Chapter 701

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 701.1322 Saving provision.

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.

701.1322(2) (2) If a trustee or other fiduciary of a 2nd trust determines that sub. (1) applies to a prior exercise of the decanting power, the fiduciary shall take corrective action consistent with the fiduciary’s duties.

701.1322 History History: 2023 a. 127.

701.1323 701.1323 Trust for care of animal.

701.1323(1) (1) The decanting power may be exercised over an animal trust that has an animal protector to the extent the trust could be decanted under this subchapter if each animal that benefits from the trust were an individual, if the animal protector consents in a signed record to the exercise of the power.

701.1323(2) (2) An animal protector has the rights under this subchapter of a qualified beneficiary.

701.1323(3) (3) Notwithstanding any other provision of this subchapter, if a first trust is an animal trust, in an exercise of the decanting power, the 2nd trust must provide that trust property may be applied only to its intended purpose for the period the first trust benefitted the animal.

701.1323 History History: 2023 a. 127.

701.1324 701.1324 Terms of 2nd trust. A reference in this chapter to a trust instrument or terms of the trust includes a 2nd-trust instrument and the terms of the 2nd trust.

701.1324 History History: 2023 a. 127.

701.1325 701.1325 Settlor.

701.1325(1) (1) For purposes of law of this state other than this subchapter and subject to sub. (2), a settlor of a first trust is deemed to be the settlor of the 2nd trust with respect to the portion of the principal of the first trust subject to the exercise of the decanting power.

701.1325(2) (2) In determining settlor intent with respect to a 2nd trust, the intent of a settlor of the first trust, a settlor of the 2nd trust, and the authorized fiduciary may be considered.

701.1325 History History: 2023 a. 127.

701.1326 701.1326 Later-discovered property.

701.1326(1) (1) Except as otherwise provided in sub. (3), if exercise of the decanting power was intended to distribute all the principal of the first trust to one or more 2nd trusts, later-discovered property belonging to the first trust and property paid to or acquired by the first trust after the exercise of the power is part of the trust estate of the 2nd trust or trusts.

701.1326(2) (2) Except as otherwise provided in sub. (3), if exercise of the decanting power was intended to distribute less than all the principal of the first trust to one or more 2nd trusts, later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power remains part of the trust estate of the first trust.

701.1326(3) (3) An authorized fiduciary may provide in an exercise of the decanting power or by the terms of a 2nd trust for disposition of later-discovered property belonging to the first trust or property paid to or acquired by the first trust after exercise of the power.

701.1326 History History: 2023 a. 127.

701.1327 701.1327 Obligations. A debt, liability, or other obligation enforceable against property of a first trust is enforceable to the same extent against the property when held by the 2nd trust after exercise of the decanting power.

701.1327 History History: 2023 a. 127.