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(3) Notwithstanding s. 701.0818 (2), an advisor is a fiduciary unless the terms of a domestic asset preservation trust expressly provide otherwise.
701.1309 Rules regarding discretion. Except as otherwise provided under the terms of a domestic asset preservation trust, each trustee and each advisor of the domestic asset preservation trust has the greatest discretion permitted by law in connection with all matters of trust administration, trust distributions, and any other trustee or advisor decision.
701.1310 Discretionary interest not property of a beneficiary. No person, including a beneficiary, has a property interest in property of a domestic asset preservation trust to the extent that the distribution of that property is subject to the discretion of a qualified trustee or advisor, whether acting alone or in conjunction with another person, including a person authorized to veto a distribution from the domestic asset preservation trust.
701.1311 Miscellaneous provisions. (1) If there is a conflict between a provision of this subchapter and s. 242.07, the provision of this subchapter shall control.
(2) A statement in a trust instrument that the trust is governed by “the laws of this state” or a statement to similar effect is considered to expressly designate the laws of this state to govern the validity, construction, and administration of the trust and satisfies s. 701.1301 (6m) (b).
(3) A disposition by a nonqualified trustee to a qualified trustee of a domestic asset preservation trust is not disqualified from being a qualified disposition on the sole basis that the nonqualified trustee is a trustee of a trust that is a nondomestic asset preservation trust.
(4) A valid lien that is attached to property before the property is the subject of a qualified disposition survives the disposition, and the trustee of the domestic asset preservation trust takes the property subject to the lien and subject to any agreements that created or perfected the lien. Nothing in this subchapter may be construed to authorize any disposition that is prohibited by the terms of an agreement, note, guaranty, mortgage, indenture, instrument, undertaking, or other document.
(5) A trust administered under the laws of another state or a foreign jurisdiction is considered to be a domestic asset preservation trust if all of the following apply:
(a) The trustee of the trust complies with the requirements in the trust instrument and any applicable requirements under the laws of the state or foreign jurisdiction in which the trust is being administered.
(b) 1. The trustee or other person having the power to transfer the domicile of the trust declares in writing that the trustee or other person intends to transfer the domicile of the trust to this state.
2. If the person making the declaration under subd. 1. is a person other than the trustee, the declaration is delivered to the trustee.
(c) At the time of or immediately following the transfer of the trustee to this state, the trust satisfies the definition of a domestic asset preservation trust under this subchapter.
(6) Subsection (1) and ss. 701.1302, 701.1306, 701.1307, and 701.1310 do not apply to the collection of taxes and debts owed to or being collected by the department of revenue.
701.1312 Transferor’s affidavit required. (1) Except as provided in sub. (4), a transferor shall sign a qualified affidavit before or substantially contemporaneously with making a qualified disposition.
(2) A qualified affidavit shall be notarized and shall contain all of the following statements under oath:
(a) The property being transferred to the domestic asset preservation trust was not derived from unlawful activities.
(b) The transferor has full right, title, and authority to transfer the property to the domestic asset preservation trust.
(c) The transferor will not be rendered insolvent immediately after the transfer of the property to the domestic asset preservation trust.
(d) The transferor does not intend to defraud any creditor by transferring the property to the domestic asset preservation trust.
(e) There are no pending or threatened court actions against the transferor, except for any court action identified by the affidavit or an attachment to the affidavit.
(f) The transferor is not involved in any administrative proceeding, except for any proceeding identified by the affidavit or an attachment to the affidavit.
(g) The transferor does not contemplate at the time of the transfer the filing for relief under the federal bankruptcy code.
(3) A qualified affidavit is considered defective if it materially fails to meet the requirements set forth in sub. (2), but a qualified affidavit is not considered defective due to any of the following:
(a) Any nonsubstantive variances from the language set forth in sub. (2).
(b) Any statements or representations in addition to those set forth in sub. (2) if the statements or representations do not materially contradict the statements or representations required by that subsection.
(c) Any technical errors in the form, substance, or method of administering an oath if those errors were not the fault of the affiant, and the affiant reasonably relied upon another person to prepare or administer the oath.
(4) (a) A qualified affidavit is not required from a transferor who is not a beneficiary of the domestic asset preservation trust that receives the disposition.
(b) A subsequent qualified affidavit is not required in connection with any qualified disposition made after the execution of an earlier qualified affidavit if that disposition is a part of, is required by, or is the direct result of a prior qualified disposition that was made in connection with that earlier qualified affidavit.
(5) If a qualified affidavit is required under this section and a transferor fails to timely sign a qualified affidavit or signs a defective qualified affidavit, then, subject to the normal rules of evidence, that failure or defect may be considered as evidence in any proceeding commenced pursuant to s. 701.1306, but the domestic asset preservation trust or the validity of any attempted qualified disposition shall not be affected in any other way due to that failure or defect.
SB667,1mSection 1m. Nonstatutory provisions.
(1) Reconciliation provisions.
(a) If 2023 Senate Bill 759 is enacted into law and creates s. 702.102 (11), the language “special power of appointment” in ss. 701.1301 (6) (b) and 701.1304 (2) of this act is changed to “nongeneral power of appointment.” If 2023 Senate Bill 759 is not enacted into law, the language “special power of appointment” in ss. 701.1301 (6) (b) and 701.1304 (2) of this act is unchanged.
(b) If 2023 Senate Bill 759 is enacted into law and creates s. 702.102 (11), the language “, as defined in s. 702.02 (7),” in s. 701.1304 (2) of this act is void and is deleted. If 2023 Senate Bill 759 is not enacted into law, the language “, as defined in s. 702.02 (7),” in s. 701.1304 (2) of this act is not void and is retained.
SB667,2Section 2. Initial applicability.
(1) This act first applies to qualified dispositions made on the effective date of this subsection.
SB667,3Section 3. Effective date.
(1) This act takes effect on July 1, 2025.
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