AB648: Bill Text

KMS:skw

2023 - 2024 LEGISLATURE

2023 Assembly BILL 648

November 8, 2023 - Introduced by Representatives O'Connor, Dittrich, Rettinger and Nedweski, cosponsored by Senators Knodl and Felzkowski. Referred to Committee on Judiciary.

AB648,1,2 An Act to create chapter 699 of the statutes; relating to: domestic asset protection trusts.

Analysis by the Legislative Reference Bureau

This bill creates a new type of trust, called a legacy trust. A legacy trust is an irrevocable trust that contains a spendthrift provision and that appoints at least one qualified trustee. Under the bill, a person, called a transferor, may create a legacy trust into which he or she may place assets that will be managed by the trustee. The transferor may also be a co-trustee or a beneficiary of the legacy trust. The terms of the trust may grant a transferor the power to remove and replace a trustee or advisor and to direct trust investments.

A person who places assets in a trust is a settlor. Under current law, generally, the assets of a settlor are subject to creditor claims. If the assets are placed in a revocable trust, the assets are subject to the claims of the settlor's creditors. If the assets are placed in an irrevocable trust and the trust is not for an individual with a disability, 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 a judgment out of payments from the trust.

Current law also provides a spendthrift provision, which is a term of a trust that restricts voluntary or involuntary transfers of a beneficiary's interest in the trust. Under current law, a spendthrift provision is valid only if the beneficiary is someone other than the settlor, or if the beneficiary is disabled. Under current law there are exceptions that provide that a spendthrift provision does not protect assets from claims for child support under any circumstance or claims for public support unless the beneficiary is disabled.

Under the bill, a legacy trust must have a spendthrift provision, and none of the current law restrictions to spendthrift trusts apply. Assets in a legacy trust are not subject to claims for public support, but they are subject to claims for child support. Additionally, under the bill, a creditor generally may not bring an action of any kind against a transferor, against a trustee of a legacy trust, or against any assets that are held by a legacy trust. There are three exceptions to this prohibition. First, an action may be brought if the transfer of the asset was made to hinder, delay, or defraud the creditor. Second, an action may be brought by a creditor who was a creditor of the transferor when the disposition was made if the creditor commences the action within the later of 18 months after the transfer or six months after the creditor discovers or reasonably should have discovered the transfer. Third, an action may be brought by a creditor who becomes a creditor after the transfer occurs if the creditor commences the action no later than 18 months after the transfer occurred. Under the bill, a creditor includes a person seeking to enforce a judgment entered by a court or other authorized adjudicative body. No other actions are permitted for any reason.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB648,1 Section 1. Chapter 699 of the statutes is created to read:

AB648,2,2 Chapter 699

AB648,2,3 Legacy Trusts

AB648,2,4 699.01 Definitions. In this chapter:

AB648,2,6 (1) “Advisor" means a person who, under the terms of a legacy trust, is granted the power to do any of the following:

AB648,2,7 (a) Remove or appoint a trustee of the legacy trust.

AB648,2,9 (b) Direct, consent to, or disapprove a trustee's actual or proposed investment, distribution, or any other action related to assets of the legacy trust.

AB648,2,11 (2) “Asset" means property of a transferor but does not include any of the following:

AB648,2,12 (a) Property to the extent it is encumbered by a valid lien.

AB648,3,2 (b) Property to the extent it is generally exempt under nonbankruptcy law at the time of a qualified disposition.

AB648,3,6 (c) Property held as marital property with rights of survivorship to the extent that under the law governing the marital property at the time of a qualified disposition the property is not subject to process by a creditor holding a claim against only one spouse.

AB648,3,9 (d) Property transferred from a nonlegacy trust to a legacy trust to the extent that the property would not be subject to attachment under applicable nonbankruptcy law that governs the nonlegacy trust.

AB648,3,10 (3) “Beneficiary" has the meaning given in s. 701.0103 (3).

AB648,3,13 (4) “Claim" means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.

AB648,3,15 (5) “Creditor" means a person who has a claim against a transferor and includes any transferee of, assignee of, or successor to the claim.

AB648,3,16 (6) “Debt" means liability on a claim.

