If the depository institution at which a trust service office is to be established has exercised trust powers, the trust company bank and the depository institution shall enter into an agreement respecting those fiduciary powers to which the trust company bank shall succeed and shall file the agreement with the division. The trust company bank shall cause a notice of the filing, in a form prescribed by the division, to be published as a class 1 notice, under ch. 985
, in the city, village or town where the depository institution is located. After filing and publication, the trust company bank establishing the office shall, as of the date the office first opens for business, without further authorization of any kind, succeed to and be substituted for the depository institution as to all fiduciary powers, rights, duties, privileges, and liabilities of the depository institution in its capacity as fiduciary for all estates, trusts, guardianships, and other fiduciary relationships of which the depository institution is then serving as fiduciary, except as may be otherwise specified in the agreement between the trust company bank and the depository institution. The trust company bank shall also be deemed named as fiduciary in all writings, including wills, trusts, court orders, and similar documents and instruments naming the depository institution as fiduciary, signed before the date the trust office first opens for business, unless expressly negated by the writing or otherwise specified in the agreement between the trust company bank and the depository institution. On the effective date of the substitution, the depository institution shall be released and absolved from all fiduciary duties and obligations under such writings and shall discontinue its exercise of trust powers on all matters not specifically retained by the agreement. This subsection does not effect a discharge if required by a court under s. 701.0201 (1)
or other applicable statutes and does not absolve a depository institution exercising trust powers from liabilities arising out of any breach of fiduciary duty or obligation occurring prior to the date the trust service office first opens for business at the depository institution. This subsection does not affect the authority, duties, or obligations of a depository institution with respect to relationships which may be established without trust powers, including escrow arrangements, whether the relationships arise before or after the establishment of the trust service office.
Not less than 60 days prior to the effective date of a proposed substitution under sub. (3)
, the parties to the substitution shall send written notice of the proposed substitution to each cofiduciary, each surviving settlor of a trust, each ward under guardianship, each person who alone or in conjunction with others has the power to remove the fiduciary being substituted and each adult beneficiary currently receiving or entitled to receive a distribution of principal or income from a trust or estate with respect to which such substitution is to be effected. Intentional failure to send such notice to any such party at the party's current address as shown in the fiduciary's records shall render not effective the substitution of fiduciaries with respect to such fiduciary relationship, but an unintentional failure to give such notice shall not impair the validity or effect of any substitution of fiduciaries under sub. (3)
. A trust company bank substituted or about to be substituted as fiduciary with respect to a trust, estate or guardianship under sub. (3)
may be removed as fiduciary, or the substitution may be denied, upon petition by a cofiduciary, by a beneficiary of a trust or estate, by the settlor of a trust or on behalf of a ward under guardianship if the trust company bank files a written consent to its removal or a written declination to act, or if the court having jurisdiction over the fiduciary relationship, upon notice and hearing, approves the petition as in the best interests of the petitioner and all other parties interested in the trust, estate or guardianship. This subsection applies in addition to any applicable provision for removal of a fiduciary or appointment of a successor fiduciary in any other statute or in the instrument creating the fiduciary relationship.
Name of corporation; penalty.
The word “trust" shall form part of the name of every corporation organized under this chapter, but the word “bank" may not be used as a part of the name. All persons, partnerships, associations, or corporations not organized under the provisions of this chapter, except state banks vested with trust powers under s. 221.0316
and nonprofit corporations organized for the advancement of historic preservation or for the protection of land for public conservation purposes, are prohibited from using the word “trust" in their business, or as a portion of the name or title of the person, partnership, association or corporation. A person who violates this section, either individually or as an interested party in any partnership, association, or corporation, may be fined not less than $300 nor more than $1,000 or imprisoned for not less than 60 days nor more than one year in the county jail or both.
Assessment of stock.
The capital stock and property of corporations organized, continued, or reorganized under this chapter shall be assessed and taxed in the same manner as the stock and property of state banks.
History: 1989 a. 56
OTHER ORGANIZATIONS ACTING AS FIDUCIARIES
Organizations as fiduciaries.
Except as provided in s. 54.15 (7)
, no court or probate registrar in this state may appoint or issue letters to any corporation, limited liability company, association, partnership or business trust as trustee, personal representative, guardian, conservator, assignee, receiver, or in any other fiduciary capacity unless such corporation, limited liability company, association, partnership or business trust is subject to regulation and examination under s. 223.105
, or is a national bank, state or federal savings and loan association, state or federal savings bank or federal credit union with authority to exercise such powers, or is a foreign corporation operating under s. 223.12
Regulation of organizations acting as fiduciaries. 223.105(1)(a)
“Fiduciary operation" means any action taken by an organization acting as a trustee or in any fiduciary capacity requiring appointment or issuance of letters by a court or probate registrar in this state.
“Organization" means any corporation, unincorporated cooperative association, limited liability company, association, partnership or business trust, other than a national bank, state or federal savings and loan association, state or federal savings bank or federal credit union or other than a corporation, limited liability company, association or partnership, all of whose shareholders or members are licensed under SCR 40.02
(2) Organizations subject to rules and examination.
Any organization which holds itself out to residents of this state as available to act, for compensation, as trustee or which seeks or consents to serve in any fiduciary capacity requiring appointment or issuance of letters by a court or probate registrar in this state is subject to:
Periodic examination of its fiduciary operations as provided under sub. (3)
(3) Periodic examination by state agency. 223.105(3)(a)(a)
To assure compliance with such rules as may be established under s. 220.04 (7)
, the division of banking and the office of credit unions shall, at least once every 18 months, examine the fiduciary operations of each organization which is under its respective jurisdiction and is subject to examination under sub. (2)
. If a particular organization subject to examination under sub. (2)
is not otherwise under the jurisdiction of one of the foregoing agencies, such examination shall be conducted by the division of banking. In conducting examinations under this paragraph, the division of banking or office of credit unions may accept and rely on information collected by other agencies or independent 3rd parties in determining whether an organization has satisfied any requirement that is part of the examination.
The cost of examinations conducted under par. (a)
shall be determined by the examining agency, and assessed to and paid by the organization which is examined.
In lieu of an examination under par. (a)
, the agency responsible for conducting such an examination may accept an examination made within a reasonable period by any other agency of a state or of the federal government.
(4) Notice of fiduciary operation.
Except for those organizations licensed under ch. 221
or this chapter, any organization engaged in fiduciary operations as defined in this section shall, as required by rule, notify the division of banking or the office of credit unions of that fact, directing the notice to the agency then exercising regulatory authority over the organization or, if there is none, to the division of banking. Any organization which intends to engage in fiduciary operations shall, prior to engaging in such operations, notify the appropriate agency of this intention. The notifications required under this subsection shall be on forms and contain information required by the rules promulgated by the division of banking.
(5) Enforcement remedy.
The division of banking or office of credit unions shall, upon the failure of such organization to submit notifications or reports required under this section or otherwise to comply with the provisions of this section, or rules established by the division of banking under s. 220.04 (7)
, upon due notice, order such defaulting organization to cease and desist from engaging in fiduciary activities and may apply to the appropriate court for enforcement of such order.
Except for an organization regulated by the office of credit unions, a savings bank or savings and loan association regulated by the division of banking, or an organization authorized by the division of banking to operate as a bank or trust company under ch. 221
or this chapter, an organization may not begin activity as a fiduciary operation under this section after May 12, 1992. An organization engaged in fiduciary operations under this section on May 12, 1992, may continue to engage in fiduciary operations after that date.
See also s. DFI-Bkg 15.01
, Wis. adm. code.
A chapter 180 corporation cannot offer general trust services to the public, notwithstanding compliance with s. 223.105. 78 Atty. Gen. 153
Foreign trust company as personal representative or trustee in this state. 223.12(1)(1)
Exception from qualification to do business.
A foreign corporation may act in this state as trustee, personal representative, guardian, or in any other like fiduciary capacity, whether the appointment is by will, deed, court order, or otherwise, without complying with any laws of this state relating to the qualification of corporations organized under the laws of this state to conduct a trust business or laws relating to the qualification of foreign corporations other than this section, only if the foreign corporation meets all of the following requirements:
The foreign corporation is authorized by the laws of the state of its organization to act as a fiduciary in that state.
The foreign corporation is organized under the laws of a state that permits all of the following to act in a fiduciary capacity upon conditions and qualifications that the division of banking finds are not unduly restrictive when compared to the laws of this state:
A corporation organized under the laws of this state.
A national banking association having its principal place of business in this state.
A federal savings association or federal savings bank having its principal place of business in this state and authorized to act as a fiduciary in this state.
(2) Service of process.
Any foreign corporation acting in this state in a fiduciary capacity is considered to have appointed the division of banking to be its true and lawful attorney upon whom may be served all legal process in any action or proceeding against it relating to or growing out of any trust, estate or matter in respect of which the foreign corporation has acted or is acting in this state in any such fiduciary capacity. Engagement in this state in any acts in a fiduciary capacity signifies agreement that any process against the foreign corporation which is served under this subsection shall be of the same legal force and validity as though served upon the foreign corporation personally. Service of process under this subsection shall be made by delivering to the division of banking a copy of the process, together with any fee for service of process required by the division. Service of process is sufficient if notice of such service and a copy of the process are, within 10 days after delivery to the division of banking, sent by registered mail by the plaintiff to the defendant at its principal office in such other state or territory and the plaintiff's affidavit of compliance with this requirement is appended to the summons. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action. The fee paid by the plaintiff to the division at the time of the service may be recovered as taxable costs by the plaintiff if the plaintiff prevails in the action. The division shall keep a record of all processes served upon the division under this subsection and shall record the time of the service.
