
appointment, the power of appointment may be exercised
unanimously by the other powerholders.
702.302 Intent to exercise: determining intent
from residuary clause. (1) In this section:
(a) “Residuary clause” does not include a residuary
clause containing a blanket−exercise clause or a specific−
exercise clause.
(b) “Will” includes a codicil and a testamentary
instrument that revises another will.
(2) A residuary clause in a powerholder’s will, or a
comparable clause in the powerholder’s revocable trust,
manifests the powerholder’s intent to exercise a power of
appointment only if all of the following apply:
(a) The terms of the instrument containing the resid-
uary clause do not manifest a contrary intent.
(b) The power of appointment is a general power of
appointment exercisable in favor of the powerholder’s
estate.
(c) There is no gift−in−default clause in the instru-
ment creating the power of appointment or the gift−in−
default clause in the instrument creating the power of
appointment is ineffective.
(d) The powerholder did not release the power of
appointment.
702.303 Intent to exercise: after−acquired power.
Unless the terms of the instrument exercising a power of
appointment manifest a contrary intent, all of the follow-
ing apply:
(1) Except as otherwise provided in sub. (2), a blan-
ket−exercise clause extends to a power of appointment
acquired by the powerholder after executing the instru-
ment containing the clause.
(2) If the powerholder is also the donor of the power
of appointment, a blanket−exercise clause does not
extend to the power of appointment unless there is not a
gift−in−default clause or the gift−in−default clause is
ineffective.
702.304 Substantial compliance with donor−
imposed formal requirement. A powerholder’s sub-
stantial compliance with a formal requirement of
appointment imposed by the donor, including a require-
ment that the instrument exercising the power of appoint-
ment make reference or specific reference to the power,
is sufficient if all of the following apply:
(1) The powerholder knows of and intends to exer-
cise the power of appointment.
(2) The powerholder’s manner of attempted exercise
of the power of appointment does not impair a material
purpose of the donor in imposing the requirement.
702.305 Permissible appointment. (1) A power-
holder of a general power of appointment that permits
appointment to the powerholder or the powerholder’s
estate may make any appointment, including an appoint-
ment in trust or creating a new power of appointment, that
the powerholder could make in disposing of the power-
holder’s own property.
(2) A powerholder of a general power of appointment
that permits appointment only to the creditors of the pow- − 24 −2023 Wisconsin Act 2023 Senate Bill 759
erholder or the creditors of the powerholder’s estate may
appoint only to those creditors.
(3) Unless the terms of the instrument creating a
power of appointment manifest a contrary intent, the
powerholder of a nongeneral power of appointment may
do any of the following:
(a) Make an appointment in any form, including an
appointment in trust, in favor of a permissible appointee.
(b) Create a general or nongeneral power of appoint-
ment in a permissible appointee that may be exercisable
in favor of persons other than permissible appointees of
the original nongeneral power of appointment.
(c) Create a nongeneral power of appointment in any
person to appoint to one or more of the permissible
appointees of the original nongeneral power of appoint-
ment.
702.306 Appointment to a deceased appointee.
Subject to s. 854.06, an exercise of a power of appoint-
ment is ineffective to the extent it is in favor of a deceased
appointee.
702.307 Impermissible appointment. (1) Except
as otherwise provided in s. 702.306, an exercise of a
power of appointment is ineffective to the extent it is in
favor of an impermissible appointee.
(2) An exercise of a power of appointment in favor
of a permissible appointee is ineffective to the extent the
appointment is a fraud on the power.
702.308 Selective allocation doctrine. If a power-
holder exercises a power of appointment in a disposition
that also disposes of property the powerholder owns, the
owned property and the appointive property must be allo-
cated in the permissible manner that best carries out the
powerholder’s intent.
702.309 Capture doctrine: disposition of ineffec-
tively appointed property under general power. To
the extent a powerholder of a general power of appoint-
ment, other than a power to withdraw property from,
revoke, or amend a trust, makes an ineffective appoint-
ment, all of the following apply:
(1) The gift−in−default clause controls the disposi-
tion of the ineffectively appointed property.
(2) (a) If there is no gift−in−default clause or to the
extent the gift−in−default clause is ineffective, the inef-
fectively appointed property passes to one of the follow-
ing:
1. If the powerholder is a permissible appointee and
living, the powerholder.
2. If the powerholder is an impermissible appointee
or deceased, the powerholder’s estate if the estate is a per-
missible appointee.