AB648,3,20 (7) “Disposition" means a transfer, conveyance, or assignment of a property interest, including a partial, contingent, undivided, or co-ownership property interest. “Disposition" includes an exercise of a general power of appointment that results in a transfer of property to a trustee but does not include any of the following:

AB648,3,22 (a) The release or relinquishment of a property interest that is subject to a qualified disposition until the release or relinquishment.

AB648,3,24 (b) The exercise of a special power of appointment that results in a transfer of property to a trustee.

AB648,3,25 (c) A disclaimer under s. 700.27 or 854.13.

AB648,4,3 (8) “Investment decision" means a decision regarding the retention, purchase, sale, exchange, tender, or other action affecting the ownership of or rights in an investment.

AB648,4,5 (9) “Legacy trust" means a trust created by a written instrument, the terms of which do all of the following:

AB648,4,8 (a) Appoint at least one qualified trustee to accept property that is the subject of a disposition, regardless of whether the terms of the trust also appoint a nonqualified trustee.

AB648,4,10 (b) Expressly designate the laws of this state to govern the meaning and effect of the terms of the trust, in whole or in part.

AB648,4,11 (c) Expressly provide that the trust is irrevocable.

AB648,4,13 (d) Include a spendthrift provision that applies to an interest of a beneficiary in trust property, including an interest of a transferor who is a beneficiary.

AB648,4,14 (10) “Lien" has the meaning given in s. 242.01 (8).

AB648,4,15 (11) “Nonlegacy trust" means a trust that is not a legacy trust.

AB648,4,16 (12) “Nonqualified trustee" means a trustee who is not a qualified trustee.

AB648,4,17 (13) “Person" has the meaning given in s. 701.0103 (17).

AB648,4,18 (14) “Property" has the meaning given in s. 701.0103 (20).

AB648,4,20 (15) “Qualified disposition" means a disposition by a transferor to any trustee of a legacy trust.

AB648,4,22 (16) “Qualified trustee" means a trustee who is not a transferor and to whom one of the following applies:

AB648,4,24 (a) If the trustee is an individual, the individual resides and is domiciled in this state.

AB648,5,3 (b) If the trustee is a trust company or a bank, the trust company or bank is organized under federal law, state law, or the laws of another state, and the trust company or bank maintains an office in this state.

AB648,5,4 (18) “Spendthrift provision" has the meaning given in s. 701.0103 (25).

AB648,5,6 (19) “Transferor" means a person who directly or indirectly makes a disposition to a legacy trust, including a settlor, as defined in s. 701.0103 (23).

AB648,5,7 (20) “Valid lien" has the meaning given in s. 242.01 (13).

AB648,5,11 699.015 Applicability. Unless the terms of a legacy trust provide otherwise, this chapter governs the construction, operation, and enforcement in this state of a legacy trust, whether created in this state or any other state, if any of the following applies:

AB648,5,13 (1) Any of the land, rents, issues, or profits that are the subject of a qualified disposition are located in this state.

AB648,5,15 (2) Any portion of personal property, interest of money, or dividends of stock that is the subject of a qualified disposition is located in this state.

AB648,5,16 (3) The transferor's legal residence is in this state.

AB648,5,19 (4) A qualified trustee of the legacy trust has the power to maintain records and prepare income tax returns for the trust, and all or part of the administration of the trust is performed in this state.

AB648,5,23 699.02 Spendthrift provision; legacy trust. (1) Notwithstanding s. 701.0502 (1), a spendthrift provision of a legacy trust is not invalid because a transferor or a person who is treated as a settlor under s. 701.0505 (2) is also a beneficiary of the legacy trust.

AB648,6,6 (2) Except as otherwise provided in this section, a spendthrift provision in a legacy trust restrains both voluntary and involuntary transfers of a transferor's interest in the legacy trust. A spendthrift provision in a legacy trust is enforceable under any applicable nonbankruptcy law within the meaning of 11 USC 541 (c) (2) regardless of whether the legacy trust instrument makes any reference to that enforceability. The terms of a legacy trust, including in a spendthrift provision, may provide for any other restraint of alienation that are permitted under the laws of this state.

AB648,6,8 (3) Section 701.0503 (2) does not apply to a spendthrift provision in a legacy trust.

AB648,6,9 (4) Section 701.0505 (1) (a) 2. does not apply to a legacy trust.