(3) Restrictions on in-state presence.
A foreign corporation acting under sub. (1)
may not establish or maintain in this state a place of business or branch office for the conduct of business as a fiduciary unless it has been issued a certificate of authority under sub. (4)
, but may establish and maintain in this state one or more representative offices if those offices do not act in a fiduciary capacity.
Prior to the time that any foreign corporation acts in this state as a testamentary trustee, trustee appointed by any court, trustee under any written agreement, declaration, or instrument of trust, personal representative, or guardian or in any other like fiduciary capacity, the foreign corporation shall do all of the following:
Apply to the division of banking for a certificate of authority with reference to the fiduciary capacity in which such foreign corporation proposes to act in this state.
The division of banking shall issue a certificate of authority to such corporation upon receiving satisfactory evidence that such foreign corporation meets the requirements of sub. (1)
. The certificate of authority shall recite and certify that such foreign corporation is eligible to act in this state in such fiduciary capacity pursuant to the provisions of this section. The certificate of authority shall remain in full force and effect until such time as such foreign corporation ceases to be eligible to so act under the provisions of this section.
Each foreign corporation making application for a certificate of authority shall pay reasonable fees to the division of banking as determined by the division for the services of that division.
Any foreign corporation that is eligible to act in this state in a fiduciary capacity prior to May 7, 1996, may continue to act in this state in any such fiduciary capacity without applying for a new certificate of authority under this subsection.
Any foreign corporation acting in this state under a certificate of authority shall report changes in its name or address to the division of banking and shall notify the division when the foreign corporation is no longer serving as a corporate fiduciary in this state.
(5) Rights and authority of foreign corporation.
Any foreign corporation that is eligible to act in this state in a fiduciary capacity and that is acting and qualified as personal representative or trustee under any foreign will, or any declaration, agreement, or other instrument of trust, shall have the same rights and authority under the will or trust document as to real estate in this state that any natural person acting as a foreign personal representative or trustee may have under the laws of this state, without the foreign corporation being required to do any act qualifying it to do business in this state that is not required of a natural person acting as a foreign personal representative or trustee.
TRUST COMPANY BANK CONSOLIDATION AND
Reorganization of a trust company bank. 223.20(1)(1)
Conversion into a state bank.
A trust company bank may, by amendment to its articles of incorporation, duly adopted by its stockholders and approved by the division, in the manner provided under s. 221.0211
, convert its corporate organization into that of a state bank with all the powers of a state banking corporation under the statutes under such name as shall be declared by such amendment and approved by the division, which name may include the word “trust".
(2) Powers of a converted trust company bank.
The converted trust company bank continues to have all the powers previously held by it as a trust company bank and shall be a continuation, for all purposes, of the trust company bank so converted into a state bank. These powers include holding and performing all trusts and fiduciary relations for which the trust company bank was fiduciary at the time of the conversion. These powers also include the converted trust company bank acting in any fiduciary capacity by any court or otherwise, and the holding, accepting and performing of trusts and fiduciary relations as to or for which the trust company bank may have been appointed, nominated or designated by any will or conveyance or otherwise, whether or not the trust or fiduciary relation came into being and took effect at the conversion.
(3) Surrender of trust powers.
If a converted trust company bank has been fully discharged of all trusts committed to it, it may, by amendment to its articles of incorporation, duly adopted by its stockholders and approved by the division, surrender its powers to act in a fiduciary capacity. A trust company bank that surrenders its trust powers under this subsection shall eliminate from its corporate name the word “trust" and may thereupon withdraw from the secretary of administration all securities and cash that it has deposited with the secretary of administration pursuant to s. 223.02
History: 1995 a. 336
; 2003 a. 33
Consolidation of trust company banks.
Any trust company bank organized, continued or reorganized under this chapter may consolidate with any other similar corporation in the manner provided for the consolidation of banks under s. 221.0702
; and in the event of such consolidation the consolidated corporation, by whatever name it may assume or be known, shall be a continuation of the entity of each and all of the corporations so consolidated for all purposes whatsoever, including holding and performing any and all trusts and fiduciary relations of whatsoever nature of which the corporations so consolidating, or either or any of them, was fiduciary at the time of the consolidation, and also including its appointment in any fiduciary capacity by any court or otherwise, and the holding, accepting and performing of any and all trusts and fiduciary relations whatsoever as to or for which either or any one of the corporations so consolidating may have been appointed, nominated or designated by any will or conveyance or otherwise, whether or not the trust or fiduciary relation shall have come into being or taken effect at the time of the consolidation.
History: 1987 a. 252
; 1995 a. 336
; Stats. 1995 s. 223.21.