Chapter 705

705.10 Annotation An annuity is an “other written instrument” under sub. (1). A contractual arrangement that creates a nonprobate transfer of property subject to this section will defeat a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App 151, 237 Wis. 2d 853, 616 N.W.2d 118, 99-1211.

705.10 Annotation No provision of this section or s. 766.58 (3) permits parties to ignore ch. 854 or to agree to prohibit court involvement in implementing a marital property agreement. That “Washington Will” provisions permit transfer of property without probate does not mean the legislature allowed parties to agree to no court involvement in implementing transfer of ownership and creating a reliable and public record of transfer. Maciolek v. City of Milwaukee Employes’ Retirement System Annuity & Pension Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04-1254.

705.10 Annotation Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

705.15 705.15 Nonprobate transfer of real property on death.

705.15(1b) (1b) In this section:

705.15(1b)(a) (a) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, government subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

705.15(1b)(b) (b) “Sole owner” means the owner of an interest in real property described in sub. (1m) (a) to (c).

705.15(1b)(c) (c) “TOD beneficiary” means a person designated as a beneficiary in a document that complies with sub. (2) (a).

705.15(1m) (1m) Any of the following interests in real property may be transferred without probate to a designated TOD beneficiary as provided in this section on the death of the sole owner or the last to die of the multiple owners:

705.15(1m)(a) (a) An interest in real property that is owned by one individual and is not concurrently owned by any other person.

705.15(1m)(b) (b) A fractional interest in real property that is owned by an individual as a tenant in common.

705.15(1m)(c) (c) An interest in real property that is owned by a spouse as marital property. This paragraph does not include an interest in real property owned as survivorship marital property.

705.15(1m)(d) (d) An interest in real property owned by spouses as survivorship marital property.

705.15(1m)(e) (e) An interest in real property owned by 2 or more individuals as joint tenants.

705.15(2) (2) 

705.15(2)(a) (a) A TOD beneficiary may be designated on a document that includes all of the following:

705.15(2)(a)1. 1. The name of the owner or owners of the interest in real property that will be transferred.

705.15(2)(a)2. 2. The name of the designated TOD beneficiary.

705.15(2)(a)3. 3. That the transfer is effective only upon the death of the owner or owners.

705.15(2)(a)4. 4. If the interest that will be transferred is an interest in real property owned by a spouse as marital property, the signatures of both spouses who have an interest in the marital property.

705.15(2)(b) (b) The designation of a TOD beneficiary may be made by use of the words “transfer on death” or “pay on death,” or the abbreviation “TOD” or “POD,” after the name of the owner or owners of the property and before the name of the TOD beneficiary or beneficiaries. The owner or owners may designate one or more persons as a primary TOD beneficiary and may designate one or more persons as a contingent TOD beneficiary if a primary TOD beneficiary does not survive the sole owner or the last to die of multiple owners. The designation may be included on the original document that passes the property interest to the owner or owners or may be made at a later time by the sole owner or all then surviving owners by executing and recording another document that designates a TOD beneficiary.

705.15(2)(c) (c) A TOD beneficiary designation is not effective unless the document on which the designation is made, and any fees required to record the document, are submitted for recording to the register of deeds office of the county in which the real property is located before the death of the sole owner or the last to die of multiple owners.

705.15(3) (3) The designation of a TOD beneficiary on a document does not affect ownership of the property until the death of the sole owner or the last to die of multiple owners regardless of whether the document provides otherwise. The designation may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the TOD beneficiary, by executing and recording another document that designates a different TOD beneficiary or no beneficiary. The recording of a document that designates a TOD beneficiary or no beneficiary revokes any designation made in a previously recorded document relating to the same property interest.

705.15(4) (4) On the death of the sole owner or the last to die of multiple owners, ownership of the interest in the real property passes, subject to any lien or encumbrance against the real property, to the designated TOD beneficiary or beneficiaries who survive all owners and to any predeceased beneficiary’s issue who would take under s. 854.06 (3). If no TOD beneficiary or predeceased TOD beneficiary’s issue who would take under s. 854.06 (3) survives the death of all owners, the interest in the real property passes to the estate of the deceased sole owner or the estate of the last to die of the multiple owners.

705.15(5) (5) A TOD beneficiary’s interest in the property on the death of the sole owner or the last to die of multiple owners may be confirmed as provided in s. 863.27, 865.201, or 867.046.

705.15(6) (6) Chapter 854 applies to transfers on death under this section.

705.15(7) (7) The capacity required to designate a TOD beneficiary or to revoke a designation of a TOD beneficiary is the same as the capacity to make or revoke a will under s. 853.01.

705.15(8) (8) Unless previously adjudicated in a formal testacy proceeding or otherwise barred, the claim of any claimant to recover real property transferred to a TOD beneficiary under this section is barred unless, by no later than 120 days after the death of the sole owner or the last to die of multiple owners, a complaint is filed in an action in which the relief demanded may confirm or change interests in the real property transferred under this section and a lis pendens is filed or recorded in each county where any part of the real property is located.

705.15 History History: 2005 a. 206; 2017 a. 332.

705.18 705.18 Nonprobate transfer of farming implements at death.

705.18(1) (1) In this section:

705.18(1)(a) (a) “Conscious presence” means within the range of any of an individual’s senses.

705.18(1)(am) (am) “Disinterested witness” means an individual who is not designated as a TOD beneficiary on a document that he or she is acting as a witness to under this section.

705.18(1)(b) (b)

705.18(1)(b)1. 1. “Farm implement” means a tractor or machine, including any associated accessories, attachments, fuel, and repair parts, used exclusively and directly in farming.

705.18(1)(b)2. 2. “Farm implement” does not include personal property that is attached to, fastened to, connected to, or built into real property or that becomes an addition to, component of, or capital improvement to real property, and does not include buildings or improvements to real property, regardless of any contribution that the personal property makes to the production process of any machine and regardless of the extent to which that personal property functions as a machine.

705.18(1)(b)3. 3. For purposes of subd. 2., the following items retain their character as a “farm implement,” regardless of the extent to which they are fastened to, connected to, or built into real property:

705.18(1)(b)3.a. a. Auxiliary power generators.

705.18(1)(b)3.b. b. Bale loaders.

705.18(1)(b)3.c. c. Barn elevators.

705.18(1)(b)3.d. d. Conveyors.

705.18(1)(b)3.e. e. Feed elevators and augers.

705.18(1)(b)3.f. f. Grain dryers and grinders.

705.18(1)(b)3.g. g. Milk coolers.

705.18(1)(b)3.h. h. Milking machines, including piping, pipeline washers, and compressors.

705.18(1)(b)3.i. i. Silo unloaders.

705.18(1)(b)3.j. j. Powered feeders, but not including platforms or troughs constructed from ordinary building materials.

705.18(1)(c) (c) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, government subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

705.18(1)(d) (d) “TOD beneficiary” means a person designated as a beneficiary in a document that complies with sub. (3) (a).

705.18(2) (2) Any interest in a farm implement may be transferred without probate to a designated TOD beneficiary as provided in this section on the death of the sole owner or the last to die of multiple owners.

705.18(3) (3) 

705.18(3)(a) (a) A TOD beneficiary may be designated on a document that includes all of the following:

705.18(3)(a)1. 1. The name of the owner or owners of the interest in a farm implement that will be transferred.

705.18(3)(a)2. 2. The name of the designated TOD beneficiary.

705.18(3)(a)3. 3. A statement indicating that the transfer is effective only upon the death of the owner or owners.

705.18(3)(a)4. 4. If the interest that will be transferred is an interest in property owned by a spouse as marital property, the signatures of both spouses who have an interest in the marital property.

705.18(3)(b) (b) The designation of a TOD beneficiary may be made by use of the words “transfer on death” or “pay on death,” or the abbreviation “TOD” or “POD,” after the name of the owner or owners of the property and before the name of the TOD beneficiary or beneficiaries. The owner or owners may designate one or more persons as a primary TOD beneficiary and may designate one or more persons as a contingent TOD beneficiary if a primary TOD beneficiary does not survive the sole owner or the last to die of multiple owners. The designation may be included on the original document that passes the property interest to the owner or owners or may be made at a later time by the sole owner or all then surviving owners by executing another document that designates a TOD beneficiary.

705.18(3)(c) (c) A document designating a TOD beneficiary under this section is not effective unless it is in writing and executed with all of the following formalities:

705.18(3)(c)1. 1. It must be signed by all owners. If an owner is unable to sign, another person may sign for the owner with the owner’s consent and in the owner’s conscious presence.

705.18(3)(c)2. 2. It must be signed by at least 2 witnesses, at least one of whom is a disinterested witness, who signed within a reasonable time after any of the following:

705.18(3)(c)2.a. a. The signing of the document designating a TOD beneficiary as provided in subd. 1., in the conscious presence of the witness.

