Chapter 701

701.1115(5) (5) Money is not received in partial liquidation, nor may it be taken into account under sub. (4) (b), to the extent that it does not exceed the amount of income tax that a trustee or beneficiary must pay on taxable income of the entity that distributes the money.

701.1115(6) (6) A trustee may rely upon a statement made by an entity about the source or character of a distribution if the statement is made at or near the time of distribution by the entity’s board of directors or other person or group of persons authorized to exercise powers to pay money or transfer property comparable to those of a corporation’s board of directors.

701.1115 History History: 2013 a. 92 s. 256.

701.1116 701.1116 Distribution from trust or estate. A trustee shall allocate to income an amount received as a distribution of income from a trust or an estate in which the trust has an interest other than a purchased interest, and shall allocate to principal an amount received as a distribution of principal from such a trust or estate. If a trustee purchases an interest in a trust that is an investment entity, or a decedent or donor transfers an interest in such a trust to a trustee, s. 701.1115 or 701.1129 applies to a receipt from the trust.

701.1116 History History: 2013 a. 92 s. 257.

701.1117 701.1117 Business and other activities conducted by trustee.

701.1117(1) (1) If a trustee who conducts a business or other activity determines that it is in the best interest of all the beneficiaries to account separately for the business or activity instead of accounting for it as part of the trust’s general accounting records, the trustee may maintain separate accounting records for its transactions, whether or not its assets are segregated from other trust assets.

701.1117(2) (2) A trustee who accounts separately for a business or other activity may determine the extent to which its net cash receipts must be retained for working capital, the acquisition or replacement of fixed assets, and other reasonably foreseeable needs of the business or activity and the extent to which the remaining net cash receipts are accounted for as principal or income in the trust’s general accounting records. If a trustee sells assets of the business or other activity, other than in the ordinary course of the business or activity, the trustee shall account for the net amount received as principal in the trust’s general accounting records to the extent the trustee determines that the amount received is no longer required in the conduct of the business.

701.1117(3) (3) Activities for which a trustee may maintain separate accounting records include:

701.1117(3)(a) (a) Retail, manufacturing, service, and other traditional business activities.

701.1117(3)(b) (b) Farming.

701.1117(3)(c) (c) Raising and selling livestock and other animals.

701.1117(3)(d) (d) Management of rental properties.

701.1117(3)(e) (e) Extraction of minerals and other natural resources.

701.1117(3)(f) (f) Timber operations.

701.1117(3)(g) (g) Activities to which s. 701.1128 applies.

701.1117 History History: 2013 a. 92 s. 258.

701.1118 701.1118 Principal receipts. A trustee shall allocate to principal:

701.1118(1) (1) To the extent not allocated to income under this subchapter, assets received from a transferor during the transferor’s lifetime, a decedent’s estate, a trust with a terminating income interest, or a payer under a contract naming the trust or its trustee as beneficiary.

701.1118(2) (2) Money or other property received from the sale, exchange, liquidation, or change in form of a principal asset, including realized profit, subject to ss. 701.1115 to 701.1129.

701.1118(3) (3) Amounts recovered from 3rd parties to reimburse the trust because of disbursements described in s. 701.1131 (1) (g) or for other reasons to the extent not based on the loss of income.

701.1118(4) (4) Proceeds of property taken by eminent domain, but a separate award made for the loss of income with respect to an accounting period during which a current income beneficiary had a mandatory income interest is income.

701.1118(5) (5) Net income received in an accounting period during which there is no beneficiary to whom a trustee may or must distribute income.

701.1118(6) (6) Other receipts as provided in ss. 701.1122 to 701.1129.

701.1118 History History: 2013 a. 92 s. 259.

701.1119 701.1119 Rental property. To the extent that a trustee accounts for receipts from rental property in accordance with this section, the trustee shall allocate to income an amount received as rent of real or personal property, including an amount received for cancellation or renewal of a lease. An amount received as a refundable deposit, including a security deposit or a deposit that is to be applied as rent for future periods, must be added to principal and held subject to the terms of the lease and is not available for distribution to a beneficiary until the trustee’s contractual obligations have been satisfied with respect to that amount.

701.1119 History History: 2013 a. 92 s. 260.

701.1120 701.1120 Obligation to pay money.

701.1120(1) (1) An amount received as interest, whether determined at a fixed, variable, or floating rate, on an obligation to pay money to the trustee, including an amount received as consideration for prepaying principal, must be allocated to income without any provision for amortization of premium.

701.1120(2) (2) A trustee shall allocate to principal an amount received from the sale, redemption, or other disposition of an obligation to pay money to the trustee more than one year after it is purchased or acquired by the trustee, including an obligation whose purchase price or value when it is acquired is less than its value at maturity. If the obligation matures within one year after the trustee purchases or acquires it, an amount received in excess of its purchase price or its value when the trust acquires it must be allocated to income.

701.1120(3) (3) This section does not apply to an obligation to which s. 701.1123, 701.1124, 701.1125, 701.1126, 701.1128, or 701.1129 applies.

701.1120 History History: 2013 a. 92 s. 261.

701.1121 701.1121 Insurance policies and similar contracts.

701.1121(1) (1) Except as provided in sub. (2), a trustee shall allocate to principal the proceeds of a life insurance policy or other contract in which the trust or its trustee is named as beneficiary, including a contract that insures the trust or its trustee against loss for damage to, destruction of, or loss of title to, a trust asset. The trustee shall allocate dividends on an insurance policy to income if the premiums on the policy are paid from income, and to principal if the premiums are paid from principal.

701.1121(2) (2) A trustee shall allocate to income proceeds of a contract that insures the trustee against loss of occupancy or other use by an income beneficiary, loss of income, or, subject to s. 701.1117, loss of profits from a business.

701.1121(3) (3) This section does not apply to a contract to which s. 701.1123 applies.

701.1121 History History: 2013 a. 92 s. 262.

701.1122 701.1122 Insubstantial allocations not required. If a trustee determines that an allocation between principal and income required by s. 701.1120 (2), 701.1123, 701.1124, 701.1125, 701.1126, or 701.1129 is insubstantial, the trustee may allocate the entire amount to principal unless one of the circumstances described in s. 701.1104 (3) applies to the allocation. This power may be exercised by a cotrustee in the circumstances described in s. 701.1104 (4) and may be released for the reasons and in the manner described in s. 701.1104 (5). An allocation is presumed to be insubstantial if:

701.1122(1) (1) The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent.

701.1122(2) (2) The value of the asset producing the receipt for which the allocation would be made is less than 10 percent of the total value of the trust’s assets at the beginning of the accounting period.

701.1122 History History: 2013 a. 92 s. 263.

701.1123 701.1123 Deferred compensation, annuities, and similar payments.

701.1123(1) (1) In this section:

701.1123(1)(a) (a) “Marital deduction trust” means a trust for which an election to qualify for a marital deduction under section 2056 (b) (7), 2056A (a) (3), or 2523 (f) of the Internal Revenue Code has been made or a trust that qualified for the marital deduction under other provisions of section 2056 or 2523 of the Internal Revenue Code.

701.1123(1)(b) (b) “Payment” means an amount of money or property received by a trustee that is any of the following:

701.1123(1)(b)1. 1. Part of a series, or eligible to be part of a series, of distributions payable over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payer in exchange for the future distributions.

701.1123(1)(b)2. 2. Distributed from a plan, regardless of the reason for the distribution.

701.1123(1)(c) (c) “Plan” means a contractual, custodial, trust, or other arrangement that provides for distributions to a trust. “Plan” includes a private or commercial annuity, an individual retirement account, a Roth individual retirement account, a qualified retirement plan such as a pension, profit-sharing, stock-bonus, or stock-ownership plan, or any nonqualified deferred compensation plan.

