701.1314(3)
(3) If a first trust contains a charitable interest, the 2nd trust or trusts may not do any of the following:
701.1314(3)(b)
(b) Diminish the interest of an identified charitable organization that holds the charitable interest.
701.1314(3)(c)
(c) Alter any charitable purpose stated in the first-trust instrument.
701.1314(3)(d)
(d) Alter any condition or restriction related to the charitable interest.
701.1314(3m)
(3m) Notwithstanding subs.
(3) and
(5), if the first trust is an account in a pooled trust described in
42 USC 1396p (d) (4) (C), the 2nd trust may be an account in another pooled trust described in
42 USC 1396p (d) (4) (C) or a trust described in
42 USC 1396p (d) (4) (A) regardless of any of the following:
701.1314(3m)(a)
(a) Any effect on a charitable interest in property that is permitted to be retained in the first trust under
42 USC 1396p (d) (4) (C) (iv).
701.1314(3m)(b)
(b) Any effect the trust retention and Medicaid reimbursement provisions of the 2nd trust may have on a charitable interest in the first trust.
701.1314(3m)(d)
(d) Any change in the governing law or principal place of administration of the trust.
701.1314(4)
(4) If there are 2 or more 2nd trusts, the 2nd trusts shall be treated as one trust for purposes of determining whether the exercise of the decanting power diminishes the charitable interest or diminishes the interest of an identified charitable organization for purposes of sub.
(3).
701.1314(5)
(5) If a first trust contains a determinable charitable interest, the 2nd trust or trusts that include a charitable interest pursuant to sub.
(3) must be administered under the law of this state unless any of the following applies:
701.1314(5)(a)
(a) The attorney general, after receiving notice under s.
701.1307, fails to object in a signed record delivered to the authorized fiduciary within the notice period.
701.1314(5)(b)
(b) The attorney general consents in a signed record to the 2nd trust or trusts being administered under the law of another jurisdiction.
701.1314(5)(c)
(c) The court approves the exercise of the decanting power.
701.1314(5)(d)
(d) The identified charitable organization consents in a signed record delivered to the authorized fiduciary.
701.1314(6)
(6) This subchapter does not limit the powers and duties of the attorney general under the laws of this state other than this subchapter.
701.1314 History
History: 2023 a. 127.
701.1315
701.1315
Trust limitation on decanting. 701.1315(1)(1)
An authorized fiduciary may not exercise the decanting power to the extent the first-trust instrument expressly prohibits exercise of any of the following:
701.1315(1)(b)
(b) A power granted by state law to the fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.
701.1315(2)
(2) Exercise of the decanting power is subject to any restriction in the first-trust instrument that expressly applies to exercise of any of the following:
701.1315(2)(b)
(b) A power granted by state law to a fiduciary to distribute part or all of the principal of the trust to another trust or to modify the trust.
701.1315(3)
(3) A general prohibition of the amendment or revocation of a first trust, a spendthrift clause, or a clause restraining the voluntary or involuntary transfer of a beneficiary's interest does not preclude exercise of the decanting power.
701.1315(4)
(4) Subject to subs.
(1) and
(2), an authorized fiduciary may exercise the decanting power under this subchapter even if the first-trust instrument permits the authorized fiduciary or another person to modify the first-trust instrument or to distribute part or all of the principal of the first trust to another trust.
701.1315(5)
(5) If a first-trust instrument contains an express restriction described in sub.
(2), the provision must be included in the 2nd-trust instrument.
701.1315 History
History: 2023 a. 127.
701.1316
701.1316
Change in compensation. 701.1316(1)(1)
If a first-trust instrument specifies an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the specified compensation unless any of the following applies:
701.1316(1)(a)
(a) All qualified beneficiaries of the 2nd trust consent to the increase in a signed record.
701.1316(2)
(2) If a first-trust instrument does not specify an authorized fiduciary's compensation, the fiduciary may not exercise the decanting power to increase the fiduciary's compensation above the compensation permitted by this chapter unless any of the following applies:
701.1316(2)(a)
(a) All qualified beneficiaries of the 2nd trust consent to the increase in a signed record.
701.1316(3)
(3) A change in an authorized fiduciary's compensation that is incidental to other changes made by the exercise of the decanting power is not an increase in the fiduciary's compensation for purposes of subs.
(1) and
(2).
701.1316(4)
(4) This section does not apply to a decanting from a first trust that is a pooled trust described in
42 USC 1396p (d) (4) (C), or to a decanting to a 2nd trust that is a pooled trust described in
42 USC 1396p (d) (4) (C).
701.1316 History
History: 2023 a. 127.
701.1317
701.1317
Relief from liability and indemnification. 701.1317(1)(1)
Except as otherwise provided in this section, a 2nd-trust instrument may not relieve an authorized fiduciary from liability for breach of trust to a greater extent than the first-trust instrument unless any of the following applies:
701.1317(1)(a)
(a) All the qualified beneficiaries of the 2nd trust consent to the relief from liability in a signed record.
701.1317(1)(b)
(b) The relief from liability is approved by the court.
701.1317(2)
(2) A 2nd-trust instrument may provide for indemnification of an authorized fiduciary of the first trust or another person acting in a fiduciary capacity under the first trust for any liability or claim that would have been payable from the first trust if the decanting power had not been exercised.
701.1317(3)
(3) Absent consent of all qualified beneficiaries or the approval of the court, the 2nd-trust instrument may not reduce the aggregate fiduciary liability of all fiduciaries of the 2nd trust.
701.1317(4)
(4) Subject to sub.
(3), a 2nd-trust instrument may divide and reallocate fiduciary powers among fiduciaries, including one or more trustees, directing parties, trust protectors, or other persons, and relieve a fiduciary from liability for an act or failure to act of another fiduciary as permitted by law of this state other than this subchapter.
701.1317 History
History: 2023 a. 127.
701.1318
701.1318
Removal or replacement of authorized fiduciary. 701.1318(1)(1)
An authorized fiduciary may not exercise the decanting power to modify a provision in a first-trust instrument granting another person power to remove or replace the fiduciary unless any of the following applies:
701.1318(1)(a)
(a) The person holding the power consents to the modification in a signed record and the modification applies only to the person.
701.1318(1)(b)
(b) The person holding the power and the qualified beneficiaries of the 2nd trust consent to the modification in a signed record and the modification grants a substantially similar power to another person.
701.1318(1)(c)
(c) The court approves the modification and the modification grants a substantially similar power to another person.
701.1318(2)
(2) This section does not apply to a decanting from a first trust that is a pooled trust described in
42 USC 1396p (d) (4) (C), or to a decanting to a 2nd trust that is a pooled trust described in
42 USC 1396p (d) (4) (C).
701.1318 History
History: 2023 a. 127.
701.1319
701.1319
Tax-related limitations. 701.1319(1)(a)
(a) “Grantor trust” means a trust as to which a settlor of a first trust is considered the owner under sections
671 to
677 of the Internal Revenue Code or section
679 of the Internal Revenue Code.
701.1319(1)(b)
(b) “Nongrantor trust” means a trust that is not a grantor trust.
701.1319(1)(c)
(c) “Qualified benefits property” means property subject to the minimum distribution requirements of section
401 (a) (9) of the Internal Revenue Code, and any applicable regulations, or to any similar requirements that refer to section
401 (a) (9) of the Internal Revenue Code or the regulations.
701.1319(2)
(2) An exercise of the decanting power is subject to the following limitations:
701.1319(2)(a)
(a) If a first trust contains property that qualified, or would have qualified but for provisions of this subchapter other than this section, for a marital deduction for purposes of the gift or estate tax under the Internal Revenue Code or a state gift, estate, or inheritance tax, the 2nd-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.
701.1319(2)(b)
(b) If the first trust contains property that qualified, or would have qualified but for provisions of this subchapter other than this section, for a charitable deduction for purposes of the income, gift, or estate tax under the Internal Revenue Code or a state income, gift, estate, or inheritance tax, the 2nd-trust instrument must not include or omit any term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying for the deduction, or would have reduced the amount of the deduction, under the same provisions of the Internal Revenue Code or state law under which the transfer qualified.
701.1319(2)(c)
(c) If the first trust contains property that qualified, or would have qualified but for provisions of this subchapter other than this section, for the exclusion from the gift tax described in section
2503 (b) of the Internal Revenue Code, the 2nd-trust instrument must not include or omit a term that, if included in or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under section
2503 (b) of the Internal Revenue Code. If the first trust contains property that qualified, or would have qualified but for provisions of this subchapter other than this section, for the exclusion from the gift tax described in the Internal Revenue Code section 2503 (b) by application of section
2503 (c) of the Internal Revenue Code, the 2nd-trust instrument must not include or omit a term that, if included or omitted from the trust instrument for the trust to which the property was transferred, would have prevented the transfer from qualifying under section
2503 (c) of the Internal Revenue Code.
701.1319(2)(d)
(d) If the property of the first trust includes shares of stock in an S corporation, as defined in section
1361 of the Internal Revenue Code, and the first trust is, or but for provisions of this subchapter other than this section would be, a permitted shareholder under any provision of section
1361 of the Internal Revenue Code, an authorized fiduciary may exercise the power with respect to part or all of the S-corporation stock only if any 2nd trust receiving the stock is a permitted shareholder under section
1361 (c) (2) of the Internal Revenue Code. If the property of the first trust includes shares of stock in an S corporation and the first trust is, or but for provisions of this subchapter other than this section would be, a qualified subchapter S trust within the meaning of section
1361 (d) of the Internal Revenue Code, the 2nd-trust instrument must not include or omit a term that prevents the 2nd trust from qualifying as a qualified subchapter S trust.
701.1319(2)(e)
(e) If the first trust contains property that qualified, or would have qualified but for provisions of this subchapter other than this section, for a zero inclusion ratio for purposes of the generation-skipping transfer tax under section
2642 (c) of the Internal Revenue Code, the 2nd-trust instrument must not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the transfer to the first trust from qualifying for a zero inclusion ratio under section
2642 (c) of the Internal Revenue Code.
701.1319(2)(f)
(f) If the first trust is directly or indirectly the beneficiary of qualified benefits property, the 2nd-trust instrument may not include or omit any term that, if included in or omitted from the first-trust instrument, would have increased the minimum distributions required with respect to the qualified benefits property under section
401 (a) (9) of the Internal Revenue Code and any applicable regulations, or any similar requirements that refer to section
401 (a) (9) of the Internal Revenue Code or the regulations. If an attempted exercise of the decanting power violates this paragraph, the trustee is deemed to have held the qualified benefits property and any reinvested distributions of the property as a separate share from the date of the exercise of the power and s.
701.1322 applies to the separate share.
701.1319(2)(g)
(g) If the first trust qualifies as a grantor trust because of the application of section
672 (f) (2) (A) of the Internal Revenue Code, the 2nd trust may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented the first trust from qualifying under section
672 (f) (2) (A) of the Internal Revenue Code.
701.1319(2)(h)
(h) In this paragraph, “
tax benefit” means a federal or state tax deduction, exemption, exclusion, or other benefit not otherwise listed in this section, except for a benefit arising from being a grantor trust. Subject to par.
(i), a 2nd-trust instrument may not include or omit a term that, if included in or omitted from the first-trust instrument, would have prevented qualification for a tax benefit if all of the following apply:
701.1319(2)(h)1.
1. The first-trust instrument expressly indicates an intent to qualify for the benefit or the first-trust instrument clearly is designed to enable the first trust to qualify for the benefit.
701.1319(2)(h)2.
2. The transfer of property held by the first trust or the first trust qualified, or but for provisions of this subchapter other than this section, would have qualified for the tax benefit.
701.1319(2)(i)1.
1. Except as otherwise provided in par.
(g), the 2nd trust may be a nongrantor trust, even if the first trust is a grantor trust.
701.1319(2)(i)2.
2. Except as otherwise provided in par.
(j), the 2nd trust may be a grantor trust, even if the first trust is a nongrantor trust.
701.1319(2)(j)
(j) An authorized fiduciary may not exercise the decanting power if a settlor objects in a signed record delivered to the fiduciary within the notice period and any of the following applies:
701.1319(2)(j)1.
1. The first trust and a 2nd trust are both grantor trusts, in whole or in part, the first trust grants the settlor or another person the power to cause the first trust to cease to be a grantor trust, and the 2nd trust does not grant an equivalent power to the settlor or other person.
701.1319(2)(j)2.
2. The first trust is a nongrantor trust and a 2nd trust is a grantor trust, in whole or in part, with respect to the settlor, unless any of the following applies:
701.1319(2)(j)2.a.
a. The settlor has the power at all times to cause the 2nd trust to cease to be a grantor trust.
701.1319(2)(j)2.b.
b. The first-trust instrument contains a provision granting the settlor or another person a power that would cause the first trust to cease to be a grantor trust and the 2nd-trust instrument contains the same provision.
701.1319 History
History: 2023 a. 127.
701.1320
701.1320
Duration of 2nd trust. 701.1320(1)(1)
Subject to sub.
(2), a 2nd trust may have a duration that is the same as or different from the duration of the first trust.
701.1320(2)
(2) To the extent that property of a 2nd trust is attributable to property of the first trust, the property of the 2nd trust is subject to any rules governing maximum perpetuity, accumulation, or suspension of the power of alienation that apply to property of the first trust.
701.1320 History
History: 2023 a. 127.
701.1321
701.1321
Need to distribute not required. An authorized fiduciary may exercise the decanting power whether or not under the first trust's discretionary distribution standard the fiduciary would have made or could have been compelled to make a discretionary distribution of principal at the time of the exercise.
701.1321 History
History: 2023 a. 127.
701.1322(1)(1)
If exercise of the decanting power would be effective under this subchapter except that the 2nd-trust instrument in part does not comply with this subchapter, the exercise of the power is effective and the following rules apply with respect to the principal of the 2nd trust attributable to the exercise of the power:
701.1322(1)(a)
(a) A provision in the 2nd-trust instrument that is not permitted under this subchapter is void to the extent necessary to comply with this subchapter.
701.1322(1)(b)
(b) A provision required by this subchapter to be in the 2nd-trust instrument that is not contained in the instrument is deemed to be included in the instrument to the extent necessary to comply with this subchapter.
