the new wisconsin digital property act - the practitioner ... · the practitioner's role in...

THE NEW WISCONSIN DIGITAL PROPERTY ACT -

THE PRACTITIONER'S ROLE IN DEVELOPING CLIENT DIGITAL AWARENESS

Milwaukee Estate Planning Forum

October 5, 2016

Benjamin P. Brunette

Ben Brunette is a founding member of Selinger & Brunette, LLC in Madison, where he practices inthe areas of Trusts & Estates and Business/Succession Planning. He works with individuals andfiduciaries throughout the estate planning and administration process, and assists business ownerswith operational business matters and in developing succession and exit planning strategies. Benspeaks frequently on developing issues in business and estate planning law, and in addition tospeaking on digital property, has recently lectured on family business succession planning, estateplanning for same-sex couples, and retirement and tax planning for senior attorneys. Ben receivedhis undergraduate degree from Marquette University and his law degree from the University ofMichigan.

Kenneth P. Barczak

Kenneth P. Barczak is a member in the law firm of Kenneth P. Barczak LLC, of Elm Grove,Wisconsin, and is Of Counsel to the law firm of Fox, O’Neill & Shannon, S.C., of Milwaukee,Wisconsin. He is an undergraduate of Marquette University, where he obtained a Bachelor ofScience Degree in accounting. He also is a graduate of Marquette University Law School. He is aFellow of the American College of Trust and Estate Counsel. Mr. Barczak is licensed as a CertifiedPublic Accountant as well as an Attorney. He is a current board member, and former chair, of theState Bar Real Property, Probate and Trust Section.

Table of Contents

I. Background to Wisconsin Enactment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. Uniform Law Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. ACTEC Digital Property Task Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Wisconsin RPPT Digital Property Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Result of ULC approving RUFADAA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. Wisconsin Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A. Enactment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. Comparison to RUFADAA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4C. Opt in statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

IV. Obstacles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5A. Five Significant Obstacles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5B. Conflicts of Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9C. Practical Concerns for any fiduciary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10D. Initial attempts at solutions to Obstacles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10E. More Current Approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

V. Wisconsin Statutory Sections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10A. Statutory Sections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10B. Cross Reference Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15C. Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

VI. Marital Property Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A. Classification similarities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16B. Classification differences.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16C. Trailer Bill Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VII. Valuation for Inventory and Estate Tax Purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17A. Valuation similarities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17B. Valuation differences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

VIII. Best Practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18A. Password Collection/Management.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18B. Digital audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18C. Education - the intersection of law and technology. . . . . . . . . . . . . . . . . . . . . . . . 19D. Examine Terms of Service Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21E. Backup. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21F. Drafting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21G. Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

i

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

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THE PRACTITIONER'S ROLE IN DEVELOPING CLIENT DIGITAL AWARENESS

Milwaukee Estate Planning Forum October 5, 2016

I. Background to Wisconsin Enactment

A. Uniform Law Commission

B. ACTEC Digital Property Task Force

C. Wisconsin RPPT Digital Property Committee

See also:

Estate Planning in the Digital Age: Wisconsin’s New Digital Property ActInsideTrack Bi-Weekly Newsletter of the State Bar of WisconsinMay 2016 Volume 8 Number 9Kenneth P. Barczak

An Introduction to Wisconsin’s New Digital Property ActState Bar of Wisconsin Webinar June 21, 2016Ben Brunette and Kenneth P. Barczak

II. Result of ULC approving RUFADAA

- introduced/enacted in 2016 - 31/19

- acquiescence to providers from a TOS/SCA standpoint- acceptance from ACLU from a privacy standpoint- compromise to provide a starting point for enactment potential - underlying ability maintained for providers to request court orders- See Appendix E-1

- California - not introduced- TOS issues- conflict of laws issues- PEAC Act issues

2 - Barczak/Brunette

2016 Uniform Law Introductions/Enactments as of 10/5/2016

Introduced in 31 states; enacted in 19 states.

III. A Wisconsin Statute

A. Enactment

In late 2015, several legislators had expressed an interest in introducing a bill in this area,and with the assistance of the Real Property and Probate Section of the State Bar, and thecooperation of the interested legislators, members of the Wisconsin RPPT Digital PropertyCommittee became involved in drafting a bill, with the added assistance of the legislativereference bureau. Members of the Wisconsin RPPT Digital Property Committee also testifiedbefore the respective Assembly and Senate committees with respect to the bill. Support for the


enactment of the Act came from several social media providers, including Facebook (andGoogle - indirectly) , Motion Picture Association of America and Microsoft as well as from theWisconsin Bankers Association.

The bill passed both houses of the legislature and was signed into law by the Governor onMarch 30, 2016, as 2015 Wisconsin Act 300, which was comprised of the Wisconsin DigitalProperty Act, created under Chapter 711 of the Wisconsin statutes, along with updated inclusionsof appropriate cross references to existing Wisconsin statutes, with an effective date of April 1,2016.

B. Comparison to RUFADAA

The Wisconsin Digital Property Act is substantially similar to RUFADAA.

The Wisconsin Act provides for a consolidation of content and catalogue sections,coupled with a reordering of these provisions, and provides for an orderlysegregation of user sections from custodian sections along with title clarifications.

See Appendix C-1 and D-1

Wisconsin specific considerations include:

- the definitional use of “property” throughout the statute

- emphasis on non probate transfer alternatives- 705.10- 867- intangible personal property memorandum

- recognition of marital property concerns- marital property agreements- classification

- clarification of fiduciary duties regarding the review of digital property

C. Opt in statute

As is RUFADAA, the Wisconsin Digital Property Act is an opt in statute. The user mustaffirmatively “opt in” to granting access and disclosure in order for the fiduciary to access andobtain disclosure of the digital property.


IV. Obstacles

A. Five significant obstacles for fiduciaries and family members to overcome

These obstacles significantly complicate fiduciaries’ and family members’ abilityto access your digital property if you don’t plan ahead.

1. Terms of service (“TOS”) – Universally Applicable

(a) click wrap/shrink wrap - generally enforceable

(b) license vs. ownership

(c) free sites vs. purchased sites

(d) providers may be hesitant to increase customer support servicesand incur additional legal fees to respond to requests forinformation after death

(e) many terms of service agreements enable providers to unilaterallychange the terms of service without notice to the other parties

2. Passwords

(a) may be lost/unavailable to the fiduciary

(b) if fiduciary is able to obtain still could be an unauthorized useraccording to TOS

(c) “password banks” to secure access for fiduciaries and familymembers are increasingly common, but use extreme caution whenutilizing passwords, even if authorizing documents permit suchaccess

3. Encryption

To the extent that encryption is used for digital content, and to the extentthat passwords are unavailable to a fiduciary, be aware that thecombination of strong passwords and strong encryption would makeaccessibility of the content nearly unattainable


4. Federal Data Privacy Laws

(a) Stored Communications Act (SCA)

The Stored Communications Act (also known as the “Stored Wireand Electronic Communications Act”) is part of the ElectronicCommunications Privacy Act of 1986. The act protects the privacyof stored internet communications and limits the government’sability to compel providers to disclose information in theirpossession about their subscribers.

If the Act applies, the online account service provider isprohibited from disclosing the account contents to the fiduciariesand family members-unless an exception (generally the “lawfulconsent” exception) under § 2702(b) of the Act is met

In general, the protections under the Act adopt the followingfactors:

(i) is the request or demand for information is made by agovernmental or non-governmental person or entity?

(ii) are the services provided by the company to the public?

(iii) is the request or demand for the contents of the electroniccommunications and files or for non-content records?

(iv) is access to the contents of the electronic communicationsand files are restricted, or completely public?

(v) does the company provides an “electronic communicationsservice” (ECS) or a “remote computing service”(RCS)?

Based on the factors described above, an e-mail account or a socialnetworking account provided to the public has statutory privacyprotections under the Stored Communications Act (SCA). Even underthe most favorable circumstances, (i.e., the “lawful consent” exceptionunder § 2702(b)(3) of the Stored Communications Act), the serviceprovider cannot be compelled to disclose any information, but theprovider may voluntarily disclose the contents of the electroniccommunications and files otherwise protected under the SCA.


Cases -

Daftray

On September 10, 2012, Facebook obtained a court order from the United StatesDistrict Court Northern District of California blocking a demand to turn over thecontents of a deceased user’s Facebook account. The court cited the StoredCommunications Act in its ruling

In re Request for Order Requiring Facebook, Inc. to Produce Documents andThings, C 12-80171 LHK (PSG) (N.D. Cal.; Sept. 20, 2012)

Ajemian

Plaintiffs, John Ajemian’s (the decedent’s) executors and siblings, sued to declarehis estate owner of email messages he sent and received via his Yahoo! account.Yahoo took the position that the Stored Communications Act barred disclosureof the message contents. A probate judge dismissed the complaint, finding thatthe forum selection clause required the lawsuit to be brought in California. Theappeals court reversed, but the underlying issue of fiduciary access has not yetbeen decided.

MARIANNE AJEMIAN, coadministrator, vs. YAHOO!, INC.83 Mass. App. Ct. 565 October 1, 2012 - May 7, 2013Court Below: Probate and Family Court Department, Norfolk Division

Cheng

The United States District Court for the District of Massachusetts denied amotion for judgment notwithstanding a jury verdict affirming that Cheng wasentitled to damages for Romo’s violation of the SCA and an invasion ofprivacy in violation of Massachusetts statutes.

Cheng v. Romo, 2013 U.S. Dist. LEXIS 179727 (Dec. 20, 2013)

Vista

The 11th Circuit held that, under the SCA, the court has no authority to awardstatutory damages in the absence of a showing of actual damages to theaccount holder.

Vista Marketing, LLC v. Burkett, 812 F.3d 954 (11th Cir. 2016)


Optover

Is the e-mail subject line considered “content” which the SCA says a serviceprovider cannot disclose to a third party? The court found that a subject lineserves to convey a message about the body of the email and the substance ofthe communication, and also found that the supboena seeking production ofemail subject lines ran afoul of the SCA.

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013WL 256771 (N.D.Cal., January 23, 2013)

ACTEC

2015 Letter to Congress regarding SCA.

5. CFAA (Criminal Fraud and Abuse Act) - Provides criminal and civil penaltiesfor computer related unauthorized access.

Cases -

Nosal I and II

On April 10, 2012, the Ninth Circuit Court of Appeals issued an opinion inUnited States vs. Nosal narrowly construing the scope of the phrase “exceedsauthorized access” under § 1030 of the Computer Fraud and Abuse Act(CFAA). An example of Facebook's terms of service is discussed by the court.

On July 6, 2016, United States v. Nosal (a/k/a Nosal II because the NinthCircuit also issued an opinion on April 10, 2012, involving the same situation)issued an opinion, as summarized, stated that sharing a password can be acrime of accessing a protected computer “without authorization” under theComputer Fraud and Abuse Act.

Vachani

Facebook v. Vachani was decided on July 12, 2016. The short summary ofVachani is that accessing a Web site after being notified that you are notauthorized to access it can be a crime of accessing a protected computer“without authorization” under the Computer Fraud and Abuse Act.


Per Jim Lamm’s blog, Digital Passing, the attorneys for the defendants in theVachani case filed a petition on August 9, 2016, for rehearing of the case withrespect to liability under the Computer Fraud and Abuse Act. The rehearing isrequested so the court can correct or clarify its interpretation of the CFAA,because the court’s opinion conflicts with the opinion in Nosal I.

See also 9th Circuit: It’s a federal crime to visit a website after being told notto visit it by Orin Kerr July 12, 2016 - Washington Post

Valle

The Second Circuit Court of Appeals upheld the acquittal of a New York Citypolice officer who accessed the police department’s computer system intechnical violation of the police departments computer use policy, saying thatthe CFAA should be narrowly construed and should not support a convictionfor a “mere” TOS violation.

United States v. Valle, No. 14-2710-CR, 2015 WL 7774548 (2d Cir. Dec. 3,2015)

Schwartz

Federal prosecutors used the CFAA to prosecute a self-described internetactivist solely on TOS violations.

United States of America v. Aaron Swartz

State statutes

For Wisconsin state criminal law issues related to unauthorized access seeWis 943.70.

B. Conflicts of law

The U.S. District Court, Northern District of California, is the chosen federalcourt jurisdiction under the Terms of Service Agreements for Apple,Facebook, Google, Linkedln, Twitter, WordPress, Yahoo!, and YouTube.Microsoft, however, selects Washington State for its dispute resolutionprovision. International issues may arise depending on the provider.

See Section 711.16 (2)

See also Ajemian


C. Practical concerns for any fiduciary - content vs. catalogue

- what is needed to obtain estate information

Ex. - “to/from” catalogue information in an e-mail will indicate the sourceof bank activity and the bank can then be contacted in the normal course ofbusiness - catalogue information may many times be a sufficientalternative to needed information

Ex, - digital property resides on computer hard drive. Password may beneeded to access the digital property, however neither content or cataloguerequirements need be met.

D. Initial attempts at solutions to Obstacles

- DEP - digital estate planning services- 2/3 change every 3 years

- interaction with TOS continue to govern relationship with fiduciary

E. More current approach

- growth of services to assist in compilation of information such as- Secret Valet- Web Cease- Estate Map- Directive Communication Systems

- still have issues with length of existence

V. Wisconsin Statutory Sections

A. Statutory Sections

1. Under Section 711.03 Definitions, the following definitions are highlighted in this presentation:

- Digital Property- after extensive review, the Wisconsin Committee substituted theterm “digital property” for “digital asset” (the definitional term inRUFADAA) to more precisely fit into the existing statutoryterminology in Wisconsin. Because both the Wisconsin Statutes


and Wisconsin case law utilize property terminology, enacting a“digital property” statute would more intuitively enable courts andthe bar to synthesize the new law into existing property concepts,and better equip both courts and practitioners to employprecedential constructs when dealing with an enacted digitalproperty statute.

- this definition allows for placement of the Act in new section 711of the Wisconsin statutes, and therefore within the 700 range of theWisconsin statutes addressing interests in property, which, in turn,allows for appropriate cross-section references to other Wisconsinproperty statutes.

- Catalogue of electronic communication/Content of an electronic communication

- it is important to distinguish between (i) digital propertythat is not an electronic communication protected under theSCA, and (ii) the content of electronic communications (asubset of digital property) protected under the SCA. Acommon form of electronic communications protectedunder the SCA includes the content of email messages.

- with respect to electronic communication protected underthe SCA, it is then necessary to determine whetherdisclosure of the catalogue or the content of the electroniccommunication will be requested. Different statutorysections will need to be addressed depending on the choiceinvolved.

- Online Tool

- a setting provided by a custodian that allows the user, by anagreement between the custodian and user that is distinct from theuser’s assent to the terms of service, to provide directions fordisclosure or nondisclosure of digital property to a designatedrecipient.

- Google’s Inactive Account Manager and Facebook’sLegacy Contact are two examples of such online tools.

- continues encouragement of providers, including start-ups, to establish similar tools (the Wisconsin RPPT DigitalProperty Committee contained members from thetechnology side of the law for this very reason)


- introduction of a designated recipient in a “beneficiarydesignation” role

- statutory cross reference - valid non-testamentary transferSec. 705.10

2. Section 711.04 sets forth a three tier priority system for disclosure ofdigital property providing clarity between fiduciaries and custodiansregarding the order of disclosure of digital property. This Section was amuch debated addition under RUFADAA between from the social media providers and the ULC, and became a compromise Section in the statute.

- without planning the TOS becomes the default rule

- presently only Google and Facebook qualify for online tooltreatment, therefore estate planning documents become morerelevant in the planning process

- without planning, digital property could become a part of theresiduary distribution of an estate

3. Section 711.05 sets forth methods of disclosure of catalogue or contentof digital property to personal representatives.

As noted above, the Wisconsin Digital Property Act contains thesubstance of the RUFADAA provisions in these areas, butprovides for a consolidation of content and catalogue sections,coupled with a reordering of these provisions, both to emphasizethe narrow application of disclosure of content provisions, and alsoto emphasize differences in requirements as to information to beprovided when requesting the catalogue vs. the content ofelectronic communications.

- special emphasis has been placed on non-probate transfers in theWisconsin statute, including

- transfer by affidavit under $50,000- transfer by HT-110 - availability of an intangible personal property memorandum- transfer by marital property agreement


4. Section 711.06 sets forth methods of disclosure of catalogue or contentof digital property to agents under powers of attorney, along with similarconsolidation and reordering provisions.

- based upon requests by the providers, a request for disclosure ofcontents must be specifically addressed in the power of attorney

- similar to gifting provisions under Section 244, access the contentof an electronic communication must be expressly granted to theagent; there is no default authority over content

- provisions in the statutory power of attorney are being clarified toacknowledge this express provision

5. Section 711.07 sets forth methods of disclosure of catalogue or contentof digital property to trustees, along with similar consolidation andreordering provisions.

- consistent with provisions in the UTC allowing foracknowledgment of the existence of a trust, Section 711.017 allowsfor transfer by certification of trust

- this is an area to be watched for future development since there islittle activity regarding trust ownership of digital assets, eitherbecause the TOS does not allow for trust ownership and anyattempt to fund a trust would be in violation of the TOS, andpourover, or funding by way of Washington Will provisions, is inits infancy

6. Section 711.08 sets forth methods of disclosure of catalogue or contentof digital property to guardians or conservators, along with similarconsolidation and reordering provisions.

- the Act specifically provides that disclosure of content is notauthorized - this was a provider requirement relating to on-goingaccess to social media accounts of the user in order to provide forprotection of a protected person.

The statute does allow for suspension or termination of accounts“for good cause”


7. Section 711.09 describes the choice of methods available to custodianswhen disclosing digital property of a user.

- three options - full; partial; copy in a record

- fiduciaries have no control over the option chosen by the provider

- the most likely option will be partial access

- the custodian need not disclose digital property deleted by theuser (query - is “deleted” property still available for access) - thisbecomes a privacy issue - the user deleted the contents

- reasonable administration charges are provided for

- court order is still available to the providers

8. Section 711.10 sets forth custodian compliance and immunity.

- satisfies providers that act with good faith compliance

- does not preclude providers form requesting court orders from afiduciary or designated recipient

9. Section 711.11 address the status of terms of service agreements.

- provides for clarification of the “default status” of a TOS

10. Section 711.12 sets forth fiduciary duties and authority regardingmanagement of digital property, and addresses digital property not held bya custodian or subject to a terms of service agreement. It also, in particular,clarifies that the fiduciary is an authorized user of digital property stored inthe tangible personal property for the purpose of computer fraud andunauthorized computer access laws, including Wis, stat. s. 943.70.

- the Wisconsin Bankers Association provided input regardingspecific language for the need to limit the duty of the fiduciary toreview, secure or preserve digital property

- Wis. stat. 943.70 was specifically addressed in the statute tohighlight a little known statute otherwise having a tangential effecton the gathering of digital property


11. Section 711.13 confirms the marital property classification of digitalproperty.

As noted below, the Wisconsin digital property committee ispresently in discussions addressing changes in Chapter 766, by wayof a trailer bill, to classification and management and control issuesrelating to digital property. Any final changes will occur in Chapter766. Section 711.13 will maintain its present status as solely across reference to Chapter 766.

12. Section 711.16 relates to applicability.

- The effective date of the statute is 4/1/2016.

- applicability applies to a fiduciary acting under will, power ofattorney or trust executed before, on of after the effective date, aswell as guardianship or conservatorship proceedings pending, orcommenced before, on or after the effective date.

- the statute attempts to address conflict of laws issues by statingthat it applies to a custodian only if the user resides in Wisconsinor resided in Wisconsin at the time of the user’s death.

See Appendix A-1 for Chapter 711 statutory provisions.

B. Cross Reference Statutes

1. Guardianship/Conservatorship Sec. 54

2. Powers of Attorney Sec. 244

3. Trusts Sec. 701

4. Marital Property Sec. 766

5. Probate Sec. 851

6. Wills Sec. 853

7. Criminal Sec. 943

See Appendix B-1.


C. Forms

- Probate Registers conference- seminar- establishing forms

VI. Marital Property Issues

A. Classification similarities

Classification of digital property would generally be viewedsimilarly to other property in the marriage.

Issues of management and control of property and division ofproperty at death would also be similar.

Federal preemption issues governing ownership of copyrights, forexample, would arise in the same fashion regarding anycopyrighted materials in digital form.

B. Classification differences

The nature of digital property may give rise to further examinationto determine the extent to which management and control arise.

Examples of differences follow:- are there shared digital accounts - are there shared passwords- is content stored in the same virtual cloud- is content stored on the same computer- is there value in the virtual world

At the onset of Wisconsin marital property law, other community property statecases were reviewed to provide guidelines for assistance with interpretation of theWisconsin law. Similar review of digital property issues, as they occur in othercommunity property states, would assist in the development of Wisconsin digital propertylaw. There currently is emerging commentary from practitioners in community propertystates recognizing the potential divorce property division implications of digital property.

In conversations with Professor Gerry W. Beyer, a Texas ACTEC fellow heavilyinvolved with the introduction of the Texas Uniform Act, anticipated in 2017, a review ofthe present community property states that have enacted the Uniform Act (Arizona,Washington and Idaho) resulted in no determination of those jurisdictions directlyaddressing the community property aspects of digital property in a statutory fashion.


As noted above, the Wisconsin RPPT Digital Property Committee is presentlyreviewing any changes to Chapter 766 to recognize digital property issues. At the presenttime the review is centered on the necessity of addressing:

- the sheer volume of digital property being created by users, the majorityof which consists of minimal economic value to the estate of the userwhile at the same time may contain sentimental substance

- recognition of TOS issues raised by providers, which led to the completerevision of the original uniform act in addressing those issues that relate tothe TOS contract being solely with the original user

- consideration of satisfaction of the valuation of the non-holding spouse’sinterest in the digital property, subject to certain threshold limits, toresolve marital property valuation issues between spouses under Chapter766, without invoking Chapter 711, and, in turn, thereby precludinginvolvement from providers in the marital property division process

- recognition of privacy concerns, which concerns also had an influence onthe revision of the original uniform act

These concerns highlight the use of marital property agreements to provide clarity.

C. Trailer Bill issues

The Wisconsin RPPT Digital Property Committee is currently reviewing anypotential trailer bill issues addressing, primarily, clarification of marital propertyclassification and management and control concerns relating to digital property.

VII. Valuation for Inventory and Estate Tax Purposes

A. Valuation similarities

From a valuation perspective, most digital property can be valued in thesame manner as other property listed on an Inventory or included on EstateTax return because it would have similar characteristics. However, withdigital property, there may be alternative methods needed to be utilized toaccess the property in order to value it. The following property can bevalued in the usual manner:- computer and peripheral hardware- intellectual property rights- remaining prepaid service contract amounts from online sales or

purchasing sites- bank and brokerage accounts - personal and business


B. Valuation differences

However, regarding the following property, specific valuation issues mayarise:

- blogs (review advertising revenue)- websites- domain names - Afternic and Sedo are domain valuation services (the domain name would generally be valued separately from the contentof the website or other service which utilizes the name)- online sales- intellectual property rights in the digital world (Ex.- e-books,digital music)- virtual worlds - gamer- Personal assets of minimal financial value may pose more of adistribution concern as opposed to a valuation concern (ex. - ability toproduce multiple copies of treasured photo collections; information onsocial networking sites)

VIII. Best Practices

A. Password Collection/Management

Roboform, Last Pass Premium, 1 Password, Dashlane - passwordmanagers

Password managers are generally limited to automatic web pageand possibly online application password gathering, and nothardware program application passwords.

- master password

- encryption/integrate with web browser

- Veracrypt

- Diceware Word List

B. Digital audit

Expansion of the estate planning questionnaire


- Digital Property Master Information List

- use as an attachment to an intangible personal propertymemorandum

See Appendix F-1

- Digital Property Password Inventory

See Appendix G-1

C. Education - the intersection of law and technology

- Links

Digital Life in 2025 - Pew Internet Research Project

http://www.pewinternet.org/2014/03/11/digital-life-in-2025/

Backupify

https://www.backupify.com/

- Law Review articles/periodicals

A User's Guide to the Stored Communications Act, and a Legislator's Guideto Amending ItOrin S. KerrGeorge Washington Law Review, 2004

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421860

Computer Fraud and Abuse Act (CFAA)

http://ilt.eff.org/index.php/Computer_Fraud_and_Abuse_Act_%28CFAA%29

Terms of Service (TOS)

March 8, 2011Estate Planning Developments for Texas Professionals, April 2011 by Gerry W. Beyer and Kerri M. Griffin

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1781483

Online Afterlife Management Companies a/k/a Digital Estate Planning services (DEP)

March 8, 2011Estate Planning Developments for Texas Professionals, April 2011 by Gerry W. Beyer and Kerri M. Griffin


http://www.pewinternet.org/2014/03/11/digital-life-in-2025/

Google Inactive Account Manager

http://googlepublicpolicy.blogspot.com/2013/04/plan-your-digital-afterlife-with.html

Facebook Legacy Contact

https://www.facebook.com/help/1568013990080948

War and PEAC in Digital Assets: The Providers’ PEAC Act Wages War with UFADAA, 29 Probate & Property 4 (July/August 2015).Karin Prangley

Uniform Fiduciary Access to Digital Assets Act: What UFADAA KnowProbate & Property Magazine: Volume 29 No. 04Victoria Blachly

Lawyers JournalMass Bar Association February 2015Defining, owning and accessing digital assets

By Debra Rahmin Silberstein and Christopher G.R. Davies

- blogs/listservs

Digital PassingAtty. James D. Lamm

http://www.digitalpassing.com/

Wills, Trusts & Estates Prof BlogProf. Gerald W. BeyerGovernor Preston E. Smith Regents Professor of LawTexas Tech University School of Law

http://lawprofessors.typepad.com/trusts_estates_prof/

- seminars

- The 51st Annual Heckerling Institute on Estate Planning, to be held January 9-13, 2017, will include as topics:

Planning for Digital Property: “The Future Ain’t What it Usedto Be” (A Yogi Berra Quote)presented by Attys. Karin C. Prangley, Anne W. Coventry,Robert K. Kirkland and James D. Lamm

andPlanning for Privacy in a Public World: The Ethics and Mechanicsof Protecting Your Client’s Privacy and Personal Securitypresented by John F. Bergner, R. Kris Coleman and Mark Lanterman


D. Examine Terms of Service Restrictions

- use commercial e-mail service provider TOS more acceptable then free accounts

- paid vs. free accounts

- license/lease element vs. property component

E. Backup

- 3-2-1 backup concept

- 3 copies

- 2 different media types

- 1 offsite

- on device - locally

- in the cloud - contract with provider

- Backupify for social media accounts - Secure automated backups of consumer web application data,including personal Gmail, Google Drive, Facebook Pages, andTwitter accounts.

Provide appropriate backup alternatives to allow for access to content ofvarying value and without terms of service (TOS) and/or federal lawconstraints to the extent possible.

F. Drafting

Reference “authorized access” and “lawful consent” language in recognitionof federal laws (CFAA and SCA) that may impact access to digital property. Referencespecific provisions of Wis. Stat. 711 where appropriate, or where deviating from defaultprovisions.

For examples of drafting see:

- Eckhardt’s Workbook for Wisconsin Estate Planners Chapter 11, regarding Durable Powers of Attorney


- California Education of the Bar (CEB) drafting treatisesCEB, California Will Drafting §33.52;

CEB, Drafting California Revocable Trust (Pour Over Will) §22.9; CEB, California Powers of Attorney and Health Care Directives §5.11A).

- The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries From Managing Digital Property 68 U. MIAMI L. REV. 385, 404 (2014) by James D. Lamm et al., section V.C.

- Stay Linked With Your Clients By Helping Them Forever Friend Their DigitalProperty 51st Annual Hawaii Tax Institute November 3, 2014 by Robert K. Kirkland/ John T. Rogers, Exhibits B and C.

- Pixar for Estate Planners: Who Gets your Digital Stuff When You’ve Logged offfor the Last Time - Springfield Bar - February 17, 2016Presented by Robert K. Kirkland

See appendix H-1 for Wisconsin drafting alternatives

G. Administration

Appoint a personal representative, Trustee, or Power of Attorney agent basedupon overall qualifications to centralize power and authority in one fiduciary.

Educate third party providers that the grantor of the power is aware of thespecific issues regarding digital property and expressly provides authorityto the fiduciary with regard to managing the digital property with respectto those issues.

Educate the fiduciary regarding the scope of digital property and provideguidance to the fiduciary in establishing a relationship with a computerconsultant who could assist the fiduciary in determining access to digitalproperty, and with appropriate professionals in the areas needed to dealwith the unique nature of digital property.

Consider the fiduciary's obligations in relation to any current or potentialfuture civil or criminal actions involving the incapacitated or deceasedindividual when addressing the issues of direction to the fiduciary in thedocument as to deletion, or limitation of access to, versus preservation of,digital content.


Given the current status of the law in this area, be aware that it is morelikely that third party social media and e-mail service providers (asopposed to, for example, banks and brokerages) will respond to inquiriesfrom court appointed fiduciaries, such as personal representatives,guardians and conservators, as opposed to trustees and power of attorneyagents.



THE PRACTITIONER'S ROLE IN DEVELOPING CLIENT DIGITALAWARENESS

Milwaukee Estate Planning Forum

October 5, 2016

APPENDIX

A. Wisconsin Digital Property Act Chapter 711............................ A-1

B. Cross Section of Wisconsin Statutes....................................... B-1

C. Summary Comparison Wisconsin Digital Property Act- Chapter 711 vs. RUFADAA................................. ............. . . C - 1

D. Detail Comparison Wisconsin Digital Property Act- Chapter 711 vs. RUFADAA................................. ............. . . D - 1

E. RUFDAAA................................................................................ E-1

F. Digital Property Master Information List.................................... F-1

G. Digital Property Password Inventory......................................... G-1

H. Drafting Alternatives.................................................................. H-1


MISCELLANEOUS PROPERTY PROVISIONS 711.041 Updated 13−14 Wis. Stats.

Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. April 21, 2016.

2013−14 Wisconsin Statutes updated through 2015 W is. Act 370 and all Supreme Court Orders entered before April 21, 2016.Published and certified under s. 35.18. Changes ef fective after April 21, 2016 are designated by NOTES. (Published 4−21−16)

CHAPTER 711

DIGITAL PROPERTY

711.01 Short title.711.02 Liberal construction.711.03 Definitions.711.04 Priorities; user directions for disclosure of digital property.711.05 Disclosure of digital property; personal representative of a deceased user.711.06 Disclosure of digital property; agent under a power of attorney.711.07 Disclosure of digital property held in trust.711.08 Disclosure of digital property; conservator or guardian of protected per-

son.

711.09 Choice of methods for disclosing digital property; custodian.711.10 Custodian compliance and immunity.711.11 Terms of service agreement.711.12 Fiduciary duty and authority.711.13 Marital property classification of digital property.711.14 Uniformity of application and construction.711.15 Relation to Electronic Signatures in Global and National Commerce Act.711.16 Applicability.

711.01 Short title. This chapter may be cited as the WisconsinDigital Property Act.

History: 2015 a. 300.

711.02 Liberal construction. This chapter is remedial innature and shall be liberally construed, consistent with s. 711.14.

History: 2015 a. 300.

711.03 Definitions. In this chapter:(1) “Account” means an arrangement under a terms of service

agreement in which a custodian carries, maintains, processes,receives, or stores a user’s digital property or provides goods orservices to the user.

(2) “Agent” means a person granted authority to act under adurable or nondurable power of attorney.

(3) “Carries” means engages in the transmission of an elec-tronic communication.

(4) “Catalogue of electronic communications” means infor-mation that identifies each person with which a user has had anelectronic communication, the time and date of the communica-tion, and the electronic address of the person.

(5) “Conservator” means a person appointed under s. 54.76 tomanage the estate of a living individual.

(6) “Content of an electronic communication” means infor-mation concerning the substance or meaning of a communicationthat satisfies all of the following:

(a) The information was sent or received by a user.(b) The information is electronically stored by a custodian that

provides an electronic communication service to the public or iscarried or maintained by a custodian that provides a remote com-puting service to the public.

(c) The information is not readily accessible to the public.(7) “Court” means the circuit court having jurisdiction over a

matter related to this chapter.(8) “Custodian” means a person that carries, maintains, pro-

cesses, receives, or stores a user’s digital property.(9) “Designated recipient” means a person chosen by the user

using an online tool to administer the user’s digital property.(10) “Digital property” means an electronic record in which

a person has a right or interest. “Digital property” does not includeunderlying property or an underlying liability unless the propertyor liability is itself an electronic record.

(11) “Electronic” means relating to technology having electri-cal, digital, magnetic, wireless, optical, electromagnetic, or simi-lar capabilities.

(12) “Electronic communication” has the meaning given in 18USC 2510 (12).

(13) “Electronic communication service” means a custodianthat provides to a user the ability to send or receive an electroniccommunication.

(14) “Fiduciary” means an original, additional, or successorpersonal representative, conservator, guardian, agent, or trustee.

(15) “Governing instrument” has the meaning given in s.854.01 (2).

(16) “Guardian” means a person appointed under s. 54.10.(17) “Information” means data, text, images, videos, sounds,

codes, computer programs, software, databases, or the like.(18) “Online tool” means a setting provided by a custodian

that allows the user, by an agreement between the custodian anduser that is distinct from the user’s assent to the terms of service,to provide directions for disclosure or nondisclosure of digitalproperty to a designated recipient.

(19) “Person” means an individual, estate, business or non-profit entity, public corporation, government or governmentalsubdivision, agency, or instrumentality, or other legal entity.

(20) “Personal representative” has the meaning given in s.851.23, but also includes a special administrator and any personwho, under the laws of this state other than this chapter, performsfunctions substantially similar to a personal representative, asdefined in s. 851.23.

(21) “Power of attorney” means an instrument that grants anagent authority to act in the place of a principal.

(22) “Principal” means an individual who grants authority toan agent in a power of attorney.

(23) “Protected person” means all of the following:(a) An individual for whom a guardian is appointed.

NOTE: Par. (a) was created as sub. (23) 1. by 2015 Wis. Act 300 and renum-bered to sub. (23) (a) by the legislative reference bureau under s. 13.92 (1) (bm)2.

(b) An individual for whom a conservator is appointed.NOTE: Par. (b) was created as sub. (23) 2. by 2015 Wis. Act 300 and renum-

bered to sub. (23) (b) by the legislative reference bureau under s. 13.92 (1) (bm)2.

(24) “Record” means information that is inscribed on a tangi-ble medium or that is stored in an electronic or other medium andis retrievable in perceivable form.

(25) “Remote computing service” means a custodian that pro-vides to a user computer processing services or the storage of digi-tal property by means of an electronic communications system, asdefined in 18 USC 2510 (14).

(26) “Terms of service agreement” means an agreement thatcontrols the relationship between a user and a custodian.

(27) “Trustee” means a person with legal title to an asset underan agreement or declaration that creates a beneficial interest inanother. “Trustee” includes an original, additional, and successortrustee, and a cotrustee.

(28) “User” means a person that has an account with a custo-dian.

(29) “Will” includes a codicil and any document incorporatedby reference in a testamentary document under s. 853.32 (1) or (2).

History: 2015 a. 300; s. 13.92 (1) (bm) 2.

711.04 Priorities; user directions for disclosure of dig -ital property . (1) A user may use an online tool to direct the cus-todian to disclose to a designated recipient or not to disclose some

http://docs.legis.wisconsin.gov/document/statutes/711.01
















http://docs.legis.wisconsin.gov/document/acts/2015/300




http://docs.legis.wisconsin.gov/document/usc/18%20USC%202510


http://docs.legis.wisconsin.gov/document/statutes/854.01(2)










Ken

Text Box

Appendix A-1

Updated 13−14 Wis. Stats. 2 711.04 MISCELLANEOUS PROPERTY PROVISIONS



or all of the user’s digital property, including the content of elec-tronic communications. If the online tool allows the user tomodify or delete a direction at all times, a direction regarding dis-closure using an online tool overrides a contrary direction by theuser in a will, trust, power of attorney, or any other governinginstrument.

(2) If a user has not used an online tool to give direction undersub. (1), or if the custodian has not provided an online tool, theuser may allow or prohibit disclosure to a fiduciary of some or allof the user’s digital property, including the content of electroniccommunications sent or received by the user, in a will, trust, powerof attorney, or any other governing instrument.

(3) A user’s direction under sub. (1) or (2) overrides a contraryprovision in a terms of service agreement that does not require theuser to act affirmatively and distinctly from the user’s assent to theterms of service.

History: 2015 a. 300.

711.05 Disclosure of digital property; personal repre -sentative of a deceased user . (1) DIGITAL PROPERTY OTHER

THAN CONTENT OF ELECTRONIC COMMUNICATIONS. Unless a userprohibited disclosure of digital property or the court directs other-wise, a custodian shall disclose to the personal representative ofthe deceased user’s estate a catalogue of electronic communica-tions sent or received by the deceased user and digital property,other than the content of electronic communications sent orreceived by the deceased user, in which the deceased user’s estatehas a right or interest, if the personal representative gives the cus-todian all of the following:

(a) A written request for disclosure in physical or electronicform.

(b) A certified copy of the death certificate of the user.(c) One of the following to establish the personal rep-

resentative’s authority over the deceased user’s digital property:1. A certified copy of the letters of appointment of the per-

sonal representative or special administrator.2. A certified copy of a summary proceeding order under s.

867.01 or 867.02.3. An original or copy of an affidavit under s. 867.03.4. An original or copy of an application under s. 867.046.

(d) If requested by the custodian, any of the following:1. A number, username, address, or other unique subscriber

or account identifier assigned by the custodian to identify theuser’s account.

2. Evidence linking the account to the user.3. An affidavit stating that disclosure of the user’s digital

property is reasonably necessary for administration of the estate.4. A court order that includes any of the following findings:a. The user had a specific account with the custodian, identifi-

able by the information specified in subd. 1.b. The disclosure of the user’s digital property is reasonably

necessary for administration of the estate.(2) DISCLOSURE OF CONTENT OF ELECTRONIC COMMUNICATIONS;

DECEASED USER. If a deceased user consented or a court directs dis-closure of the contents of electronic communications of adeceased user, the custodian shall disclose to the personal repre-sentative of the deceased user’s estate the content of an electroniccommunication sent or received by the user, in which the deceaseduser’s estate has a right or interest, if the personal representativegives the custodian all of the following:

(a) The items described in sub. (1) (a) to (c).(b) Unless the user provided direction using an online tool, a

copy of the user’s will, certification of trust under s. 701.1013, orother governing instrument, evidencing the deceased user’s con-sent to disclosure of the content of electronic communications.

(c) If requested by the custodian, any of the following:

1. A number, username, address, or other unique subscriberor account identifier assigned by the custodian to identify theuser’s account.

2. Evidence linking the account to the user.3. A court order that includes any of the following findings:a. The user had a specific account with the custodian that is

identifiable by the information specified in subd. 1.b. The disclosure of the content of electronic communications

of the user does not violate 18 USC 2701 et seq., 47 USC 222, orother applicable law.

c. Unless the user provided direction using an online tool, theuser consented to disclosure of the content of electronic communi-cations.

d. The disclosure of the content of electronic communicationsof the user is reasonably necessary for administration of the estate.

History: 2015 a. 300.

711.06 Disclosure of digital property; agent under apower of attorney . (1) DISCLOSURE OF DIGITAL PROPERTYOTHER THAN CONTENT OF ELECTRONIC COMMUNICATIONS; PRINCI-PAL. Unless otherwise ordered by the court, directed by the princi-pal, or provided in a power of attorney, a custodian shall discloseto an agent with specific authority over the principal’s digitalproperty or general authority to act on behalf of a principal a cata-logue of electronic communications sent or received by the prin-cipal and digital property, other than the content of electroniccommunications, in which the principal has a right or interest, ifthe agent gives the custodian all of the following:


(b) An original or a copy of the power of attorney that givesthe agent specific authority over digital property or generalauthority to act on behalf of the principal.

(c) A certification by the agent, under penalty of perjury, thatthe power of attorney is in effect.


or account identifier assigned by the custodian to identify the prin-cipal’s account.

2. Evidence linking the account to the principal.(2) DISCLOSURE OF CONTENT OF ELECTRONIC COMMUNICATIONS;

PRINCIPAL. To the extent a power of attorney expressly grants anagent authority over the content of electronic communicationssent or received by the principal and unless directed otherwise bythe principal or the court, a custodian shall disclose to the agentthe content of electronic communications if the agent gives thecustodian all of the following:

(a) The items described in sub. (1) (a), (c), and (d).(b) An original or a copy of the power of attorney that

expressly grants the agent authority over the content of electroniccommunications of the principal.

History: 2015 a. 300.

711.07 Disclosure of digital property held in trust.(1) DISCLOSURE OF DIGITAL PROPERTY HELD IN TRUST; TRUSTEE ISORIGINAL USER. Unless otherwise ordered by the court or providedin a trust, a custodian shall disclose to a trustee who is an originaluser of an account any digital property of the account that is heldin trust, including a catalogue of electronic communications of thetrustee and the content of electronic communications.

(2) DISCLOSURE OF DIGITAL PROPERTY OTHER THAN CONTENT OFELECTRONIC COMMUNICATIONS; TRUSTEE IS NOT ORIGINAL USER.Unless otherwise ordered by the court, directed by the user, or pro-vided in a trust, a custodian shall disclose, to a trustee that is notan original user of an account, a catalogue of electronic communi-cations sent or received by an original or successor user andstored, carried, or maintained by the custodian in an account of thetrust and any digital property, other than the content of electronic









http://docs.legis.wisconsin.gov/document/statutes/711.05(1)(d)1.

http://docs.legis.wisconsin.gov/document/statutes/711.05(1)(a)

http://docs.legis.wisconsin.gov/document/statutes/711.05(1)(c)


http://docs.legis.wisconsin.gov/document/statutes/711.05(2)(c)1.






http://docs.legis.wisconsin.gov/document/statutes/711.06(1)(d)


MISCELLANEOUS PROPERTY PROVISIONS 711.113 Updated 13−14 Wis. Stats.



communications, in which the trust has a right or interest, if thetrustee gives the custodian all of the following:


(b) A certification of the trust under s. 701.1013.(c) A certification by the trustee, under penalty of perjury, that

the trust exists and the trustee is a currently acting trustee of thetrust.


or account identifier assigned by the custodian to identify thetrust’s account.

2. Evidence linking the account to the trust.(3) DISCLOSURE OF CONTENTS OF ELECTRONIC COMMU-

NICATIONS HELD IN TRUST; TRUSTEE IS NOT ORIGINAL USER. Unlessotherwise ordered by the court, directed by the user, or providedin a trust, a custodian shall disclose to a trustee that is not an origi-nal user of an account the content of an electronic communicationsent or received by an original or successor user and carried, main-tained, processed, received, or stored by the custodian in thetrust’s account, in which the trust has a right or interest, if thetrustee gives the custodian all of the following:

(a) The items described in sub. (2) (a), (c), and (d).(b) A certification of the trust under s. 701.1013 that includes

an original or successor user’s consent to disclosure of the contentof electronic communications to the trustee.

History: 2015 a. 300.

711.08 Disclosure of digital property; conservator orguardian of protected person. (1) After an opportunity fora hearing under s. 54.10, the court may grant a guardian access tothe digital property of a protected person.

(2) After an opportunity for a hearing under s. 54.76, the courtmay grant a conservator access to the digital property of a pro-tected person.

(3) Unless otherwise ordered by the court or directed by theuser, a custodian shall disclose to a guardian or custodian the cata-logue of electronic communications sent or received by a pro-tected person and any digital property, other than the content ofelectronic communications, in which the protected person has aright or interest if the guardian or conservator gives the custodianall of the following:


(b) A certified copy of the court order that gives the guardianor conservator authority over the protected person’s digital prop-erty.

(c) If requested by the custodian, any of the following:1. A number, username, address, or other unique subscriber

or account identifier assigned by the custodian to identify theaccount of the protected person.

2. Evidence linking the account to the protected person.(4) A guardian or conservator with general authority to man-

age a protected person’s assets may request a custodian of the pro-tected person’s digital property to suspend or terminate an accountof the protected person for good cause. A request made under thissubsection shall be accompanied by a certified copy of the courtorder granting the guardian or conservator general authority tomanage the protected person’s assets.

History: 2015 a. 300.

711.09 Choice of methods for disclosing digital prop -erty; custodian. (1) When disclosing digital property of a userunder this chapter, the custodian may in its sole discretion providea fiduciary or designated recipient with any of the following:

(a) Full access to the user’s account.

(b) Partial access to the user’s account that is sufficient to per-form the tasks with which the fiduciary or designated recipient ischarged.

(c) A copy in a record of any digital property that the user couldhave accessed if the user were alive, had full capacity, and had fullaccess to the account on the date on which the custodian receivedthe request for disclosure.

(2) A custodian may assess a reasonable administrativecharge to a fiduciary or designated recipient for the cost of disclos-ing digital property under this chapter.

(3) A custodian is not required to disclose under this chapterdigital property deleted by the user.

(4) If a user directs or a fiduciary or designated recipientrequests a custodian to disclose under this chapter some, but notall, of the user’s digital property, the custodian is not required todisclose the digital property if segregation of the digital propertywould impose an undue burden on the custodian. If the custodianrefuses to disclose digital property because the custodian believesthe segregation of the digital property imposes an undue burden,the custodian or fiduciary may seek an order from the court to dis-close any of the following:

(a) To the fiduciary or designated recipient, a subset of theuser’s digital property that is limited by date.

(b) To the fiduciary or designated recipient, all of the user’sdigital property.

(c) None of the user’s digital property.(d) To the court for review in camera, all of the user’s digital

property.History: 2015 a. 300.

711.10 Custodian compliance and immunity . (1) Notlater than 60 days after receipt of the information required underss. 711.05 to 711.08 or 711.12 (7) or an online tool, a custodianshall comply with a request under this chapter from a fiduciary ordesignated recipient to disclose digital property or terminate anaccount. If the custodian fails to comply, the fiduciary or desig-nated recipient may apply to the court for an order directing thecustodian to comply with the request.

(2) A court shall include in an order directing a custodian tocomply with a request made under this chapter a finding that com-pliance with the request does not violate 18 USC 2702.

(3) A custodian may notify the user that a request for disclo-sure of digital property or to terminate an account was made underthis chapter.

(4) A custodian may deny a request under this chapter from afiduciary or designated recipient for disclosure of digital propertyor to terminate an account if the custodian is aware of any lawfulaccess to the account after the receipt of the fiduciary’s request.

(5) This chapter does not limit a custodian’s ability to obtainor to require a fiduciary or designated recipient requesting disclo-sure or termination under this chapter to obtain a court order thatdoes all of the following:

(a) Specifies that an account belongs to the protected personor principal.

(b) Specifies that there is sufficient consent from the protectedperson or principal to support the requested disclosure.

(c) Contains any findings required by law other than this chap-ter.

(6) A custodian and its officers, employees, and agents areimmune from liability for an act or omission done in good faith incompliance with this chapter.

History: 2015 a. 300.

711.11 Terms of service agreement. (1) This chapterdoes not change or impair the rights of a custodian or a user undera terms of service agreement to access and use digital property ofthe user.




http://docs.legis.wisconsin.gov/document/statutes/711.07(2)(d)












Updated 13−14 Wis. Stats. 4 711.11 MISCELLANEOUS PROPERTY PROVISIONS



(2) This chapter does not give a fiduciary or designated recipi-ent rights other than the rights held by the user for whom, or forwhose estate, the fiduciary or designated recipient acts or repre-sents.

(3) A fiduciary’s or designated recipient’s access to digitalproperty may be modified or eliminated by any of the following:

(a) The user.(b) Federal law.(c) A terms of service agreement if the user has not provided

direction under s. 711.04.History: 2015 a. 300.

711.12 Fiduciary duty and authority . (1) The legal dutiesimposed on a fiduciary with the authority to manage tangibleproperty apply to a fiduciary’s management of digital property.

(2) (a) A fiduciary’s or designated recipient’s authority withrespect to a user’s digital property may not be used to impersonatethe user and is subject to all of the following:

1. Except as otherwise provided in s. 711.04, the applicableterms of service.

2. Other applicable law, including copyright law.(b) A fiduciary’s authority is limited by the scope of the fidu-

ciary’s duties.(3) A fiduciary with authority over the property of a decedent,

protected person, principal, or settlor has the right to access anydigital property in which the decedent, protected person, princi-pal, or settlor had a right or interest and that is not held by a custo-dian or subject to a terms of service agreement.

(4) A fiduciary acting within the scope of the fiduciary’sduties is an authorized user of the digital property of the decedent,protected person, principal, or settlor for the purpose of applicablecomputer fraud and unauthorized computer access laws, includ-ing s. 943.70.

(5) (a) A fiduciary with authority over the tangible personalproperty of a decedent, protected person, principal, or settlor hasthe right to access the tangible personal property and any digitalproperty stored in the tangible personal property.

(b) A fiduciary with authority over the tangible personal prop-erty of a decedent, protected person, principal, or settlor is anauthorized user of digital property stored in the tangible personalproperty for the purpose of computer fraud and unauthorized com-puter access laws, including s. 943.70.

(6) A custodian may disclose information in a user’s accountto a fiduciary of the user when the information is required to termi-nate an account used to access digital property licensed to the user.

(7) A fiduciary of a user may request a custodian to terminatethe user’s account. A request for termination must be in writing,in either physical or electronic form, and accompanied by all ofthe following:

(a) If the user is deceased, a certified copy of the death certifi-cate of the user.

(b) Any of the following that grants the fiduciary authorityover the user’s account:

1. A certified copy of the letters of appointment of a personalrepresentative.

2. A certified copy of the letters of special administration.3. A certified copy of a summary proceeding order under s.

867.01 or 867.02.3m. An original or copy of an affidavit under s. 867.03.4. An original or copy of an application under s. 867.046.5. An original or copy of a power of attorney and a certifica-

tion by the agent that the power of attorney is in effect.6. A certification of the trust under s. 701.1013.

(c) If requested by the custodian, any of the following:1. A number, username, address, or other unique subscriber

or account identifier assigned by the custodian to identify theuser’s account.

2. Evidence linking the account to the user.3. A finding by the court that the user had a specific account

with the custodian, identifiable by the information specified insubd. 1.

(8) (a) A fiduciary has no duty to review any digital propertyof a decedent, settlor, principal, or protected person or to secureor preserve any digital property that is not in the possession of thefiduciary, unless any of the following applies:

1. The fiduciary has knowledge, or has reason to believe, thatthe decedent’s estate, settlor’s trust, principal, or protected personhas digital property of economic value.

2. The fiduciary receives a written request from a beneficiarywho has an interest in the digital property of the decedent’s estate,settlor’s trust, principal, or protected person.

(b) A fiduciary’s reasonable efforts to review, secure, or pre-serve digital property satisfy a duty to review, secure, or preservedigital property under par. (a).

(c) If a fiduciary reviews, secures, or preserves a portion of thedigital property of a decedent, settlor, principal, or protected per-son and the fiduciary does not have a duty to do so, the reviewing,securing, or preserving of a portion of digital property does notgive rise to a duty to review, secure, or preserve the remaining por-tion of the digital property of the decedent, settlor, principal, orprotected person.

(d) Unless a fiduciary has a duty to review, secure, or preservedigital property under par. (a), a fiduciary is not liable for failingto review, secure, or preserve any digital property of a decedent,settlor, principal, or protected person.

History: 2015 a. 300.

711.13 Marital property classification of digital prop -erty. Chapter 766 governs the classification of digital property ofa user who is married.

History: 2015 a. 300.

711.14 Uniformity of application and construction.This chapter shall be applied and construed to effectuate its gen-eral purpose to make uniform the law with respect to the subjectof this chapter among states enacting it.

History: 2015 a. 300.

711.15 Relation to Electronic Signatures in Global andNational Commerce Act. This chapter modifies, limits, orsupersedes the Electronic Signatures in Global and National Com-merce Act, 15 USC 7001 et seq., but does not modify, limit, orsupersede section 101 (c) of that act, 15 USC 7001 (c), or autho-rize electronic delivery of any of the notices described in section103 (b) of that act, 15 USC 7003 (b).

History: 2015 a. 300.

711.16 Applicability. (1) This chapter applies to all of thefollowing:

(a) A fiduciary acting under a will or power of attorney exe-cuted before, on, or after April 1, 2016.

(b) A personal representative acting for a decedent who diedbefore, on, or after April 1, 2016.

(c) A guardianship or conservatorship proceeding, whetherpending in a court or commenced before, on, or after April 1,2016.

(d) A trustee acting under a trust created before, on, or afterApril 1, 2016.

(2) This chapter applies to a custodian only if the user residesin this state or resided in this state at the time of the user’s death.

(3) This chapter does not apply to digital property of anemployer used by an employee in the ordinary course of theemployer’s business.

History: 2015 a. 300.















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tody, and constitutes a substantial handicap to the afflicted indi-vidual. The term does not include dementia that is primarilycaused by degenerative brain disorder.

(9) “Durable power of attorney” has the meaning given in s.244.02 (3).

(9g) “Foreign court” means a court of a foreign state havingcompetent jurisdiction of a foreign ward.

(9i) “Foreign guardian” means a guardian appointed by a for-eign court for a foreign ward.

(9k) “Foreign guardianship” means a guardianship issued bya foreign court.

(9m) “Foreign state” means a state other than this state.(9p) “Foreign ward” means an individual who has been found

by a foreign court to be incompetent or a spendthrift and who issubject to a guardianship order or related order in a foreign state.

(10) “Guardian” means a person appointed by a court unders. 54.10 to manage the income and assets, which may include, bycourt order, digital property, as defined in s. 711.03 (10), and pro-vide for the essential requirements for health and safety and thepersonal needs of a minor, an individual found incompetent, or aspendthrift.

(11) “Guardian of the estate” means a guardian appointed tocomply with the duties specified in s. 54.19 and to exercise any ofthe powers specified in s. 54.20.

(12) “Guardian of the person” means a guardian appointed tocomply with the duties specified in s. 54.25 (1) and to exercise anyof the powers specified in s. 54.25 (2).

(13) “Heir” means any person, including the survivingspouse, who is entitled under the statutes of intestate successionto an interest in property of a decedent. The state is an heir of thedecedent and a person interested under s. 45.37 (10) and (11) whenthe decedent was a member of the Wisconsin Veterans Home atKing or at the facilities operated by the department of veteransaffairs under s. 45.50 at the time of the decedent’s death.

(14) “Impairment” means a developmental disability, seriousand persistent mental illness, degenerative brain disorder, or otherlike incapacities.

(15) “Incapacity” means the inability of an individual effec-tively to receive and evaluate information or to make or communi-cate a decision with respect to the exercise of a right or power.

(16) “Individual found incompetent” means an individualwho has been adjudicated by a court as meeting the requirementsof s. 54.10 (3).

(17) “Interested person” means any of the following:(a) For purposes of a petition for guardianship, any of the fol-

lowing:1. The proposed ward, if he or she has attained 14 years of age.2. The spouse or adult child of the proposed ward, or the par-

ent of a proposed ward who is a minor.3. For a proposed ward who has no spouse, child, or parent,

an heir, as defined in s. 851.09, of the proposed ward that may bereasonably ascertained with due diligence.

4. Any individual who is nominated as guardian, any individ-ual who is appointed to act as guardian or fiduciary for the pro-posed ward by a court of any state, any trustee for a trust estab-lished by or for the proposed ward, any person appointed as agentunder a power of attorney for health care, as defined in s. 155.01(4), or any person appointed as agent under a durable power ofattorney under ch. 244.

5. If the proposed ward is a minor, the individual who hasexercised principal responsibility for the care and custody of theproposed ward during the period of 60 consecutive days immedi-ately before the filing of the petition.

6. If the proposed ward is a minor and has no living parent,any individual nominated to act as fiduciary for the minor in a willor other written instrument that was executed by a parent of theminor.

7. If the proposed ward is receiving moneys paid, or if moneysare payable, by the federal department of veterans affairs, a repre-sentative of the federal department of veterans affairs, or, if theproposed ward is receiving moneys paid, or if moneys are pay-able, by the state department of veterans affairs, a representativeof the state department of veterans affairs.

8. If the proposed ward is receiving long−term support ser-vices or similar public benefits, the county department of humanservices or social services that is providing the services or bene-fits.

9. The corporation counsel of the county in which the petitionis filed and, if the petition is filed in a county other than the countyof the proposed ward’s residence, the corporation counsel of thecounty of the proposed ward’s residence.

10. Any other person required by the court.(b) For purposes of proceedings subsequent to an order for

guardianship, any of the following:1. The guardian.2. The spouse or adult child of the ward or the parent of a

minor ward.3. The county of venue, through the county’s corporation

counsel, if the county has an interest.4. Any person appointed as agent under a durable power of

attorney under ch. 244, unless the agency is revoked or terminatedby a court.

5. Any other individual that the court may require, includingany fiduciary that the court may designate.

(18) “Least restrictive” means that which places the least pos-sible restriction on personal liberty and the exercise of rights andthat promotes the greatest possible integration of an individualinto his or her community that is consistent with meeting his or heressential requirements for health, safety, habilitation, treatment,and recovery and protecting him or her from abuse, exploitation,and neglect.

(19) “Meet the essential requirements for physical health orsafety” means perform those actions necessary to provide thehealth care, food, shelter, clothes, personal hygiene, and other carewithout which serious physical injury or illness will likely occur.

(20) “Minor” means an individual who has not attained theage of 18 years.

(21) “Mortgage” means any agreement or arrangement inwhich property is used as security.

(22) “Other like incapacities” means those conditionsincurred at any age that are the result of accident, organic braindamage, mental or physical disability, or continued consumptionor absorption of substances, and that produce a condition that sub-stantially impairs an individual from providing for his or her owncare or custody.

(23) “Personal representative” means any individual to whomletters to administer a decedent’s estate have been granted by thecourt or by the probate registrar under ch. 865, but does notinclude a special administrator.

(24) “Physician” has the meaning given in s. 448.01 (5).(25) “Property” means any interest, legal or equitable, in real

or personal property, without distinction as to kind, includingmoney, rights of a beneficiary under a contractual arrangement,digital property, as defined in s. 711.03 (10), choses in action, andanything else that may be the subject of ownership.

(26) “Proposed ward” means a minor, an individual alleged tobe incompetent, or an alleged spendthrift, for whom a petition forguardianship is filed.

(27) “Psychologist” means a licensed psychologist, asdefined in s. 455.01 (4).

(28) “Psychotropic medication” means a prescription drug, asdefined in s. 450.01 (20), that is used to treat or manage a psychiat-ric symptom or challenging behavior.

(29) “Sale” includes an option or agreement to transferwhether the consideration is cash or credit. It includes exchange,






















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GUARDIANSHIPS AND CONSERVATORSHIPS 54.217 Updated 13−14 Wis. Stats.



appointed, apply to be appointed the ward’s representative payee,or ensure that a representative payee is appointed.

(10) Perform any other duty required by the court order.History: 2005 a. 387 ss. 100, 388, 413; 2007 a. 45.

54.20 Powers of guardian of the estate. (1) STANDARD.

In exercising the powers under this section, the guardian of theestate shall use the judgment and care that persons of prudence,discretion, and intelligence exercise in the management of theirown affairs, including the permanent, rather than speculative, dis-position of their funds and consideration of the probable incomeand safety of their capital. In addition, in exercising powers andduties under this section, the guardian of the estate shall consider,consistent with the functional limitations of the ward, all of the fol-lowing:

(a) The ward’s understanding of the harm that he or she islikely to suffer as the result of his or her inability to manage prop-erty and financial affairs.

(b) The ward’s personal preferences and desires with regard tomanaging his or her activities of daily living.

(c) The least restrictive form of intervention for the ward.(2) POWERS REQUIRING COURT APPROVAL. The guardian of the

estate may do any of the following with respect to the ward’sincome and assets only with the court’s prior written approval fol-lowing any petition and upon any notice and hearing that the courtrequires:

(a) Make gifts, under the terms, including the frequency,amount, and donees specified by the court in approval of a petitionunder s. 54.21.

(b) Transfer assets of the ward to the trustee of any existingrevocable living trust that the ward has created for himself or her-self and any dependents, or, if the ward is a minor, to the trusteeof any trust created for the exclusive benefit of the ward that dis-tributes to him or her at age 18 or 21, or, if the ward dies beforeage 18 or 21, to his or her estate, or as the ward has appointed bya written instrument that is executed after the ward attains age 14.

(c) Establish a trust as specified under 42 USC 1396p (d) (4)and transfer assets into the trust.

(d) Purchase an annuity or insurance contract and exerciserights to elect options or change beneficiaries under insurance andannuity policies and to surrender the policies for their cash value.

(e) Ascertain, establish, and exercise any rights available to theward under a retirement plan or account.

(f) Exercise any elective rights that accrue to the ward as theresult of the death of the ward’s spouse or parent.

(g) Release or disclaim, under s. 854.13, any interest of theward that is received by will, intestate succession, nontestamen-tary transfer at death, or other transfer.

(h) If appointed for a married ward, exercise any managementand control right over the marital property or property other thanmarital property and any right in the business affairs that the mar-ried ward could exercise under ch. 766 if the ward were not anindividual found incompetent, consent to act together in or join inany transaction for which consent or joinder of both spouses isrequired, or execute under s. 766.58 a marital property agreementwith the ward’s spouse or, if appointed for a ward who intends tomarry, with the ward’s intended spouse, but may not make, amendor revoke a will.

(i) Provide support for an individual whom the ward is notlegally obligated to support.

(j) Convey or release a contingent or expectation interest inproperty, including a marital property right and any right of survi-vorship that is incidental to a joint tenancy or survivorship maritalproperty.

(k) In all cases in which the court determines that it is advanta-geous to continue the business of a ward, continue the business onany terms and conditions specified in the order of the court.

(L) Apply to the court for adjustment of any claims against theward incurred before entry of the order appointing the guardian orthe filing of a lis pendens as provided in s. 54.47. The court shallby order fix the time and place it will adjust claims and the timewithin which all claims shall be presented. Notice of these timesand the place shall be given by publication as provided in s. 879.05(4), and ch. 859 generally shall apply. After the court has madethe order, no action or proceeding may be commenced or main-tained in any court against the ward upon any claim over whichthe circuit court has jurisdiction.

(m) Access the ward’s digital property in accordance with s.711.08.

(3) POWERS THAT DO NOT REQUIRE COURT APPROVAL. Theguardian of the estate may do any of the following on behalf of theward without first receiving the court’s approval:

(a) Provide support from the ward’s income and assets for anindividual whom the ward is legally obligated to support.

(b) Enter into a contract, other than a contract under sub. (2)or that is otherwise prohibited under this chapter.

(c) Exercise options of the ward to purchase securities or otherproperty.

(d) Authorize access to or release of the ward’s confidentialfinancial records.

(e) Apply for public and private benefits.(f) Retain any real or personal property that the ward possesses

when the guardian is appointed or that the ward acquires by giftor inheritance during the guardian’s appointment.

(g) Subject to ch. 786, sell, mortgage, pledge, lease, orexchange any asset of the ward at fair market value.

(h) Invest and reinvest the proceeds of sale of any assets of theward and any of the ward’s other moneys in the guardian’s posses-sion in accordance with ch. 881.

(i) Notwithstanding ch. 881, after such notice as the courtdirects, and subject to ch. 786, invest the proceeds of sale of anyassets of the ward and any of the ward’s other moneys in the guard-ian’s possession in the real or personal property that is determinedby the court to be in the best interests of the estate of the ward.

(j) Settle all claims and accounts of the ward and appear for andrepresent the ward in all actions and proceedings except those forwhich another person is appointed.

(k) Take any other action, except an action specified under sub.(2), that is reasonable or appropriate to the duties of the guardianof the estate.

History: 2005 a. 387 ss. 100, 380, 383, 390, 391, 393, 395, 396, 399, 415, 417;2015 a. 300.

The standard for a trial court’s exercise of discretion for a guardian of a marriedperson is whether the proposed action will benefit the ward, the estate, or membersof the ward’s immediate family. In Matter of Guardianship of F.E.H. 154 Wis. 2d 576,453 N.W.2d 882 (1990).

A guardian is not authorized to make gifts from the guardianship estate to effectu-ate an estate plan that would avoid future death taxes. Michael S.B. v. Berns, 196 Wis.2d 920, 540 N.W.2d 11 (Ct. App. 1995), 95−0580.

A guardian may not sue for the loss of society and companionship of a ward, norbring a separate claim for costs incurred or income lost on account of injuries to theward. Conant v. Physicians Plus Medical Group, Inc. 229 Wis. 2d 271, 600 N.W.2d21 (Ct. App. 1999), 98−3285.

An interested party without a direct financial stake in the action had standing toappeal an order order permitting the termination of the ward’s life lease in real estate.Carla S. v. Frank B. 2001 WI App 97, 242 Wis. 2d 605, 626 N.W.2d 330, 99−3012.

NOTE: The above annotations relate to guardianships under ch. 880, stats.,prior to the r evision of and renumbering of that chapter to ch. 54 by 2005 Wis.Act 387.

54.21 Petition to transfer ward’ s assets to another .(1) In this section:

(a) “Disabled” has the meaning given in s. 49.468 (1) (a) 1.(b) “Other individual” means any of the following:1. The ward’s spouse, if any.2. The ward’s close friend, if any, and if the close friend meets

the requirements of s. 50.94 (3) (e) 1. and 2.3. The guardian ad litem of the ward’s minor child, if any.4. The ward’s disabled child, if any.


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UNIFORM POWER OF ATTORNEY 244.031 Updated 13−14 Wis. Stats.



CHAPTER 244

UNIFORM POWER OF ATTORNEY FOR FINANCES AND PROPERTY

SUBCHAPTER IGENERAL PROVISIONS

244.01 Short title.244.02 Definitions.244.03 Applicability.244.04 Power of attorney is durable.244.05 Execution of power of attorney.244.06 Validity of power of attorney.244.07 Meaning and effect of power of attorney.244.08 Nomination of guardian; relation of agent to court−appointed fiduciary.244.09 When a power of attorney is effective.244.10 Termination of power of attorney or agent’s authority.244.11 Coagents and successor agents.244.12 Reimbursement and compensation of agent.244.13 Agent’s acceptance.244.14 Agent’s duties.244.15 Exoneration of agent.244.16 Judicial relief.244.17 Agent’s liability.244.18 Agent’s resignation; notice.244.19 Protection of persons that accept and rely upon an acknowledged power

of attorney.244.20 Refusal to accept acknowledged power of attorney.244.21 Laws applicable to financial institutions and entities.

SUBCHAPTER IIAUTHORITY

244.41 Authority that requires specific grant, grant of general authority.244.42 Incorporation of authority.244.43 Construction of authority generally.244.44 Real property.244.445 Digital property.244.45 Tangible personal property.244.46 Stocks and bonds.244.47 Commodities and options.244.48 Banks and other financial institutions.244.49 Operation of entity or business.244.50 Insurance and annuities.244.51 Estates, trusts, and other beneficial interests.244.52 Claims and litigation.244.53 Personal and family maintenance.244.54 Benefits from governmental programs or civil or military service.244.55 Retirement plans.244.56 Taxes.244.57 Gifts.244.61 Statutory Form Power of Attorney for Finances and Property.244.62 Agent’s certification.244.63 Distribution of forms.244.64 Relation to power of attorney for health care.

SUBCHAPTER I

GENERAL PROVISIONS

244.01 Short title. This chapter may be cited as the UniformPower of Attorney for Finances and Property Act.

History: 2009 a. 319.Procedural Gray Areas: New Power of Attorney for Finances. Beermann & John-

son. Wis. Law. Oct. 2011.

244.02 Definitions. In this chapter:(1) “Agent” means a person granted authority to act for a prin-

cipal under a power of attorney, whether denominated an agent,attorney−in−fact, or otherwise.

(2) “Domestic partner” has the meaning given in s. 770.01 (1).(3) “Durable power of attorney” means a power of attorney

that is not terminated by the principal’s incapacity.(4) “Electronic” means relating to technology having electri-

cal, digital, magnetic, wireless, optical, electromagnetic, or simi-lar capabilities.

(5) “Genuine” means free of forgery or counterfeiting.(6) “Good faith” means honesty in fact.(7) “Incapacity” means inability of an individual to manage

property, finances, or business affairs because the individualmeets one of the following criteria:

(a) Has an impairment in the ability to receive and evaluateinformation or make or communicate decisions even with the useof technological assistance.

(b) Is missing.(c) Is detained, including incarceration in a correctional facil-

ity.(d) Is outside the United States and unable to return.(8) “Person” means an individual, corporation, business trust,

estate, trust, partnership, limited liability company, association,joint venture, public corporation, government or governmentalsubdivision, agency, or instrumentality, or any other legal or com-mercial entity.

(9) “Power of attorney” means a writing or other record thatgrants authority to an agent to act in the place of the principal,whether or not the term power of attorney is used.

(10) “Presently exercisable general power of appointment,”with respect to property or a property interest subject to a powerof appointment, means power exercisable at the time in questionto vest absolute ownership in the principal individually, the princi-pal’s estate, the principal’s creditors, or the creditors of the princi-pal’s estate. The term does not include a power exercisable in afiduciary capacity or only by will. The term includes a power ofappointment that is exercisable only when one of the followingcircumstances exists:

(a) The occurrence of a specified event.(b) The satisfaction of an ascertainable standard.(c) The passage of a specified period only after the occurrence

of the specified event, the satisfaction of the ascertainable stan-dard, or the passage of the specified period.

(11) “Principal” means an individual who grants authority toan agent in a power of attorney.

(12) “Property” means anything that may be the subject ofownership, including real or personal property, digital property, asdefined in s. 711.03 (10), or any interest or right in that property.

(13) “Record” means information that is inscribed on a tangi-ble medium or that is stored in an electronic or other medium andis retrievable in perceivable form.

(14) “Sign” means, with present intent to authenticate oradopt a record, any of the following:

(a) To execute or adopt a tangible symbol.(b) To attach to or logically associate with the record an elec-

tronic sound, symbol, or process.(15) “Stocks and bonds” means stocks, bonds, mutual funds,

and all other types of securities and financial instruments, whetherheld directly, indirectly, or in any other manner. The term does notinclude commodity futures contracts and call or put options onstocks or stock indexes.

History: 2009 a. 319; 2015 a. 300.

244.03 Applicability. This chapter applies to all powers ofattorney except for the following:

(1) A power to the extent it is coupled with an interest in thesubject of the power, including a power given to or for the benefitof a creditor in connection with a credit transaction.

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(c) The person has no good faith basis for refusal under sub.(1).

(3) If a person requests a certification, a translation, or anopinion of counsel under s. 244.19 (4), the person shall accept thepower of attorney no later than 5 business days after receipt of thecertification, translation, or opinion of counsel, provided thatthere is no other good faith reason to refuse under sub. (1).

(4) It is not a refusal to accept an acknowledged power ofattorney if any of the following applies:

(a) The person requests but does not require that an additionalor different power of attorney form be used.

(b) The person has requested but has not received a certifica-tion, a translation, or an opinion of counsel under s. 244.19 (4).

(5) If a person refuses to accept an acknowledged power ofattorney in violation of this section, the person requesting theacceptance may request that a court order all of the following:

(a) Acceptance of the power of attorney.(b) In any action or proceeding that confirms the validity of the

power of attorney or mandates acceptance of the power of attor-ney, payment of reasonable attorney fees, notwithstanding s.814.04 (1), and costs by the person who refuses to accept thepower of attorney.

(6) If a court determines that a proceeding to mandate accept-ance of an acknowledged power of attorney was brought otherthan in good faith, the court may award reasonable attorney feesand costs to the prevailing party.

History: 2009 a. 319.

244.21 Laws applicable to financial institutions andentities. This chapter does not supersede any other law applica-ble to financial institutions or insurance companies, and the otherlaw controls if in conflict with this chapter.

History: 2009 a. 319.

SUBCHAPTER II

AUTHORITY

244.41 Authority that requires specific grant, grant ofgeneral authority . (1) An agent under a power of attorney maydo any of the following on behalf of the principal or with the prin-cipal’s property only if the power of attorney expressly grants theagent the authority and the exercise of that authority is not other-wise prohibited by another agreement or instrument to which theauthority or property is subject:

(a) Create, amend, revoke, or terminate an inter vivos trust.(b) Make a gift.(c) Create or change rights of survivorship.(d) Create or change a beneficiary designation.(e) Delegate authority granted under the power of attorney.(f) Waive the principal’s right to be a beneficiary of a joint and

survivor annuity, including a survivor benefit under a retirementplan.

(g) Exercise fiduciary powers that the principal has authorityto delegate.

(h) Disclaim property, including a power of appointment.(i) Access the content of an electronic communication, as

defined in s. 711.03 (6), sent or received by the principal.(2) Notwithstanding a grant of authority to do an act described

in sub. (1), unless the power of attorney otherwise provides, anagent who is not a spouse or domestic partner of the principal, maynot do any of the following:

(a) Exercise authority under a power of attorney to create in theagent an interest in the principal’s property, whether by gift, rightof survivorship, beneficiary designation, disclaimer, or otherwise.

(b) Exercise authority under a power of attorney to create inan individual to whom the agent owes a legal obligation of sup-

port, an interest in the principal’s property, whether by gift, rightof survivorship, beneficiary designation, disclaimer, or otherwise.

(3) Subject to subs. (1), (2), (4), and (5), if a power of attorneygrants to an agent the authority to do all acts that a principal coulddo, the agent has the general authority described in ss. 244.44 to244.56.

(4) Unless the power of attorney otherwise provides, a grantof authority to make a gift is subject to s. 244.57.

(5) Subject to subs. (1), (2), and (4), if the subjects over whichauthority is granted in a power of attorney are similar or overlap,the broadest authority controls.

(6) Authority granted in a power of attorney is exercisablewith respect to property that the principal has when the power ofattorney is executed or acquires later, whether or not the propertyis located in this state and whether or not the authority is exercisedor the power of attorney is executed in this state.

(7) An act performed by an agent pursuant to a power of attor-ney has the same effect and inures to the benefit of and binds theprincipal and the principal’s successors in interest as if the princi-pal had performed the act.

History: 2009 a. 319; 2015 a. 300.

244.42 Incorporation of authority . (1) An agent has theauthority described in this subchapter if the power of attorneyrefers to general authority as indicated by section titles for ss.244.44 to 244.56 or cites the section in which the authority isdescribed.

(2) A reference in a power of attorney to general authoritywith respect to the descriptive term for a subject in ss. 244.44 to244.56 or a citation to any of ss. 244.44 to 244.56 incorporates theentire section as if it were set out in full in the power of attorney.

(3) A principal may modify authority incorporated by refer-ence.

History: 2009 a. 319.

244.43 Construction of authority generally . Except asotherwise provided in the power of attorney, by executing a powerof attorney that incorporates by reference a subject described in ss.244.44 to 244.56 or that grants to an agent authority to do all actsthat a principal could do under s. 244.41 (3), a principal authorizesthe agent, with respect to that subject, to do all of the following:

(1) Demand, receive, and obtain by any lawful means, moneyor another thing of value to which the principal is, may become,or claims to be entitled, and conserve, invest, disburse, or use any-thing so received or obtained for the purposes intended.

(2) Contract with any person, on terms agreeable to the agent,to accomplish a purpose of a transaction and perform, rescind,cancel, terminate, reform, restate, release, or modify the contractor another contract made by or on behalf of the principal.

(3) Execute, acknowledge, seal, deliver, file, or record anyinstrument or communication the agent considers desirable toaccomplish a purpose of a transaction, including creating a sched-ule listing some or all of the principal’s property and attaching itto the power of attorney.

(4) Initiate, participate in, submit to alternative dispute resolu-tion, settle, oppose, or propose or accept a compromise withrespect to a claim existing in favor of or against the principal orintervene in litigation relating to the claim.

(5) Seek on the principal’s behalf the assistance of a court orother governmental agency to carry out an act authorized in thepower of attorney.

(6) Engage, compensate, and discharge an attorney, account-ant, discretionary investment manager, expert witness, or otheradvisor.

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(a) Make outright to, or for the benefit of, a person, a gift of anyof the principal’s property, including by the exercise of a presentlyexercisable general power of appointment held by the principal,in an amount per donee not to exceed the annual dollar limits ofthe federal gift tax exclusion under section 2503 (b) of the InternalRevenue Code, without regard to whether the federal gift taxexclusion applies to the gift, or if the principal’s spouse agrees toconsent to a split gift under section 2513 of the Internal RevenueCode, in an amount per donee not to exceed twice the annual fed-eral gift tax exclusion limit.

(b) Consent, under section 2513 of the Internal Revenue Code,to the splitting of a gift made by the principal’s spouse in anamount per donee not to exceed the aggregate annual gift taxexclusions for both spouses.

(c) Make a gift of the principal’s property only as the agentdetermines is consistent with the principal’s objectives if actuallyknown by the agent and, if unknown, as the agent determines isconsistent with the principal’s best interest based on all relevantfactors, including all of the following:

1. The value and nature of the principal’s property.2. The principal’s foreseeable obligations and need for main-

tenance.3. Minimization of taxes, including income, estate, inheri-

tance, generation skipping transfer, and gift taxes.4. Eligibility for a benefit, a program, or assistance under a

statute, rule, or regulation.5. The principal’s personal history of making or joining in

making gifts.History: 2009 a. 319.

244.61 Statutory Form Power of Attorney for Financesand Property . A document substantially in the following formmay be used to create a statutory form power of attorney that hasthe meaning and effect prescribed by this chapter. An appendixshall be attached to this form that includes the text of ss. 244.44to 244.56. The appendix is for definitions only. The agent haspowers only regarding the subjects initialed on the form.

WISCONSIN STATUTORY FORMPOWER OF ATTORNEY

FOR FINANCES AND PROPERTYIMPORTANT INFORMATION

THIS POWER OF ATTORNEY AUTHORIZES ANOTHERPERSON (YOUR AGENT) TO MAKE DECISIONS CON-CERNING YOUR PROPERTY FOR YOU (THE PRINCIPAL).YOUR AGENT WILL BE ABLE TO MAKE DECISIONS ANDACT WITH RESPECT TO YOUR PROPERTY (INCLUDINGYOUR MONEY) WHETHER OR NOT YOU ARE ABLE TOACT FOR YOURSELF. THE MEANING OF AUTHORITYOVER SUBJECTS LISTED ON THIS FORM IS EXPLAINEDIN THE UNIFORM POWER OF ATTORNEY FOR FINANCESAND PROPERTY ACT IN CHAPTER 244 OF THE WIS-CONSIN STATUTES.

THIS POWER OF ATTORNEY DOES NOT AUTHORIZETHE AGENT TO MAKE HEALTH−CARE DECISIONS FORYOU.

YOU SHOULD SELECT SOMEONE YOU TRUST TOSERVE AS YOUR AGENT. UNLESS YOU SPECIFY OTHER-WISE, GENERALLY THE AGENT’S AUTHORITY WILLCONTINUE UNTIL YOU DIE OR REVOKE THE POWER OFATTORNEY OR THE AGENT RESIGNS OR IS UNABLE TOACT FOR YOU.

YOUR AGENT IS ENTITLED TO REASONABLE COM-PENSATION UNLESS YOU STATE OTHERWISE IN THESPECIAL INSTRUCTIONS.

THIS FORM PROVIDES FOR DESIGNATION OF ONEAGENT. IF YOU WISH TO NAME MORE THAN ONEAGENT YOU MAY NAME A COAGENT IN THE SPECIALINSTRUCTIONS. COAGENTS ARE NOT REQUIRED TO

ACT TOGETHER UNLESS YOU INCLUDE THAT REQUIRE-MENT IN THE SPECIAL INSTRUCTIONS.

IF YOUR AGENT IS UNABLE OR UNWILLING TO ACTFOR YOU, YOUR POWER OF ATTORNEY WILL ENDUNLESS YOU HAVE NAMED A SUCCESSOR AGENT. YOUMAY ALSO NAME A 2ND SUCCESSOR AGENT.

THIS POWER OF ATTORNEY BECOMES EFFECTIVEIMMEDIATELY UNLESS YOU STATE OTHERWISE IN THESPECIAL INSTRUCTIONS. THIS POWER OF ATTORNEYDOES NOT REVOKE ANY POWER OF ATTORNEYEXECUTED PREVIOUSLY UNLESS YOU SO PROVIDE INTHE SPECIAL INSTRUCTIONS.

IF YOU REVOKE THIS POWER OF ATTORNEY, YOUSHOULD NOTIFY YOUR AGENT AND ANY OTHER PER-SON TO WHOM YOU HAVE GIVEN A COPY. IF YOURAGENT IS YOUR SPOUSE OR DOMESTIC PARTNER ANDYOUR MARRIAGE IS ANNULLED OR YOU AREDIVORCED OR LEGALLY SEPARATED OR THE DOMES-TIC PARTNERSHIP IS TERMINATED AFTER SIGNINGTHIS DOCUMENT, THE DOCUMENT IS INVALID.

IF YOU HAVE QUESTIONS ABOUT THE POWER OFATTORNEY OR THE AUTHORITY YOU ARE GRANTINGTO YOUR AGENT, YOU SHOULD SEEK LEGAL ADVICEBEFORE SIGNING THIS FORM.

DESIGNATION OF AGENTI .... (name of principal) name the following person as my

agent:Name of agent: ....Agent’s address: ....Agent’s telephone number: ....DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL)If my agent is unable or unwilling to act for me, I name as my

successor agent:Name of successor agent: ....Successor agent’s address: ....Successor agent’s telephone number: ....If my successor agent is unable or unwilling to act for me, I

name as my 2nd successor agent:Name of 2nd successor agent: ....Second successor agent’s address: ....Second successor agent’s telephone number: ....

GRANT OF GENERAL AUTHORITYI grant my agent and any successor agent general authority to

act for me with respect to the following subjects as defined in theUniform Power of Attorney for Finances and Property Act inchapter 244 of the Wisconsin statutes:

INITIAL each subject you want to include in the agent’s gen-eral authority.

.... Real property

.... Tangible personal property

.... Digital property

.... Stocks and bonds

.... Commodities and options

.... Banks and other financial institutions

.... Operation of entity or business

.... Insurance and annuities

.... Estates, trusts, and other beneficial interests

.... Claims and litigation

.... Personal and family maintenance

.... Benefits from governmental programs or civil or militaryservice

.... Retirement plans

.... Taxes








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(8) Communicate with any representative or employee of agovernment or governmental subdivision, agency, or instrumen-tality, on behalf of the principal.

(9) Access communications intended for, and communicateon behalf of, the principal by any means.

(10) Do any lawful act with respect to a subject described inss. 244.44 to 244.56 and all property related to that subject.

History: 2009 a. 319.

244.44 Real property . Unless the power of attorney other-wise provides, language in a power of attorney granting generalauthority with respect to real property authorizes the agent to doall of the following:

(1) Demand, buy, lease, receive, accept as a gift or as securityfor an extension of credit, or otherwise acquire or reject an interestin real property or a right incident to real property.

(2) Sell; exchange; convey with or without covenants, repre-sentations, or warranties; quit claim; release; surrender; retain titlefor security; encumber; partition; consent to partitioning; subjectto an easement or covenant; subdivide; apply for zoning or othergovernmental permits; plat or consent to platting; develop; grantan option concerning; lease; sublease; contribute to an entity inexchange for an interest in that entity; or otherwise grant or dis-pose of an interest in real property or a right incident to real prop-erty.

(3) Pledge or mortgage an interest in real property or rightincident to real property as security to borrow money or pay,renew, or extend the time of payment of a debt of the principal ora debt guaranteed by the principal.

(4) Release, assign, satisfy, or enforce by any lawful means amortgage, deed of trust, conditional sale contract, encumbrance,lien, or other claim to real property which exists or is asserted.

(5) Manage or conserve an interest in real property or a rightincident to real property owned or claimed to be owned by theprincipal, including by doing any of the following:

(a) Insuring against liability or casualty or other loss.(b) Obtaining or regaining possession of or protecting the

interest or right by litigation or otherwise.(c) Paying, assessing, compromising, or contesting taxes or

assessments or applying for and receiving refunds in connectionwith taxes or assessments.

(d) Purchasing supplies, hiring assistance or labor, and makingrepairs or alterations to the real property.

(6) Use, develop, alter, replace, remove, erect, or install struc-tures or other improvements upon real property in or incident towhich the principal has, or claims to have, an interest or right.

(7) Participate in a reorganization with respect to real propertyor an entity that owns an interest in or right incident to real prop-erty and receive, hold, and act with respect to stocks and bonds orother property received in a plan of reorganization, including bydoing any of the following:

(a) Selling or otherwise disposing of the stocks, bonds, orproperty.

(b) Exercising or selling an option, right of conversion, or sim-ilar right with respect to the stocks, bonds, or property.

(c) Exercising any voting rights in person or by proxy.(8) Change the form of title of an interest in or right incident

to real property.(9) Dedicate to public use, with or without consideration,

easements or other real property in which the principal has, orclaims to have, an interest.

History: 2009 a. 319.

244.445 Digital property . Unless the power of attorneyotherwise provides, language in a power of attorney granting gen-eral authority with respect to digital property authorizes the agent,subject to s. 711.06 (1), to do all of the following:

(1) Find, access, manage, protect, distribute, dispose of, trans-fer, transfer ownership rights in, or otherwise control digitaldevices, and any digital property stored thereon, with digitaldevices to include desktops, laptops, tablets, peripherals, storagedevices, mobile telephones, smartphones, and any similar digitaldevice, either currently in existence or that may exist as technol-ogy develops.

(2) Access, manage, distribute, delete, terminate, transfer,transfer ownership rights in, or otherwise control [my] digitalaccounts, other than the content of electronic communications, asdefined in s. 711.03 (6), with digital accounts to include [my] bankor other financial institution accounts, electronic mail accounts,blogs, software licenses, social network accounts, social mediaaccounts, file−sharing and storage accounts, financial manage-ment accounts, domain registration accounts, domain name ser-vice accounts, Web hosting accounts, tax preparation serviceaccounts, online store accounts, and affiliated programs currentlyin existence or that may exist as technology develops.

NOTE: The word in brackets is unnecessary. Corrective legislation is pend-ing.

(3) Access, manage, distribute, delete, transfer, transfer own-ership rights in, or otherwise control any digital property the prin-cipal may own or otherwise possess rights to, other than the con-tent of electronic communications, as defined in s. 711.03 (6),regardless of the ownership of the digital device on which the digi-tal property is stored or the ownership of the digital account withinwhich the digital property is stored.

History: 2015 a. 300.

244.45 Tangible personal property . Unless the power ofattorney otherwise provides, language in a power of attorneygranting general authority with respect to tangible personal prop-erty authorizes the agent to do all of the following:

(1) Demand, buy, receive, accept as a gift or as security for anextension of credit, or otherwise acquire or reject ownership orpossession of tangible personal property or an interest in tangiblepersonal property.

(2) Sell; exchange; convey with or without covenants, repre-sentations, or warranties; quit claim; release; surrender; create asecurity interest in; grant options concerning; lease; sublease; orotherwise dispose of tangible personal property or an interest intangible personal property.

(3) Grant a security interest in tangible personal property or aninterest in tangible personal property as security to borrow moneyor pay, renew, or extend the time of payment of a debt of the princi-pal or a debt guaranteed by the principal.

(4) Release, assign, satisfy, or enforce by litigation or other-wise, a security interest, lien, or other claim on behalf of the princi-pal, with respect to tangible personal property or an interest in tan-gible personal property.

(5) Manage or conserve tangible personal property or an inter-est in tangible personal property on behalf of the principal, includ-ing by doing any of the following:

(a) Insuring against liability or casualty or other loss.(b) Obtaining or regaining possession of or protecting the

property or interest, by litigation or otherwise.(c) Paying, assessing, compromising, or contesting taxes or

assessments or applying for and receiving refunds in connectionwith taxes or assessments.

(d) Moving the property from place to place.(e) Storing the property for hire or under a gratuitous bailment.(f) Using and making repairs, alterations, or improvements to

the property.(6) Change the form of title of an interest in tangible personal

property.History: 2009 a. 319.

244.46 Stocks and bonds. Unless the power of attorneyotherwise provides, language in a power of attorney granting gen-










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(18) “Power of appointment” has the meaning given in s.702.02 (6).

(19) “Power of withdrawal” means a presently exercisablegeneral power of appointment but does not include any of the fol-lowing:

(a) A power exercisable by a trustee and limited by an ascer-tainable standard.

(b) A power exercisable by another person only upon consentof a trustee or of a person holding an adverse interest.

(20) “Property” means anything that may be the subject ofownership, whether real or personal, legal or equitable, or digitalproperty, as defined in s. 711.03 (10), or any interest therein.

(21) “Qualified beneficiary” means a beneficiary who, on thedate on which the beneficiary’s qualification is determined, satis-fies any of the following:

(a) Is a distributee or permissible distributee of trust income orprincipal.

(b) Without considering the existence or exercise of a powerof appointment, other than a power of appointment that has beenirrevocably exercised and notice of the exercise has been given tothe trustee, would be any of the following:

1. A distributee or permissible distributee of trust income orprincipal if the interests of the distributees described in par. (a) ter-minated on that date without causing the trust to terminate.

2. A distributee or permissible distributee of trust income orprincipal if the trust terminated on that date.

(22) “Revocable,” as applied to a trust, means that the trustcan be revoked by the settlor without the consent of the trustee ora person holding an adverse interest, regardless of whether the set-tlor is incapacitated.

(23) “Settlor” means a person, including a testator, whocreates or contributes property to a trust. If more than one personcreates or contributes property to a trust, each person is a settlorof the portion of the trust property attributable to that person’s con-tribution except to the extent another person has the power torevoke the trust or withdraw that portion.

(24) “Special power of appointment” has the meaning givenin s. 702.02 (7).

(25) “Spendthrift provision” means a term of a trust thatrestrains either or both of a voluntary or involuntary transfer of abeneficiary’s interest.

(26) “State” means a state of the United States, the District ofColumbia, Puerto Rico, the United States Virgin Islands, any terri-tory or insular possession subject to the jurisdiction of the UnitedStates, and an Indian tribe, band, or nation recognized by federallaw or formally acknowledged by a state.

(27) “Terms of a trust” means the manifestation of the settlor’sintent regarding a trust’s provisions as expressed in the trustinstrument or as may be established by other evidence that wouldbe admissible in a judicial proceeding.

(28) “Trustee” includes an original, additional, and successortrustee, and a cotrustee.

(29) “Trust for an individual with a disability” means a trustthat is established for the benefit of an individual with a disabilityof any age, if the assets of the trust would not be counted asresources of the individual with a disability for purposes of eligi-bility for medical assistance under subch. IV of ch. 49, if he or sheapplied for medical assistance and was otherwise eligible.

(30) “Trust instrument” means an instrument, including anyamendments or modifications to the instrument under s. 701.0111or subch. IV, that is executed by the settlor that contains terms ofa trust or is created under a statute, judgment, or decree that ordersproperty to be transferred to a trustee to be administered for thebenefit of a beneficiary.

(31) “Trust protector” means a person who, in a trust instru-ment or court order, is granted a power, other than a power of

appointment, in a capacity other than as a trustee or a directingparty.

History: 2013 a. 92; 2015 a. 300.

701.0104 Knowledge. (1) Subject to sub. (2), a person hasknowledge of a fact if any of the following applies:

(a) The person has actual knowledge of the fact.(b) The person has received a notice or notification of the fact.(c) The person has reason to know the fact from all the facts

and circumstances known to the person at the time in question.(2) An organization that conducts activities through employ-

ees has notice or knowledge of a fact involving a trust only fromthe time the information was received by an employee havingresponsibility to act for the trust, or would have been received bythe employee if the organization had exercised reasonable dili-gence. An organization exercises reasonable diligence if it main-tains reasonable routines for communicating significant infor-mation to the employee having responsibility to act for the trustand there is reasonable compliance with the routines. Reasonablediligence does not require an employee of the organization tocommunicate information unless the communication is part of theindividual’s regular duties or the individual knows a matterinvolving the trust would be materially affected by the informa-tion.

History: 2013 a. 92.

701.0105 Default and mandatory rules. (1) Except asotherwise provided in the terms of the trust, this chapter governsthe duties and powers of trustees, directing parties, and trust pro-tectors; relations among trustees, directing parties, and trust pro-tectors; and the rights and interests of beneficiaries.

(2) The terms of a trust prevail over any provision of this chap-ter except for the following:

(a) The requirements for creating a trust.(b) The duty of a trustee or a directing party to act in good faith

and in accordance with the terms and purposes of a trust instru-ment and the interests of the beneficiaries.

(c) The requirement that a trust and its terms be for the benefitof its beneficiaries, and that the trust have a purpose that is lawful.

(d) The power of a court to modify or terminate a trust underss. 701.0410 to 701.0416.

(e) The effect of a spendthrift provision and the rights of cer-tain creditors and assignees to reach a trust as provided in ss.701.0501 to 701.0508.

(f) The power of the court under s. 701.0702.(g) The power of the court under s. 701.0708 (2) to adjust a

trustee’s, directing party’s, or trust protector’s compensationspecified in the terms of the trust.

(h) The effect of an exculpatory term under s. 701.1008.(i) The rights under ss. 701.1010 to 701.1013 of a person other

than a trustee or beneficiary.(j) Periods of limitation for commencing a judicial proceeding.(k) The power of the court to take such action and exercise such

jurisdiction as may be necessary in the interests of justice.(L) The jurisdiction of the court and venue for commencing a

proceeding as provided in ss. 701.0202, 701.0203, and 701.0204.(m) The jurisdiction of the court under ss. 701.0807 (4),

701.0808 (9), and 701.0818 (12).(n) The legal capacity under s. 701.0818 (2) (c) in which a trust

protector who is also serving as a trustee or a directing party mustexercise any power granted to the trust protector.

History: 2013 a. 92; 2013 a. 151 s. 28.

701.0106 Common law of trusts; principles of equity .The common law of trusts and principles of equity supplementthis chapter, except to the extent modified by this chapter oranother statute of this state.






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trustee may appoint assets to a 2nd trust under sub. (2) uponnotice, without court approval, under the procedure described inpar. (b), or with court approval, under the procedure described inpar. (c).

(b) 1. If a trustee chooses to proceed without a court order, thetrustee shall give notice of the manner in which the trustee intendsto appoint assets to a 2nd trust under sub. (2) to all of the following:

a. The qualified beneficiaries of the first trust.b. Each trust protector appointed under the terms of the first

trust.c. Each directing party appointed under the terms of the first

trust.d. The settlor of the first trust, if living.2. To satisfy the trustee’s notice obligation under this para-

graph, a trustee shall provide each person entitled to receive noticeunder subd. 1. all of the following:

a. A copy of the proposed written instrument under which thetrustee will appoint assets to a 2nd trust.

b. The proposed effective date of the appointment.c. A copy of the trust instrument of the first trust.d. A copy of the trust instrument of the 2nd trust.3. A trustee may not appoint assets to the 2nd trust until 30

days after the trustee provides notice as required under this para-graph unless every person who is entitled to receive notice undersubd. 1. waives the 30−day notice period by delivering a signedwritten instrument to the trustee. A person’s waiver of the 30−daynotice period does not constitute that person’s consent to the trust-ee’s appointment of assets to a 2nd trust.

4. If a person entitled to receive notice under subd. 1. deliversa written objection to the trustee before the effective date of theappointment of assets to a 2nd trust, the trustee may not appointthe assets to a 2nd trust, as specified in the trustee’s notice, withoutobtaining court approval under par. (c) unless the written objec-tion is withdrawn.

5. If the trustee does not receive a written objection from anyperson entitled to receive notice under subd. 1. before the effectivedate of the appointment of assets to the 2nd trust or all writtenobjections to the proposed appointment of assets to the 2nd trustare withdrawn, the trustee may appoint the assets to a 2nd trust, asspecified in the notice.

(c) 1. If a trustee chooses to proceed with court approval,including after receiving a written objection to a proposedappointment of assets, the trustee shall petition a court to approvea proposed appointment of assets to a 2nd trust under sub. (2). Thetrustee shall provide notice of the petition to all qualified benefi-ciaries of the first trust, each trust protector appointed under thefirst trust, each directing party appointed under the first trust, andto the settlor of the first trust, if living. The trustee shall includein the notice of the petition the proposed effective date of theappointment of assets to a 2nd trust. The trustee shall also provideto each person who is entitled to receive notice under this para-graph a copy of the proposed instrument under which the trusteewill appoint assets to a 2nd trust, the proposed effective date of theappointment, a copy of the trust instrument of the first trust, anda copy of the trust instrument of the 2nd trust.

2. If a person who is entitled to receive notice under subd. 1.files an objection with the court, in determining whether to grantor deny a petition under subd. 1., the court shall consider all of thefollowing:

a. The purpose of the proposed appointment of assets undersub. (2).

b. The reasons for any objection made by a person entitled toreceive notice under subd. 1.

c. Changes in circumstances that have occurred since the cre-ation of the first trust.

d. Whether the appointment of assets under sub. (2) complieswith the requirements of this section.

3. If no person who is entitled to receive notice under subd.1. files an objection with the court or any objection that has beenfiled with the court is withdrawn, the court shall enter an orderapproving the appointment of assets under sub. (2) as set forth inthe trustee’s notice unless the court determines that the appoint-ment of assets does not comply with the requirements of this sec-tion.

(6) SUBSEQUENTLY DISCOVERED ASSETS. (a) The appointmentof all of the assets of the first trust in favor of the trustee of the 2ndtrust includes subsequently discovered assets otherwise belong-ing to the first trust and assets paid to or acquired by the first trustsubsequent to the appointment in favor of the 2nd trust.

(b) Except as otherwise provided by the trustee of the firsttrust, the appointment of part but not all of the assets of the firsttrust in favor of the 2nd trust does not include subsequently dis-covered assets belonging to the first trust or assets paid to oracquired by the first trust subsequent to the appointment in favorof the 2nd trust, which remain the assets of the first trust.

(7) LIABILITY. (a) This section does not create or imply a dutyon a trustee to appoint assets to a 2nd trust under sub. (2). A trusteethat does not appoint assets to a 2nd trust under sub. (2) is not liablefor the failure to do so.

(b) A trustee who appoints assets to a 2nd trust under sub. (2)is not liable to any beneficiary for any loss related to the appoint-ment unless the trustee did not appoint the assets in good faith.

(8) MISCELLANEOUS PROVISIONS. (a) The appointment ofassets to a 2nd trust under sub. (2) is not an exercise of a generalpower of appointment.

(b) A trustee may appoint assets to a 2nd trust under sub. (2)even if the first trust includes a spendthrift clause or a provisionthat prohibits amendment or revocation of the trust.

(c) This section does not limit a trustee who has a power toinvade principal to appoint property in further trust to the extentthe power arises under the terms of the first trust or under any othersection of this chapter or under another provision of law or undercommon law.

(d) The restriction relating to a trustee under sub. (3) (c) doesnot preclude a cotrustee who does not have a beneficial interest inthe first trust from appointing assets to a 2nd trust under sub. (2)even if the terms of the first trust, applicable law, or other circum-stances would otherwise require the majority or unanimous actionof the trustees of the first trust.

(e) For purposes of this section, if beneficiaries of a first trustare defined as a class of persons, the class shall include any personwho falls within the class of persons after the trustee appointsassets to the 2nd trust.

(f) Notwithstanding s. 701.0103 (23), a trustee of a first trustwho appoints assets to a 2nd trust under sub. (2) or creates a 2ndtrust instrument under sub. (4) is not the settlor of the 2nd trust.

(g) To the extent a directing party or trust protector has thepower to invade the principal of a first trust, as described in sub.(2), this section applies to the directing party or trust protector asif the directing party or trust protector is a trustee.


701.0419 Transfers to trusts. (1) VALIDITY AND EFFECT.The order of execution of a trust instrument and a will or otherinstrument purporting to transfer or appoint property to the trustevidenced by the trust instrument shall be disregarded in deter-mining the validity of the transfer or appointment. No referencein any will to a trust shall cause assets in such trust to be includedin property administered as part of the testator’s estate.

(2) GOVERNING TERMS. Property transferred or appointed bya will or by a beneficiary designation under an employee benefitplan, life insurance policy, or online tool, as defined in s. 711.03(18), or other instrument permitting designation of a beneficiaryto a trust, shall be administered in accordance with the terms of thetrust as the terms of the trust may have been modified prior to thetestator’s or designator’s death, even though the will, beneficiary


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designation, online tool, or other instrument was not reexecutedor republished after exercise of the power to modify, unless thewill, beneficiary designation, online tool, or other instrumentexpressly provides otherwise.

(3) DISPOSITION WHEN NO EXISTING TRUST. If at the death of atestator a trust has been completely revoked, or otherwise termi-nated, a provision in the testator’s will purporting to transfer orappoint property to the trust shall have the following effect, unlessthe will provides otherwise:

(a) If the testator was a necessary party to the revocation orother termination of the trust, the provision in the testator’s willshall be invalid.

(b) If the testator was not a necessary party to the revocationor other termination of such trust, the provision in the testator’swill shall be deemed to create a trust upon the terms of the trustinstrument at the time the will was executed or as otherwise pro-vided where sub. (2) is applicable.

History: 1971 c. 66; 1991 a. 316; 2013 a. 92 s. 132; Stats. 2013 s. 701.0419; 2015a. 300.

SUBCHAPTER V

CREDITOR’S CLAIMS; SPENDTHRIFTAND DISCRETIONARY TRUSTS

701.0501 Rights of beneficiary’ s creditor or assignee.(1) (a) To the extent a beneficiary’s interest is not protected bya spendthrift provision, the court may authorize a judgment credi-tor or an assignee of the beneficiary to reach the beneficiary’sinterest by attachment of present or future distributions to or forthe benefit of the beneficiary or other means. The court may limitthe award to such relief as is appropriate under the circumstances.

(b) This subsection does not apply to a trust for an individualwith a disability.

(2) A trustee is not liable to any creditor of a beneficiary forany distributions made to or for the benefit of the beneficiary ifany of the following applies:

(a) The beneficiary’s interest is protected by a spendthrift pro-vision.

(b) The trust is a trust for an individual with a disability.History: 2013 a. 92.

701.0502 Spendthrift provision. (1) A spendthrift provi-sion is valid only if any of the following applies:

(a) The beneficiary is a person other than the settlor and is nottreated as the settlor under s. 701.0505 (2).

(b) The trust is a trust for an individual with a disability.(2) Subject to sub. (1), a term of a trust providing that the inter-

est of a beneficiary is held subject to a spendthrift trust, or wordsof similar import, restrains both a voluntary and involuntary trans-fer of the beneficiary’s interest.

(3) A beneficiary may not transfer an interest in a trust inviolation of a valid spendthrift provision and, except as otherwiseprovided in this subchapter, a creditor or assignee of the benefi-ciary may not attach, garnish, execute on, or otherwise reach theinterest or a distribution by the trustee before its receipt by thebeneficiary.

(4) Real property or tangible personal property that is ownedby the trust but that is made available for a beneficiary’s occu-pancy or use in accordance with the trustee’s authority under thetrust instrument may not be considered to have been distributed bythe trustee or received by the beneficiary for purposes of allowinga creditor or assignee of the beneficiary to reach the property.


701.0503 Exceptions to spendthrift provision. (1)CLAIMS FOR CHILD SUPPORT. Notwithstanding s. 701.0502, uponapplication of a person having a valid order directing a beneficiary

to make payment for support of the beneficiary’s child, the courtmay do any of the following:

(a) If the beneficiary is entitled to receive income or principalunder the trust, order the trustee to satisfy part or all of the claimout of part or all of payments of income or principal as they aredue, presently or in the future;

(b) If a beneficiary may receive income or principal at the trust-ee’s discretion under the trust, order the trustee to satisfy part orall of the claim out of part or all of future payments of income orprincipal that are made pursuant to the exercise of the trustee’s dis-cretion in favor of such beneficiary.

(2) CLAIMS FOR PUBLIC SUPPORT. Notwithstanding s. 701.0502and except as provided in sub. (3), if the settlor is legally obligatedto pay for the public support of a beneficiary under s. 46.10,49.345, or 301.12 or the beneficiary is legally obligated to pay forthe beneficiary’s public support or for support furnished to thebeneficiary’s spouse or minor child under s. 46.10, 49.345, or301.12, upon application by the appropriate state department orcounty official, the court may do any of the following:

(a) If the beneficiary is entitled to receive income or principalunder the trust, order the trustee to satisfy part or all of the liabilityout of part or all of payments of income or principal as they aredue, presently or in the future;

(b) 1. Except as provided in subd. 2., if the beneficiary mayreceive income or principal at the trustee’s discretion under thetrust, order the trustee to satisfy part or all of the liability out of partor all of future payments of income or principal which are to bemade pursuant to the exercise of the trustee’s discretion in favorof the beneficiary.

2. In the case of a beneficiary who may receive income orprincipal of the trust at the trustee’s discretion and who is a settloror a spouse or minor child of the settlor, order the trustee to satisfypart or all of the liability without regard to whether the trustee hasthen exercised or may thereafter exercise the trustee’s discretionin favor of the beneficiary.

(3) TRUST FOR AN INDIVIDUAL WITH A DISABILITY. Subsection(2) does not apply to any trust for an individual with a disability.

(4) SUBSEQUENT MODIFICATION OF COURT’S ORDER. Any orderentered by a court under sub. (1) or (2) may be modified uponapplication of an interested person.

(5) EXEMPT ASSETS. Assets of a trust that are exempt fromclaims of creditors under other statutes are not subject to sub. (1)or (2).

History: 2013 a. 92 ss. 97, 103 to 107, 111, 112; Stats. 2013 s. 701.0503.Trust income that is income to the beneficiary under federal tax law is subject to

a child support order regardless of whether a distribution is made to the beneficiary.Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995).

In not revealing that he was a trust beneficiary, a father failed to make proper finan-cial disclosure at the time of a divorce as was required by s. 767.127. The rationaleof Grohmann is applicable to both grantor and nongrantor trusts if there is an obliga-tion to report that trust’s income as one’s own because it is the obligation to report theincome that makes the income reachable for calculations of a child support obliga-tion. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811,07−2143.

701.0504 Discretionary trusts; effect of standard.(1) For purposes of this subchapter, and except as provided insub. (3), a beneficiary’s interest in a trust that is subject to the trust-ee’s discretion does not constitute an interest in property or anenforceable right even if the discretion is expressed in the form ofa standard of distribution or the beneficiary is then serving as soletrustee or cotrustee.

(2) Except as provided in this subchapter, a creditor or otherclaimant may not attach present or future distributions from abeneficiary’s interest in property or an enforceable right, obtain anorder from a court forcing the judicial sale of the interest or com-pelling the trustee to make distributions, or reach the interest orright by any other means, even if the trustee has abused the trust-ee’s discretion.

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Updated 13−14 Wis. Stats. 20 701.0816 TRUSTS



(b) Paying the amount to the beneficiary’s custodian under theUniform Transfers to Minors Act under ss. 54.854 to 54.898 or theUniform Custodial Trust Act under ss. 54.950 to 54.988, and, forthat purpose, creating a custodianship or custodial trust.

(c) If the trustee does not know of a conservator, guardian ofthe estate, custodian, or custodial trustee, paying the amount to anadult relative or other person having legal or physical care or cus-tody of the beneficiary or to the guardian of the person of the bene-ficiary, to be expended on the beneficiary’s behalf.

(d) Managing the amount as a separate fund on the beneficia-ry’s behalf, subject to the beneficiary’s continuing right to with-draw the distribution.

(22) On distribution of trust property or the division or ter-mination of a trust, make distributions in divided or undividedinterests, allocate particular assets in proportionate or dispropor-tionate shares, value the trust property for those purposes, andadjust for resulting differences in valuation.

(23) Resolve a dispute concerning the interpretation of thetrust or its administration by mediation, arbitration, or other pro-cedure for alternative dispute resolution.

(24) Prosecute or defend an action, claim, or judicial proceed-ing in any jurisdiction to protect trust property or the trustee, adirecting party, or a trust protector in the performance of the trust-ee’s, directing party’s or trust protector’s duties.

(25) Sign and deliver contracts and other instruments that areuseful to achieve or facilitate the exercise of the trustee’s, direct-ing party’s or trust protector’s powers.

(26) On termination of the trust, exercise the powers appropri-ate to wind up the administration of the trust and distribute the trustproperty to the persons entitled to it.

(27) Create or fund a plan under section 529 of the InternalRevenue Code, or other college savings vehicle, for a beneficia-ry’s benefit.

(28) Obtain digital property, as provided under s. 711.07.History: 2013 a. 92; 2015 a. 300.

701.0817 Distribution upon termination. (1) Upon ter-mination or partial termination of a trust, the trustee may send aproposal for distribution to the beneficiaries of the trust. The rightof any beneficiary to whom the proposal is sent to object to theproposed distribution terminates if the beneficiary does not notifythe trustee of an objection within 30 days after the proposal wassent but only if the proposal informed the beneficiary of the rightto object and of the time allowed for objection.

(2) Upon the occurrence of an event terminating or partiallyterminating a trust, the trustee shall proceed within a reasonabletime to distribute the trust property to the persons entitled to it,subject to the right of the trustee to retain a reasonable reserve forthe payment of debts, expenses, and taxes.

(3) A release by a beneficiary of a trustee from liability forbreach of trust is invalid to the extent any of the following applies:

(a) The release was induced by improper conduct of thetrustee.

(b) The beneficiary, at the time of the release, did not know ofthe beneficiary’s rights or of the material facts relating to thebreach.


701.0818 Trust protectors. (1) APPOINTMENT. A settlor ina trust instrument, a court in a trust instrument or court order, orinterested persons in a nonjudicial settlement agreement may pro-vide for the appointment of a trust protector, whether referred toas a trust protector, another title, or no title. A trust protector hasonly the powers granted to the trust protector in the trust instru-ment, court order, or nonjudicial settlement agreement.

(2) TRUST PROTECTOR POWERS; LEGAL CAPACITY. (a) A settlorin a trust instrument, a court in a trust instrument or court order,or interested persons in a nonjudicial settlement agreement may

specify the legal capacity in which a particular power is exercis-able by a trust protector and whether a power granted to the trustprotector in a capacity other than a fiduciary capacity must beexercised in good faith.

(b) If the settlor, court, or interested persons do not specify thelegal capacity in which a particular power is exercisable by thetrust protector, all of the following apply:

1. The power is exercisable in a fiduciary capacity if it is apower to do any of the following:

a. Interpret or enforce the terms of the trust at the request ofthe trustee.

b. Review and approve the trustee’s reports or accounting.c. Resolve disputes between the trustee or a directing party

and a beneficiary.d. Consent to or veto distributions to a beneficiary.e. Consent to or veto investment actions.2. If it is not a power described in subd. 1. a. to e., the power

is exercisable in a nonfiduciary capacity, including a power to doany of the following:

a. Modify or amend the trust instrument to respond to oppor-tunities related to, or changes in, restraints on alienation or otherstate laws restricting the terms of a trust, the distribution of trustproperty, or the administration of the trust.

b. Modify or amend the trust instrument to achieve a differenttax status or to respond to changes in federal or state law.

c. Change the principal place of administration, the tax situsof the trust, or the governing law of the trust.

d. Eliminate or modify the interests of a beneficiary, add anew beneficiary or class of beneficiaries, or select a beneficiaryfrom an indefinite class.

e. Modify the terms of a power of appointment granted underthe trust.

f. Remove, replace, or appoint a trustee, trust protector, ordirecting party or a successor trustee, trust protector, or directingparty.

g. Terminate the trust.h. Appoint assets to a new trust under s. 701.0418.i. Advise the trustee on matters concerning a beneficiary,

including whether to provide information to a beneficiary unders. 701.0813.

j. Correct errors or ambiguities in the terms of the trust thatmight otherwise require court construction or defeat the settlor’sintent.

3. Notwithstanding subds. 1. and 2., a trust protector who isalso the settlor may exercise any power granted to the trust protec-tor in the trust protector’s personal interests.

4. Notwithstanding subd. 2., a trust protector who is also aqualified beneficiary may exercise any power granted to the trustprotector that is exercisable in a nonfiduciary capacity in the trustprotector’s personal interests.

(c) Notwithstanding pars. (a) and (b) and any provision in thetrust instrument to the contrary, a trust protector who is also serv-ing as the trustee or a directing party shall exercise any powergranted to the trust protector in a fiduciary capacity.

(3) TRUST PROTECTOR DUTIES. (a) If a power is exercisable ina fiduciary capacity, the trust protector shall act in good faith andshall exercise the power in a manner that is consistent with theterms and purposes of the trust instrument, court order, or nonjudi-cial settlement agreement and the interests of the beneficiaries.

(b) If a power is exercisable in a nonfiduciary capacity, thetrust protector shall act in good faith unless the trust instrument,court order, or nonjudicial settlement agreement provides other-wise.

(c) A trust protector does not have a duty to exercise its powers,to monitor the conduct of the trustee or a directing party, or tomonitor changes in the law or circumstances of the beneficiaries.










http://docs.legis.wisconsin.gov/document/statutes/701.0818(2)(b)1.a.

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Updated 13−14 Wis. Stats. 4 705.06 SPECIAL ACCOUNTS; TRANSFERS ON DEATH



(d) Any sums in a marital account may be paid, on request, toeither party without regard to whether the other party is underlegal disability or is deceased, unless the financial institutionreceives actual notice that the other party is deceased. Afterreceipt of actual notice of the death of one party to a maritalaccount, the financial institution may pay on request not more than50% of the sums on deposit to the surviving party, and 50% of thatamount to the personal representative of the deceased party or ifapplicable to any P.O.D. beneficiary of the deceased party’s inter-est, unless before payment is made the financial institutionreceives a verified statement under s. 865.201 or a certified copyof a certificate or recorded application concerning survivorshiprights under s. 867.046, in which case the financial institutionshall make payment as provided in that document.

(2) Payment made under this subchapter discharges the finan-cial institution from all claims for amounts so withdrawn. If theinstitution has reason to believe that a dispute exists as to the rightsof the parties to an account or their successors it may, but shall notbe required to, refuse to pay funds in the account to any personspending instructions from a court, or it may pay the proceeds toa court. An institution may but need not recognize the authorityof an agent, other than one with continuing authority under s.705.05 (3), until it knows of the fact of death or adjudication ofincompetence of all parties appointing such agent and has reason-able opportunity to act.

(3) The protection provided by this section shall have no bear-ing on the rights of parties or their successors in disputes concern-ing the beneficial ownership of funds in or withdrawn from anaccount.

History: 1973 c. 291; 1983 a. 186; 1987 a. 27; 1989 a. 331; 2005 a. 216.A personal representative is not a “party” to an account held as a “joint account”

by the decedent and another who survives; a bank who disburses the funds of the jointaccount to the personal representative is not entitled to immunity under this section.In Matter of Estate of Martz, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992).

Joint bank accounts in Wisconsin. O’Flaherty, 53 MLR 118 (1970).

705.07 Rights of creditors. (1) Only the creditors of anyliving party to an account may subject the entire sums on depositto their claims, as if such sums resulted solely from contributionsmade by the debtor party. If a joint or P.O.D. account requires thesignatures of all of the parties for purposes of withdrawal, suchaccount shall not be subject to the claims of creditors of a debtorparty to the extent of the net contributions of the other parties tothe account. Such other parties shall have the burden of provingtheir net contributions by clear and convincing evidence.

(2) For purposes of ch. 242, a debtor party shall be deemed tohave made a transfer only at the time some other party withdrawsall or part of the sums on deposit, or at the time of the debtor party’sdeath as to sums not previously withdrawn. In the case of a with-drawal while the debtor party is living, the sole grounds for deter-mining any such transfer to be fraudulent shall be whether thedebtor party is or will be thereby rendered insolvent under s.242.05 (1) or whether the debtor party is engaged or is about toengage in a business or transaction for which the assets remainingin the debtor party’s hands after the transfer are unreasonablysmall under s. 242.04 (1) (b) 1. In the case of a transfer by reasonof the death of the debtor party, the sole ground for determiningany such transfer to be fraudulent shall be whether the debtorparty’s estate subject to administration is insolvent under s.242.02. For purposes of this subsection, the amount transferredshall be deemed to consist of those assets which the creditors ofthe debtor party could have made subject to their claims immedi-ately prior to the transfer, less any sums which such creditorscould have made so subject to their claims immediately after thetransfer.

History: 1973 c. 291; 1987 a. 192.

705.08 Construction. This subchapter shall be construed insuch a manner as to ensure reasonable certainty of legal result forthose who establish a multiple−party or agency account.

History: 1973 c. 291; 1989 a. 331.

705.09 Applicability of general transfers at death pro -visions. Chapter 854 applies to transfers at death under this sub-chapter.

History: 1997 a. 188.Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998.

SUBCHAPTER II

NONPROBATE TRANSFERS AT DEATH;NONPROBATE TRANSFER OF REAL PROPERTY

705.10 Nonprobate transfers on death. (1) A provisionfor a nonprobate transfer on death in an insurance policy, contractof employment, bond, mortgage, promissory note, certificated oruncertificated security, account agreement, custodial agreement,deposit agreement, compensation plan, pension plan, individualretirement plan, employee benefit plan, trust, conveyance, onlinetool, as defined in s. 711.03 (18), deed of gift, marital propertyagreement, or other written instrument of a similar nature is non-testamentary. This subsection governs a written provision that:

(a) Money or other benefits due, controlled by or owned by adecedent before death must be paid after the decedent’s death toa person whom the decedent designates either in the instrument orin a separate writing, including a will executed either before or atthe same time as the instrument, or later;

(b) Money due or to become due under the instrument ceasesto be payable in the event of death of the promisee or the promisorbefore payment or demand; or

(c) Any property controlled by or owned by the decedentbefore death which is the subject of the instrument passes to a per-son whom the decedent designates either in the instrument or ina separate writing, including a will executed either before or at thesame time as the instrument, or later.

(2) This section does not limit rights of creditors under otherlaws of this state.

(3) Chapter 854 applies to transfers at death under this section.(4) A transfer under this section does not require confirmation

in any procedure under s. 867.01, 867.02, or 867.03 or ch. 856 or865. A transfer under this section may be confirmed under s.867.046 (1m) or (2).

History: 1989 a. 331; 1997 a. 188; 2005 a. 206 s. 5; 2005 a. 216 s. 35; Stats. 2005s. 705.10; 2007 a. 97 s. 198; 2015 a. 300.

An annuity is an “other written instrument” under sub. (1). A contractual arrange-ment that creates a nonprobate transfer of property subject to this section will defeata marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App151, 237 Wis. 2d 853, 616 N.W.2d 118, 99−1211.

No provision of s. 766.58 (3) or this section permits parties to ignore ch. 854, orto agree to prohibit court involvement in implementing a marital property agreement.That “Washington Will” provisions permit transfer of property without probate doesnot mean the legislature allowed parties to agree to no court involvement in imple-menting transfer of ownership and creating a reliable and public record of transfer.Maciolek v. City of Milwaukee Employees’ Retirement System Annuity and PensionBoard, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04−1254.

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

705.15 Nonprobate transfer of real property on death.(1) An interest in real property that is solely owned, owned byspouses as survivorship marital property, or owned by 2 or morepersons as joint tenants may be transferred without probate to adesignated TOD beneficiary as provided in this section on thedeath of the sole owner or the last to die of the multiple owners.

(2) A TOD beneficiary may be designated on a deed that evi-dences ownership of the property interest in the owner or ownersby including the words “transfer on death” or “pay on death,” orthe abbreviation “TOD” or “POD,” after the name of the owner orowners of the property and before the name of the beneficiary orbeneficiaries. The designation may be included on the originaldeed that passes the property interest to the owner or owners ormay be made at a later time by the sole owner or all then survivingowners by executing and recording another deed that designatesa TOD beneficiary. A TOD beneficiary designation is not effec-tive unless the deed on which the designation is made is recorded.




























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Updated 13−14 Wis. Stats. 2 766.01 MARITAL PROPERTY



(b) An account is “held” by the person who, by the terms of theaccount, has a present right, subject to request, to payment fromthe account other than as an agent. Accounts that are so “held”include accounts under s. 705.01 (1) and brokerage accounts.

(c) An uncertificated security, as defined under s. 408.102 (1)(r), is “held” by the person identified as the registered owner of thesecurity upon books maintained for that purpose by or on behalfof the issuer. If the registered owner of an uncertificated securityis identified as a brokerage account, the security is “held” as pro-vided under par. (b).

(d) The property rights, as specified and described in ss.178.0401 (1), 178.0501, and 178.0502, of a partner in a generalpartnership are “held” by the partner.

NOTE: Par. (d) is shown as amended eff. 7−1−16 by 2015 Wis. Act 295. Priorto 7−1−16 it reads:

(d) The property rights, as specified and described in ss. 178.21 and 178.22,of a partner in a general partnership are “held” by the partner.

(10) “Income” means wages, salaries, commissions, bonuses,gratuities, payments in kind, deferred employment benefits, pro-ceeds, other than death benefits, of any health, accident or disabil-ity insurance policy or of any plan, fund, program or otherarrangement providing benefits similar to those forms of insur-ance, other economic benefits having value attributable to theeffort of a spouse, dividends, dividends on life insurance andannuity contracts to the extent that the aggregate of the dividendsexceeds the aggregate premiums paid, interest, income distributedfrom trusts and estates, and net rents and other net returns attribut-able to investment, rental, licensing or other use of property,unless attributable to a return of capital or to appreciation.

(11) “Management and control” means the right to buy, sell,use, transfer, exchange, abandon, lease, consume, expend, assign,create a security interest in, mortgage, encumber, dispose of, insti-tute or defend a civil action regarding or otherwise deal with prop-erty as if it were property of an unmarried person.

(12) “Marital property agreement” means an agreement thatcomplies with s. 766.58, 766.585, 766.587, 766.588 or 766.589.The term does not include the financial disclosure form under s.766.588 (9) or 766.589 (10).

(13) A person has “notice” of a fact if the person has knowl-edge of it, receives a notification of it, or has reason to know thatit exists from the facts and circumstances known to the person.

(15) “Property” means an interest, present or future, legal orequitable, vested or contingent, in real or personal property,including digital property, as defined in s. 711.03 (10).

(16) “Written consent” means a document signed by a personagainst whose interests it is sought to be enforced.

History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 1991 a. 301; 1997 a. 297; 2015 a.295, 300.

NOTE: 1991 Wis. Act 301, contains legislative council notes.From Common Law Property to Community Property: Wisconsin’s Marital Prop-

erty Act Four Years Later. Erlanger and Weisberger. 1990 WLR 769.

766.03 Applicability. (1) Except as provided in sub. (4) andss. 766.58 (5), (11) and (12) and 766.585, this chapter first appliesto spouses upon their determination date.

(2) After this chapter first applies to spouses, it continues toapply to spouses during marriage. Section 766.75 applies after adissolution. If at the time of the death of a spouse both spouses aredomiciled in this state, the provisions of this chapter which haveapplication after the death of a spouse apply.

(3) The cessation of the application of this chapter because aspouse is no longer domiciled in this state does not by itself affectany property, right, interest or remedy acquired under this chapterby either spouse or by a 3rd party or the satisfaction of any obliga-tion incurred by a spouse under this chapter.

(4) Section 766.97 applies to a spouse in this state whether ornot that person is domiciled in this state.

(5) Any property, right, interest or remedy of a spouse or 3rdparty acquired or property that is available to satisfy an obligationincurred on or after January 1, 1986, and before May 3, 1988, shall

not be adversely affected by 1987 Wisconsin Act 393, sections 10,11, 15, 16, 27, 29 and 32.

(6) This chapter does not affect the property available to sat-isfy an obligation incurred by a spouse that is attributable to anobligation arising when one or both spouses are not domiciled inthis state or to an act or omission occurring when one or bothspouses are not domiciled in this state.

History: 1987 a. 393; 1991 a. 301.NOTE: 1991 Wis. Act 301, contains legislative council notes.

766.15 Responsibility between spouses. (1) Eachspouse shall act in good faith with respect to the other spouse inmatters involving marital property or other property of the otherspouse. This obligation may not be varied by a marital propertyagreement.

(2) Management and control by a spouse of that spouse’sproperty that is not marital property in a manner that limits, dimin-ishes or fails to produce income from that property does not vio-late sub. (1).

