Chapter 701

701.0206 History History: 2013 a. 92 s. 195.

subch. III of ch. 701 SUBCHAPTER III

REPRESENTATION

701.0301 701.0301 Representation: basic effect.

701.0301(1) (1) Notice, information, an accounting, or a report given to a person who may represent and bind another person under this subchapter is a substitute for and has the same effect as notice, information, an accounting, or a report given directly to the other person.

701.0301(2) (2) The consent of a person who may represent and bind another person under this subchapter is binding on the person represented unless the person represented objects to the representation by notifying the trustee or the representative in writing before the consent would otherwise have become effective.

701.0301(3) (3) Except as provided in ss. 701.0411 and 701.0602, a person who under this subchapter may represent a settlor who lacks capacity may receive notice and may give a binding consent on the settlor’s behalf.

701.0301(4) (4) A settlor may not represent and bind a beneficiary under this subchapter with respect to the termination or modification of a trust under s. 701.0411 (1).

701.0301(5) (5) A trustee is not liable for giving notice, information, an accounting, or a report to a beneficiary who is represented by another person under this subchapter and nothing in this subchapter prohibits the trustee from giving notice, information, an accounting, or a report to the person represented.

701.0301 History History: 2013 a. 92.

701.0302 701.0302 Representation by powerholder of certain powers of appointment.

701.0302(1) (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 exercise 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.

701.0302(2) (2) To the extent there is no conflict of interest between a powerholder and the persons represented with respect to the particular question or dispute, the powerholder of a nongeneral power of appointment other than a broad limited power of appointment may represent and bind all persons or all members of a class of persons, including permissible appointees and takers in default, whose interests may be limited by the exercise or nonexercise of the power.

701.0302 History History: 2013 a. 92; 2023 a. 127.

701.0303 701.0303 Representation by fiduciaries, parents, or a person appointed by a trustee. Except as provided in s. 701.0411, to the extent there is no conflict of interest between a representative and the person represented or among those being represented with respect to a particular question or dispute, all of the following apply:

701.0303(1) (1) A conservator may represent and bind the estate that the conservator controls.

701.0303(2) (2) Notwithstanding ss. 54.20 (2) and 54.25 (2), a guardian of the estate may represent and bind the ward and a guardian of the person may represent and bind the ward if a guardian of the estate of the ward has not been appointed.

701.0303(3) (3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal.

701.0303(4) (4) A trustee may represent and bind the beneficiaries of the trust.

701.0303(5) (5) A personal representative of a decedent’s estate may represent and bind a person interested in the estate.

701.0303(6) (6) 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 individual, representation is determined as follows:

701.0303(6)(a) (a) If only one parent is a beneficiary of the trust that is the subject of the representation, that parent may represent and bind the minor or unborn child, such child’s minor and unborn issue, and the minor and unborn issue of a then deceased child.

701.0303(6)(b) (b) If both parents are beneficiaries of the trust that is the subject of the representation, the parent who is related to the settlor, other than by reason of being married to the other parent, may represent and bind the minor or unborn child, such child’s minor and unborn issue, and the minor and unborn issue of a then deceased child.

701.0303(6)(c) (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 or unborn child, such child’s minor and unborn issue, and the minor and unborn issue of a then deceased child.

701.0303(6)(d) (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 reason of being married to the other parent, may represent and bind the minor or unborn child, such child’s minor and unborn issue, and the minor and unborn issue of a then deceased child.

701.0303(6)(e) (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.

701.0303(7) (7) The order in which the representatives are listed in subs. (1) to (6) sets forth the priority that each such representative has relative to the others.

701.0303(8) (8) If there is no representation by a person having a substantially identical interest under s. 701.0304, the trustee may appoint a representative to act if any of the following applies:

701.0303(8)(a) (a) There is no one permitted to act under subs. (1) to (6).

701.0303(8)(b) (b) All of the people entitled to act under subs. (1) to (6) have declined to act.

701.0303(8)(c) (c) The trustee determines that the otherwise available representation under subs. (1) to (6) might be inadequate.

701.0303 History History: 2013 a. 92, 151; 2023 a. 127.

701.0304 701.0304 Representation by person having substantially identical interest.

701.0304(1) (1) Unless otherwise represented with respect to a particular question or dispute, a minor, incapacitated, or unborn individual or a person whose identity or location is unknown and not reasonably ascertainable may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to the particular question or dispute.

701.0304(2) (2) 

701.0304(2)(a) (a) In this subsection:

701.0304(2)(a)1. 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.

701.0304(2)(a)2. 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.

701.0304(2)(b) (b) A presumptive remainder beneficiary or a person authorized to represent the presumptive remainder beneficiary under sub. (1) may represent and bind a contingent successor remainder beneficiary or 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.

701.0304(2)(c) (c) If a presumptive remainder beneficiary does not represent a more remote contingent successor remainder beneficiary, a contingent successor remainder beneficiary 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.

