Chapter 701

701.0804 History History: 2013 a. 92.

701.0805 701.0805 Costs of administration. In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, the skills of the trustee, and the complexity of the trust administration.

701.0805 History History: 2013 a. 92.

701.0806 701.0806 Trustee’s skills. A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee has special skills or expertise, shall use those special skills or expertise.

701.0806 History History: 2013 a. 92.

701.0807 701.0807 Delegation by trustee.

701.0807(1) (1) A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in each of the following:

701.0807(1)(a) (a) Selecting an agent.

701.0807(1)(b) (b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust.

701.0807(1)(c) (c) Periodically reviewing the agent’s actions in order to monitor the agent’s performance and compliance with the terms of the delegation.

701.0807(2) (2) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.

701.0807(3) (3) A trustee who complies with sub. (1) is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.

701.0807(4) (4) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state even if the terms of the delegation provide for a different jurisdiction or venue.

701.0807(5) (5) This section does not apply to a trustee’s delegation of investment and management functions. A trustee’s delegation of investment and management functions is governed by s. 881.01 (10).

701.0807 History History: 2013 a. 92.

701.0808 701.0808 Powers to direct; directing parties.

701.0808(1) (1) While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.

701.0808(2) (2) A settlor in a trust instrument, a court in a trust instrument or court order, or interested persons in a nonjudicial settlement agreement may appoint a directing party to direct the trustee on investment or distribution decisions or to make investment or distribution decisions regarding directed trust property. If a trustee acts in accordance with the direction of a directing party or fails to act due to lack of direction from a directing party, the trustee is not liable for any loss resulting directly or indirectly from any action taken or omitted with respect to the direction or lack of direction except for acts or omissions that are a result of the trustee’s willful misconduct.

701.0808(3) (3) A trustee does not have a duty to do any of the following:

701.0808(3)(a) (a) Provide advice to, consult with, monitor, or evaluate a directing party’s conduct.

701.0808(3)(b) (b) Inform or warn a beneficiary, a 3rd party, or a directing party that the trustee disagrees with any of the directing party’s actions or directions.

701.0808(3)(c) (c) Prevent a directing party from giving a direction or taking any action.

701.0808(3)(d) (d) Compel a directing party to redress the directing party’s actions or directions.

701.0808(4) (4) The administrative actions of a trustee related to matters within the scope of a directing party’s power, including confirming that the directing party’s directions have been carried out and recording and reporting actions taken pursuant to the directing party’s direction, do not constitute either monitoring the directing party’s actions or participating in the actions of the directing party.

701.0808(5) (5) A directing party is a fiduciary and is required to act in good faith with regard to the terms of the trust and the interests of the beneficiaries. A directing party is liable for any loss that results from a breach of any of the directing party’s fiduciary duties.

701.0808(6) (6) 

701.0808(6)(a) (a) A directing party may request information about the trust from the trustee and, if the requested information is related to a power granted to the directing party, the trustee shall provide the requested information to the directing party. If a trustee is bound by any confidentiality restrictions with respect to information requested by a directing party, the trustee may require that the directing party agree to be bound by the confidentiality restrictions before delivering such information to the directing party. A trustee is not liable to any beneficiary for any loss or damages resulting from the trustee providing information to the directing party that is related to the power granted to the directing party.

701.0808(6)(b) (b) Except as otherwise provided in this chapter, a trustee does not have a duty to provide any information to the directing party that the directing party does not request.

701.0808(7) (7) A trustee shall, in accordance with s. 701.1004, pay or reimburse a directing party for attorney fees and costs to defend any claim made against the directing party.

701.0808(8) (8) Sections 701.0701, 701.0708, 701.0709, 701.1001 to 701.1003, and 701.1005 to 701.1010 apply to a directing party as if the directing party was a trustee.

701.0808(9) (9) A person who accepts an appointment as a directing party of a trust submits to the jurisdiction of the courts of this state, as provided in s. 701.0202 (1).

701.0808 History History: 2013 a. 92, 151.

701.0809 701.0809 Control and protection of trust property. A trustee shall take reasonable steps to take control of and protect the trust property.