701.1123(1)(d) (d) “Plan income” means any of the following:

701.1123(1)(d)1. 1. With respect to payments received from a plan that maintains separate accounts for its participants or account holders, either the amount of the separate account held for the benefit of the trust that, if the separate account were a trust, would be allocated to income for that accounting period, or 4 percent of the value of the plan account on the first day of the accounting period. The trustee shall choose the method of determining “plan income” under this subdivision, and may change the method of determining “plan income” under this subdivision for any subsequent accounting period.

701.1123(1)(d)2. 2. With respect to payments received from a plan that does not maintain separate accounts for its participants or account holders, 4 percent of the total present value of the trust’s interest in the plan as of the first day of the accounting period, based on reasonable actuarial assumptions as determined by the trustee.

701.1123(1)(e) (e) “Separate account” means an account established or maintained under a plan under which income, gains, and losses, whether or not realized, from assets allocated to the account, are credited to or charged against the account without regard to other income, gains, or losses of the plan.

701.1123(2) (2) To the extent that a payment is characterized as interest, a dividend, or a payment made in lieu of interest or a dividend, a trustee shall allocate the payment to income. The trustee shall allocate to principal the balance of the payment and any other payment received in the same accounting period that is not characterized as interest, a dividend, or a payment in lieu of interest or a dividend.

701.1123(3) (3) For each accounting period of a trust in which the trust receives a payment but no part of any payment is allocated to income under sub. (2), the trustee shall allocate to income that portion of the aggregate value of all payments received by the trustee in that accounting period that is equal to the amount of plan income that is attributable to the trust’s interest in the plan from which payment is received for that accounting period. The trustee shall allocate the balance of any payments to principal.

701.1123(4) (4) 

701.1123(4)(a) (a) Notwithstanding sub. (3), a trustee of a marital deduction trust shall determine plan income for an accounting period as if the plan were a trust subject to this subchapter. If the trustee of a marital deduction trust cannot determine the plan income, the plan income is 4 percent of the total present value of the trust’s income in the plan on the first day of the accounting period, based on reasonable actuarial assumptions as determined by the trustee of the marital deduction trust.

701.1123(4)(b) (b) Notwithstanding subs. (2) and (3), a trustee of a marital deduction trust shall allocate a payment from a plan to income to the extent of the plan income and distribute that amount to the surviving spouse. The trustee of the marital deduction trust shall allocate the balance of the payment to principal. Upon the request of the surviving spouse, the trustee of a marital deduction trust shall allocate principal to income to the extent the plan income exceeds payments made from the plan to the trust during the accounting period.

701.1123(4)(c) (c) Upon the request of the surviving spouse of the settlor, a trustee of a marital deduction trust shall demand that a person administering a plan distribute the plan income to the trust.

701.1123(5) (5) If, to obtain an estate or gift tax marital deduction for an interest in a trust, a trustee must allocate more of a payment to income than provided for by this section, the trustee shall allocate to income the additional amount necessary to obtain the marital deduction.

701.1123(6) (6) This section does not apply to a payment to which s. 701.1124 applies.

701.1123 History History: 2013 a. 92 ss. 182, 183, 264, 266 to 270.

701.1124 701.1124 Liquidating asset.

701.1124(1) (1) In this section, “liquidating asset” means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a period of limited duration. The term includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance. The term does not include a payment subject to s. 701.1123, resources subject to s. 701.1125, timber subject to s. 701.1126, an activity subject to s. 701.1128, an asset subject to s. 701.1129, or any asset for which the trustee establishes a reserve for depreciation under s. 701.1132.

701.1124(2) (2) A trustee shall allocate to income 10 percent of the receipts from a liquidating asset and the balance to principal.

701.1124 History History: 2013 a. 92 s. 271.

701.1125 701.1125 Minerals, water, and other natural resources.

701.1125(1) (1) To the extent that a trustee accounts for receipts from an interest in minerals or other natural resources in accordance with this section, the trustee shall allocate them as follows:

701.1125(1)(a) (a) If received as nominal delay rental or nominal annual rent on a lease, a receipt must be allocated to income.

701.1125(1)(b) (b) If received from a production payment, a receipt must be allocated to income if and to the extent that the agreement creating the production payment provides a factor for interest or its equivalent. The balance must be allocated to principal.

701.1125(1)(c) (c) If an amount received as a royalty, shut-in-well payment, take-or-pay payment, bonus, or delay rental is more than nominal, 90 percent must be allocated to principal and the balance to income.

701.1125(1)(d) (d) If an amount is received from a working interest or any other interest not provided for in par. (a), (b), or (c), 90 percent of the net amount received must be allocated to principal and the balance to income.

701.1125(2) (2) An amount received on account of an interest in water that is renewable must be allocated to income. If the water is not renewable, 90 percent of the amount must be allocated to principal and the balance to income.

701.1125(3) (3) This section applies whether or not a decedent or donor was extracting minerals, water, or other natural resources before the interest became subject to the trust.

701.1125(4) (4) If a trust owns an interest in minerals, water, or other natural resources on May 17, 2005, the trustee may allocate receipts from the interest as provided in this section or in the manner used by the trustee before May 17, 2005. If the trust acquires an interest in minerals, water, or other natural resources after May 17, 2005, the trustee shall allocate receipts from the interest as provided in this section.

701.1125 History History: 2013 a. 92 s. 272.

701.1126 701.1126 Timber.

701.1126(1) (1) To the extent that a trustee accounts for receipts from the sale of timber and related products in accordance with this section, the trustee shall allocate the net receipts:

701.1126(1)(a) (a) To income to the extent that the amount of timber removed from the land does not exceed the rate of growth of the timber during the accounting periods in which a beneficiary has a mandatory income interest.

701.1126(1)(b) (b) To principal to the extent that the amount of timber removed from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber.

701.1126(1)(c) (c) To income or principal or between income and principal if the net receipts are from the lease of timberland or from a contract to cut timber from land owned by a trust, by determining the amount of timber removed from the land under the lease or contract and applying the rules in pars. (a) and (b).

701.1126(1)(d) (d) To principal to the extent that advance payments, bonuses, and other payments are not allocated under par. (a), (b), or (c).

701.1126(2) (2) In determining net receipts to be allocated under sub. (1), a trustee shall deduct and transfer to principal a reasonable amount for depletion.

701.1126(3) (3) This section applies whether or not a decedent or transferor was harvesting timber from the property before it became subject to the trust.

701.1126(4) (4) If a trust owns an interest in timberland on May 17, 2005, the trustee may allocate net receipts from the sale of timber and related products as provided in this section or in the manner used by the trustee before May 17, 2005. If the trust acquires an interest in timberland after May 17, 2005, the trustee shall allocate net receipts from the sale of timber and related products as provided in this section.

701.1126 History History: 2013 a. 92 ss. 184, 274.

701.1127 701.1127 Property not productive of income.

701.1127(1) (1) If a marital deduction is allowed for all or part of a trust whose assets consist substantially of property that does not provide the surviving spouse with sufficient income from or use of the trust assets, and if the amounts that the trustee transfers from principal to income under s. 701.1104 and distributes to the spouse from principal in accordance with the terms of the trust are insufficient to provide the spouse with the beneficial enjoyment required to obtain the marital deduction, the spouse may require the trustee to make property productive of income, convert property within a reasonable time, or exercise the power conferred by s. 701.1104 (1). The trustee may decide which action or combination of actions to take.

701.1127(2) (2) In cases not governed by sub. (1), proceeds from the sale or other disposition of an asset are principal without regard to the amount of income the asset produces during any accounting period.

701.1127 History History: 2013 a. 92 s. 275.