701.0304(2)(d) (d) A contingent successor remainder beneficiary or a more remote contingent successor remainder beneficiary 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.

701.0304(2)(e) (e) Under pars. (b) and (c), the difference between a beneficiary’s interest as a presumptive remainder beneficiary or contingent successor remainder beneficiary does not constitute a conflict of interest as to any more remote contingent successor remainder beneficiary.

701.0304 History History: 2013 a. 92; 2023 a. 127.

701.0305 701.0305 Appointment of representative by a court. If the court determines that an interest is not represented under this subchapter, or that the otherwise available representation might be inadequate, the court may appoint a representative or guardian ad litem to receive notice, give consent, and otherwise represent, bind, and act on behalf of the person who is not represented or whose representation might be inadequate. A representative or guardian ad litem may be appointed to represent several persons or interests.

701.0305 History History: 2013 a. 92; 2023 a. 127.

701.0306 701.0306 Designated representative.

701.0306(1) (1) If specifically nominated in the trust instrument, one or more persons may be designated to represent and bind a beneficiary 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 represent and bind a beneficiary and receive any notice, information, accounting, or report.

701.0306(2) (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.

701.0306(3) (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 beneficiary, unless one of the following applies:

701.0306(3)(a) (a) That person was named by the settlor.

701.0306(3)(b) (b) That person is one of the following:

701.0306(3)(b)1. 1. The beneficiary’s spouse.

701.0306(3)(b)2. 2. A grandparent or descendant of a grandparent of the beneficiary.

701.0306(3)(b)3. 3. A grandparent or descendant of a grandparent of the beneficiary’s spouse.

701.0306 History History: 2023 a. 127.

701.0307 701.0307 Role of a representative or guardian ad litem.

701.0307(1) (1) A representative or guardian ad litem may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.

701.0307(2) (2) In making decisions, a representative or guardian ad litem may consider any general benefit accruing to the living members of the individual’s family.

701.0307 History History: 2023 a. 127 ss. 62, 63, 65.

701.0308 701.0308 Liability of representative. No representative 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.

701.0308 History History: 2023 a. 127.

subch. IV of ch. 701 SUBCHAPTER IV

CREATION, VALIDITY, MODIFICATION,
AND TERMINATION OF TRUST

701.0401 701.0401 Methods of creating a trust. A trust may be created by any of the following:

701.0401(1) (1) A transfer of property to another person as trustee during the settlor’s lifetime, by will, or by other disposition taking effect upon the settlor’s death.

701.0401(2) (2) A declaration by an owner of property that the owner holds identifiable property as trustee or declaration by any person who intends to create a trust with the expectation that property of the person or others will be transferred to the trust.

701.0401(3) (3) An exercise of a power of appointment in favor of a trustee.

701.0401(4) (4) A court pursuant to its statutory or equitable powers.

701.0401(5) (5) A guardian of the estate or conservator acting with authority of the court, a representative payee, or an agent under a power of attorney that expressly grants authority to create the trust.

701.0401(5m) (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.

701.0401(6) (6) Any other manner authorized by statute, regulation, common law, or other provision having the effect of law.

701.0401 History History: 2013 a. 92; 2023 a. 127.

701.0402 701.0402 Requirements for creation.

701.0402(1) (1) A trust is created only if all of the following are satisfied:

701.0402(1)(a) (a) The settlor of the trust has capacity, as defined in sub. (4), to create the trust, unless the trust is created by court order or by an agent, guardian of the estate, conservator, or representative payee with authority to act.

701.0402(1)(b) (b) The settlor indicates an intention to create the trust; or a statute, regulation, common law, other provision having the effect of law, judgment, or decree creates or authorizes the creation of a trust.

701.0402(1)(c) (c) The trust has a definite beneficiary or is one of the following:

701.0402(1)(c)1. 1. A charitable trust.

701.0402(1)(c)2. 2. A trust for the care of an animal, as provided in s. 701.0408.

701.0402(1)(c)3. 3. A trust for a noncharitable purpose, as provided in s. 701.0409.

701.0402(1)(d) (d) The trustee has duties to perform.

701.0402(1)(e) (e) The same person is not the sole trustee and sole beneficiary, and there are no remainder beneficiaries other than the person’s estate.

701.0402(2) (2) A beneficiary is definite if the beneficiary can be ascertained at the time the trust is created or in the future.

701.0402(3) (3) A power in a trustee or trust protector to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.

701.0402(4) (4) The capacity required to create a trust is the same as the capacity to make a will.

701.0402 History History: 2013 a. 92; 2023 a. 127.

701.0403 701.0403 Trusts created in other jurisdictions. A trust not created by will is validly created if its creation complies with the law of the jurisdiction in which the trust instrument was executed, or the law of the jurisdiction in which, at the time of creation, any of the following was satisfied:

701.0403(1) (1) The settlor was domiciled, had a place of abode, or was a national.

701.0403(2) (2) A trustee was domiciled or had a place of business.