702.312 History
History: 2023 a. 127.
702.313
702.313
Appointment to taker in default. If a powerholder 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 considered not to have been exercised and the appointee takes under the gift-in-default clause.
702.313 History
History: 2023 a. 127.
702.314
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:
702.314(1)
(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.
702.314(2)
(2) The terms of the instrument creating the power of appointment provide that the exercise of the power of appointment is revocable or amendable.
702.314 History
History: 2023 a. 127.
702.315
702.315
Presumption of nonexercise of a power of appointment. 702.315(1)(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 representative, trustee, or other fiduciary has no notice of the existence of any of the following within 6 months after the death of the powerholder:
702.315(1)(a)
(a) A document purporting to be a will of the powerholder if the power of appointment is exercised by the will.
702.315(1)(b)
(b) Other documentation of the powerholder purporting to exercise the power of appointment if the power of appointment is exercisable other than by a will.
702.315(2)
(2) A personal representative, trustee, or other fiduciary 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).
702.315 History
History: 2023 a. 127.
DISCLAIMER OR RELEASE; CONTRACT
TO APPOINT OR NOT TO APPOINT
702.401(1)(1)
A powerholder may disclaim all or part of a power of appointment as provided under ss.
700.27 and
854.13.
702.401(2)
(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.
702.401 History
History: 2023 a. 127.
702.402
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.
702.402 History
History: 2023 a. 127.
702.403
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:
702.403(1)
(1) Substantial compliance with a method provided in the terms of the instrument creating the power.
702.403(2)
(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.
702.403 History
History: 2023 a. 127.
702.404
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 following applies:
702.404(1)
(1) The instrument of release is revocable by the powerholder.
702.404(2)
(2) The powerholder reserves a power of revocation or amendment in the instrument of release.
702.404 History
History: 2023 a. 127.
702.405
702.405
Power to contract: presently exercisable power of appointment. A powerholder of a presently exercisable power of appointment may contract to do any of the following:
702.405(2)
(2) To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.
702.405 History
History: 2023 a. 127.
702.406
702.406
Power to contract: power of appointment not presently exercisable. A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if all of the following apply:
702.406(1)
(1) The powerholder is also the donor of the power.
702.406(2)
(2) The powerholder reserved the power in a revocable trust.
702.406 History
History: 2023 a. 127.
702.407
702.407
Remedy for breach of contract to appoint or not to appoint. The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.
702.407 History
History: 2023 a. 127.
RIGHTS OF POWERHOLDER'S CREDITORS
IN APPOINTIVE PROPERTY
702.501
702.501
Creditor claim: general power created by powerholder. 702.501(1)(1)
In this section, “power of appointment created by the powerholder” includes a power of appointment created in a transfer by another person to the extent the powerholder contributed value to the transfer.
702.501(2)
(2) Appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate to the extent provided in ch.
242 and any other applicable law relating to fraudulent conveyances.
702.501(3)
(3) Subject to sub.
(2), appointive property subject to a general power of appointment created by a powerholder is not subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder's estate.
702.501(4)
(4) Subject to subs.
(2) and
(3), and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by a powerholder is subject to a claim of a creditor of any of the following:
702.501(4)(a)
(a) If the power of appointment is a presently exercisable power of appointment, the powerholder, to the same extent as if the powerholder owned the appointive property.
702.501(4)(b)
(b) If the power of appointment is exercisable at the powerholder's death, the powerholder's estate, to the extent the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid.
702.501 History
History: 2023 a. 127.
702.502
702.502
Creditor claim: general power not created by powerholder. 702.502(1)(1)
Except as otherwise provided in sub.
(2), appointive property subject to a general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of any of the following:
702.502(1)(a)
(a) If the power of appointment is a presently exercisable power of appointment, the powerholder to the extent the powerholder's property is insufficient.