701.0809 History History: 2013 a. 92.

701.0810 701.0810 Record keeping and identification of trust property.

701.0810(1) (1) A trustee shall keep adequate records of the administration of the trust.

701.0810(2) (2) A trustee shall keep trust property separate from the trustee’s own property.

701.0810(3) (3) Except as otherwise provided in sub. (4), a trustee shall cause the trust property to be designated so that the interest of the trust, to the extent feasible, appears in records maintained by a party other than a trustee or beneficiary.

701.0810(4) (4) If the trustee maintains records clearly indicating the respective interests, a trustee may invest as a whole the property of 2 or more separate trusts.

701.0810 History History: 2013 a. 92.

701.0811 701.0811 Enforcement and defense of claims. A trustee shall take reasonable steps to enforce claims of the trust known to the trustee and to defend claims against the trust known to the trustee.

701.0811 History History: 2013 a. 92.

701.0812 701.0812 Collecting trust property; duties of successor trustees.

701.0812(1) (1) A trustee shall take reasonable steps to compel a former trustee or other person to deliver trust property to the trustee, and to redress a breach of trust known to the trustee to have been committed by a trustee or former trustee, or a trust protector or former trust protector.

701.0812(2) (2) A successor trustee does not have a duty to examine the accounts of a former trustee.

701.0812 History History: 2013 a. 92.

701.0813 701.0813 Duty to inform and report.

701.0813(1) (1) A trustee shall keep the current beneficiaries and presumptive remainder beneficiaries who so request, reasonably informed about the administration of the trust. Unless unreasonable under the circumstances, a trustee shall promptly respond to a qualified beneficiary’s request for information related to the administration of the trust.

701.0813(2) (2) A trustee shall do all of the following:

701.0813(2)(a) (a) Upon the request of a qualified beneficiary for a copy of the trust instrument, promptly furnish to the qualified beneficiary either a copy of the portions of the trust instrument relating to the interest of the qualified beneficiary or a copy of the trust instrument or, upon the request of a settlor for a copy of the trust instrument, promptly furnish to the settlor a copy of the trust instrument.

701.0813(2)(b) (b) Within a reasonable period of time after accepting a trusteeship, notify the qualified beneficiaries of the acceptance and of the trustee’s name, address, and telephone number.

701.0813(2)(c) (c) Within a reasonable period of time after the date on which the trustee acquires knowledge of the creation of an irrevocable trust, or the date on which the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, notify the qualified beneficiaries of all of the following:

701.0813(2)(c)1. 1. The trust’s existence.

701.0813(2)(c)2. 2. The identity of the settlor or settlors.

701.0813(2)(c)3. 3. The name, address, and telephone number of each directing party and trust protector.

701.0813(2)(c)4. 4. The right to request a copy of the documentation referred to in par. (a).

701.0813(2)(c)5. 5. The right to request information under sub. (1).

701.0813(2)(c)6. 6. The right to a trustee’s report as provided in sub. (3).

701.0813(2)(d) (d) Notify the current beneficiaries and presumptive remainder beneficiaries who so request, of any change in the method or rate of the trustee’s compensation.

701.0813(2)(e) (e) Upon receiving a petition to the court for action under ss. 701.0411 to 701.0416 that does not identify each trust protector and each directing party of the trust, notify the petitioning party of the identity of each trust protector and directing party, including the name, address, and telephone number of each trust protector and directing party, who is serving at the time the petition is filed.

701.0813(3) (3) 

701.0813(3)(a) (a) Subject to par. (c), at least annually and upon the termination of a trust, a trustee shall send to the current beneficiaries and to presumptive remainder beneficiaries who request it, all of the following:

701.0813(3)(a)1. 1. A report of the trust property, liabilities, receipts, and disbursements, including the source and amount of the trustee’s compensation.

701.0813(3)(a)2. 2. A listing of the trust assets and, if feasible, their respective market values.

