SB759: Bill Text

SB759,74,15 702.206 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:

SB759,74,16 (1) The instrument creating the power is revocable by the donor.

SB759,74,18 (2) The donor reserves a power of revocation or amendment over the power of appointment in the instrument.

SB759,74,19 SUBCHAPTER III

SB759,74,20 EXERCISE OF POWER OF APPOINTMENT

SB759,74,22 702.301 Requisites for exercise of power of appointment. (1) (a) A power of appointment is exercised only if all of the following apply:

SB759,74,23 1. The instrument exercising the power is valid under applicable law.

SB759,74,24 2. The terms of the instrument exercising the power do all of the following:

SB759,74,25 a. Manifest the powerholder's intent to exercise the power.

SB759,75,2 b. Subject to s. 702.304, satisfy the requirements of exercise, if any, imposed by the donor.

SB759,75,4 (b) A power of appointment is exercised under par. (a) only to the extent the appointment is a permissible exercise of the power.

SB759,75,12 (2)  If the donor requires the consent of the donor or any other person for the exercise of a power of appointment, the consent must be expressed in the instrument exercising the power of appointment or in a separate written 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 powerholder without the consent of that person unless the terms of the instrument creating the power of appointment manifest a contrary intent.

SB759,75,16 (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.

SB759,75,20 (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 appointment, or renounce, release, or disclaim the power of appointment, the power of appointment may be exercised unanimously by the other powerholders.

SB759,75,22 702.302 Intent to exercise: determining intent from residuary clause. (1) In this section:

SB759,75,24 (a) “Residuary clause” does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause.

SB759,76,2 (b) “Will” includes a codicil and a testamentary instrument that revises another will.

SB759,76,5 (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:

SB759,76,7 (a) The terms of the instrument containing the residuary clause do not manifest a contrary intent.

SB759,76,9 (b) The power of appointment is a general power of appointment exercisable in favor of the powerholder's estate.

SB759,76,12 (c) There is no gift-in-default clause in the instrument creating the power of appointment or the gift-in-default clause in the instrument creating the power of appointment is ineffective.

SB759,76,13 (d) The powerholder did not release the power of appointment.

SB759,76,16 702.303 Intent to exercise: after-acquired power. Unless the terms of the instrument exercising a power of appointment manifest a contrary intent, all of the following apply:

SB759,76,19 (1) Except as otherwise provided in sub. (2), a blanket-exercise clause extends to a power of appointment acquired by the powerholder after executing the instrument containing the clause.

SB759,76,22 (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.

SB759,77,2 702.304 Substantial compliance with donor-imposed formal requirement. A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if all of the following apply:

SB759,77,4 (1) The powerholder knows of and intends to exercise the power of appointment.

SB759,77,7 (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.

SB759,77,12 702.305 Permissible appointment. (1) A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the powerholder's own property.

SB759,77,15 (2) A powerholder of a general power of appointment that permits appointment only to the creditors of the powerholder or the creditors of the powerholder's estate may appoint only to those creditors.

SB759,77,18 (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:

SB759,77,20 (a) Make an appointment in any form, including an appointment in trust, in favor of a permissible appointee.

SB759,77,23 (b) Create a general or nongeneral power of appointment in a permissible appointee that may be exercisable in favor of persons other than permissible appointees of the original nongeneral power of appointment.

SB759,78,3 (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 appointment.

SB759,78,6 702.306 Appointment to a deceased appointee. Subject to s. 854.06, an exercise of a power of appointment is ineffective to the extent it is in favor of a deceased appointee.

SB759,78,9 702.307 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.

SB759,78,11 (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.

SB759,78,15 702.308 Selective allocation doctrine. If a powerholder 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 allocated in the permissible manner that best carries out the powerholder's intent.

SB759,78,19 702.309 Capture doctrine: disposition of ineffectively appointed property under general power. To the extent a powerholder of a general power of appointment, other than a power to withdraw property from, revoke, or amend a trust, makes an ineffective appointment, all of the following apply:

SB759,78,21 (1) The gift-in-default clause controls the disposition of the ineffectively appointed property.

SB759,78,24 (2) (a) If there is no gift-in-default clause or to the extent the gift-in-default clause is ineffective, the ineffectively appointed property passes to one of the following:

SB759,78,25 1. If the powerholder is a permissible appointee and living, the powerholder.

SB759,79,2 2. If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee.

SB759,79,5 (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.

SB759,79,9 702.310 Disposition of unappointed property under released or unexercised general power. To the extent a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke, or amend a trust, all of the following apply:

SB759,79,11 (1) The gift-in-default clause controls the disposition of the unappointed property.

SB759,79,14 (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:

SB759,79,15 1. If the powerholder is a permissible appointee and living, the powerholder.

SB759,79,17 2. If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee.

SB759,79,20 (b) To the extent the powerholder released the power, or 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.

SB759,79,24 702.311 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:

SB759,80,2 (1) The gift-in-default clause controls the disposition of the unappointed property.

SB759,80,5 (2) (a) If there is no gift-in-default clause or to the extent the gift-in-default clause is ineffective, the unappointed property passes to the permissible appointees if all of the following apply:

SB759,80,6 1. The permissible appointees are defined and limited.

SB759,80,8 2. The terms of the instrument creating the power do not manifest a contrary intent.

SB759,80,10 (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.

SB759,80,15 702.312 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 powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property.

SB759,80,20 702.313 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.

SB759,80,23 702.314 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:

SB759,81,2 (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.

SB759,81,4 (2) The terms of the instrument creating the power of appointment provide that the exercise of the power of appointment is revocable or amendable.

SB759,81,10 702.315 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 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:

SB759,81,12 (a) A document purporting to be a will of the powerholder if the power of appointment is exercised by the will.

SB759,81,14 (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.

SB759,81,17 (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).

SB759,81,18 SUBCHAPTER IV

SB759,81,20 DISCLAIMER OR RELEASE; CONTRACT TO APPOINT OR NOT TO APPOINT

SB759,81,22 702.401 Disclaimer. (1) A powerholder may disclaim all or part of a power of appointment as provided under ss. 700.27 and 854.13.

SB759,81,25 (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.

SB759,82,3 702.402 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.

SB759,82,6 702.403 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:

SB759,82,8 (1) Substantial compliance with a method provided in the terms of the instrument creating the power.

SB759,82,10 (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.

SB759,82,13 702.404 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:

SB759,82,14 (1) The instrument of release is revocable by the powerholder.

SB759,82,16 (2) The powerholder reserves a power of revocation or amendment in the instrument of release.

SB759,82,19 702.405 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:

SB759,82,20 (1) Not to exercise the power.

SB759,82,22 (2) To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.

SB759,83,2 702.406 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:

SB759,83,3 (1) The powerholder is also the donor of the power.

SB759,83,4 (2) The powerholder reserved the power in a revocable trust.

SB759,83,8 702.407 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.

SB759,83,9 SUBCHAPTER V

SB759,83,11 RIGHTS OF POWERHOLDER'S CREDITORS IN APPOINTIVE PROPERTY

SB759,83,15 702.501 Creditor claim: general power created by powerholder. (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.

SB759,83,19 (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.

SB759,83,24 (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.

SB759,84,5 (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: