Chapter 701

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.

701.1128 701.1128 Derivatives and options.

701.1128(1) (1) In this section, “derivative” means a contract or financial instrument or a combination of contracts and financial instruments that gives a trust the right or obligation to participate in some or all changes in the price of a tangible or intangible asset or group of assets, or changes in a rate, an index of prices or rates, or another market indicator for an asset or a group of assets.

701.1128(2) (2) To the extent that a trustee does not account under s. 701.1117 for transactions in derivatives, the trustee shall allocate to principal receipts from and disbursements made in connection with those transactions.

701.1128(3) (3) If a trustee grants an option to buy property from the trust, whether or not the trust owns the property when the option is granted, grants an option that permits another person to sell property to the trust, or acquires an option to buy property for the trust or an option to sell an asset owned by the trust, and the trustee or other owner of the asset is required to deliver the asset if the option is exercised, an amount received for granting the option must be allocated to principal. An amount paid to acquire the option must be paid from principal. A gain or loss realized upon the exercise of an option, including an option granted to a settlor of the trust for services rendered, must be allocated to principal.

701.1128 History History: 2013 a. 92 s. 276.

701.1129 701.1129 Asset-backed securities.

701.1129(1) (1) In this section, “asset-backed security” means an asset whose value is based upon the right it gives the owner to receive distributions from the proceeds of financial assets that provide collateral for the security. The term includes an asset that gives the owner the right to receive from the collateral financial assets only the interest or other current return or only the proceeds other than interest or current return. The term does not include an asset to which s. 701.1115 or 701.1123 applies.

701.1129(2) (2) If a trust receives a payment from interest or other current return and from other proceeds of the collateral financial assets, the trustee shall allocate to income the portion of the payment that the payer identifies as being from interest or other current return and shall allocate the balance of the payment to principal.

701.1129(3) (3) If a trust receives one or more payments in exchange for the trust’s entire interest in an asset-backed security in one accounting period, the trustee shall allocate the payments to principal. If a payment is one of a series of payments that will result in the liquidation of the trust’s interest in the security over more than one accounting period, the trustee shall allocate 10 percent of the payment to income and the balance to principal.

701.1129 History History: 2013 a. 92 s. 277.

701.1130 701.1130 Disbursements from income. A trustee shall make the following disbursements from income to the extent that they are not disbursements specified in s. 701.1110 (2) (b) or (c):

701.1130(1) (1) One-half of the regular compensation of the trustee and of any person providing investment advisory or custodial services to the trustee.

701.1130(2) (2) One-half of all expenses for accountings, judicial proceedings, or other matters that involve both the income and remainder interests.

701.1130(3) (3) All of the other ordinary expenses incurred in connection with the administration, management, or preservation of trust property and the distribution of income, including interest, ordinary repairs, regularly recurring taxes assessed against principal, and expenses of a proceeding or other matter that concerns primarily the income interest.

701.1130(4) (4) Recurring premiums on insurance covering the loss of a principal asset or the loss of income from or use of the asset.

701.1130 History History: 2013 a. 92 s. 278.

701.1131 701.1131 Disbursements from principal.

701.1131(1) (1) A trustee shall make the following disbursements from principal:

701.1131(1)(a) (a) The remaining one-half of the disbursements described in s. 701.1130 (1) and (2).

701.1131(1)(b) (b) All of the trustee’s compensation calculated on principal as a fee for acceptance, distribution, or termination, and disbursements made to prepare property for sale.

701.1131(1)(c) (c) Payments on the principal of a trust debt.

701.1131(1)(d) (d) Expenses of a proceeding that concerns primarily principal, including a proceeding to construe the trust or to protect the trust or its property.

701.1131(1)(e) (e) Premiums paid on a policy of insurance not described in s. 701.1130 (4) of which the trust is the owner and beneficiary.

701.1131(1)(f) (f) Estate, inheritance, and other transfer taxes, including penalties, apportioned to the trust.

701.1131(1)(g) (g) Disbursements related to environmental matters, including reclamation, assessing environmental conditions, remedying and removing environmental contamination, monitoring remedial activities and the release of substances, preventing future releases of substances, collecting amounts from persons liable or potentially liable for the costs of those activities, penalties imposed under environmental law and other payments made to comply with environmental law, statutory or common law claims by 3rd parties, and defending claims based on environmental matters.

701.1131(2) (2) If a principal asset is encumbered with an obligation that requires income from that asset to be paid directly to the creditor, the trustee shall transfer from principal to income an amount equal to the income paid to the creditor in reduction of the principal balance of the obligation.

701.1131 History History: 2013 a. 92 s. 279.

701.1132 701.1132 Transfers from income to principal for depreciation.

701.1132(1) (1) In this section, “depreciation” means a reduction in value due to wear, tear, decay, corrosion, or gradual obsolescence of a fixed asset having a useful life of more than one year.

701.1132(2) (2) A trustee may transfer to principal a reasonable amount of the net cash receipts from a principal asset that is subject to depreciation, but may not transfer any amount for depreciation:

701.1132(2)(a) (a) Of that portion of real property used or available for use by a beneficiary as a residence or of tangible personal property held or made available for the personal use or enjoyment of a beneficiary.

701.1132(2)(b) (b) During the administration of a decedent’s estate.

701.1132(2)(c) (c) Under this section if the trustee is accounting under s. 701.1117 for the business or activity in which the asset is used.

701.1132(3) (3) An amount transferred to principal need not be held as a separate fund.

701.1132 History History: 2013 a. 92 s. 280.

701.1133 701.1133 Transfers from income to reimburse principal.

701.1133(1) (1) If a trustee makes or expects to make a principal disbursement described in this section, the trustee may transfer an appropriate amount from income to principal in one or more accounting periods to reimburse principal or to provide a reserve for future principal disbursements.

701.1133(2) (2) Principal disbursements to which sub. (1) applies include the following, but only to the extent that the trustee has not been and does not expect to be reimbursed by a 3rd party: