Chapter 701

701.0705 History History: 2013 a. 92.

701.0706 701.0706 Removal of trustee.

701.0706(1) (1) The settlor, a cotrustee, or a qualified beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative.

701.0706(2) (2) The court may remove a trustee if any of the following applies:

701.0706(2)(a) (a) The trustee has committed a material breach of trust.

701.0706(2)(b) (b) A lack of cooperation among cotrustees substantially impairs the administration of the trust.

701.0706(2)(c) (c) Removal of the trustee is appropriate because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively.

701.0706(2)(d) (d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the removal is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available.

701.0706(3) (3) Pending a final decision on a request to remove a trustee, or in lieu of or in addition to removing a trustee, the court may order such appropriate relief under s. 701.1001 (2) as may be necessary to protect the trust property or the interests of the beneficiaries.

701.0706 History History: 2013 a. 92; 2023 a. 127.

701.0707 701.0707 Delivery of property by former trustee.

701.0707(1) (1) Unless a cotrustee remains in office or the court otherwise orders, and until the trust property is delivered to a successor trustee or other person entitled to it, a trustee who has resigned or been removed has the duties of a trustee and the powers necessary to protect the trust property.

701.0707(2) (2) A trustee who has resigned or been removed shall proceed within a reasonable time to deliver the trust property within the trustee’s possession to the cotrustee, successor trustee, or other person entitled to it, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.

701.0707 History History: 2013 a. 92; 2023 a. 127.

701.0708 701.0708 Compensation of trustee.

701.0708(1) (1) If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances.

701.0708(2) (2) If the terms of a trust specify the trustee’s compensation or refer to another ascertainable source for determining that compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if any of the following applies:

701.0708(2)(a) (a) The duties of the trustee are substantially different from those contemplated when the trust was created.

701.0708(2)(b) (b) The compensation specified by the terms of the trust would be unreasonably low or high.

701.0708(3) (3) If the trustee has rendered other services in connection with the administration of the trust, the trustee may receive reasonable compensation for the other services rendered, in addition to reasonable compensation as trustee.

701.0708 History History: 2013 a. 92.

701.0709 701.0709 Reimbursement of expenses.

701.0709(1) (1) A trustee is entitled to be reimbursed out of the trust property, with interest as appropriate, for all of the following:

701.0709(1)(a) (a) Expenses that were properly incurred in the administration of the trust.

701.0709(1)(b) (b) To the extent necessary to prevent unjust enrichment of the trust, expenses that were not properly incurred in the administration of the trust.

701.0709(2) (2) An advance by the trustee of money for the protection of the trust gives rise to a lien against trust property to secure reimbursement with reasonable interest.

701.0709 History History: 2013 a. 92.

701.0710 701.0710 Title of trust property. A settlor or transferor may effectively transfer property to a trust by placing legal title of the property in the name of the trustee, which shall include any successor trustee regardless of whether a successor trustee is referenced in the transfer document. A transfer that places legal title in the name of the trust itself places legal title in the name of the trustee.

701.0710 History History: 2013 a. 92.

subch. VIII of ch. 701 SUBCHAPTER VIII

DUTIES AND POWERS OF TRUSTEES,
DIRECTING PARTIES, AND TRUST PROTECTORS

701.0801 701.0801 Duty to administer trust. Upon acceptance of a trusteeship, the trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with this chapter.

701.0801 History History: 2013 a. 92.

701.0802 701.0802 Duty of loyalty.

701.0802(1) (1) A trustee shall administer the trust solely in the interests of the beneficiaries.

701.0802(2) (2) Subject to the rights of persons dealing with or assisting the trustee as provided in s. 701.1012, a sale, encumbrance, or other transaction that involves the investment or management of trust property and is entered into by the trustee for the trustee’s own personal account or that is otherwise affected by a conflict between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless any of the following applies:

701.0802(2)(a) (a) The transaction was authorized by the terms of the trust.

701.0802(2)(b) (b) The transaction was approved by the court.

701.0802(2)(c) (c) The beneficiary did not commence a judicial proceeding within the time allowed by s. 701.1005.

701.0802(2)(d) (d) The beneficiary consented to the trustee’s conduct, ratified the transaction, or released the trustee in compliance with s. 701.1009.

701.0802(2)(e) (e) The transaction involves a contract entered into or claim acquired by the trustee before the person became trustee.

701.0802(3) (3) A sale, encumbrance, or other transaction involving the investment or management of trust property is presumed to be affected by a conflict between personal and fiduciary interests if it is entered into by the trustee with any of the following:

701.0802(3)(a) (a) The trustee’s spouse.

701.0802(3)(b) (b) The trustee’s descendants, siblings, parents, or their spouses.

701.0802(3)(c) (c) An agent or attorney of the trustee.

701.0802(3)(d) (d) A corporation or other person or enterprise in which the trustee, or a person that owns a significant interest in the trustee, has an interest that might affect the trustee’s best judgment.

701.0802(4) (4) A transaction not concerning trust property in which the trustee engages in the trustee’s individual capacity involves a conflict between personal and fiduciary interests if the transaction concerns an opportunity properly belonging to the trust.

701.0802(5) (5) 

701.0802(5)(a) (a) An investment by a trustee in securities of an investment company or investment trust to which the trustee, or its affiliate, provides services in a capacity other than as trustee is not presumed to be affected by a conflict between personal and fiduciary interests if the investment otherwise complies with the prudent investor rule in s. 881.01. In addition to receiving compensation for acting as trustee, the trustee may be compensated by the investment company or investment trust for providing those services out of fees charged to the trust. If the trustee receives compensation from the investment company or investment trust for providing investment advisory or investment management services, the trustee shall at least annually notify the persons entitled to receive a copy of the trustee’s report under s. 701.0813 (3) of the rate and method by which that compensation was determined.