(b) If there is no taker under par. (a), the ineffectively
appointed property passes under a reversionary interest
to the donor or the donor’s transferee or successor in
interest.
702.310 Disposition of unappointed property
under released or unexercised general power. To the
extent a powerholder releases or fails to exercise a gen-
eral power of appointment other than a power to with-
draw property from, revoke, or amend a trust, all of the
following apply:
(1) The gift−in−default clause controls the disposi-
tion of the unappointed property.
(2) (a) If there is no gift−in−default clause or to the
extent the gift−in−default clause is ineffective, except as
otherwise provided in par. (b), the unappointed property
passes to any of the following:
1. If the powerholder is a permissible appointee and
living, the powerholder.
2. If the powerholder is an impermissible appointee
or deceased, the powerholder’s estate if the estate is a per-
missible appointee.
(b) To the extent the powerholder released the power,
or if there is no taker under par. (a), the unappointed prop-
erty passes under a reversionary interest to the donor or
the donor’s transferee or successor in interest.
702.311 Disposition of unappointed property
under released or unexercised nongeneral power of
appointment. To the extent a powerholder releases,
ineffectively exercises, or fails to exercise a nongeneral
power of appointment, all of the following apply:
(1) The gift−in−default clause controls the disposi-
tion of the unappointed property.
(2) (a) If there is no gift−in−default clause or to the
extent the gift−in−default clause is ineffective, the unap-
pointed property passes to the permissible appointees if
all of the following apply:
1. The permissible appointees are defined and lim-
ited.
2. The terms of the instrument creating the power do
not manifest a contrary intent.
(b) If there is no taker under par. (a), the unappointed
property passes under a reversionary interest to the donor
or the donor’s transferee or successor in interest.
702.312 Disposition of unappointed property if
partial appointment to taker in default. Unless the
terms of an instrument creating or exercising a power of
appointment manifest a contrary intent, if the power-
holder makes a valid partial appointment to a taker in
default of appointment, the taker in default of appoint-
ment may share fully in unappointed property.
702.313 Appointment to taker in default. If a pow-
erholder makes an appointment to a taker in default of
appointment and the appointee would have taken the
property under a gift−in−default clause had the property
not been appointed, the power of appointment is consid-
ered not to have been exercised and the appointee takes
under the gift−in−default clause.
702.314 Powerholder’s authority to revoke or
amend exercise. A powerholder may revoke or amend
an exercise of a power of appointment only to the extent
that any of the following applies: − 25 − 2023 Wisconsin Act 2023 Senate Bill 759
(1) The powerholder reserves a power of revocation
or amendment in the instrument exercising the power of
appointment and, if the power is a nongeneral power of
appointment, the terms of the instrument creating the
power of appointment do not prohibit the reservation.
(2) The terms of the instrument creating the power of
appointment provide that the exercise of the power of
appointment is revocable or amendable.
702.315 Presumption of nonexercise of a power of
appointment. (1) A personal representative, trustee, or
other fiduciary who holds property subject to a power of
appointment may administer that property as if the power
of appointment was not exercised if the personal repre-
sentative, trustee, or other fiduciary has no notice of the
existence of any of the following within 6 months after
the death of the powerholder:
(a) A document purporting to be a will of the power-
holder if the power of appointment is exercised by the
will.
(b) Other documentation of the powerholder purport-
ing to exercise the power of appointment if the power of
appointment is exercisable other than by a will.
(2) A personal representative, trustee, or other fidu-
ciary who acts in good faith is not liable to any person for
administering property as if a power of appointment was
not exercised as provided in sub. (1).
SUBCHAPTER IV
DISCLAIMER OR RELEASE; CONTRACT
TO APPOINT OR NOT TO APPOINT
702.401 Disclaimer. (1) A powerholder may dis-
claim all or part of a power of appointment as provided
under ss. 700.27 and 854.13.
(2) A permissible appointee, appointee, or taker in
default of appointment may disclaim all or part of an
interest in appointive property, as provided under ss.
700.27 and 854.13.
702.402 Authority to release. A powerholder may
release a power of appointment, in whole or in part,
except to the extent the terms of the instrument creating
the power prevent the release.
702.403 Method of release. A powerholder of a
releasable power of appointment may release the power
in whole or in part by any of the following methods:
(1) Substantial compliance with a method provided
in the terms of the instrument creating the power.
(2) If the terms of the instrument creating the power
do not provide a method, a writing that manifests the
powerholder’s intent by clear and convincing evidence.
702.404 Revocation of amendment of release. A
powerholder may revoke or amend a release of a power
of appointment only to the extent that any of the follow-
ing applies:
(1) The instrument of release is revocable by the
powerholder.
(2) The powerholder reserves a power of revocation
or amendment in the instrument of release.
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:
(1) Not to exercise the power.
(2) To exercise the power if the contract when made
does not confer a benefit on an impermissible appointee.
702.406 Power to contract: power of appointment
not presently exercisable. A powerholder of a power of
appointment that is not presently exercisable may con-
tract to exercise or not to exercise the power only if all of
the following apply:
(1) The powerholder is also the donor of the power.
(2) The powerholder reserved the power in a revoca-
ble trust.
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 appoint-
ive property is limited to damages payable out of the
appointive property or, if appropriate, specific perfor-
mance of the contract.
SUBCHAPTER V
RIGHTS OF POWERHOLDER’S CREDIT ORS
IN APPOINTIVE PROPERTY
702.501 Creditor claim: general power created by
powerholder. (1) In this section, “power of appointment
created by the powerholder” includes a power of appoint-
ment created in a transfer by another person to the extent
the powerholder contributed value to the transfer.
(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 power-
holder’s estate to the extent provided in ch. 242 and any
other applicable law relating to fraudulent conveyances.
(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.
(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 sub-
ject to a claim of a creditor of any of the following:
(a) If the power of appointment is a presently exercis-
able power of appointment, the powerholder, to the same
extent as if the powerholder owned the appointive prop-
erty.
(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. − 26 −2023 Wisconsin Act 2023 Senate Bill 759
702.502 Creditor claim: general power not cre-
ated by powerholder. (1) Except as otherwise provided
in sub. (2), appointive property subject to a general power
of appointment created by a person other than the power-
holder is subject to a claim of a creditor of any of the fol-
lowing:
(a) If the power of appointment is a presently exercis-
able power of appointment, the powerholder to the extent
the powerholder’s property is insufficient.
(b) If the power of appointment is exercisable at the
powerholder’s death, the powerholder’s estate or revoca-
ble 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 pur-
poses of this paragraph, a revocable trust is a trust that is
revocable, as defined in s. 701.0103 (22), by the power-
holder or jointly by the powerholder and the powerhold-
er’s spouse.
(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 individ-
ual’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 nongen-
eral power of appointment.
(3) If during the powerholder’s lifetime, the power-
holder 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 con-
veyances the creditor could reach property that the pow-
erholder has owned and transferred during the power-
holder’s lifetime.
702.503 Power to withdraw. (1) For purposes of
this subchapter, and except as otherwise provided in sub.
(2), a power to withdraw property from a trust is consid-
ered, 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 with-
draw.
(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 fol-
lowing:
(a) The amount referenced in section 2041 (b) (2) or
2514 (e) of the Internal Revenue Code.
(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.
702.504 Creditor claim: nongeneral power of
appointment. (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 credi-
tor of the powerholder or the powerholder’s estate.
(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 con-
veyances.
(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 appoint-
ment is treated as a general power of appointment.
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 pur-
chaser without actual notice and for a valuable considera-
tion 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.
SUBCHAPTER VI
MISCELLANEOUS PROVISIONS
702.601 Recording instruments relating to a
power of appointment. (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):
(a) An instrument, other than a will, exercising a
power of appointment.
(b) An instrument expressing consent to exercise a
power of appointment.
(c) A disclaimer.
(d) A release.
(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.
702.602 Uniformity of application and construc-
tion. In applying and construing this section, considera-
tion shall be given to the need to promote uniformity of
the law with respect to its subject matter among states that
enact it.
702.603 Relation to electronic signatures in global
and national commerce act. (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. − 27 − 2023 Wisconsin Act 2023 Senate Bill 759
(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).
702.604 Applicability. (1) (a) This chapter applies
to a power of appointment created before, on, or after the
effective date of this paragraph .... [LRB inserts date].
(b) This chapter applies to a judicial proceeding con-
cerning a power of appointment commenced on or after
the effective date of this paragraph .... [LRB inserts date].
(c) This chapter applies to a judicial proceeding con-
cerning a power of appointment commenced before the
effective date of this paragraph .... [LRB inserts date],
unless the court finds that application of a particular pro-
vision of this chapter would interfere substantially with
the effective conduct of the judicial proceeding or preju-
dice a right of a party, in which case the particular provi-
sion of this chapter does not apply and the superseded law
applies.
(d) A rule of construction or presumption in this
chapter applies to an instrument executed before the
effective date of this paragraph .... [LRB inserts date],
unless there is a clear indication of a contrary intent in the
terms of the instrument.
(e) Except as otherwise provided in pars. (a) to (d),
this chapter does not apply to an action taken before the
effective date of this paragraph .... [LRB inserts date].
(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 the
effective date of this subsection .... [LRB inserts date],
the law continues to apply to the right.
SECTION 119. 711.03 (4m) of the statutes is created
to read:
711.03 (4m) “Consent instrument” means a written
notarized document in physical or electronic form evi-
dencing the user’s consent to the disclosure of the con-
tents of electronic communications to a then acting fidu-
ciary.
SECTION 120. 711.04 (1) of the statutes is renum-
bered 711.04 (1) (intro.) and amended to read:
711.04 (1) (intro.) A user may use an online tool to
direct the custodian to disclose or not disclose to a desig-
nated recipient or not to disclose some or all of the user’s
digital property, including the content of electronic com-
munications. If the online tool allows the user to modify
or delete a direction at all times, a direction regarding dis-
closure using an online tool overrides a contrary direction
by the user in a any of the following:
(a) A will, trust, power of attorney, or any other gov-
erning instrument.
SECTION 121. 711.04 (1) (b) of the statutes is created
to read:
711.04 (1) (b) A power of attorney.
SECTION 122. 711.04 (1) (c) of the statutes is created
to read:
711.04 (1) (c) A consent instrument.
SECTION 123. 711.04 (1) (d) of the statutes is created
to read:
711.04 (1) (d) Any other record.
SECTION 124. 711.04 (2) of the statutes is amended
to read:
711.04 (2) If a user has not used an online tool to give
direction under sub. (1), or if the custodian has not pro-
vided an online tool, the user may allow or prohibit dis-
closure to a fiduciary of some or all of the user’s digital
property, including the content of electronic communica-
tions sent or received by the user, in a will, trust, any other
governing instrument, power of attorney, or any other
governing consent instrument.
SECTION 125. 711.05 (2) (b) of the statutes is
amended to read:
711.05 (2) (b) Unless the user provided direction
using an online tool, a copy of the user’s will, certifica-
tion of trust under s. 701.1013, or other governing instru-
ment, or consent instrument evidencing the deceased
user’s consent to disclosure of the content of electronic
communications.
SECTION 126. 711.06 (2) (intro.) of the statutes is
amended to read:
711.06 (2) DISCLOSURE OF CONTENT OF ELECTRONIC
COMMUNICATIONS; PRINCIPAL. (intro.) To the extent a
power of attorney expressly grants an agent authority
over the content of electronic communications sent or
received by the principal, or to the extent a consent instru-
ment expressly consents to the disclosure to the agent the
content of electronic communications sent or received by
the principal, and unless directed otherwise by the princi-
pal or the court, a custodian shall grant an agent authority
over the content of electronic communications or dis-
close to the agent the content of electronic communica-
tions if the agent gives the custodian all of the following:
SECTION 127. 711.06 (2) (b) of the statutes is
amended to read:
711.06 (2) (b) An original or a copy of the power of
attorney that expressly grants the agent authority over the
content of electronic communications of the principal or
the consent instrument that expressly grants consent to
disclosure to the agent of the content of electronic com-
munications of the principal.
SECTION 128. 711.07 (3) (b) of the statutes is
amended to read:
711.07 (3) (b) A consent instrument or certification
of the trust under s. 701.1013 that includes an original or
successor user’s consent to disclosure of the content of
electronic communications to the trustee.
SECTION 129. 711.13 of the statutes is amended to
read:
711.13 Marital property classification of digital
property. Chapter 766 Section 766.625 governs the
classification of digital property of a user who is married
person. − 28 −2023 Wisconsin Act 2023 Senate Bill 759
SECTION 130. 766.01 (9) (a) of the statutes is
amended to read:
766.01 (9) (a) Except as provided in pars. (b) to (d)
(f), property is “held” by a person only if a document of
title to the property is registered, recorded, or filed in a
public office in the name of the person or a writing that
customarily operates as a document of title to the type of
property is issued for the property in the person’s name.
SECTION 131. 766.01 (9) (e) of the statutes is created
to read:
766.01 (9) (e) 1. An account, as defined in s. 711.03
(1), and the digital property in the account, including the
content of an electronic communication, as defined in s.
711.03 (6), are “held” by a person who is the user, as
defined in s. 711.03 (28).
2. The catalogue of electronic communications, as
defined in s. 711.03 (4), or similar identifying informa-
tion for digital property in an account, is “held” by a per-
son who holds such digital property, including the con-
tent of such electronic communications, under subd. 1.
3. For purposes of subds. 1. and 2., “person” has the
meaning given under s. 711.03 (19).
SECTION 132. 766.01 (9) (f) of the statutes is created
to read:
766.01 (9) (f) A right or interest in digital property,
not titled in the name of either spouse, that has been iden-
tified as having been originally created, purchased, or
otherwise acquired by a spouse is “held” by that spouse.
SECTION 133. 766.31 (7) (b) of the statutes is
amended to read:
766.31 (7) (b) In Except as provided in s. 766.625 (2)
(b) 1., in exchange for or with the proceeds of other indi-
vidual property of the spouse.
SECTION 134. 766.31 (7) (g) of the statutes is created
to read:
766.31 (7) (g) By classification under s. 766.625 (2),
designating an account and the digital property in an
account, including the content of electronic communica-
tions, as defined in s. 711.03 (6), as the individual prop-
erty of the holding spouse.
SECTION 135. 766.58 (7) (c) of the statutes is created
to read:
766.58 (7) (c) Unless the marital property agreement
expressly provides otherwise, a marital property agree-
ment that classifies digital property as marital property
does not affect the operation of s. 766.625 (2).
SECTION 136. 766.58 (13) (b) of the statutes is
renumbered 766.58 (13) (b) 1. and amended to read:
766.58 (13) (b) 1. After the death of a spouse, if an
estate administration proceeding is filed, no action con-
cerning a marital property agreement may be brought
later than 6 months after the inventory is filed under s.
858.01. If an amended inventory is filed, the action may
be brought within 6 months after the filing of the
amended inventory if the action relates to information
contained in the amended inventory that was not con-
tained in a previous inventory.
SECTION 137. 766.58 (13) (b) 2. and 3. of the statutes
are created to read:
766.58 (13) (b) 2. After the death of a spouse, if no
estate administration proceeding is filed, no action con-
cerning a marital property agreement may be brought
later than 8 months after the death of the spouse.
3. If an action concerning a marital property agree-
ment is barred under subd. 2. and an estate administration
proceeding is thereafter commenced, any judgment in an
action concerning a marital property agreement not
barred under subd. 1. may be recovered only from the
estate of the deceased spouse.
SECTION 138. 766.58 (13) (c) of the statutes is
amended to read:
766.58 (13) (c) The court may extend the 6−month
period under par. (b) 1. for cause if a motion for extension
is made within the applicable 6−month period.
SECTION 139. 766.59 (1) of the statutes is amended
to read:
766.59 (1) A Except as provided in s. 766.625 (2) (b)
2., a spouse may unilaterally execute a written statement
which classifies the income attributable to all or certain
of that spouse’s property other than marital property as
individual property.
SECTION 140. 766.625 of the statutes is created to
read:
766.625 Classification of digital property, includ-
ing the content of electronic communications. (1)
GENERAL. Except as otherwise determined under sub.
(2), classification of digital property, including the con-
tent of electronic communications, is determined under
s. 766.31.
(2) EXCEPTIONS. (a) Digital property in an account.
An account and the digital property held in an account, as
defined in s. 766.01 (9) (e), including the content of elec-
tronic communications, as defined in s. 711.03 (6), not
otherwise classified as individual property under s.
766.31 (6) and (7) (a) to (d), is classified as the individual
property of the holding spouse, regardless of the classifi-
cation of property used to create, purchase, or otherwise
acquire the account and digital property held in the
account, unless the nonholding spouse can prove that any
of the following apply:
1. ‘Creation.’ The account or the digital property in
the account was not originally created, purchased, or oth-
erwise acquired exclusively for the personal, noneco-
nomic purposes of the holding spouse.
2. ‘Use.’ The account or the digital property in the
account has at any time been used for purposes other than
the personal, noneconomic purposes of the holding
spouse.
(b) Exchanges; income. Notwithstanding par. (a),
with respect to an account and the digital property held − 29 − 2023 Wisconsin Act 2023 Senate Bill 759
in the account, as defined in s. 766.01 (9) (e), including
the content of electronic communications, as defined in
s. 711.03 (6), classified as individual property solely by
reason of par. (a), all of the following apply:
1. ‘Exchanges; Proceeds.’ Section 766.31 (7) (b)
does not apply, and in the event of a sale, exchange, or
other disposition, property received in exchange for such
account, or the digital property in the account, is classi-
fied as marital property.
2. ‘Income.’ Section 766.59 does not apply, and
income during marriage and after the determination date
attributable to the account, or the digital property in the
account, is classified as marital property.
SECTION 141. 766.63 (1) of the statutes is amended
to read:
766.63 (1) Except as provided otherwise in ss. 766.61
and, 766.62, and 766.625 (2), mixing marital property
with property other than marital property reclassifies the
other property to marital property unless the component
of the mixed property which is not marital property can
be traced.
SECTION 142. 766.70 (3) (dm) of the statutes is cre-
ated to read:
766.70 (3) (dm) An interest in a digital property
account, as defined in s. 711.03 (1).
SECTION 143. 814.66 (1) (o) of the statutes is created
to read:
814.66 (1) (o) For filing a petition to commence a
judicial proceeding under ch. 701, $250.
SECTION 144. 851.21 (2) (e) of the statutes is
amended to read:
851.21 (2) (e) A beneficiary of a trust created under
documents offered for probate as the will of the decedent
upon the admission of the decedent’s will to probate and
the issuance of letters of trust to court’s appointment of
the trustee.
SECTION 145. 854.13 (1) (c) of the statutes is
amended to read:
854.13 (1) (c) “Power of appointment” has the mean-
ing given in s. 702.02 (6) 702.102 (15).
SECTION 146. 856.29 of the statutes is amended to
read:
856.29 Letters issued to trustee Appointment of
testamentary trust trustee. If the will of the decedent
provides for a testamentary trust, letters of trust shall be
issued to the court shall appoint the trustee upon admis-
sion of the will to probate at the same time that letters are
granted to the personal representative, unless the court
otherwise directs. Upon issuance of letters of trust, the
The trustee so appointed shall continue to be interested in
the estate, and beneficiaries in the testamentary trust shall
cease to be interested in the estate except under s. 851.21
(3). Letters of trust shall not be required to evidence the
authority of a testamentary trustee and a certification of
trust under s. 701.1013 shall be sufficient evidence of
such authority. This section shall apply to wills admitted
to informal probate and letters issued in informal admin-
istrations.
SECTION 147. 859.02 (3) of the statutes is amended
to read:
859.02 (3) Failure of a claimant timely to file a claim
against a decedent’s estate does not bar the claimant from
satisfying the claim not otherwise barred from property
other than the decedent’s estate.
SECTION 148. 865.08 (6) of the statutes is amended
to read:
865.08 (6) If the will of the decedent provides for a
testamentary trust, letters of trust shall be issued by the
probate registrar to shall appoint the trustee upon admis-
sion of the will to informal probate at the same time that
letters are granted to the personal representative. Letters
of trust shall not be required to evidence the authority of
the appointed trustee and a certification of trust under s.
701.1013 shall be sufficient evidence of such authority.
The probate registrar shall determine if bond shall be
required and, if so, the amount thereof, and for such pur-
pose the probate registrar shall have the authority granted
to the court by, and shall proceed pursuant to s. 701.0702.
Thereafter, the trustee shall continue to be interested in
the estate, and beneficiaries of the testamentary trust shall
cease to be interested in the estate except under s. 851.21
(3). The administration of the trust shall be administered
under supervision of the court under governed by ch. 701.
SECTION 149. 905.03 (2m) of the statutes is created
to read:
905.03 (2m) PRIVILEGE WHEN CLIENT IS A FIDUCIARY.
When a lawyer represents a client who is serving as a per-
sonal representative, trustee, trust protector, directing
party, guardian, conservator, guardian ad litem, attorney
in fact for financial matters, health care agent, or other
fiduciary, the lawyer’s client is the person who is acting
as a fiduciary, and not anyone to whom the client owes
fiduciary or other duties, and communication between
the lawyer and such a client is protected from disclosure
to the same extent as if the client was not acting as a fidu-
ciary. The privilege may be claimed by the client, or oth-
erwise as provided in sub. (3), even against anyone to
whom the client owes fiduciary or other duties.