701.0813(3)(b) (b) Subject to par. (c), upon a vacancy in a trusteeship, unless a cotrustee remains in office, the former trustee shall send a report containing the information described under par. (a) 1. to the qualified beneficiaries. A personal representative or guardian may send the qualified beneficiaries a report containing the information described in par. (a) 1. on behalf of a deceased or incapacitated trustee.

701.0813(3)(c) (c) A trustee may limit the report to a qualified beneficiary of a specific dollar amount or specific property to information that relates to the specific dollar amount or specific property.

701.0813(4) (4) A qualified beneficiary may waive the right to a trustee’s report or other information otherwise required to be furnished under this section. A qualified beneficiary, with respect to future reports and other information, may withdraw a waiver previously given.

701.0813(5) (5) Subsections (2) (b), (c), and (d) and (3) do not apply to a trustee who accepts a trusteeship before July 1, 2014, to an irrevocable trust created before July 1, 2014, or to a revocable trust that becomes irrevocable before July 1, 2014.

701.0813(6) (6) The trustee has no duty to provide information about the administration of the trust to the settlor, but the trustee may provide such information if the trustee chooses to do so.

701.0813(7) (7) The trust instrument may expand, restrict, eliminate, or otherwise vary the right of a beneficiary or class of beneficiaries to be informed of the beneficiary’s interest in a trust or to receive any or all information concerning the trust, and may do so for any period of time, including for the lifetime of a beneficiary or a class of beneficiaries. If there is no current acting representative of such a beneficiary or class of beneficiaries in accordance with the trust instrument, and a provision to appoint such a representative is not provided for in the trust instrument, the trustee may appoint a representative for a beneficiary or class of beneficiaries whose rights to information have been restricted or eliminated by the trust instrument.

701.0813 History History: 2013 a. 92; 2023 a. 127.

701.0814 701.0814 Discretionary powers; tax savings.

701.0814(1) (1) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as “absolute,” “sole,” or “uncontrolled,” the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. A court may not determine that a trustee abused its discretion merely because the court would have exercised the discretion in a different manner or would not have exercised the discretion.

701.0814(2) (2) Subject to sub. (4), and unless the terms of the trust expressly indicate that a provision of this subsection does not apply, all of the following apply:

701.0814(2)(a) (a) A person other than a settlor who is a beneficiary and a trustee, directing party, or trust protector of a trust that confers on the trustee, directing party, or trust protector a power to make discretionary distributions to or for the trustee’s, directing party’s, or trust protector’s personal benefit may exercise the power only in accordance with an ascertainable standard.

701.0814(2)(b) (b) A trustee, directing party, or trust protector may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee, directing party, or trust protector personally owes another person.

701.0814(3) (3) A power whose exercise is limited or prohibited by sub. (2) may be exercised by a majority of the remaining trustees, directing parties, or trust protectors whose exercise of the power is not so limited or prohibited. If the power of all trustees, directing parties, or trust protectors is so limited or prohibited, the court may appoint a trustee, directing party, or trust protector with authority to exercise the power.

701.0814(4) (4) Subsection (2) does not apply to any of the following:

701.0814(4)(a) (a) A power held by the settlor’s spouse who is the trustee, directing party, or trust protector of a trust for which a marital deduction, as defined in section 2056 (b) (5) or 2523 (e) of the Internal Revenue Code, was previously allowed.

701.0814(4)(b) (b) A trust during a period when the trust may be revoked or amended by its settlor.

701.0814(4)(c) (c) A trust if contributions to the trust qualify for the annual exclusion under section 2503 (c) of the Internal Revenue Code.

701.0814 History History: 2013 a. 92.

701.0815 701.0815 General powers of trustee.

701.0815(1) (1) A trustee, without authorization by the court, may exercise the following powers:

701.0815(1)(a) (a) Powers conferred by the terms of the trust.

701.0815(1)(b) (b) Except as limited by the terms of the trust, all of the following powers:

701.0815(1)(b)1. 1. All powers over the trust property that an unmarried, competent owner has over individually owned property.

701.0815(1)(b)2. 2. Any other powers appropriate to achieve the proper investment, management, and distribution of the trust property.

701.0815(1)(b)3. 3. Any other powers conferred by this chapter.