702.502(1)(b)
(b) If the power of appointment is exercisable at the powerholder's death, the powerholder's estate or revocable trust, subject to the right of a decedent to direct the source from which liabilities are paid, but only to the extent of the powerholder's exercise of that general power of appointment and only to the extent that the claim of the creditor has been filed and allowed in the powerholder's estate or filed with and approved by the trustee of a revocable trust but not paid because the assets of the estate or revocable trust are insufficient. For purposes of this paragraph, a revocable trust is a trust that is revocable, as defined in s.
701.0103 (22), by the powerholder or jointly by the powerholder and the powerholder's spouse.
702.502(2)
(2) Subject to s.
702.504 (3), a power of appointment created by a person other than the powerholder that is subject to an ascertainable standard relating to an individual's health, education, support, or maintenance within the meaning of
26 USC 2041 (b) (1) (A) or
2514 (c) (1), is considered for purposes of this subchapter as a nongeneral power of appointment.
702.502(3)
(3) If during the powerholder's lifetime, the powerholder exercises a general power of appointment created by a person other than the powerholder, a creditor of the powerholder can reach the appointed interests to the same extent that under the law relating to fraudulent conveyances the creditor could reach property that the powerholder has owned and transferred during the powerholder's lifetime.
702.502 History
History: 2023 a. 127.
702.503(1)(1)
For purposes of this subchapter, and except as otherwise provided in sub.
(2), a power to withdraw property from a trust is considered, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.
702.503(2)
(2) On the lapse, release, or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent the value of the property affected by the lapse, release, or waiver exceeds the greater of the following:
702.503(2)(a)
(a) The amount referenced in section
2041 (b) (2) or
2514 (e) of the Internal Revenue Code.
702.503(2)(b)
(b) The amount referenced in section
2503 (b) of the Internal Revenue Code for each individual other than the beneficiary who makes a transfer to the trust or who is considered to make a transfer to the trust pursuant to an election to split gifts under section
2513 (a) of the Internal Revenue Code.
702.503 History
History: 2023 a. 127.
702.504
702.504
Creditor claim: nongeneral power of appointment. 702.504(1)(1)
Except as otherwise provided in subs.
(2) and
(3), appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder's estate.
702.504(2)
(2) Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of the law relating to fraudulent conveyances.
702.504(3)
(3) For purposes of this subchapter, if the initial gift in default of appointment is to the powerholder or the powerholder's estate, a nongeneral power of appointment is treated as a general power of appointment.
702.504 History
History: 2023 a. 127.
702.505
702.505
Third parties in good faith protected. Any person acting without actual notice of claims of creditors under this subchapter incurs no liability to those creditors for transferring property that is subject to a power of appointment or that has been appointed. A purchaser without actual notice and for a valuable consideration takes an interest in property, legal or equitable, and takes the interest free of any rights that a powerholder's creditor may have under this subchapter.
702.505 History
History: 2023 a. 127.
MISCELLANEOUS PROVISIONS
702.601
702.601
Recording instruments relating to a power of appointment. 702.601(1)(1)
Each of the following instruments relating to a power of appointment is entitled to be recorded as a conveyance upon compliance with s.
706.05 (1):
702.601(1)(a)
(a) An instrument, other than a will, exercising a power of appointment.
702.601(1)(b)
(b) An instrument expressing consent to exercise a power of appointment.
702.601(2)
(2) If a power of appointment is exercised by a will, a certified copy of the will and of the certificate of probate thereof may be recorded.
702.601 History
History: 2023 a. 127.
702.602
702.602
Uniformity of application and construction. In applying and construing this section, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
702.602 History
History: 2023 a. 127.
702.603
702.603
Relation to electronic signatures in global and national commerce act. 702.603(1)(1)
Except as provided in sub.
(2), this chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act,
15 USC 7001, et seq.
702.603(2)
(2) This chapter does not modify, limit, or supersede
15 USC 7001 (c) or authorize electronic delivery of any of the notices described in
15 USC 7003 (b).
702.603 History
History: 2023 a. 127.
702.604(1)(a)
(a) This chapter applies to a power of appointment created before, on, or after March 23, 2024.
702.604(1)(b)
(b) This chapter applies to a judicial proceeding concerning a power of appointment commenced on or after March 23, 2024.