History: 1983 a. 186.Intentional misrepresentation is a breach of the duty of good faith for which the

exclusive pre−divorce remedy is s. 766.70 (1). Gardner v. Gardner, 175 Wis. 2d 420,499 N.W.2d 266 (Ct. App. 1993).

766.17 Variation by marital property agreement.(1) Except as provided in ss. 766.15, 766.55 (4m), 766.57 (3) and766.58 (2), a marital property agreement may vary the effect ofthis chapter.

(2) Section 859.18 (6) governs the effect of a marital propertyagreement upon property available for satisfaction of obligationsafter the death of a spouse.

History: 1983 a. 186; 1985 a. 37.

766.31 Classification of property of spouses. (1) GEN-ERAL. All property of spouses is marital property except thatwhich is classified otherwise by this chapter and that which isdescribed in sub. (8).

(2) PRESUMPTION. All property of spouses is presumed to bemarital property.

(3) SPOUSE’S INTEREST IN MARITAL PROPERTY. Each spouse hasa present undivided one−half interest in each item of marital prop-erty, subject to all of the following:

(a) Terminable interest in deferred employment benefit plan.As provided in s. 766.62 (5), the marital property interest of thenonemployee spouse in a deferred employment benefit plan or inassets in an individual retirement account that are traceable to therollover of a deferred employment benefit plan terminates at thedeath of the nonemployee spouse if he or she predeceases theemployee spouse.

(b) Division based on aggregate value at death. 1. Spousesmay provide in a marital property agreement that at the death ofa spouse some or all of their marital property will be divided basedon aggregate value rather than divided item by item. However, atthe death of a spouse, a marital property agreement is not neces-sary for a division of marital property that is not item by item.

2. The surviving spouse and the successor in interest to thedecedent’s share of marital property may enter into an agreementproviding that some or all of the marital property in which eachhas an interest will be divided based on aggregate value rather thandivided item by item.

3. The surviving spouse and a distributee who is a successorin interest to all or part of the decedent’s one−half interest in mari-tal property may petition the court to approve an exchange ofinterests in the marital property authorized under subd. 1. or 2., butcourt approval of the exchange is not required for the agreementunder subd. 1. or 2. to be effective. If the court approves theexchange, the surviving spouse and the distributee shall exchangetheir respective interests in 2 or more items of marital property anddistribute the items in a manner to conform with the exchange.The exchange shall:


http://docs.legis.wisconsin.gov/document/statutes/408.102(1)(r)

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PROVISIONS



851.19 Person. “Person” includes natural persons, corpora-tions and other organizations.

851.21 Person interested. (1) WHO ARE “PERSONS INTER-ESTED”. The following are “persons interested”:

(a) An heir of the decedent.(b) Except as provided in s. 853.32 (2) (e), a beneficiary named

in any document offered for probate as the will of the decedent andincludes a person named or acting as a trustee of any trust, intervivos or testamentary, named as a beneficiary.

(c) A beneficiary of a trust created under any document offeredfor probate as the will of the decedent.

(d) A person named as personal representative in any docu-ment offered for probate as the will of the decedent.

(e) Additional persons as the court by order includes as “inter-ested persons”.

(2) WHO CEASE TO BE “PERSONS INTERESTED”. The followingcease to be “persons interested”:

(a) An heir of the decedent who is not a beneficiary under thewill of the decedent, upon admission of the will to probate underch. 856 or entry of a statement of informal administration underch. 865.

(b) A beneficiary named in documents offered for probate asthe will of the decedent who is not an heir of the decedent, upondenial of probate to such documents.

(c) A person named as personal representative or testamentarytrustee in the will of the decedent, upon the person’s failure to beappointed, the denial of letters by the court, or upon the person’sdischarge.

(d) A beneficiary under the will of a decedent, upon full dis-tribution to the beneficiary.

(e) A beneficiary of a trust created under documents offeredfor probate as the will of the decedent upon the admission of thedecedent’s will to probate and the issuance of letters of trust to thetrustee.

(f) A parent who is barred from inheriting from his or herchild’s intestate estate under s. 852.14 (3).

(3) ADDITIONAL PERSONS INTERESTED. In any proceedings inwhich the interest of a trustee of an inter vivos or testamentarytrust, including a trust under documents offered for probate, con-flicts with the trustee’s duty as a personal representative, or inwhich the trustee or competent beneficiary of the trust cannot rep-resent the interest of the beneficiary under the doctrine of virtualrepresentation, the beneficiary is a person interested in the pro-ceedings.

History: 1973 c. 39; 1993 a. 486; 2005 a. 216; 2015 a. 224.A trust for the benefit of grandchildren includes an illegitimate child whose parents

entered into a void marriage after the child’s birth. In re Trust of Parsons, 56 Wis. 2d613, 203 N.W.2d 40 (1973).

Testamentary dispositions to “children” as including illegitimates — a change inWisconsin law? 57 MLR 174.

851.23 Personal representative. “Personal representa-tive” means any person to whom letters to administer a decedent’sestate have been granted by the court or by the probate registrarunder ch. 865, but does not include a special administrator.

History: 1973 c. 39.

851.27 Property. “Property” means any interest, legal orequitable, in real or personal property, without distinction as tokind, including money, rights of a beneficiary under a contractualarrangement, choses in action, digital property, as defined in s.711.03 (10), and anything else that may be the subject of owner-ship.

History: 1997 a. 188; 2015 a. 300.

851.29 Sale. “Sale” includes an option or agreement to trans-fer whether the consideration is cash or credit. It includesexchange, partition and settlement of title disputes. The intent ofthis section is to extend and not to limit the meaning of “sale”.

851.295 Surviving domestic partner. “Surviving domes-tic partner” means a person who was in a domestic partnershipunder ch. 770 with the decedent, at the time of the decedent’sdeath.


851.30 Surviving spouse. (1) Subject to sub. (2), “surviv-ing spouse” means a person who was married to the decedent atthe time of the decedent’s death.

(2) “Surviving spouse” does not include any of the following:(a) An individual who obtains or consents to a final decree or

judgment of divorce from the decedent or an annulment of theirmarriage, if the decree or judgment is not recognized as valid inthis state, unless they subsequently participate in a marriage cere-mony purporting to marry each other or they subsequently holdthemselves out as husband and wife.

(b) An individual who, following an invalid decree or judg-ment of divorce or annulment obtained by the decedent, partici-pates in a marriage ceremony with a 3rd individual.

(c) An individual who was party to a valid proceeding con-cluded by an order purporting to terminate all property rightsbased on the marriage.

History: 1997 a. 188.

851.31 Will. Unless the context or subject matter indicatesotherwise, “will” includes a codicil and any document incorpo-rated by reference in a testamentary document under s. 853.32 (1)or (2). “Will” does not include a copy, unless the copy has beenproven as a will under s. 856.17, but “will” does include a properlyexecuted duplicate original.

History: 1997 a. 188; 2005 a. 216.

SUBCHAPTER II

GENERAL PROBATE PROVISIONS

851.40 Basis for attorney fees. (1) Any attorney perform-ing services for the estate of a deceased person in any proceedingunder chs. 851 to 879, including a proceeding for informal admin-istration under ch. 865, shall be entitled to just and reasonablecompensation for such services.

(2) Any personal representative, heir, beneficiary under a willor other interested party may petition the court to review any attor-ney’s fee which is subject to sub. (1). If the decedent died intestateor the testator’s will contains no provision concerning attorneyfees, the court shall consider the following factors in determiningwhat is a just and reasonable attorney’s fee:

(a) The time and labor required.(b) The experience and knowledge of the attorney.(c) The complexity and novelty of the problems involved.(d) The extent of the responsibilities assumed and the results

obtained.(e) The sufficiency of assets properly available to pay for the

services, except that the value of the estate may not be the control-ling factor.

History: 1975 c. 329; 1993 a. 490.Cross−reference: See s. 865.16 (1m) review of attorney fees by the probate regis-

trar.An attorney’s failure to communicate with one of the heirs, in violation of a court

order, was an appropriate basis for reducing attorney fees. In Matter of Estate ofHuehne, 175 Wis. 2d 33, 498 N.W.2d 870 (Ct. App. 1993).

An attorney’s fee based on a contract to pay the attorney 4% of the gross estate vio-lated sub. (2) (e). Reduction was a proper exercise of judicial discretion. Estate ofKonopka, 175 Wis. 2d 100, 498 N.W.2d 853 (Ct. App. 1993).

Sub. (1) did not authorize payment for an attorney’s services when it was in theestate’s interest to let the interested parties litigate an issue and when, if the attorney’sposition prevailed, no property would have been added to the estate. Bell v. Neugart,2002 WI App 180, 256 Wis. 2d 969, 650 N.W.2d 52, 01−2533.

Professional responsibility and probate practices. Martin, 1975 WLR 911.

851.50 Status of adopted persons. The status of adoptedpersons for purposes of inheritance and transfers under wills or

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Updated 13−14 Wis. Stats. 4 853.13 WILLS



(2) The execution of a joint will or mutual wills does not createa presumption of a contract not to revoke the will or wills.

History: 1995 a. 225; 1997 a. 188.The existence of an irrevocable contract does not prevent the making of a later will

or its admission to probate. The remedy is an action in equity to enforce the contract.Estate of Schultz, 53 Wis. 2d 643, 193 N.W.2d 655 (1972).

Whether clear and convincing evidence of a contract exists is a fact to be found bythe trial court and given deference by an appellate court. Estate of Czerniejewski, 185Wis. 2d 892, 619 N.W.2d 702 (Ct. App. 1994).

NOTE: The preceding cases were decided prior to the adoption of 1997 Wis.Act 188, which made extensive revisions to this section.

Joint and mutual wills. Kroncke, 43 WBB, No. 5.Contracts to make joint or mutual wills. O’Donnell, 55 MLR 103.

853.15 Equitable election if will attempts to dispose ofproperty belonging to beneficiary . (1) NECESSITY FOR

ELECTION. (a) Unless the will provides otherwise, this subsectionapplies if a will gives a devise to one beneficiary and also clearlypurports to give to another beneficiary property that does not passunder the will but belongs to the first beneficiary by right of own-ership, survivorship, beneficiary designation or otherwise.

(b) If the conditions in par. (a) are fulfilled, the first beneficiarymust elect either to take under the will and transfer his or her prop-erty in accordance with the will or to retain his or her property andnot take under the will. If the first beneficiary elects not to takeunder the will, unless the will provides otherwise his or her deviseunder the will shall be assigned to the other beneficiary.

(c) This section does not require an election if the propertybelongs to the first beneficiary because of transfer or beneficiarydesignation made by the decedent after the execution of the will.

(2) PROCEDURE FOR ELECTION. If an election is required undersub. (1), the following provisions apply:

(a) The court may by order set a time within which the benefi-ciary is required to file with the court a written election either totake under the will and forego, waive or transfer the beneficiary’sproperty interest in favor of the other person to whom it is givenby the will, or to retain such property interest and not take underthe will. The time set shall be not earlier than one month after thenecessity for such an election and the nature of the interest givento the beneficiary under the will have been determined.

(b) If a written election by the beneficiary to take under the willand transfer the beneficiary’s property interest in accordance withthe will has not been filed with the court within the time set byorder, or if no order setting a time has been entered, then prior tothe final judgment, the beneficiary is deemed to have elected notto take under the will.

(c) Except as provided above, participation in the administra-tion by the beneficiary does not constitute an election to take underthe will.

History: 1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1993 a. 486; 1997 a. 188.

853.17 Effect of will provision changing beneficiary oflife insurance or annuity . (1) Any provision in a will whichpurports to name a different beneficiary of a life insurance orannuity contract than the beneficiary properly designated inaccordance with the contract with the issuing company, or itsbylaws, is ineffective to change the contract beneficiary unless thecontract or the company’s bylaws authorizes such a change bywill.

(2) This section does not prevent the court from requiring thecontract beneficiary to elect under s. 853.15 in order to take prop-erty under the will.


853.18 Designation of beneficiary , payee or owner .(1) Except as otherwise provided in s. 853.15 or 853.17 (1) or ch.766, none of the following is subject to or defeated or impaired byany statute or rule of law governing the transfer of property bywill, gift, or intestacy, even though the designation or assignmentis revocable or the rights of the beneficiary, payee, owner, orassignee are otherwise subject to defeasance:

(a) A written designation in accordance with the terms of anyinsurance, annuity, or endowment contract.

(b) Any agreement issued or entered into by an insurance com-pany supplemental to or in settlement of any insurance, annuity,or endowment contract.

(c) Any written designation made under a contract, plan, sys-tem, or trust providing for pension, retirement, deferred com-pensation, stock bonus, profit−sharing, or death benefits, or anemployment or commission contract, of any person to be a benefi-ciary, payee, or owner of any right, title, or interest thereunderupon the death of another, or any assignment of rights under anyof the foregoing.

(d) Directions provided in an online tool, as defined in s.711.03 (18).

(2) This section applies to such designations or assignmentsmade either before or after June 25, 1969, by persons who die onor after that date. This section creates no implication of invalidityas to any designation or assignment, of the nature described in sub.(1), made by any person who dies before that date or as to any dec-laration, agreement or contract for the payment of money or othertransfer of property at death not specified under sub. (1).

History: 1983 a. 186; 2005 a. 216; 2015 a. 300.The phrase “statute governing the transfer of property by will” in sub. (1) refers to

statutes establishing formalities for the execution of a valid will. In Matter of Estateof Habelman, 145 Wis. 2d 228, 426 N.W.2d 363 (Ct. App. 1988).

853.19 Advancement. The effect of a lifetime gift by the tes-tator on the rights of a beneficiary under the will is governed bys. 854.09.

History: 1993 a. 486; 1997 a. 188.

853.25 Unintentional failure to provide for issue of tes -tator. (1) CHILDREN BORN OR ADOPTED AFTER MAKING OF THE

WILL. (a) Applicability. Except as provided in sub. (5), if a willfails to provide for a child of the testator born or adopted after exe-cution of the will, the child is entitled to a share of the estate unlessany of the following applies:

1. It appears from the will or from other evidence that theomission was intentional.

2. The testator provided for the omitted child by transfer out-side the will and the intent that the transfer be in lieu of a testamen-tary provision is shown by the testator’s statements or is reason-ably inferred from the amount of the transfer or other evidence.

(b) Share if testator had no living child at execution. Exceptas provided in sub. (5), if a will fails to provide for a child of thetestator born or adopted after the execution of the will and the tes-tator had no child living when he or she executed the will, theomitted child receives a share in the estate equal in value to thatwhich the child would have received under ch. 852. This para-graph does not apply if the will devised all or substantially all ofthe estate to or for the benefit of the other parent of the omittedchild and that other parent survives the testator and is entitled totake under the will.

(c) Share if testator had living child at execution. Except asprovided in sub. (5), if a will fails to provide for a child of the testa-tor born or adopted after the execution of the will and the testatorhad one or more children living when he or she executed the willand the will devised property to one or more of the then−livingchildren, the omitted child is entitled to share in the testator’sestate as follows:

1. The portion that the omitted child is entitled to share is lim-ited to devises made to the testator’s then−living children underthe will.

2. The omitted child is entitled to receive the share of the testa-tor’s estate, as limited in subd. 1., that the child would havereceived had the testator included all omitted after−born andafter−adopted children with the children to whom devises weremade under the will and had given an equal share of the estate toeach child.







































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WILLS 853.325 Updated 13−14 Wis. Stats.



3. To the extent feasible, the interest granted an omitted childunder this section shall be of the same character, whether equitableor legal, present or future, as that devised to the testator’s then−living children under the will.

4. In satisfying a share provided by this paragraph, devises tothe testator’s children who were living when the will was executedabate ratably. In abating the devises of the then−living children,the court shall preserve to the maximum extent possible the char-acter of the testamentary plan adopted by the testator.

(d) Rights of issue. Except as provided in sub. (5), if a childentitled to a share under this section dies before the testator, andthe child leaves issue who survive the testator, the issue who repre-sent the deceased child are entitled to the deceased child’s share.

(2) LIVING ISSUE OMITTED BY MISTAKE. (a) Except as providedin sub. (5), if clear and convincing evidence proves that the testa-tor failed to provide in the testator’s will for a child living at thetime of making of the will, or for the issue of any then deceasedchild, by mistake or accident, including the mistaken belief thatthe child or issue of a deceased child was dead at the time the willwas executed, the child or issue is entitled to receive a share in theestate of the testator as if the child or issue was born or adoptedafter the execution of the will, as follows:

1. If no children were included in the will but some or all ofthose children were omitted by mistake, then sub. (1) (b) providesfor the share of any child or issue omitted by mistake.

2. If some children were included in the will but other childrenwere omitted by mistake, then sub. (1) (c) provides for the shareof any child or issue omitted by mistake.

(b) Failure to mention a child or issue in the will is not in itselfevidence of mistake or accident.

(3) TIME FOR PRESENTING DEMAND FOR RELIEF. A demand forrelief under this section must be presented to the court in writingnot later than (a) entry of the final judgment, or (b) 6 months afterallowance of the will, whichever first occurs.

(4) FROM WHAT ESTATE SHARE IS TO BE TAKEN. Except as pro-vided in sub. (5), the court shall in its final judgment assign a shareprovided under sub. (1) (b) as follows:

(a) First, from intestate property.(b) Any balance from each devise to a beneficiary under the

will in proportion to the value of the estate each beneficiary wouldhave received under the will as written. If the intention of the tes-tator, shown by clear and convincing evidence, in relation to somespecific gift or other provision in the will would be defeated byassignment of the share as provided in this paragraph, the courtmay adopt a different apportionment and may exempt a specificdevise or other provision.

(5) DISCRETIONARY POWER OF COURT TO ASSIGN DIFFERENT

SHARE. If in any case under sub. (1) or (2) the court determines thatthe share is in a different amount or form from what the testatorwould have wanted to provide for the omitted child or issue of adeceased child, the court may in its final judgment make such pro-vision for the omitted child or issue out of the estate as it deemswould best accord with the intent of the testator.

History: 1993 a. 486; 1997 a. 188; 2005 a. 216.

853.27 Lapse. The rights under a will of a beneficiary whopredeceases the testator are governed by s. 854.06.

History: 1993 a. 486; 1997 a. 188.A will clause providing that if any beneficiary dies within 5 months of the testator,

the deceased beneficiary’s share is to be treated as if the beneficiary predeceased thetestator, served to pass a deceased beneficiary’s share to her children under the anti−lapse statute. Firehammer v. Marchant, 224 Wis. 2d 673, 591 N.W.2d 898 (Ct. App.1999), 98−0586.

853.29 After−acquired property . A will is presumed topass all property that the testator owns at the testator’s death andthat the testator has power to transfer by will, including property

acquired by the testator after the execution of the will or acquiredby the testator’s estate.

History: 1993 a. 486; 1997 a. 188.

853.31 Presumption that will passes all of testator ’sinterest in property . Any gift of property by will is presumedto pass all the estate or interest which the testator could lawfullywill in the property unless it clearly appears by the will, interpretedin light of the surrounding circumstances, that the testatorintended to pass a less estate or interest.

853.32 Effect of reference to another document.(1) INCORPORATION. (am) A will may incorporate by referenceanother writing or document if all of the following apply:

1. The will, either expressly or as construed from extrinsicevidence, manifests an intent to incorporate the other writing ordocument.

2. The other writing or document was in existence when thewill was executed.

3. The other writing or document is sufficiently described inthe will to permit identification with reasonable certainty.

4. The will was executed in compliance with s. 853.03 or853.05.

(bm) A writing or document is incorporated into a will underpar. (am) even if the writing or document is not executed in com-pliance with s. 853.03 or 853.05.

(2) DISPOSITION OF TANGIBLE PERSONAL PROPERTY AND DIGITAL

PROPERTY. (a) 1. A reference in a will to another document thatlists tangible personal property not otherwise specifically dis-posed of in the will disposes of that property if the other documentdescribes the property and the distributees with reasonable cer-tainty and is signed and dated by the decedent. The court mayenforce a document that is not dated but that fulfills all of the otherrequirements under this paragraph.

2. A reference in a will to another document that lists digitalproperty, as defined in s. 711.03 (10), not otherwise specificallydisposed of in the will disposes of that digital property if the otherdocument describes the digital property and the distributees withreasonable certainty and is signed and dated by the decedent. Thecourt may enforce a document that is not dated but that fulfills allof the other requirements under this paragraph.

(am) Another document under par. (a) is valid if it was signedin compliance with s. 853.03 (1) or with the law of the place wherethe document was signed, or where the testator resided, was domi-ciled, or was a national at the time the document was signed or atthe time of death, even if it was not otherwise executed in com-pliance with s. 853.03 (2) or 853.05.

(b) Another document under par. (a) is valid even if any of thefollowing applies:

1. The document does not exist when the will is executed.2. The document is changed after the will is executed.3. The document has no significance except for its effect on

the disposition of property by the will.(c) If the document described in par. (a) is not located by the

personal representative, or delivered to the personal representa-tive or circuit court with jurisdiction over the matter, within 30days after the appointment of the personal representative, the per-sonal representative may dispose of tangible personal propertyaccording to the provisions of the will as if no such documentexists. If a valid document is located after some or all of the tangi-ble personal property has been disposed of, the document controlsthe distribution of the property described in it, but the personalrepresentative incurs no liability for the prior distribution or saleof the property, as long as the time specified in this paragraph haselapsed.






















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Updated 13−14 Wis. Stats. 24 943.60 CRIMES AGAINST PROPERTY



duties and files, enters or records any instrument relating to titleon behalf of another person.

History: 1979 c. 221; 1995 a. 224; 1997 a. 27; 2001 a. 109.Whether a document is frivolous was for the jury to answer. State v. Leist, 141 Wis.

2d 34, 414 N.W.2d 45 (Ct. App. 1987).

943.61 Theft of library material. (1) In this section:(a) “Archives” means a place in which public or institutional

records are systematically preserved.(b) “Library” means any public library; library of an educa-

tional, historical or eleemosynary institution, organization orsociety; archives; or museum.

(c) “Library material” includes any book, plate, picture, photo-graph, engraving, painting, drawing, map, newspaper, magazine,pamphlet, broadside, manuscript, document, letter, public record,microform, sound recording, audiovisual materials in any format,magnetic or other tapes, electronic data processing records, arti-facts or other documentary, written or printed materials, regard-less of physical form or characteristics, belonging to, on loan toor otherwise in the custody of a library.

(2) Whoever intentionally takes and carries away, transfers,conceals or retains possession of any library material without theconsent of a library official, agent or employee and with intent todeprive the library of possession of the material may be penalizedas provided in sub. (5).

(3) The concealment of library material beyond the last stationfor borrowing library material in a library is evidence of intent todeprive the library of possession of the material. The discoveryof library material which has not been borrowed in accordancewith the library’s procedures or taken with consent of a libraryofficial, agent or employee and which is concealed upon the per-son or among the belongings of the person or concealed by a per-son upon the person or among the belongings of another is evi-dence of intentional concealment on the part of the person soconcealing the material.

(4) An official or adult employee or agent of a library who hasprobable cause for believing that a person has violated this sectionin his or her presence may detain the person in a reasonable man-ner for a reasonable length of time to deliver the person to a peaceofficer, or to the person’s parent or guardian in the case of a minor.The detained person shall be promptly informed of the purpose forthe detention and be permitted to make phone calls, but shall notbe interrogated or searched against his or her will before thearrival of a peace officer who may conduct a lawful interrogationof the accused person. Compliance with this subsection entitlesthe official, agent or employee effecting the detention to the samedefense in any action as is available to a peace officer making anarrest in the line of duty.

(5) Whoever violates this section is guilty of:(a) A Class A misdemeanor, if the value of the library materials

does not exceed $2,500.(c) A Class H felony, if the value of the library materials

exceeds $2,500.History: 1979 c. 245; Stats. 1979 s. 943.60; 1979 c. 355 s. 232; Stats. 1979 s.

943.61; 1991 a. 39; 2001 a. 16, 109.

943.62 Unlawful receipt of payments to obtain loan foranother. (1) In this section, “escrow agent” means a state or fed-erally chartered bank, savings bank, savings and loan associationor credit union located in this state.

(2) Except as provided in sub. (2m), no person may receive apayment from a customer as an advance fee, salary, deposit ormoney for the purpose of obtaining a loan or a lease of personalproperty for the customer unless the payment is immediatelyplaced in escrow subject to the condition that the escrow agentshall deliver the payment to the person only upon satisfactoryproof of the closing of the loan or execution of the lease within aperiod of time agreed upon in writing between the person and thecustomer; otherwise the payment shall be returned to the customerimmediately upon expiration of the time period.

(2m) This section does not apply to a savings and loan associ-ation, credit union, bank, savings bank, or a mortgage banker,mortgage loan originator, or mortgage broker licensed under s.224.72 or 224.725.

(3) (a) Advance payments to cover reasonably estimatedcosts are excluded from the requirements of sub. (2) if the cus-tomer first signs a written agreement which recites in capital andlowercase letters of not less than 12−point boldface type all of thefollowing:

1. The estimated costs by item.2. The estimated total costs.3. Money advanced for incurred costs will not be refunded.

(b) If a cost under par. (a) is not incurred, the person shallrefund that amount to the customer.

(4) Whoever violates this section is guilty of:(a) A Class A misdemeanor, if the value of the advance pay-

ment or required refund, as applicable, does not exceed $2,500.(c) A Class F felony, if the value of the advance payment or

required refund, as applicable, exceeds $2,500.History: 1981 c. 20; 1983 a. 167; 1987 a. 359; 1987 a. 403 s. 256; 1995 a. 27; 1997

a. 145; 2001 a. 16, 109; 2009 a. 2.

943.70 Computer crimes. (1) DEFINITIONS. In this section:(ag) “Access” means to instruct, communicate with, interact

with, intercept, store data in, retrieve data from, or otherwise usethe resources of.

(am) “Computer” means an electronic device that performslogical, arithmetic and memory functions by manipulating elec-tronic or magnetic impulses, and includes all input, output, pro-cessing, storage, computer software and communication facilitiesthat are connected or related to a computer in a computer systemor computer network.

(b) “Computer network” means the interconnection of com-munication lines with a computer through remote terminals or acomplex consisting of 2 or more interconnected computers.

(c) “Computer program” means an ordered set of instructionsor statements that, when executed by a computer, causes the com-puter to process data.

(d) “Computer software” means a set of computer programs,procedures or associated documentation used in the operation ofa computer system.

(dm) “Computer supplies” means punchcards, paper tape,magnetic tape, disk packs, diskettes and computer output, includ-ing paper and microform.

(e) “Computer system” means a set of related computer equip-ment, hardware or software.

(f) “Data” means a representation of information, knowledge,facts, concepts or instructions that has been prepared or is beingprepared in a formalized manner and has been processed, is beingprocessed or is intended to be processed in a computer system orcomputer network. Data may be in any form including computerprintouts, magnetic storage media, punched cards and as stored inthe memory of the computer. Data are property.

(g) “Financial instrument” includes any check, draft, warrant,money order, note, certificate of deposit, letter of credit, bill ofexchange, credit or credit card, transaction authorization mecha-nism, marketable security and any computer representation ofthem.

(gm) “Interruption in service” means inability to access a com-puter, computer program, computer system, or computer network,or an inability to complete a transaction involving a computer.

(h) “Property” means anything of value, including but not lim-ited to financial instruments, information, electronically produceddata, digital property, as defined in s. 711.03 (10), computer soft-ware, and computer programs.

(i) “Supporting documentation” means all documentationused in the computer system in the construction, clarification,implementation, use or modification of the software or data.
































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WISCONSIN DIGITAL PROPERTY ACT

Summary Section Comparison

WISCONSIN DIGITAL PROPERY ACT RUFADAA Section

711.01. SHORT TITLE. 1

711.02. LIBERAL CONSTRUCTION ---

711.03. DEFINITIONS 2

711.04 PRIORITIES; USER DIRECTION FOR DISCLOSURE OF DIGITAL PROPERTY 4

711.05. DISCLOSURE OF DIGITAL PROPERTY; PERSONAL REPRESENTATIVE OF A DECEASED USER 7 and 8

711.06. DISCLOSURE OF DIGITAL PROPERTY;AGENT UNDER A POWER OF ATTORNEY 9 and 10

711.07 DISCLOSURE OF DIGITAL PROPERTY HELD IN TRUST. 11, 12 and 13

711.08. DISCLOSURE OF DIGITAL PROPERTY; CONSERVATOR OR GUARDIAN OF PROTECTED PERSON 14

711.09. CHOICE OF METHODS FOR DISCLOSING DIGITAL PROPERTY; CUSTODIAN 6

711.10. CUSTODIAN COMPLIANCE AND IMMUNITY 16

711.11. TERMS OF SERVICE AGREEMENT. 5

711.12. FIDUCIARY DUTY AND AUTHORITY 15

711.13. MARITAL PROPERTY CLASSIFICATION OF DIGITAL PROPERTY ---

711.14. UNIFORMITY OF APPLICATION AND CONSTRUCTION 17

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Appendix C-1

711.15. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT 18

711.16. APPLICABILITY 3

---- SEVERABILITY 19

---- REPEALS; CONFORMING AMENDMENTS 20

---- EFFECTIVE DATE 21

Wis. Stat.

Chapter 711Brief Summary Changes made to corresponding RUFADAA section

Counterpart

Section in RUFADAA

711.01 Short Title Specific Wisconsin Title - Wisconsin Digital Property Act Section 1

711.02 Liberal Construction No counterpart in RUFADAA

711.03 Definitions Digital Property terminology throughout

sub (2) “Agent” - defines an agent as a “person”

sub (5) “Conservator” - references sec. 54.76

sub (7) “Court” - identifies the circuit court having jurisdiction

sub (10) “Digital Property” - means an electronic record in

which a “person” has a right or interest

sub (14) “Fiduciary” - adds “guardian”

sub (15) “Governing Instrument” - is an additional definition

defining the scope of a governing instrument

sub (16) “Guardian” - is an additional definition and references

sec. 54.10

sub (18) “Online tool” - means a “setting” - a standard

technology term providing clarification of meaning

sub (18) “Online tool” - clarifies that it provides directions for

disclosure or nondisclosure of digital property to a “designated

recipient” - providing consistency between sub (18) and sub (9).

sub (20) “Personal Representative” - clarifies that the definition

includes a special administrator and any person who performs

substantially similar functions.

Section 2

Appendix D-1

Chapter 711 Digital Property

Chart listing new Wisconsin Digital Property Act sections compared to correspondong RUFADAA sections

Note: Digital Property has replaced digital assets in every corresponding section of RUFADAA

Also note, various Wisconsin Digital Property Act sections have a style format consistent with other

Wisconsin statutes - in this instance, "STYLE changes" is entered in the respective section commentary

to signify that the Wisconsin statute is, in substance, indentical with RUFADAA,

however is created in a Wisconsin statute style format

Wis. Stat.


Counterpart

Section in RUFADAA

711.03

(cont'd)

sub (21) “Power of Attorney” - means an “instrument” to

distinguish it from a predefined definition of “record” in sub

(24).

sub (23) “Protected person” - clarifies that the guardian or

conservator has been “appointed”.

sub (25) “Trustee” - means a “person”.

sub (25) “Trustee” - includes an “original, additional, and

successor trustee, and a co-trustee”.

sub (29) “Will” - clarifies that the term includes any document

incorporated by reference under sec. 853.32 (1) or (2).

The following sections are subject to STYLE changes:

sub (1); sub (6); sub (9); sub (16) .

The following sections are identical to RUFADAA:

sub (3); sub (4); sub (8); sub 11); sub (12); sub (13); sub (15);

sub (17); sub (20); sub (22); sub (23); sub (24); and sub (26)

711.04 Priorities of User

Direction

Title - changed to emphasize the priorities the user has.

sub (a) - clarifies that disclosure is to a “designated recipient”;

clarifies definition of “governing instrument” is used vs.

“record”, which is predefined in sub (24); STYLE changes.

sub (b) - clarifies definition of “governing instrument” is used

vs. “record”, which is predefined in sub (24); STYLE changes.

sub ( c) - identical to RUFADAA

Section 4

711.05 Disclosures - personal

representative

Title - changed to emphasize personal representative section

Combine RUFADAA Sections 7 and 8 into one section

Reverse content and catalogue sections of RUFADAA to

emphasize frequency of usage of the respective sections - place

RUFADAA section 8 requirements under 711.05 (1) and place

RUFADAA section 7 requirements under 711.05 (2)

Emphasis on differences in requested documentation between

711.05 (1) and (2) by breaking out additional custodian

requirements if content is requested under 711.05 (2).

711.05(2) (b) - clarifies definition of “governing instrument” is

used vs. “record”, which is predefined in sub (24).

Clarify available non probate alternatives under 711.05 ( c).

STYLE changes.

Sections 7 & 8

Wis. Stat.


Counterpart

Section in RUFADAA

711.06 Disclosures - agent

under power of

attorney

Title - changed to emphasize agent under POA section

Combine RUFADAA Sections 9 and 10 into one section








STYLE changes.

Sections 9 & 10

711.07 Disclosures - trustee Title - changed to emphasize trustee section

Combine RUFADAA Sections 11, 12 and 13 into one section









711.07 (2) (b) and 711.07 (3) (b) - clarifies that utilization of a

certification of trust under 701.1013 is satisfactory

documentation to evidence the entire trust instrument.

STYLE changes.

Sections 11, 12 & 13

711.08 Disclosures -

conservator or

guardian

Title - changed to emphasize conservator/guardian section

Addition of guardian provisions.

STYLE changes.

Section 14

Wis. Stat.


Counterpart

Section in RUFADAA

711.09 Custodian choice of

methods to disclose

digital proeprty

Title - Emphasize choice of methods for the custodian

Placement of sections 711.09, 711.10 and 711.11consecutively

in the Chapter to consolidate custodian related sections.

Inclusion of “designated recipient” under 711.09 (2) and (4).

STYLE changes.

Section 6

711.10 Custodian compliance

and immunity



Inclusion of reference to 711.12(7), and an online tool, under

711.10 (1).

STYLE changes.

Section 16

711.11 Terms of Service

Agreements



Inclusion of “designated recipient” under 711.11 (2).

STYLE changes.

Section 5

711.12 Fiduciary duty and

authority

Removal of detailed duties under 711.12 (1).

Clarify available non probate alternatives under 711.12 (7) (b).

Clarify utilization of a certification of trust under 701.1013.

Added section 711.12 (8) relating to limitation of fiduciary duty.

STYLE changes.

Section 15

711.13 Marital Property

classification

No counterpart in RUFADAA

711.14 Uniformity of

application and

construction

STYLE changes.Section 17

711.15 Relation to Electronic

Signatures in Global

and National

Commerce Act

Identical to RUFADAA Section 18

711.16 Applicability STYLE changes. Section 3

REVISED UNIFORM FIDUCIARY ACCESS TO

DIGITAL ASSETS ACT (2015)

drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-TWENTY-FOURTH YEAR

WILLIAMSBURG, VIRGINIA

JULY 10 - JULY 16, 2015

STATUTORY TEXT ONLY

Copyright © 2015

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

September 25, 2015

KenB1

Text Box

Appendix E-1

1

REVISED UNIFORM FIDUCIARY ACCESS TO DIGITAL ASSETS ACT (2015)

SECTION 1. SHORT TITLE. This [act] may be cited as the Revised Uniform

Fiduciary Access to Digital Assets Act (2015).

SECTION 2. DEFINITIONS. In this [act]:

(1) “Account” means an arrangement under a terms-of-service agreement in which a

custodian carries, maintains, processes, receives, or stores a digital asset of the user or provides

goods or services to the user.

(2) “Agent” means an attorney-in-fact granted authority under a durable or nondurable

power of attorney.

(3) “Carries” means engages in the transmission of an electronic communication.

(4) “Catalogue of electronic communications” means information that identifies each

person with which a user has had an electronic communication, the time and date of the

communication, and the electronic address of the person.

(5) “[Conservator]” means a person appointed by a court to manage the estate of a living

individual. The term includes a limited [conservator].

(6) “Content of an electronic communication” means information concerning the

substance or meaning of the communication which:

(A) has been sent or received by a user;

(B) is in electronic storage by a custodian providing an electronic-communication

service to the public or is carried or maintained by a custodian providing a remote-computing

service to the public; and

(C) is not readily accessible to the public.

(7) “Court” means the [insert name of court in this state having jurisdiction in matters

2

relating to the content of this act].

(8) “Custodian” means a person that carries, maintains, processes, receives, or stores a

digital asset of a user.

(9) “Designated recipient” means a person chosen by a user using an online tool to

administer digital assets of the user.

(10) “Digital asset” means an electronic record in which an individual has a right or

interest. The term does not include an underlying asset or liability unless the asset or liability is

itself an electronic record.

(11) “Electronic” means relating to technology having electrical, digital, magnetic,

wireless, optical, electromagnetic, or similar capabilities.

(12) “Electronic communication” has the meaning set forth in 18 U.S.C.

Section 2510(12)[, as amended].

(13) “Electronic-communication service” means a custodian that provides to a user the

ability to send or receive an electronic communication.

(14) “Fiduciary” means an original, additional, or successor personal representative,

[conservator], agent, or trustee.

(15) “Information” means data, text, images, videos, sounds, codes, computer programs,

software, databases, or the like.

(16) “Online tool” means an electronic service provided by a custodian that allows the

user, in an agreement distinct from the terms-of-service agreement between the custodian and

user, to provide directions for disclosure or nondisclosure of digital assets to a third person.

(17) “Person” means an individual, estate, business or nonprofit entity, public

corporation, government or governmental subdivision, agency, or instrumentality, or other legal

3

entity.

(18) “Personal representative” means an executor, administrator, special administrator, or

person that performs substantially the same function under law of this state other than this [act].

(19) “Power of attorney” means a record that grants an agent authority to act in the place

of a principal.

(20) “Principal” means an individual who grants authority to an agent in a power of

attorney.

(21) “[Protected person]” means an individual for whom a [conservator] has been

appointed. The term includes an individual for whom an application for the appointment of a

[conservator] is pending.

(22) “Record” means information that is inscribed on a tangible medium or that is stored

in an electronic or other medium and is retrievable in perceivable form.

(23) “Remote-computing service” means a custodian that provides to a user computer-

processing services or the storage of digital assets by means of an electronic communications

system, as defined in 18 U.S.C. Section 2510(14)[, as amended].

(24) “Terms-of-service agreement” means an agreement that controls the relationship

between a user and a custodian.

(25) “Trustee” means a fiduciary with legal title to property under an agreement or

declaration that creates a beneficial interest in another. The term includes a successor trustee.

(26) “User” means a person that has an account with a custodian.

(27) “Will” includes a codicil, testamentary instrument that only appoints an executor,

and instrument that revokes or revises a testamentary instrument.

4

Legislative Note: In paragraphs (5) and (21), an enacting jurisdiction should replace the

bracketed language with local terminology, if different. Enacting jurisdictions should insert the

appropriate court in paragraph (7) that would have jurisdiction over matters relating to this act.

In jurisdictions in which the constitution, or other law, does not permit the phrase “as amended”

when federal statutes are incorporated into state law, the phrase should be deleted in

paragraphs (12) and (23).

SECTION 3. APPLICABILITY.

(a) This [act] applies to:

(1) a fiduciary acting under a will or power of attorney executed before, on, or

after [the effective date of this [act]];

(2) a personal representative acting for a decedent who died before, on, or after

[the effective date of this [act]];

(3) a [conservatorship] proceeding commenced before, on, or after [the effective

date of this [act]]; and

(4) a trustee acting under a trust created before, on, or after [the effective date of

this [act]].

(b) This [act] applies to a custodian if the user resides in this state or resided in this state

at the time of the user’s death.

(c) This [act] does not apply to a digital asset of an employer used by an employee in the

ordinary course of the employer’s business.

Legislative Note: In subsection (a)(3), an enacting jurisdiction should replace the bracketed

language with local terminology, if different.

SECTION 4. USER DIRECTION FOR DISCLOSURE OF DIGITAL ASSETS.

(a) A user may use an online tool to direct the custodian to disclose or not to disclose

some or all of the user’s digital assets, including the content of electronic communications. If the

online tool allows the user to modify or delete a direction at all times, a direction regarding

5

disclosure using an online tool overrides a contrary direction by the user in a will, trust, power of

attorney, or other record.

(b) If a user has not used an online tool to give direction under subsection (a) or if the

custodian has not provided an online tool, the user may allow or prohibit in a will, trust, power of

attorney, or other record, disclosure to a fiduciary of some or all of the user’s digital assets,

including the content of electronic communications sent or received by the user.

(c) A user’s direction under subsection (a) or (b) overrides a contrary provision in a

terms-of-service agreement that does not require the user to act affirmatively and distinctly from

the user’s assent to the terms of service.

SECTION 5. TERMS-OF-SERVICE AGREEMENT.

(a) This [act] does not change or impair a right of a custodian or a user under a terms-of-

service agreement to access and use digital assets of the user.

(b) This [act] does not give a fiduciary any new or expanded rights other than those held

by the user for whom, or for whose estate, the fiduciary acts or represents.

(c) A fiduciary’s access to digital assets may be modified or eliminated by a user, by

federal law, or by a terms-of-service agreement if the user has not provided direction under

Section 4.

SECTION 6. PROCEDURE FOR DISCLOSING DIGITAL ASSETS.

(a) When disclosing digital assets of a user under this [act], the custodian may at its sole

discretion:

(1) grant a fiduciary or designated recipient full access to the user’s account;

(2) grant a fiduciary or designated recipient partial access to the user’s account

sufficient to perform the tasks with which the fiduciary or designated recipient is charged; or

6

(3) provide a fiduciary or designated recipient a copy in a record of any digital

asset that, on the date the custodian received the request for disclosure, the user could have

accessed if the user were alive and had full capacity and access to the account.

(b) A custodian may assess a reasonable administrative charge for the cost of disclosing

digital assets under this [act].

(c) A custodian need not disclose under this [act] a digital asset deleted by a user.

(d) If a user directs or a fiduciary requests a custodian to disclose under this [act] some,

but not all, of the user’s digital assets, the custodian need not disclose the assets if segregation of

the assets would impose an undue burden on the custodian. If the custodian believes the

direction or request imposes an undue burden, the custodian or fiduciary may seek an order from

the court to disclose:

(1) a subset limited by date of the user’s digital assets;

(2) all of the user’s digital assets to the fiduciary or designated recipient;

(3) none of the user’s digital assets; or

(4) all of the user’s digital assets to the court for review in camera.

SECTION 7. DISCLOSURE OF CONTENT OF ELECTRONIC

COMMUNICATIONS OF DECEASED USER. If a deceased user consented or a court

directs disclosure of the contents of electronic communications of the user, the custodian shall

disclose to the personal representative of the estate of the user the content of an electronic

communication sent or received by the user if the representative gives the custodian:

(1) a written request for disclosure in physical or electronic form;

(2) a [certified] copy of the death certificate of the user;

(3) a [certified] copy of [the letter of appointment of the representative or a small-estate

7

affidavit or court order];

(4) unless the user provided direction using an online tool, a copy of the user’s will, trust,

power of attorney, or other record evidencing the user’s consent to disclosure of the content of

electronic communications; and

(5) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier

assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user; or

(C) a finding by the court that:

(i) the user had a specific account with the custodian, identifiable by the

information specified in subparagraph (A);

(ii) disclosure of the content of electronic communications of the user

would not violate 18 U.S.C. Section 2701 et seq.[, as amended], 47 U.S.C. Section 222[, as

amended], or other applicable law;

(iii) unless the user provided direction using an online tool, the user

consented to disclosure of the content of electronic communications; or

(iv) disclosure of the content of electronic communications of the user is

reasonably necessary for administration of the estate.

Legislative Note: In jurisdictions that certify legal documents, the word “certified” should be

included in paragraphs (2) and (3). Other jurisdictions may substitute a word or phrase that

conforms to the local practice for authentication. Enacting jurisdictions should insert into

paragraph (3) the local term given to a document that authorizes a personal representative to

administer a decedent’s estate. In jurisdictions in which the constitution, or other law, does not

permit the phrase “as amended” when federal statutes are incorporated into state law, the

phrase should be deleted in paragraph (5)(C)(ii).

8

SECTION 8. DISCLOSURE OF OTHER DIGITAL ASSETS OF DECEASED

USER. Unless the user prohibited disclosure of digital assets or the court directs otherwise, a

custodian shall disclose to the personal representative of the estate of a deceased user a catalogue

of electronic communications sent or received by the user and digital assets, other than the

content of electronic communications, of the user, if the representative gives the custodian:


(2) a [certified] copy of the death certificate of the user;

(3) a [certified] copy of [the letter of appointment of the representative or a small-estate

affidavit or court order]; and



assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user;

(C) an affidavit stating that disclosure of the user’s digital assets is reasonably

necessary for administration of the estate; or

(D) a finding by the court that:

(i) the user had a specific account with the custodian, identifiable by the

information specified in subparagraph (A); or

(ii) disclosure of the user’s digital assets is reasonably necessary for

administration of the estate.

Legislative Note: In jurisdictions that certify legal documents, the word “certified” should be

included in paragraphs (2) and (3). Other jurisdictions may substitute a word or phrase that

conforms to the local practice for authentication. Enacting jurisdictions should insert into

paragraph (3) the local term given to a document that authorizes a personal representative to

administer a decedent’s estate.

9

SECTION 9. DISCLOSURE OF CONTENT OF ELECTRONIC

COMMUNICATIONS OF PRINCIPAL. To the extent a power of attorney expressly grants

an agent authority over the content of electronic communications sent or received by the

principal and unless directed otherwise by the principal or the court, a custodian shall disclose to

the agent the content if the agent gives the custodian:


(2) an original or copy of the power of attorney expressly granting the agent authority

over the content of electronic communications of the principal;

(3) a certification by the agent, under penalty of perjury, that the power of attorney is in

effect; and



assigned by the custodian to identify the principal’s account; or

(B) evidence linking the account to the principal.

SECTION 10. DISCLOSURE OF OTHER DIGITAL ASSETS OF PRINCIPAL.

Unless otherwise ordered by the court, directed by the principal, or provided by a power of

attorney, a custodian shall disclose to an agent with specific authority over digital assets or

general authority to act on behalf of a principal a catalogue of electronic communications sent or

received by the principal and digital assets, other than the content of electronic communications,

of the principal if the agent gives the custodian:


(2) an original or a copy of the power of attorney that gives the agent specific authority

over digital assets or general authority to act on behalf of the principal;

10

(3) a certification by the agent, under penalty of perjury, that the power of attorney is in

effect; and



assigned by the custodian to identify the principal’s account; or

(B) evidence linking the account to the principal.

SECTION 11. DISCLOSURE OF DIGITAL ASSETS HELD IN TRUST WHEN

TRUSTEE IS ORIGINAL USER. Unless otherwise ordered by the court or provided in a

trust, a custodian shall disclose to a trustee that is an original user of an account any digital asset

of the account held in trust, including a catalogue of electronic communications of the trustee

and the content of electronic communications.

SECTION 12. DISCLOSURE OF CONTENTS OF ELECTRONIC

COMMUNICATIONS HELD IN TRUST WHEN TRUSTEE NOT ORIGINAL USER.

Unless otherwise ordered by the court, directed by the user, or provided in a trust, a custodian

shall disclose to a trustee that is not an original user of an account the content of an electronic

communication sent or received by an original or successor user and carried, maintained,

processed, received, or stored by the custodian in the account of the trust if the trustee gives the

custodian:


(2) a certified copy of the trust instrument[ or a certification of the trust under [cite

trust-certification statute, such as Uniform Trust Code Section 1013]] that includes consent to

disclosure of the content of electronic communications to the trustee;

(3) a certification by the trustee, under penalty of perjury, that the trust exists and the

11

trustee is a currently acting trustee of the trust; and



assigned by the custodian to identify the trust’s account; or

(B) evidence linking the account to the trust.

SECTION 13. DISCLOSURE OF OTHER DIGITAL ASSETS HELD IN TRUST

WHEN TRUSTEE NOT ORIGINAL USER. Unless otherwise ordered by the court, directed

by the user, or provided in a trust, a custodian shall disclose, to a trustee that is not an original

user of an account, a catalogue of electronic communications sent or received by an original or

successor user and stored, carried, or maintained by the custodian in an account of the trust and

any digital assets, other than the content of electronic communications, in which the trust has a

right or interest if the trustee gives the custodian:


(2) a certified copy of the trust instrument[ or a certification of the trust under [cite

trust-certification statute, such as Uniform Trust Code Section 1013]];

(3) a certification by the trustee, under penalty of perjury, that the trust exists and the

trustee is a currently acting trustee of the trust; and



assigned by the custodian to identify the trust’s account; or

(B) evidence linking the account to the trust.

12

SECTION 14. DISCLOSURE OF DIGITAL ASSETS TO [CONSERVATOR] OF

[PROTECTED PERSON].

(a) After an opportunity for a hearing under [state conservatorship law], the court may

grant a [conservator] access to the digital assets of a [protected person].

(b) Unless otherwise ordered by the court or directed by the user, a custodian shall

disclose to a [conservator] the catalogue of electronic communications sent or received by a

[protected person] and any digital assets, other than the content of electronic communications, in

which the [protected person] has a right or interest if the [conservator] gives the custodian:


(2) a [certified] copy of the court order that gives the [conservator] authority over

the digital assets of the [protected person]; and


(A) a number, username, address, or other unique subscriber or account

identifier assigned by the custodian to identify the account of the [protected person]; or

(B) evidence linking the account to the [protected person].

(c) A [conservator] with general authority to manage the assets of a [protected person]

may request a custodian of the digital assets of the [protected person] to suspend or terminate an

account of the [protected person] for good cause. A request made under this section must be

accompanied by a [certified] copy of the court order giving the [conservator] authority over the

protected person’s property.

Legislative Note: Throughout this section, an enacting jurisdiction should replace the bracketed

terms [conservator] and [protected person] with local terminology, if different. In jurisdictions

that certify legal documents, the word “certified” should be included in subsections (b) and

(c). Other jurisdictions may substitute a word or phrase that conforms to the local practice for

authentication.

13

SECTION 15. FIDUCIARY DUTY AND AUTHORITY.

(a) The legal duties imposed on a fiduciary charged with managing tangible property

apply to the management of digital assets, including:

(1) the duty of care;

(2) the duty of loyalty; and

(3) the duty of confidentiality.

(b) A fiduciary’s authority with respect to a digital asset of a user:

(1) except as otherwise provided in Section 4, is subject to the applicable terms of

service;

(2) is subject to other applicable law, including copyright law;

(3) is limited by the scope of the fiduciary’s duties; and

(4) may not be used to impersonate the user.

(c) A fiduciary with authority over the property of a decedent, [protected person],

principal, or settlor has the right to access any digital asset in which the decedent, [protected

person], principal, or settlor had a right or interest and that is not held by a custodian or subject

to a terms-of-service agreement.

(d) A fiduciary acting within the scope of the fiduciary’s duties is an authorized user of

the property of the decedent, [protected person], principal, or settlor for the purpose of applicable

computer-fraud and unauthorized-computer-access laws, including [this state’s law on

unauthorized computer access].

(e) A fiduciary with authority over the tangible, personal property of a decedent,

[protected person], principal, or settlor:

(1) has the right to access the property and any digital asset stored in it; and

14

(2) is an authorized user for the purpose of computer-fraud and

unauthorized-computer-access laws, including [this state’s law on unauthorized computer

access].

(f) A custodian may disclose information in an account to a fiduciary of the user when the

information is required to terminate an account used to access digital assets licensed to the user.

(g) A fiduciary of a user may request a custodian to terminate the user’s account. A

request for termination must be in writing, in either physical or electronic form, and

accompanied by:

(1) if the user is deceased, a [certified] copy of the death certificate of the user;

(2) a [certified] copy of the [letter of appointment of the representative or a

small-estate affidavit or court order,] court order, power of attorney, or trust giving the fiduciary

authority over the account; and


(A) a number, username, address, or other unique subscriber or account

identifier assigned by the custodian to identify the user’s account;

(B) evidence linking the account to the user; or

(C) a finding by the court that the user had a specific account with the

custodian, identifiable by the information specified in subparagraph (A).

Legislative Note: States with a computer trespass statute should cite to it in subsections (d) and

(e), and may want to amend those statutes to be in accord with this act. In jurisdictions that

certify legal documents, the word “certified” should be included in subsection (g). Other

jurisdictions may substitute a word or phrase that conforms to the local practice for

authentication. In subsections (c) and (e), an enacting jurisdiction should replace the bracketed

language with local terminology, if different.

15

SECTION 16. CUSTODIAN COMPLIANCE AND IMMUNITY.

(a) Not later than [60] days after receipt of the information required under Sections 7

through 14, a custodian shall comply with a request under this [act] from a fiduciary or

designated recipient to disclose digital assets or terminate an account. If the custodian fails to

comply, the fiduciary or designated recipient may apply to the court for an order directing

compliance.

(b) An order under subsection (a) directing compliance must contain a finding that

compliance is not in violation of 18 U.S.C. Section 2702[, as amended].

(c) A custodian may notify the user that a request for disclosure or to terminate an

account was made under this [act].

(d) A custodian may deny a request under this [act] from a fiduciary or designated

recipient for disclosure of digital assets or to terminate an account if the custodian is aware of

any lawful access to the account following the receipt of the fiduciary’s request.

(e) This [act] does not limit a custodian’s ability to obtain or require a fiduciary or

designated recipient requesting disclosure or termination under this [act] to obtain a court order

which:

(1) specifies that an account belongs to the [protected person] or principal;

(2) specifies that there is sufficient consent from the [protected person] or

principal] to support the requested disclosure; and

(3) contains a finding required by law other than this [act].

(f) A custodian and its officers, employees, and agents are immune from liability for an

act or omission done in good faith in compliance with this [act].

16

Legislative Note: In jurisdictions in which the constitution, or other law, does not permit the

phrase “as amended” when federal statutes are incorporated into state law, the phrase should

be deleted in subsection (b). In subsection (e), an enacting jurisdiction should replace the

bracketed language with local terminology, if different.

SECTION 17. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In

applying and construing this uniform act, consideration must be given to the need to promote

uniformity of the law with respect to its subject matter among states that enact it.

SECTION 18. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND

NATIONAL COMMERCE ACT. This [act] modifies, limits, or supersedes the Electronic

Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not

modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize

electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C.

Section 7003(b).

[SECTION 19. SEVERABILITY. If any provision of this [act] or its application to

any person or circumstance is held invalid, the invalidity does not affect other provisions or

applications of this [act] which can be given effect without the invalid provision or application,

and to this end the provisions of this [act] are severable.]

Legislative Note: Include this section only if the jurisdiction lacks a general severability statute

or a decision by the highest court of the jurisdiction stating a general rule of severability.

SECTION 20. REPEALS; CONFORMING AMENDMENTS.

(a) ….

(b) ….

(c) ….

SECTION 21. EFFECTIVE DATE. This [act] takes effect….

Appendix F-1

Digital Property Master Information List(Note - attach additional sheets if necessary)

Name:

Address:

Home phone #

Cell phone #

E-mail address

Business phone #

IT (computer consultant) contact person:Name Address Phone # e-mail address

Digital Property Password method utilized (ex. Excel spreadsheet; password manager)

Location of Digital Property Password Inventory

Encryption method utilized Indicate the digital property that has been encrypted

ISP (internet service provider)

Page 1 of 11

Digital Devices9 Desktop computers

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Laptop computers

Location

Digital Content

Disposition


9 Tablet

Location

Digital Content

Disposition


9 iPad

Location

Digital Content

Disposition


Page 2 of 11

9 Storage Device

Ex. - external hard drive; USB flash drive; tape drive; CD; DVD; Zip disk

Location

Digital Content

Disposition


9 Smartphone

Location

Digital Content

Disposition


9 Web cam/ digital camera

Location

Digital Content

Disposition


9 Other

Location

Digital Content

Disposition


Page 3 of 11

Digital Accounts

9 E-mail Accounts

Ex. - Gmail, Hotmail, Yahoo!, Earthlink, home or business accounts

Description

E-mail address

Digital Content

Disposition


9 Social Media Accounts

Ex. - Facebook, Twitter, LinkedIn, YaHoo!, YouTube, Skype, MySpace, Zynga

Description

Digital Content

Disposition


9 IM (Instant Messaging) Accounts

Ex. - AIM, Windows Live Messenger, Yahoo! Messenger

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone # 9 Digital Financial Accounts

Page 4 of 11

Ex. - E-Trade, ING, ScottTrade, Fidelity, Quicken, Mint.com, home or businessaccounts, automatic bill paying accounts (utilities, internet, cable), creditcard accounts - Amer. Expr,, VISA, Master Card

Description

Digital Content

Disposition


9 Digital Music Accounts

Ex. - iTunes, Amazon MP3, Spotify, Pandora

Description

Digital Content

Disposition


9 Digital Photograph Accounts

Ex. - Picassa, Flicker, Twikpic, Pinterest, Smugmug,

Description

Digital Content

Disposition


Page 5 of 11

9 Digital e-book Accounts

Ex. - Amazon Kindle, Barnes & Noble Nook, Google Play

Description

Digital Content

Disposition


9 Digital Audio/Video Accounts

Ex. - Netflix, Hulu, YouTube, Audible.com

Description

Digital Content

Disposition


9 Domain Name Accounts

Ex. - personal and business, Network Solutions, GoDaddy, Namecheap, Domain.com, Name.com,

Description

Digital Content

Disposition


Page 6 of 11

9 Websites

Ex. - personal and business, password protected research sites or organization sites, Ancestry.com

Description

Digital Content

Disposition


9 Blogs

Ex. - Blogger,WordPress.com, WordPress.org, Dreamhost, Bluehost

Description

Digital Content

Disposition


9 Tax Preparation Service Accounts

Ex. - TurboTax, TaxAct, TaxSlayer, CCH CompleteTax

Description

Digital Content

Disposition


Page 7 of 11

9 Online Sales and Purchasing Accounts

Ex. - eBay, PayPal, Amazon, Checkout, Groupon Goods, Craigslist, StubHub,

Description

Digital Content

Disposition


9 Online Backup/Storage Accounts

Ex. - Carbonite, Mozy, Crashplan, Acronis Backblaze, Spider Oak, SugarSync,Elephant Drive, Livedrive, Barracuda Backup, SOS Online BackupDolly Drive - MaciCloud, Google Drive, Amazon Cloud Drive, Drop Box, Skydrive,Docubank

Description

Digital Content

Disposition


9 File Sharing Accounts

Ex. - BitTorrent; now more likely associated with online storage accounts

Description

Digital Content

Disposition


Page 8 of 11

9 Video Game and Virtual Worlds Accounts

Ex. - World of Warcraft, Second Life, Farmville

Description

Digital Content

Disposition


9 Other

Description

Digital Content

Disposition


9 Other

Description

Digital Content

Disposition


9 Other

Description

Digital Content

Disposition


Page 9 of 11

Other

9 Home Security Systems

Description

Digital Content

Disposition


9 Voicemail

Description

Digital Content

Disposition


9 External hard drive backup

Location

Description

Digital Content

Disposition


Page 10 of 11

9 Medical Records Accounts

Description

Digital Content

Disposition


9 Intellectual Property

Ex. - “digital data” created by computer programmers, graphic or web designers,photographers, writers, musicians, and artists

Description

Digital Content

Disposition


9 Other Files/Programs

Ex.- business documents, address books, family photos, personal journals, family recipes, Word and Excel documents, password protected software programs not previously described

Location (Ex. - desktop, laptop, tablet, iPad, Storage Devise, Smartphone)

Description

Digital Content

Disposition

Page 11 of 11

Appendix G-1 Digital Property Password InventoryDigital Devices

Desktop:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Laptop:

Description:


Other:

Tablet:

Description:


Other:

iPad:

Description:


Other:

Storage Device:

Description:


Other:

Smartphone:

Description:


Other:

Web cam:

Description:


Other:

Other:

Description:


Other:

Digital Accounts

(Note - include security questions and answers, two factor authentication procedures, or similaradditional identification information)

E-Mail Account:

Description: (include e-mail address)


Security Question: Other:

Security Answer:

Social Media Account:

Description:



Security Answer:

Digital Financial Account:

Description:



Security Answer:

IM (Instant Messaging) Account:

Description:



Security Answer:

Digital Music Account: (If not otherwise listed in sales and purchasing accts)

Description:


Other:

Digital Photograph Account:(If not otherwise listed in sales and purchasing accts)

Description:


Other:

Digital e-book Account:(If not otherwise listed in sales and purchasing accts)

Description:


Other:

Digital audio/video Account:(If not otherwise listed in sales and purchasing accts)

Description:


Other:

Domain Account:

Description:


Other:

Website:

Description:


Other:

Blog:

Description:


Other:

Tax Preparation Service Account:

Description:


Other:

Online Sales and Purchasing Account:

Description:


Other:

Online Backup/Storage Account:

Description:


Other:

File Sharing Account:

Description:


Other:

Video Game and Virtual Worlds Account:

Description:


Other:

Other:

Description:


Other:

Other:

Description:


Other:

OTHER

Home Security System:

Description:


Other:

Voicemail:

Description:


Other:

Other:

Description:


Other:

Other:

Description:


Other:

Master Password:

Description:


Other:

H-1. Drafting Alternatives

A. WILL PROVISION - DIGITAL PROPERTY

NOTE: The following is a sample will provision from The Digital Death Conundrum *:

Powers and authorizations regarding digital property. The personal representative may exercise allpowers that an absolute owner would have and any other powers appropriate to achieve the properinvestment, management, and distribution of: (I) any kind of computing device of mine; (2) any kind of datastorage device or medium of mine; (3) any electronically stored information of mine; (4) any user accountof mine; and (5) any domain name of mine. The personal representative may obtain copies of anyelectronically stored information of mine from any person or entity that possesses, custodies, or controls thatinformation. I hereby authorize any person or entity that possesses, custodies, or controls any electronicallystored information of mine or that provides to me an electronic communication service or remote computingservice, whether public or private, to divulge to the personal representative: (l) any electronically storedinformation of mine; (2) the contents of any communication that is in electronic storage by that service orthat is carried or maintained on that service; and (3) any record or other information pertaining to me withrespect to that service. This authorization is to be construed to be my lawful consent under the ElectronicCommunications Privacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended;and any other applicable federal or state data privacy law or criminal law. The personal representative mayemploy any consultants or agents to advise or assist the personal representative in decrypting any encryptedelectronically stored information of mine or in bypassing, resetting, or recovering any password or other kindof authentication or authorization, and I hereby authorize the personal representative to take any of theseactions to access: (1) any kind of computing device of mine; (2) any kind of data storage device or mediumof mine; (3) any electronically stored information of mine; and (4) any user account of mine. The terms usedin this paragraph are to be construed as broadly as possible, and the term "user account" includes withoutlimitation an established relationship between a user and a computing device or between a user and aprovider of Internet or other network access, electronic communication services, or remote computingservices, whether public or private.

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B. DIGITAL PROPERTY AUTHORIZATION

NOTE: The following is a stand-alone authorization and consent document that could beexecuted separately from a power of attorney, will, or trust document from The Digital DeathConundrum*:

Authorization and Consent for Release of Electronically Stored Information

I hereby authorize any person or entity that possesses, custodies, or controls any electronically storedinformation of mine or that provides to me an electronic communication service or remote computing service,whether public or private, to divulge to my then-acting fiduciaries at any time: (1) any electronically storedinformation of mine; (2) the contents of any communication that is in electronic storage by that service orthat is carried or maintained on that service; and (3) any record or other information pertaining to me withrespect to that service. The terms used in this authorization are to be construed as broadly as possible, andthe term "fiduciaries" includes an attorney-in-fact acting under a power of attorney document signed by me,a guardian or conservator appointed for me, a trustee of my revocable trust, and a personal representative(executor) of my estate.

This authorization is to be construed to be my lawful consent under the Electronic CommunicationsPrivacy Act of 1986, as amended; the Computer Fraud and Abuse Act of 1986, as amended; and any otherapplicable federal or state data privacy law or criminal law. This authorization is effective immediately.Unless this authorization is revoked by me in writing while I am competent, this authorization continues tobe effective during any period that I am incapacitated and continues to be effective after my death.

Unless a person or entity has received actual notice that this authorization has been validly revokedby me, that person or entity receiving this authorization may act in reliance on the presumption that it is validand unrevoked, and that person or entity is released and held harmless by me, my heirs, legal representatives,successors, and assigns from any loss suffered or liability incurred for acting according to this authorization.A person or entity may accept a copy or facsimile of this original authorization as though it were an originaldocument.

Signed

Name

STATE OF WISCONSIN) : ss.

County of )

Personally came before me this day of , 20 , the above named , to me knownto be the person who executed the foregoing instrument and acknowledged the same.

* Source: The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries FromManaging Digital Property 68 U. MIAMI L. REV. 385, 404 (2014) by James D. Lamm et al.,section V.C.

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C. TRUST PROVISION - DIGITAL PROPERTY

OPTION 1

Digital Property. To access, take control of, conduct, continue, terminate or receive other disclosurepursuant to Wis. Stat. 711, of the Donor's accounts on any website or held by any custodian with anonline component, including any social networking site, photo sharing site, micro blogging or shortmessage service website or any email service website (except as provided herein). All service providersor custodians for such accounts may release the Donor's log-on credentials, including username andpassword, to the Trustee serving hereunder. The Trustee may, in such person's sole discretion and onbehalf of the trust, indemnify and hold harmless any website service provider or custodian for anydamages, causes of action or claims that may result from the disclosure. The authority granted to theTrustee hereunder is intended to constitute "lawful consent" to a service provider or custodian todivulge the contents of any communication under The Stored Communications Act (currently codified as18 U.S.C. §§ 2701 et seq.), to the extent such lawful consent is required, and a Trustee acting hereundershall be an authorized user for purposes of applicable computer-fraud and unauthorized-computeraccesslaws, including, but not limited to Wis. Stat. 943.70. Notwithstanding the foregoing, the powersgranted above do not authorize access to email accounts generally or to receive the content ofelectronic communications of the Donor contained in such an account pursuant to Wis. Stat. 711.07(3)unless a separate arrangement has been made by the Donor with a particular service provider or custodian,but the powers granted are intended to expressly authorize the Trustee to receive a catalogue of electroniccommunications ofthe Donor pursuant to Wis. Stat. 711.07(2) (unless the Donor has made otherarrangements with the a particular service provider).

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OPTION 2

My Personal Representative or the Trustee may take any action (including, without limitation, changing aterms of service agreement or other governing instrument) with respect to my Digital Assets and DigitalAccounts as my Personal Representative or the Trustee shall deem appropriate, and as shall be permittedunder applicable state and Federal law. My Personal Representative or the Trustee may engage expertsor consultants or any other third party as necessary or appropriate to effectuate such actions with respectto my Digital Assets or Digital Accounts, including, but not limited to, such authority as may benecessary or appropriate to decrypt electronically stored information or to bypass, reset or recover anypassword or other kind of authentication or authorization. If my Personal Representative or the Trusteeshall determine that it is necessary or appropriate to engage and delegate authority to an individualpursuant to this paragraph, it is my request that [DIGITAL ASSET FIDUCIARY] be engaged for thispurposes. This authority is intended to constitute “lawful consent” to a service provider to divulge thecontents of any communication under The Stored Communications Act (currently codified as 18 U.S.C.§§ 2701 et seq.), to the extent such lawful consent is required, and a Personal Representative or Trusteeacting hereunder shall be an authorized user for purposes of applicable computer-fraud and unauthorized-computer-access laws. The authority granted under this paragraph shall extend to all Digital Assets andDigital Accounts associated with or used in connection with the Business (as defined herein). Theauthority granted under this paragraph is intended to provide my Personal Representative or the Trusteewith full authority to access and manage my Digital Assets and Digital Accounts to the extent permittedunder applicable state and Federal law and shall not limit any authority granted to my PersonalRepresentative or the Trustee under such laws. “Digital Account” means an electronic system forcreating, generating, sending, sharing, communicating, receiving, storing, displaying or processinginformation which provides access to a Digital Asset stored on a digital device, regardless of theownership of such digital device. “Digital Asset” shall include files created, generated, sent,communicated, shared, received or stored on a digital device, regardless of the ownership of the physicaldevice upon which the digital item was created, generated, sent, communicated, shared, received orstored.”

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D. SHORT VERSION POWERS - WILL - DIGITAL PROPERTY

To possess the power to achieve the proper access, investment, management, anddistribution of any digital property in my or my personal representative’s possession;

To possess the power to access, copy, delete or terminate my digital property from anyperson or entity that stores that information (i.e., from a provider of online services orfrom a network);

To possess the authority to access my digital property that may be considered personal,private, or protected under any applicable law; this authorization is to be construed to bemy lawful consent under the Electronic Communications Privacy Act of 1986, asamended; the Computer Fraud and Abuse Act of 1986, as amended; and any otherapplicable federal or state data privacy law or criminal law;

To possess the authority to decrypt any of my encrypted digital property and authority tobypass, reset, or recover any password or other kind of authentication or authorization somy personal representative can access my digital devices, digital accounts and digitalproperty.

The above listed powers shall apply to all of my digital property whether I have maintained suchproperty in my individual name, in the name of a trust or other entity, or in the name of anominee, and are to be construed as broadly as possible.

Definitions

“Digital devices” shall include, but is not limited to, desktops, laptops, tablets, peripherals,storage devices, smartphones, and any similar or comparable digital device, or electronic storagedevice or medium, which currently exist or may exist as technology develops.

“Digital Accounts” shall include all accounts as defined under Wis. Stat. 711.03 (1).

“Digital Property” shall include all property as defined under Wis. Stat. 711.03 (10).

Note - similar short version language would be utilized for Trust powers paragraphs

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E. ADDITIONAL PARAGRAPHS FOR CONSIDERATION IN FULL VERSIONPOWERS - WILL - DIGITAL PROPERTY

To find, access, use, protect and control my digital devices for purposes including, but notlimited to, finding, accessing, valuing, protecting, transferring or otherwise controlling my digitalaccounts and digital property, and,

to access, manage, distribute, delete, terminate, transfer or transfer ownership rights in, orotherwise control any digital account which I may own or otherwise possess rights to, whichcurrently exist or may exist as technology develops with respect to the digital account, and,

to request copies of the content of any digital device or digital account, and,

to access, manage, distribute, delete, copy, curate, backup or otherwise store or archive, decrypt,download, transfer or transfer ownership rights in, or otherwise control any digital propertywhich I may own or otherwise possess rights to, regardless of the ownership of the digital deviceon which the digital property is stored or the ownership of the digital account within which thedigital property is stored, which currently exist or may exist as technology develops with respectto the digital property.

To employ and provide reasonable compensation to computer or other technical experts,including computer forensic experts, regarding any digital property.

To take such actions, locally, nationally, and internationally, to facilitate any purposes listedherein regarding any digital property.

To have the authority to access my digital property that may be considered personal, private, orprotected under any applicable law. This authorization is to be construed to be my lawful consentunder the Electronic Communications Privacy Act of 1986, as amended; the Computer Fraud andAbuse Act of 1986, as amended; and any other applicable federal or state data privacy law orcriminal law.

To possess the authority to decrypt any of my encrypted digital property and authority tobypass, reset, or recover any password or other kind of authentication or authorization somy personal representative can access my digital devices, digital accounts and digitalproperty.

To obtain, use, access, bypass, reset, recover or otherwise change any of my usernames and/orpasswords regarding any digital property.

To communicate with any software licensor, internet service provider, voice mail or homesecurity system service provider, or other similar third party regarding any digital property.

To protect and otherwise maintain or preserve any intellectual property rights regarding anydigital property.

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To maintain and renew, in the fiduciary’s discretion, licenses and contracts, including softwarelicenses, domain registrations, and similar or comparable licenses or contracts or othercontractual rights necessary to access any digital property.

The above listed powers shall apply to all of my digital property whether I have maintained suchproperty in my individual name, in the name of a trust or other entity, or in the name of anominee, and are to be construed as broadly as possible.

Note - similar full version language would be utilized for Trust powers paragraphs

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F. POWER OF ATTORNEY PROVISION - DIGITAL PROPERTY

Digital Property

To possess the power to achieve the proper access, investment, management, and distribution ofany digital property in my or my attorney-in-fact’s possession;

To possess the power to access, copy, delete or terminate my digital property from anyperson or entity that stores that information (i.e., from a provider of online services orfrom a network);

To possess the authority to access my digital property that may be considered personal,private, or protected under any applicable law; this authorization is to be construed to bemy lawful consent under the Electronic Communications Privacy Act of 1986, asamended; the Computer Fraud and Abuse Act of 1986, as amended; and any otherapplicable federal or state data privacy law or criminal law;

To possess the authority to decrypt any of my encrypted digital property and authority tobypass, reset, or recover any password or other kind of authentication or authorization somy attorney-in-fact can access my digital devices, digital accounts and digital property.

“Digital devices” shall include, but is not limited to, desktops, laptops, tablets, peripherals,storage devices, smartphones, and any similar or comparable digital device, or electronic storagedevice or medium, which currently exist or may exist as technology develops.

“Digital Accounts” shall include all accounts as defined under Wis. Stat. 711.03 (1).

“Digital Property” shall include all property as defined under Wis. Stat. 711.03 (10).

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IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA

IN RE: GUARDIANSHIP OF

JOHN DOE

File No.: Division: Probate

MOTION TO AUTHORIZE GUARDIAN ACCESS THE CONTENT OF WARD’S DIGITAL ASSET

COMES NOW, Jane Doe, as Guardian of the Property of John Doe, by and through her undersigned

counsel, and moves this Honorable Court to enter an Order Authorizing the Guardian to Access the

Content of the Ward’s Digital Assets held by Google and in support thereof states as follows:

1. That Jane Doe is the duly appointed Guardian of the Property of John Doe (the

Ward);

2. That Jane Doe believes the Ward’s Google account contains information

regarding a communication between the decedent, John Doe and Harry Roe,

establishing the terms of a contractual agreement which is necessary to collect

an asset of tangible value to John Doe;

3. That Jane Doe has no other means of accessing the information;

4. That Jane Doe believes accessing the content of the Ward’s Google account and

any and all communication between John Doe and Harry Roe between January

1, 2015 and June 2, 2015, is necessary to fulfilling her fiduciary duty to inventory

and protect the assets of the Ward.

WHEREFORE, Jane Doe respectfully requests this Honorable Court enter an Order Authorizing the

Guardian to access the content of the Ward’s Google account.

Respectfully dated this 21st

day of April, 2016. ______________________

Attorney

Ken

Text Box

Sample Digital Property Court Order