705.18(3)(c)2.b. b. The owner’s implicit or explicit acknowledgment of the owner’s signature on the document designating a TOD beneficiary, in the conscious presence of the witness.

705.18(3)(c)2.c. c. The owner’s implicit or explicit acknowledgment of the document designating a TOD beneficiary, in the conscious presence of the witness.

705.18(3)(c)3. 3. The 2 witnesses required under subd. 2. may observe the signing or acknowledgment under subd. 2. a. to c. at different times.

705.18(3)(c)4. 4. If there are multiple owners, each signature of an owner must be witnessed by at least 2 witnesses. For purposes of this paragraph, a witness may be a witness for multiple owners.

705.18(3)(c)5. 5. Any person who, at the time of execution of the document designating a TOD beneficiary, would be competent to testify as a witness in court to the facts relating to execution may act as a witness to the document designating a TOD beneficiary. Subsequent incompetency of a witness is not a ground for denying or voiding the TOD beneficiary designation if the execution of the document designating a TOD beneficiary is otherwise satisfactorily proved.

705.18(4) (4) The designation of a TOD beneficiary on a document does not affect ownership of the property until the death of the sole owner or the last to die of multiple owners regardless of whether the document provides otherwise. The designation may be canceled or changed at any time by the sole owner or all then surviving owners, without the consent of the TOD beneficiary, by executing another document that designates a different TOD beneficiary or no beneficiary. The execution of a document that designates a TOD beneficiary or no beneficiary revokes any designation made in a previously executed document relating to the same property interest.

705.18(5) (5) On the death of the sole owner or the last to die of multiple owners, ownership of the interest in the farm implement passes, subject to any lien or encumbrance against the farm implement, to the designated TOD beneficiary or beneficiaries who survive all owners and to any predeceased beneficiary’s issue who would take under s. 854.06 (3). If no TOD beneficiary or predeceased TOD beneficiary’s issue who would take under s. 854.06 (3) survives the death of all owners, the interest in the farm implement passes to the estate of the deceased sole owner or the estate of the last to die of the multiple owners.

705.18(6) (6) A TOD beneficiary’s interest in the property on the death of the sole owner or the last to die of multiple owners may be confirmed as provided in s. 863.27, 865.201, or 867.046.

705.18(7) (7) Chapter 854 applies to transfers on death under this section.

705.18(8) (8) The capacity required to designate a TOD beneficiary or to revoke a designation of a TOD beneficiary is the same as the capacity to make or revoke a will under s. 853.01.

705.18(9) (9) Unless previously adjudicated in a formal testacy proceeding or otherwise barred, the claim of any claimant to recover a farm implement transferred to a TOD beneficiary under this section is barred unless, by no later than 120 days after the death of the sole owner or the last to die of multiple owners, a complaint is filed in an action in which the relief demanded may confirm or change interests in the farm implement transferred under this section.

705.18 History History: 2021 a. 201; s. 35.17 correction in (3) (a) 3.

subch. III of ch. 705 SUBCHAPTER III

TRANSFER ON DEATH SECURITY REGISTRATION

705.21 705.21 Definitions; transfer on death security registration. In ss. 705.21 to 705.30:

705.21(2) (2) “Beneficiary form” means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.

705.21(5) (5) “Devisee” means any person designated in a will to receive a disposition of real or personal property.

705.21(6) (6) “Heir” has the meaning given in s. 851.09.

705.21(7) (7) “Personal representative” has the meaning given in s. 851.23.

705.21(8) (8) “Property” has the meaning given in s. 851.27.

705.21(9) (9) “Register”, including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.

705.21(10) (10) “Registering entity” means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.

705.21(11) (11) “Security” means a share, participation or other interest in property, in a business or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security and a security account.

705.21(12) (12) “Security account” means any of the following:

705.21(12)(a) (a) A reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, cash equivalents, interest, earnings or dividends earned or declared on a security in an account, a reinvestment account or a brokerage account, whether or not credited to the account before the owner’s death.

705.21(12)(am) (am) An investment management or custody account with a trust company or a trust division of a bank with trust powers, including the securities in the account, a cash balance in the account, and cash, cash equivalents, interest, earnings, or dividends earned or declared on a security in the account, whether or not credited to the account before the owner’s death.

705.21(12)(b) (b) A cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner’s death.

705.21(13) (13) “State” includes any state of the United States, the District of Columbia, the commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.