AB803: Bill Text

AB803,73 Section 73. 701.0411 (1) of the statutes is amended to read:

AB803,,179 701.0411 (1) A Except as provided in sub. (1m), a noncharitable irrevocable trust may be modified or terminated, 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 modification or termination may be exercised by a representative under s. 701.0303 only if the representative is specifically 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 conservatorship.

AB803,74 Section 74. 701.0411 (1m) of the statutes is created to read:

AB803,,181 701.0411 (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 revocable because it lacks ascertainable remainder beneficiaries.

AB803,75 Section 75. 701.0411 (2) (intro.) of the statutes is created to read:

AB803,,183 701.0411 (2) (intro.) With the approval of the court, any of the following may occur:

AB803,76 Section 76. 701.0411 (2) (a) of the statutes is amended to read:

AB803,,185 701.0411 (2) (a) A noncharitable irrevocable trust may be terminated upon consent of all of the beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust.

AB803,77 Section 77. 701.0411 (2) (b) of the statutes is amended to read:

AB803,,187 701.0411 (2) (b) A noncharitable irrevocable trust may be modified upon consent of all of the beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.

AB803,78 Section 78. 701.0411 (7) of the statutes is amended to read:

AB803,,189 701.0411 (7) A party proposing to modify or terminate 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 proposed effective date of the modification or termination.

AB803,79 Section 79. 701.0414 (4) of the statutes is amended to read:

AB803,,191 701.0414 (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 insufficient to justify the cost of administration even if the trust property has a total value in excess of the amount described in sub. (2).

AB803,80 Section 80. 701.0415 of the statutes is amended to read:

AB803,,193 701.0415 Reformation to correct mistakes. The court may reform the terms of a trust, even if unambiguous, 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 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.

AB803,81 Section 81. 701.0416 of the statutes is amended to read:

AB803,,195 701.0416 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 settlor’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.

AB803,82 Section 82. 701.0418 of the statutes is repealed.

AB803,83 Section 83. 701.0505 (1) (a) 2. of the statutes is amended to read:

AB803,,198 701.0505 (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 arising 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.

AB803,84 Section 84. 701.0505 (2) (e) 3. of the statutes is amended to read:

AB803,,200 701.0505 (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.

AB803,85 Section 85. 701.0508 of the statutes is repealed and recreated to read:

AB803,,202 701.0508 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:

AB803,,203 (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.

AB803,,204 (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.

AB803,,205 (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.

AB803,,206 (2) Exceptions to deadlines on claims. A claim that is not filed on or before an applicable deadline specified 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), Wisconsin 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.

AB803,,207 (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 prescribed under s. 701.0508 (1) (a) or (b).

AB803,,208 (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.

AB803,,209 (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 substitution of party defendant on the trustee and file proof of service 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.

AB803,,210 (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 property, or recipients with respect to trust property.

AB803,,211 (b) A claim not barred by a statute of limitations at the time of the settlor’s death shall not be barred thereafter by a statute of limitations if the claim is filed on or before the deadline for filing a claim under sub. (1).

AB803,,212 (c) A claim that is not filed or is filed after the deadline 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.

AB803,,213 (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.

AB803,,214 (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.

AB803,,215 (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 administering claims under ch. 859. The trustee shall be subject to the jurisdiction of the court in which the estate administration 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 settlor’s death shall provide notice to a personal representative of the settlor’s estate, if any, of the existence of such trust.

AB803,86 Section 86. 701.0509 of the statutes is created to read:

AB803,,217 701.0509 Procedures for claims for debts of a deceased settlor; revocable trusts. (1) Scope of applicability. The procedures under this section apply only to claims against a trust that was revocable by the settlor until the settlor’s death.

AB803,,218 (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 person 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 credited, and that there are no offsets to the knowledge of the affiant, except as stated in the claim.

AB803,,219 (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.

AB803,,220 (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 determination. 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 determines 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).

AB803,,221 (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:

AB803,,222 (a) Pay the claim in full.

AB803,,223 (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.

AB803,,224 (c) Retain sufficient funds to satisfy the claim upon maturity.

AB803,,225 (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.

AB803,,226 (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 sufficiently described if the security document is described by date and by the recording or filing data.

AB803,,227 (b) Payment of the claim shall be made on the basis of one of the following:

AB803,,228 1. If the creditor surrenders the security, the full amount of the claim.

AB803,,229 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.

AB803,,230 (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 with the trustee as provided under sub. (2). If the trustee determines the claim to be valid subject to the contingency, the determination shall state the nature of the contingency. 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 payment of contingent claims in any of the following methods:

AB803,,231 (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.

AB803,,232 (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 distributees of the retained funds, after paying any costs and expenses accruing during such period, but the distributees 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 contingent claimant.

AB803,,233 (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 distributees 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 contingent claimant.

AB803,,234 (d) Any other method the trustee determines or the court, in the case of a contested claim, orders.

AB803,,235 (6) Payment of contingent claims by distributees. If a contingent claim is filed and the trustee determines 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 distributees, 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 determined was not paid prior to final distribution, if a proceeding 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 proportionate 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.

AB803,,236 (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 classified in one of the categories under subds. 1. to 8. The trustee shall pay an absolute claim if the trustee reasonably believes the assets of the trust are sufficient to pay the claim. If the applicable assets of the trust are insufficient to pay the claim in full, the trustee shall make payment in the following order:

AB803,,237 1. Costs and expenses of administration.

AB803,,238 2. Reasonable funeral and burial expenses.

AB803,,239 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.

AB803,,240 4. Reasonable and necessary expenses of the last illness of the deceased settlor, including compensation of persons attending the deceased settlor.

AB803,,241 5. All debts, charges, or taxes owing to the United States, this state, or a governmental subdivision or municipality of this state.

AB803,,242 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 settlor, not to exceed $300 in value to each employee.

AB803,,243 7. Property assigned to the surviving spouse or surviving domestic partner under s. 861.41, which section is incorporated by reference and applied as if the trust is an estate.

AB803,,244 8. All other claims allowed.

AB803,,245 (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.

AB803,,246 (8) Execution and levies prohibited. Garnishment, 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 mortgages, pledges, liens, or other security agreements upon real or personal property in an appropriate proceeding.

AB803,,247 (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 beneficiary 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 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.

AB803,,248 (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 unliquidated. If an objection to the claim has been filed by a qualified beneficiary or another claimant, no compromise of the claim may be made without the consent of the objector.

AB803,,249 (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 representative under subch. III on behalf of a qualified beneficiary, or a claimant. Such persons may initiate the court proceeding by petitioning the court to exercise jurisdiction over the claim and any objection, offset, or counterclaim. 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 representative of the qualified beneficiary or another potential 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.

AB803,,250 (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.

AB803,,251 (12) Prompt judgment. The hearing on any contested claim, offset, or counterclaim may be adjourned from time to time, but the hearing shall be concluded as soon as practicable.

AB803,,252 (13) Judgment on claims. The court shall enter a judgment on contested claims and any offsets and counterclaims 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.

AB803,,253 (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 provide 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.

AB803,,254 (15) Claimant’s action for property fraudulently 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.

AB803,,255 (16) Encumbered assets; payment of debt. (a) Rights of secured claimants not affected. Nothing in this subchapter shall affect or prevent any action or proceeding to enforce any mortgage, pledge, lien, or other security agreement against property of the trust.

AB803,,256 (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.

AB803,,257 (17) Tort claims. (a) Filed within time limited. If a claim based on a cause of action in tort or for contribution 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.

AB803,,258 (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 filing a claim under s. 701.0508 against a trust, but the failure 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 adjudication 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 distributed 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 distributees, but no distributee may be liable for an amount greater than that allowed under sub. (6).

AB803,,259 (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 sufficient to satisfy all of the deceased settlor’s debts.

AB803,,260 (19) Last illness and funeral expense of deceased spouse. The reasonable expense of the last illness 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.

AB803,87 Section 87. 701.0602 (1) of the statutes is amended to read:

AB803,,262 701.0602 (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.

AB803,88 Section 88. 701.0602 (3) (intro.), (a) and (b) (intro.) of the statutes are consolidated, renumbered 701.0602 (3) (intro.) and amended to read:

AB803,,264 701.0602 (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:

AB803,89 Section 89. 701.0602 (3) (b) 1. of the statutes is renumbered 701.0602 (3) (am).

AB803,90 Section 90. 701.0602 (3) (b) 2. of the statutes is renumbered 701.0602 (3) (bm).