701.0802(5)(b) (b) A trust company acting in any fiduciary capacity with respect to a trust may purchase any service or product, including insurance or securities underwritten or otherwise distributed by the trust company or by an affiliate, through or directly from the trust company or an affiliate of a syndicate or selling group that includes the trust company of an affiliate, provided the purchase otherwise complies with the prudent investor rule in s. 881.01 and with s. 881.015. Compensation for the service or product must be reasonable and not prohibited by the instrument governing the fiduciary relationship. The compensation for the service or product may be in addition to the compensation that the trust company is otherwise entitled to receive.

701.0802(6) (6) In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.

701.0802(7) (7) This section does not preclude the following transactions, if fair to the beneficiaries:

701.0802(7)(a) (a) An agreement between a trustee and a beneficiary relating to the appointment or compensation of the trustee.

701.0802(7)(b) (b) Payment of reasonable compensation to the trustee.

701.0802(7)(c) (c) A transaction between a trust and another trust, a decedent’s estate, a guardianship of the estate, a conservatorship, or a custodianship of which the trustee is a fiduciary or in which a beneficiary has an interest.

701.0802(7)(d) (d) A deposit of trust money in a regulated financial-service institution operated by the trustee.

701.0802(7)(e) (e) An advance by the trustee of money for the protection of the trust.

701.0802(8) (8) The court may appoint a trustee, trust protector, or directing party to make a decision with respect to any proposed transaction that might violate this section if entered into by the trustee.

701.0802(9) (9) A trustee is not liable for releasing information, including a copy of all or any portion of the trust instrument, to any deceased settlor’s heir-at-law or other person indicating that the person is not a beneficiary of the trust if the trustee reasonably believes that doing so will not harm the beneficiaries of the trust and that doing so will reduce the likelihood of litigation involving the trust.

701.0802 History History: 2013 a. 92; 2023 a. 127.

701.0803 701.0803 Impartiality. If a trust has 2 or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, giving due regard to the beneficiaries’ respective interests and the purposes and terms of the trust.

701.0803 History History: 2013 a. 92.

701.0804 701.0804 Prudent administration. A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.

701.0804 History History: 2013 a. 92.

701.0805 701.0805 Costs of administration. In administering a trust, the trustee may incur only costs that are reasonable in relation to the trust property, the purposes of the trust, the skills of the trustee, and the complexity of the trust administration.

701.0805 History History: 2013 a. 92.

701.0806 701.0806 Trustee’s skills. A trustee who has special skills or expertise, or is named trustee in reliance upon the trustee’s representation that the trustee has special skills or expertise, shall use those special skills or expertise.

701.0806 History History: 2013 a. 92.

701.0807 701.0807 Delegation by trustee.

701.0807(1) (1) A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances. The trustee shall exercise reasonable care, skill, and caution in each of the following:

701.0807(1)(a) (a) Selecting an agent.

701.0807(1)(b) (b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust.

701.0807(1)(c) (c) Periodically reviewing the agent’s actions in order to monitor the agent’s performance and compliance with the terms of the delegation.

701.0807(2) (2) In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.

701.0807(3) (3) A trustee who complies with sub. (1) is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.

701.0807(4) (4) By accepting a delegation of powers or duties from the trustee of a trust that is subject to the law of this state, an agent submits to the jurisdiction of the courts of this state even if the terms of the delegation provide for a different jurisdiction or venue.

701.0807(5) (5) This section does not apply to a trustee’s delegation of investment and management functions. A trustee’s delegation of investment and management functions is governed by s. 881.01 (10).

701.0807 History History: 2013 a. 92.

701.0808 701.0808 Powers to direct; directing parties.

701.0808(1) (1) While a trust is revocable, the trustee may follow a direction of the settlor that is contrary to the terms of the trust.

701.0808(2) (2) A settlor in a trust instrument, a court in a trust instrument or court order, or interested persons in a nonjudicial settlement agreement may appoint a directing party to direct the trustee on investment or distribution decisions or to make investment or distribution decisions regarding directed trust property. If a trustee acts in accordance with the direction of a directing party or fails to act due to lack of direction from a directing party, the trustee is not liable for any loss resulting directly or indirectly from any action taken or omitted with respect to the direction or lack of direction except for acts or omissions that are a result of the trustee’s willful misconduct.

701.0808(3) (3) A trustee does not have a duty to do any of the following:

701.0808(3)(a) (a) Provide advice to, consult with, monitor, or evaluate a directing party’s conduct.

701.0808(3)(b) (b) Inform or warn a beneficiary, a 3rd party, or a directing party that the trustee disagrees with any of the directing party’s actions or directions.

701.0808(3)(c) (c) Prevent a directing party from giving a direction or taking any action.

701.0808(3)(d) (d) Compel a directing party to redress the directing party’s actions or directions.

701.0808(4) (4) The administrative actions of a trustee related to matters within the scope of a directing party’s power, including confirming that the directing party’s directions have been carried out and recording and reporting actions taken pursuant to the directing party’s direction, do not constitute either monitoring the directing party’s actions or participating in the actions of the directing party.

701.0808(5) (5) A directing party is a fiduciary and is required to act in good faith with regard to the terms of the trust and the interests of the beneficiaries. A directing party is liable for any loss that results from a breach of any of the directing party’s fiduciary duties.

701.0808(6) (6)