AB648,6,12 (5) Nothing in this section may deprive a beneficiary of any exemption right that the beneficiary has under any applicable law after the trust property is received by the beneficiary.

AB648,6,16 699.03 Implied power to revoke or to transfer an interest in a legacy trust. None of the following is considered to be, including in combination, a power to revoke a legacy trust or to voluntarily or involuntarily transfer an interest in the legacy trust:

AB648,6,18 (1) A transferor's power to veto a distribution of income or principal from the legacy trust.

AB648,6,21 (2) A special power of appointment, as defined in s. 702.02 (7), exercisable by a transferor by will or another written document that is effective during the lifetime of the transferor or upon the death of the transferor.

AB648,6,23 (3) The right of a transferor to receive income from the legacy trust in accordance with the terms of the legacy trust.

AB648,7,4 (4) That a transferor is a beneficiary of the legacy trust regardless of whether the trust qualifies as a charitable remainder annuity trust under 26 USC 664 (d) (1) or as a charitable remainder unitrust under 26 USC 664 (d) (2), even if the transferor has the right to release the transferor's retained interest, in whole or in part, in the charitable remainder annuity trust or charitable remainder unitrust at any time in favor of one or more of the remainder beneficiaries of the legacy trust.

AB648,7,10 (5) A transferor's annual receipt of a percentage of the value of the legacy trust assets, as determined in accordance with the terms of the trust, as long as the amount the transferor receives in a year is not more than the amount defined as the income of the legacy trust under 26 USC 643 (b) or, for any qualified retirement plan or eligible deferred compensation plan that is an asset of the legacy trust, the minimum required distribution, as defined in 26 USC 4974 (b).

AB648,7,12 (6) A transferor's potential or actual receipt or use of principal or income of the legacy trust if the potential or actual receipt or use is the result of any of the following:

AB648,7,16 (a) A qualified trustee's discretion. For purposes of this paragraph, a qualified trustee has discretion with respect to the distribution and use of the principal and income of a legacy trust unless the terms of the legacy trust expressly provide otherwise.

AB648,7,18 (b) A qualified trustee applying a standard that governs the distribution or use of principal or income of the legacy trust.

AB648,7,23 (c) A qualified trustee acting at the direction of an advisor if the advisor's direction is discretionary or pursuant to a standard that governs the distribution or use of principal or income under the terms of the legacy trust. For purposes of this paragraph, an advisor's direction is discretionary unless the terms of the legacy trust expressly provide otherwise.

AB648,7,25 (7) A transferor's potential or actual right to use real or tangible personal property owned by the legacy trust.

AB648,8,3 (8) A transferor's right to possess and enjoy a qualified interest, as defined in 26 USC 2702 (b), or property held under a qualified personal residence trust, as described in 26 USC 2702 (c).

AB648,8,6 (9) A qualified trustee's mandatory or discretionary power to use the income or principal of the legacy trust to pay, in whole or in part, income taxes due on the income of the legacy trust.

AB648,8,9 (10) That a qualified trustee, whether pursuant to the qualified trustee's discretion, the terms of the legacy trust, or the direction of an advisor pays any of the following:

AB648,8,10 (a) A transferor's debt that is outstanding at the time of the transferor's death.

AB648,8,11 (b) The expenses of administering the transferor's estate.

AB648,8,13 (c) Any estate, gift, generation-skipping transfer, or inheritance tax on behalf of the transferor or the transferor's estate.

AB648,8,15 (11) A provision in the legacy trust that transfers all or part of the trust assets to the transferor's estate or revocable trust.

AB648,8,19 (12) A transferor is a beneficiary of the legacy trust and is authorized to receive a payment of income or principal from a qualified annuity interest, as defined in 26 CFR 25.2702-3 (b), or a qualified unitrust interest, as defined in 26 CFR 25.2702-3 (c).

AB648,8,24 699.04 Transferor's powers. (1) A transferor of a legacy trust has only the powers and rights that are granted to the transferor by the trust instrument. An agreement or understanding, express or implied, between the transferor and a trustee that attempts to grant or permit the retention of greater rights or authority than is stated in the trust instrument is void.

AB648,9,3 (2) Notwithstanding s. 699.03, the terms of a legacy trust may grant a transferor, whether or not the transferor is a trustee, the power to do any of the following: