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 in the areas of Trusts & Estates and Business/Succession Planning. He works with individuals and fiduciaries throughout the estate planning and administration process, and assists business owners with operational business matters and in developing succession and exit planning strategies. Ben speaks frequently on developing issues in business and estate planning law, and in addition to speaking on digital property, has recently lectured on family business succession planning, estate planning for same-sex couples, and retirement and tax planning for senior attorneys. Ben received his undergraduate degree from Marquette University and his law degree from the University of Michigan.

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 of Science Degree in accounting. He also is a graduate of Marquette University Law School. He is a Fellow of the American College of Trust and Estate Counsel. Mr. Barczak is licensed as a Certified Public Accountant as well as an Attorney. He is a current board member, and former chair, of the State Bar Real Property, Probate and Trust Section. Table of Contents

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

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

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

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

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

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

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

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

i APPENDIX...... 24

ii THE NEW WISCONSIN DIGITAL PROPERTY ACT -

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 Act InsideTrack Bi-Weekly Newsletter of the State Bar of Wisconsin May 2016 Volume 8 Number 9 Kenneth P. Barczak

An Introduction to Wisconsin’s New Digital Property Act State Bar of Wisconsin Webinar June 21, 2016 Ben 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 the cooperation of the interested legislators, members of the Wisconsin RPPT Digital Property Committee became involved in drafting a bill, with the added assistance of the legislative reference bureau. Members of the Wisconsin RPPT Digital Property Committee also testified before the respective Assembly and Senate committees with respect to the bill. Support for the

3 - Barczak/Brunette enactment of the Act came from several social media providers, including Facebook (and Google - indirectly) , Motion Picture Association of America and Microsoft as well as from the Wisconsin Bankers Association.

The bill passed both houses of the legislature and was signed into law by the Governor on March 30, 2016, as 2015 Wisconsin Act 300, which was comprised of the Wisconsin Digital Property Act, created under Chapter 711 of the Wisconsin statutes, along with updated inclusions of 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 orderly segregation 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 must affirmatively “opt in” to granting access and disclosure in order for the fiduciary to access and obtain disclosure of the digital property.

4 - Barczak/Brunette IV. Obstacles

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

These obstacles significantly complicate fiduciaries’ and family members’ ability to 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 services and incur additional legal fees to respond to requests for information after death

(e) many terms of service agreements enable providers to unilaterally change 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 user according to TOS

(c) “password banks” to secure access for fiduciaries and family members are increasingly common, but use extreme caution when utilizing passwords, even if authorizing documents permit such access

3. Encryption

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

5 - Barczak/Brunette 4. Federal Data Privacy Laws

(a) Stored Communications Act (SCA)

The Stored Communications Act (also known as the “Stored Wire and Electronic Communications Act”) is part of the Electronic Communications Privacy Act of 1986. The act protects the privacy of stored internet communications and limits the government’s ability to compel providers to disclose information in their possession about their subscribers.

If the Act applies, the online account service provider is prohibited from disclosing the account contents to the fiduciaries and family members-unless an exception (generally the “lawful consent” exception) under § 2702(b) of the Act is met

In general, the protections under the Act adopt the following factors:

(i) is the request or demand for information is made by a governmental 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 electronic communications and files or for non-content records?

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

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

Based on the factors described above, an e-mail account or a social networking account provided to the public has statutory privacy protections under the Stored Communications Act (SCA). Even under the most favorable circumstances, (i.e., the “lawful consent” exception under § 2702(b)(3) of the Stored Communications Act), the service provider cannot be compelled to disclose any information, but the provider may voluntarily disclose the contents of the electronic communications and files otherwise protected under the SCA.

6 - Barczak/Brunette Cases -

Daftray

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

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

Ajemian

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

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

Cheng

The United States District Court for the District of Massachusetts denied a motion for judgment notwithstanding a jury verdict affirming that Cheng was entitled to damages for Romo’s violation of the SCA and an invasion of privacy 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 award statutory damages in the absence of a showing of actual damages to the account holder.

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

7 - Barczak/Brunette Optover

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

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL 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 penalties for computer related unauthorized access.

Cases -

Nosal I and II

On April 10, 2012, the Ninth Circuit Court of Appeals issued an opinion in United States vs. Nosal narrowly construing the scope of the phrase “exceeds authorized 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 Ninth Circuit also issued an opinion on April 10, 2012, involving the same situation) issued an opinion, as summarized, stated that sharing a password can be a crime of accessing a protected computer “without authorization” under the Computer Fraud and Abuse Act.

Vachani

Facebook v. Vachani was decided on July 12, 2016. The short summary of Vachani is that accessing a Web site after being notified that you are not authorized to access it can be a crime of accessing a protected computer “without authorization” under the Computer Fraud and Abuse Act.

8 - Barczak/Brunette Per Jim Lamm’s blog, Digital Passing, the attorneys for the defendants in the Vachani case filed a petition on August 9, 2016, for rehearing of the case with respect to liability under the Computer Fraud and Abuse Act. The rehearing is requested 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 not to visit it by Orin Kerr July 12, 2016 - Washington Post

Valle

The Second Circuit Court of Appeals upheld the acquittal of a New York City police officer who accessed the police department’s computer system in technical violation of the police departments computer use policy, saying that the CFAA should be narrowly construed and should not support a conviction for 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 internet activist solely on TOS violations.

United States of America v. Aaron Swartz

State statutes

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

B. Conflicts of law

The U.S. District Court, Northern District of California, is the chosen federal court 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 resolution provision. International issues may arise depending on the provider.

See Section 711.16 (2)

See also Ajemian

9 - Barczak/Brunette 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 source of bank activity and the bank can then be contacted in the normal course of business - catalogue information may many times be a sufficient alternative to needed information

Ex, - digital property resides on computer hard drive. Password may be needed to access the digital property, however neither content or catalogue requirements 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 the term “digital property” for “digital asset” (the definitional term in RUFADAA) to more precisely fit into the existing statutory terminology in Wisconsin. Because both the Wisconsin Statutes

10 - Barczak/Brunette and Wisconsin case law utilize property terminology, enacting a “digital property” statute would more intuitively enable courts and the bar to synthesize the new law into existing property concepts, and better equip both courts and practitioners to employ precedential constructs when dealing with an enacted digital property statute.

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

- Catalogue of electronic communication/Content of an electronic communication - it is important to distinguish between (i) digital property that is not an electronic communication protected under the SCA, and (ii) the content of electronic communications (a subset of digital property) protected under the SCA. A common form of electronic communications protected under the SCA includes the content of email messages.

- with respect to electronic communication protected under the SCA, it is then necessary to determine whether disclosure of the catalogue or the content of the electronic communication will be requested. Different statutory sections will need to be addressed depending on the choice involved.

- Online Tool

- a setting provided by a custodian that allows the user, by an agreement between the custodian and user that is distinct from the user’s assent to the terms of service, to provide directions for disclosure or nondisclosure of digital property to a designated recipient.

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

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

11 - Barczak/Brunette - introduction of a designated recipient in a “beneficiary designation” role

- statutory cross reference - valid non-testamentary transfer Sec. 705.10

2. Section 711.04 sets forth a three tier priority system for disclosure of digital property providing clarity between fiduciaries and custodians regarding the order of disclosure of digital property. This Section was a much 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 tool treatment, therefore estate planning documents become more relevant in the planning process

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

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

As noted above, the Wisconsin Digital Property Act contains the substance of the RUFADAA provisions in these areas, but provides for a consolidation of content and catalogue sections, coupled with a reordering of these provisions, both to emphasize the narrow application of disclosure of content provisions, and also to emphasize differences in requirements as to information to be provided when requesting the catalogue vs. the content of electronic communications.

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

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

12 - Barczak/Brunette 4. Section 711.06 sets forth methods of disclosure of catalogue or content of digital property to agents under powers of attorney, along with similar consolidation and reordering provisions.

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

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

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

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

- consistent with provisions in the UTC allowing for acknowledgment of the existence of a trust, Section 711.017 allows for transfer by certification of trust

- this is an area to be watched for future development since there is little activity regarding trust ownership of digital assets, either because the TOS does not allow for trust ownership and any attempt to fund a trust would be in violation of the TOS, and pourover, or funding by way of Washington Will provisions, is in its infancy

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

- the Act specifically provides that disclosure of content is not authorized - this was a provider requirement relating to on-going access to social media accounts of the user in order to provide for protection of a protected person.

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

13 - Barczak/Brunette 7. Section 711.09 describes the choice of methods available to custodians when 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 the user (query - is “deleted” property still available for access) - this becomes 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 a fiduciary 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 regarding management of digital property, and addresses digital property not held by a 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 in the tangible personal property for the purpose of computer fraud and unauthorized computer access laws, including Wis, stat. s. 943.70.

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

- Wis. stat. 943.70 was specifically addressed in the statute to highlight a little known statute otherwise having a tangential effect on the gathering of digital property

14 - Barczak/Brunette 11. Section 711.13 confirms the marital property classification of digital property.

As noted below, the Wisconsin digital property committee is presently in discussions addressing changes in Chapter 766, by way of a trailer bill, to classification and management and control issues relating to digital property. Any final changes will occur in Chapter 766. Section 711.13 will maintain its present status as solely a cross 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 of attorney or trust executed before, on of after the effective date, as well as guardianship or conservatorship proceedings pending, or commenced before, on or after the effective date.

- the statute attempts to address conflict of laws issues by stating that it applies to a custodian only if the user resides in Wisconsin or 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.

15 - Barczak/Brunette C. Forms

- Probate Registers conference - seminar - establishing forms

VI. Marital Property Issues

A. Classification similarities

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

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

Federal preemption issues governing ownership of copyrights, for example, would arise in the same fashion regarding any copyrighted materials in digital form.

B. Classification differences

The nature of digital property may give rise to further examination to 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 state cases were reviewed to provide guidelines for assistance with interpretation of the Wisconsin law. Similar review of digital property issues, as they occur in other community property states, would assist in the development of Wisconsin digital property law. There currently is emerging commentary from practitioners in community property states recognizing the potential divorce property division implications of digital property.

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

16 - Barczak/Brunette As noted above, the Wisconsin RPPT Digital Property Committee is presently reviewing any changes to Chapter 766 to recognize digital property issues. At the present time the review is centered on the necessity of addressing:

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

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

- consideration of satisfaction of the valuation of the non-holding spouse’s interest in the digital property, subject to certain threshold limits, to resolve marital property valuation issues between spouses under Chapter 766, without invoking Chapter 711, and, in turn, thereby precluding involvement from providers in the marital property division process

- recognition of privacy concerns, which concerns also had an influence on the 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 any potential trailer bill issues addressing, primarily, clarification of marital property classification 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 the same manner as other property listed on an Inventory or included on Estate Tax return because it would have similar characteristics. However, with digital property, there may be alternative methods needed to be utilized to access the property in order to value it. The following property can be valued 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

17 - Barczak/Brunette B. Valuation differences

However, regarding the following property, specific valuation issues may arise:

- blogs (review advertising revenue) - websites - domain names - Afternic and Sedo are domain valuation services (the domain name would generally be valued separately from the content of 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 a distribution concern as opposed to a valuation concern (ex. - ability to produce multiple copies of treasured photo collections; information on social networking sites)

VIII. Best Practices

A. Password Collection/Management

Roboform, Last Pass Premium, 1 Password, Dashlane - password managers Password managers are generally limited to automatic web page and possibly online application password gathering, and not hardware program application passwords.

- master password

- encryption/integrate with web browser

- Veracrypt

- Diceware Word List

B. Digital audit

Expansion of the estate planning questionnaire

18 - Barczak/Brunette - Digital Property Master Information List

- use as an attachment to an intangible personal property memorandum

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 Guide to Amending It Orin S. Kerr George 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, 2011 Estate 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, 2011 Estate Planning Developments for Texas Professionals, April 2011 by Gerry W. Beyer and Kerri M. Griffin

19 - Barczak/Brunette 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 Know Probate & Property Magazine: Volume 29 No. 04 Victoria Blachly

Lawyers Journal Mass Bar Association February 2015 Defining, owning and accessing digital assets By Debra Rahmin Silberstein and Christopher G.R. Davies

- blogs/listservs

Digital Passing Atty. James D. Lamm

http://www.digitalpassing.com/

Wills, Trusts & Estates Prof Blog Prof. Gerald W. Beyer Governor Preston E. Smith Regents Professor of Law Texas 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 Used to Be” (A Yogi Berra Quote) presented by Attys. Karin C. Prangley, Anne W. Coventry, Robert K. Kirkland and James D. Lamm and Planning for Privacy in a Public World: The Ethics and Mechanics of Protecting Your Client’s Privacy and Personal Security presented by John F. Bergner, R. Kris Coleman and Mark Lanterman

20 - Barczak/Brunette 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, and Twitter accounts.

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

F. Drafting

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

For examples of drafting see:

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

21 - Barczak/Brunette - California Education of the Bar (CEB) drafting treatises CEB, 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 Digital Property 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 off for the Last Time - Springfield Bar - February 17, 2016 Presented by Robert K. Kirkland

See appendix H-1 for Wisconsin drafting alternatives

G. Administration

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

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

Educate the fiduciary regarding the scope of digital property and provide guidance to the fiduciary in establishing a relationship with a computer consultant who could assist the fiduciary in determining access to digital property, and with appropriate professionals in the areas needed to deal with the unique nature of digital property.

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

22 - Barczak/Brunette Given the current status of the law in this area, be aware that it is more likely that third party social media and e-mail service providers (as opposed to, for example, banks and brokerages) will respond to inquiries from court appointed fiduciaries, such as personal representatives, guardians and conservators, as opposed to trustees and power of attorney agents.

23 - Barczak/Brunette THE NEW WISCONSIN DIGITAL PROPERTY ACT -

THE PRACTITIONER'S ROLE IN DEVELOPING CLIENT DIGITAL AWARENESS

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

24 - Barczak/Brunette Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. April 21, 2016.

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

CHAPTER 711 DIGITAL PROPERTY

711.01 Short title. 711.09 Choice of methods for disclosing digital property; custodian. 711.02 Liberal construction. 711.10 Custodian compliance and immunity. 711.03 Definitions. 711.11 Terms of service agreement. 711.04 Priorities; user directions for disclosure of digital property. 711.12 Fiduciary duty and authority. 711.05 Disclosure of digital property; personal representative of a deceased user. 711.13 Marital property classification of digital property. 711.06 Disclosure of digital property; agent under a power of attorney. 711.14 Uniformity of application and construction. 711.07 Disclosure of digital property held in trust. 711.15 Relation to Electronic Signatures in Global and National Commerce Act. 711.08 Disclosure of digital property; conservator or guardian of protected per- 711.16 Applicability. son.

711.01 Short title. This chapter may be cited as the Wisconsin (15) “Governing instrument” has the meaning given in s. Digital Property Act. 854.01 (2). History: 2015 a. 300. (16) “Guardian” means a person appointed under s. 54.10. 711.02 Liberal construction. This chapter is remedial in (17) “Information” means data, text, images, videos, sounds, nature and shall be liberally construed, consistent with s. 711.14. codes, computer programs, software, databases, or the like. History: 2015 a. 300. (18) “Online tool” means a setting provided by a custodian that allows the user, by an agreement between the custodian and 711.03 Definitions. In this chapter: user that is distinct from the user’s assent to the terms of service, (1) “Account” means an arrangement under a terms of service to provide directions for disclosure or nondisclosure of digital agreement in which a custodian carries, maintains, processes, property to a designated recipient. receives, or stores a user’s digital property or provides goods or (19) “Person” means an individual, estate, business or non- services to the user. profit entity, public corporation, government or governmental (2) “Agent” means a person granted authority to act under a subdivision, agency, or instrumentality, or other legal entity. durable or nondurable power of attorney. (20) “Personal representative” has the meaning given in s. (3) “Carries” means engages in the transmission of an elec- 851.23, but also includes a special administrator and any person tronic communication. who, under the laws of this state other than this chapter, performs (4) “Catalogue of electronic communications” means infor- functions substantially similar to a personal representative, as mation that identifies each person with which a user has had an defined in s. 851.23. electronic communication, the time and date of the communica- (21) “Power of attorney” means an instrument that grants an tion, and the electronic address of the person. agent authority to act in the place of a principal. (5) “Conservator” means a person appointed under s. 54.76 to (22) “Principal” means an individual who grants authority to manage the estate of a living individual. an agent in a power of attorney. (6) “Content of an electronic communication” means infor- (23) “Protected person” means all of the following: mation concerning the substance or meaning of a communication (a) An individual for whom a guardian is appointed. that satisfies all of the following: NOTE: Par. (a) was created as sub. (23) 1. by 2015 Wis. Act 300 and renum- (a) The information was sent or received by a user. bered to sub. (23) (a) by the legislative reference bureau under s. 13.92 (1) (bm) 2. (b) The information is electronically stored by a custodian that (b) An individual for whom a conservator is appointed. provides an electronic communication service to the public or is NOTE: Par. (b) was created as sub. (23) 2. by 2015 Wis. Act 300 and renum- carried or maintained by a custodian that provides a remote com- bered to sub. (23) (b) by the legislative reference bureau under s. 13.92 (1) (bm) puting service to the public. 2. (c) The information is not readily accessible to the public. (24) “Record” means information that is inscribed on a tangi- (7) “Court” means the circuit court having jurisdiction over a ble medium or that is stored in an electronic or other medium and matter related to this chapter. is retrievable in perceivable form. (8) “Custodian” means a person that carries, maintains, pro- (25) “Remote computing service” means a custodian that pro- cesses, receives, or stores a user’s digital property. vides to a user computer processing services or the storage of digi- tal property by means of an electronic communications system, as (9) “Designated recipient” means a person chosen by the user defined in 18 USC 2510 (14). using an online tool to administer the user’s digital property. (26) “Terms of service agreement” means an agreement that (10) “Digital property” means an electronic record in which controls the relationship between a user and a custodian. a person has a right or interest. “Digital property” does not include underlying property or an underlying liability unless the property (27) “Trustee” means a person with legal title to an asset under or liability is itself an electronic record. an agreement or declaration that creates a beneficial interest in another. “Trustee” includes an original, additional, and successor (11) “Electronic” means relating to technology having electri- trustee, and a cotrustee. cal, digital, magnetic, wireless, optical, electromagnetic, or simi- lar capabilities. (28) “User” means a person that has an account with a custo- dian. (12) “Electronic communication” has the meaning given in 18 USC 2510 (12). (29) “Will” includes a codicil and any document incorporated by reference in a testamentary document under s. 853.32 (1) or (2). (13) “Electronic communication service” means a custodian History: 2015 a. 300; s. 13.92 (1) (bm) 2. that provides to a user the ability to send or receive an electronic communication. 711.04 Priorities; user directions for disclosure of dig- (14) “Fiduciary” means an original, additional, or successor ital property. (1) A user may use an online tool to direct the cus- personal representative, conservator, guardian, agent, or trustee. todian to disclose to a designated recipient or not to disclose some

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

711.04 MISCELLANEOUS PROPERTY PROVISIONS Updated 13−14 Wis. Stats. 2 or all of the user’s digital property, including the content of elec- 1. A number, username, address, or other unique subscriber tronic communications. If the online tool allows the user to or account identifier assigned by the custodian to identify the modify or delete a direction at all times, a direction regarding dis- user’s account. closure using an online tool overrides a contrary direction by the 2. Evidence linking the account to the user. user in a will, trust, power of attorney, or any other governing 3. A court order that includes any of the following findings: instrument. a. The user had a specific account with the custodian that is (2) If a user has not used an online tool to give direction under identifiable by the information specified in subd. 1. sub. (1), or if the custodian has not provided an online tool, the b. The disclosure of the content of electronic communications user may allow or prohibit disclosure to a fiduciary of some or all of the user does not violate 18 USC 2701 et seq., 47 USC 222, or of the user’s digital property, including the content of electronic other applicable law. communications sent or received by the user, in a will, trust, power of attorney, or any other governing instrument. c. Unless the user provided direction using an online tool, the user consented to disclosure of the content of electronic communi- (3) A user’s direction under sub. (1) or (2) overrides a contrary cations. 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 d. The disclosure of the content of electronic communications terms of service. of the user is reasonably necessary for administration of the estate. History: 2015 a. 300. History: 2015 a. 300. 711.06 Disclosure of digital property; agent under a 711.05 Disclosure of digital property; personal repre- power of attorney. (1) DISCLOSURE OF DIGITAL PROPERTY sentative of a deceased user. (1) DIGITAL PROPERTY OTHER OTHER THAN CONTENT OF ELECTRONIC COMMUNICATIONS; PRINCI- THAN CONTENT OF ELECTRONIC COMMUNICATIONS. Unless a user PAL. Unless otherwise ordered by the court, directed by the princi- prohibited disclosure of digital property or the court directs other- pal, or provided in a power of attorney, a custodian shall disclose wise, a custodian shall disclose to the personal representative of to an agent with specific authority over the principal’s digital the deceased user’s estate a catalogue of electronic communica- property or general authority to act on behalf of a principal a cata- tions sent or received by the deceased user and digital property, logue of electronic communications sent or received by the prin- other than the content of electronic communications sent or cipal and digital property, other than the content of electronic received by the deceased user, in which the deceased user’s estate communications, in which the principal has a right or interest, if has a right or interest, if the personal representative gives the cus- the agent gives the custodian all of the following: todian all of the following: (a) A written request for disclosure in physical or electronic (a) A written request for disclosure in physical or electronic form. form. (b) An original or a copy of the power of attorney that gives (b) A certified copy of the death certificate of the user. the agent specific authority over digital property or general (c) One of the following to establish the personal rep- authority to act on behalf of the principal. resentative’s authority over the deceased user’s digital property: (c) A certification by the agent, under penalty of perjury, that 1. A certified copy of the letters of appointment of the per- the power of attorney is in effect. sonal representative or special administrator. (d) If requested by the custodian, any of the following: 2. A certified copy of a summary proceeding order under s. 1. A number, username, address, or other unique subscriber 867.01 or 867.02. or account identifier assigned by the custodian to identify the prin- 3. An original or copy of an affidavit under s. 867.03. cipal’s account. 4. An original or copy of an application under s. 867.046. 2. Evidence linking the account to the principal. (d) If requested by the custodian, any of the following: (2) DISCLOSURE OF CONTENT OF ELECTRONIC COMMUNICATIONS; 1. A number, username, address, or other unique subscriber PRINCIPAL. To the extent a power of attorney expressly grants an or account identifier assigned by the custodian to identify the agent authority over the content of electronic communications user’s account. sent or received by the principal and unless directed otherwise by the principal or the court, a custodian shall disclose to the agent 2. Evidence linking the account to the user. the content of electronic communications if the agent gives the 3. An affidavit stating that disclosure of the user’s digital custodian all of the following: property is reasonably necessary for administration of the estate. (a) The items described in sub. (1) (a), (c), and (d). 4. A court order that includes any of the following findings: (b) An original or a copy of the power of attorney that a. The user had a specific account with the custodian, identifi- expressly grants the agent authority over the content of electronic able by the information specified in subd. 1. communications of the principal. b. The disclosure of the user’s digital property is reasonably History: 2015 a. 300. necessary for administration of the estate. 711.07 Disclosure of digital property held in trust. (2) DISCLOSURE OF CONTENT OF ELECTRONIC COMMUNICATIONS; (1) DISCLOSURE OF DIGITAL PROPERTY HELD IN TRUST; TRUSTEE IS DECEASED USER. If a deceased user consented or a court directs dis- closure of the contents of electronic communications of a ORIGINAL USER. Unless otherwise ordered by the court or provided deceased user, the custodian shall disclose to the personal repre- in a trust, a custodian shall disclose to a trustee who is an original sentative of the deceased user’s estate the content of an electronic user of an account any digital property of the account that is held communication sent or received by the user, in which the deceased in trust, including a catalogue of electronic communications of the trustee and the content of electronic communications. user’s estate has a right or interest, if the personal representative gives the custodian all of the following: (2) DISCLOSURE OF DIGITAL PROPERTY OTHER THAN CONTENT OF ELECTRONIC COMMUNICATIONS; TRUSTEE IS NOT ORIGINAL USER. (a) The items described in sub. (1) (a) to (c). Unless otherwise ordered by the court, directed by the user, or pro- (b) Unless the user provided direction using an online tool, a vided in a trust, a custodian shall disclose, to a trustee that is not copy of the user’s will, certification of trust under s. 701.1013, or an original user of an account, a catalogue of electronic communi- other governing instrument, evidencing the deceased user’s con- cations sent or received by an original or successor user and sent to disclosure of the content of electronic communications. stored, carried, or maintained by the custodian in an account of the (c) If requested by the custodian, any of the following: trust and any digital property, other than the content of electronic

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

3 Updated 13−14 Wis. Stats. MISCELLANEOUS PROPERTY PROVISIONS 711.11 communications, in which the trust has a right or interest, if the (b) Partial access to the user’s account that is sufficient to per- trustee gives the custodian all of the following: form the tasks with which the fiduciary or designated recipient is (a) A written request for disclosure in physical or electronic charged. form. (c) A copy in a record of any digital property that the user could (b) A certification of the trust under s. 701.1013. have accessed if the user were alive, had full capacity, and had full (c) A certification by the trustee, under penalty of perjury, that access to the account on the date on which the custodian received the trust exists and the trustee is a currently acting trustee of the the request for disclosure. trust. (2) A custodian may assess a reasonable administrative (d) If requested by the custodian, any of the following: charge to a fiduciary or designated recipient for the cost of disclos- ing digital property under this chapter. 1. A number, username, address, or other unique subscriber (3) A custodian is not required to disclose under this chapter or account identifier assigned by the custodian to identify the digital property deleted by the user. trust’s account. (4) If a user directs or a fiduciary or designated recipient 2. Evidence linking the account to the trust. requests a custodian to disclose under this chapter some, but not (3) DISCLOSURE OF CONTENTS OF ELECTRONIC COMMU- all, of the user’s digital property, the custodian is not required to NICATIONS HELD IN TRUST; TRUSTEE IS NOT ORIGINAL USER. Unless disclose the digital property if segregation of the digital property otherwise ordered by the court, directed by the user, or provided would impose an undue burden on the custodian. If the custodian in a trust, a custodian shall disclose to a trustee that is not an origi- refuses to disclose digital property because the custodian believes nal user of an account the content of an electronic communication the segregation of the digital property imposes an undue burden, sent or received by an original or successor user and carried, main- the custodian or fiduciary may seek an order from the court to dis- tained, processed, received, or stored by the custodian in the close any of the following: trust’s account, in which the trust has a right or interest, if the (a) To the fiduciary or designated recipient, a subset of the trustee gives the custodian all of the following: user’s digital property that is limited by date. (a) The items described in sub. (2) (a), (c), and (d). (b) To the fiduciary or designated recipient, all of the user’s (b) A certification of the trust under s. 701.1013 that includes digital property. an original or successor user’s consent to disclosure of the content (c) None of the user’s digital property. of electronic communications to the trustee. History: 2015 a. 300. (d) To the court for review in camera, all of the user’s digital property. 711.08 Disclosure of digital property; conservator or History: 2015 a. 300. guardian of protected person. (1) After an opportunity for 711.10 Custodian compliance and immunity. (1) Not a hearing under s. 54.10, the court may grant a guardian access to later than 60 days after receipt of the information required under the digital property of a protected person. ss. 711.05 to 711.08 or 711.12 (7) or an online tool, a custodian (2) After an opportunity for a hearing under s. 54.76, the court shall comply with a request under this chapter from a fiduciary or may grant a conservator access to the digital property of a pro- designated recipient to disclose digital property or terminate an tected person. account. If the custodian fails to comply, the fiduciary or desig- (3) Unless otherwise ordered by the court or directed by the nated recipient may apply to the court for an order directing the user, a custodian shall disclose to a guardian or custodian the cata- custodian to comply with the request. logue of electronic communications sent or received by a pro- (2) A court shall include in an order directing a custodian to tected person and any digital property, other than the content of comply with a request made under this chapter a finding that com- electronic communications, in which the protected person has a pliance with the request does not violate 18 USC 2702. right or interest if the guardian or conservator gives the custodian (3) A custodian may notify the user that a request for disclo- all of the following: sure of digital property or to terminate an account was made under (a) A written request for disclosure in physical or electronic this chapter. form. (4) A custodian may deny a request under this chapter from a (b) A certified copy of the court order that gives the guardian fiduciary or designated recipient for disclosure of digital property or conservator authority over the protected person’s digital prop- or to terminate an account if the custodian is aware of any lawful erty. access to the account after the receipt of the fiduciary’s request. (c) If requested by the custodian, any of the following: (5) This chapter does not limit a custodian’s ability to obtain 1. A number, username, address, or other unique subscriber or to require a fiduciary or designated recipient requesting disclo- or account identifier assigned by the custodian to identify the sure or termination under this chapter to obtain a court order that account of the protected person. does all of the following: 2. Evidence linking the account to the protected person. (a) Specifies that an account belongs to the protected person (4) A guardian or conservator with general authority to man- or principal. age a protected person’s assets may request a custodian of the pro- (b) Specifies that there is sufficient consent from the protected tected person’s digital property to suspend or terminate an account person or principal to support the requested disclosure. of the protected person for good cause. A request made under this (c) Contains any findings required by law other than this chap- subsection shall be accompanied by a certified copy of the court ter. order granting the guardian or conservator general authority to (6) A custodian and its officers, employees, and agents are manage the protected person’s assets. immune from liability for an act or omission done in good faith in History: 2015 a. 300. compliance with this chapter. History: 2015 a. 300. 711.09 Choice of methods for disclosing digital prop- erty; custodian. (1) When disclosing digital property of a user 711.11 Terms of service agreement. (1) This chapter under this chapter, the custodian may in its sole discretion provide does not change or impair the rights of a custodian or a user under a fiduciary or designated recipient with any of the following: a terms of service agreement to access and use digital property of (a) Full access to the user’s account. the user.

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

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

(2) This chapter does not give a fiduciary or designated recipi- 2. Evidence linking the account to the user. ent rights other than the rights held by the user for whom, or for 3. A finding by the court that the user had a specific account whose estate, the fiduciary or designated recipient acts or repre- with the custodian, identifiable by the information specified in sents. subd. 1. (3) A fiduciary’s or designated recipient’s access to digital (8) (a) A fiduciary has no duty to review any digital property property may be modified or eliminated by any of the following: of a decedent, settlor, principal, or protected person or to secure (a) The user. or preserve any digital property that is not in the possession of the (b) Federal law. fiduciary, unless any of the following applies: (c) A terms of service agreement if the user has not provided 1. The fiduciary has knowledge, or has reason to believe, that direction under s. 711.04. the decedent’s estate, settlor’s trust, principal, or protected person History: 2015 a. 300. has digital property of economic value. 711.12 Fiduciary duty and authority. (1) The legal duties 2. The fiduciary receives a written request from a beneficiary imposed on a fiduciary with the authority to manage tangible who has an interest in the digital property of the decedent’s estate, property apply to a fiduciary’s management of digital property. settlor’s trust, principal, or protected person. (2) (a) A fiduciary’s or designated recipient’s authority with (b) A fiduciary’s reasonable efforts to review, secure, or pre- respect to a user’s digital property may not be used to impersonate serve digital property satisfy a duty to review, secure, or preserve the user and is subject to all of the following: digital property under par. (a). 1. Except as otherwise provided in s. 711.04, the applicable (c) If a fiduciary reviews, secures, or preserves a portion of the terms of service. digital property of a decedent, settlor, principal, or protected per- 2. Other applicable law, including copyright law. son and the fiduciary does not have a duty to do so, the reviewing, (b) A fiduciary’s authority is limited by the scope of the fidu- securing, or preserving of a portion of digital property does not ciary’s duties. give rise to a duty to review, secure, or preserve the remaining por- (3) A fiduciary with authority over the property of a decedent, tion of the digital property of the decedent, settlor, principal, or protected person, principal, or settlor has the right to access any protected person. digital property in which the decedent, protected person, princi- (d) Unless a fiduciary has a duty to review, secure, or preserve pal, or settlor had a right or interest and that is not held by a custo- digital property under par. (a), a fiduciary is not liable for failing dian or subject to a terms of service agreement. to review, secure, or preserve any digital property of a decedent, (4) A fiduciary acting within the scope of the fiduciary’s settlor, principal, or protected person. duties is an authorized user of the digital property of the decedent, History: 2015 a. 300. protected person, principal, or settlor for the purpose of applicable computer fraud and unauthorized computer access laws, includ- 711.13 Marital property classification of digital prop- ing s. 943.70. erty. Chapter 766 governs the classification of digital property of (5) (a) A fiduciary with authority over the tangible personal a user who is married. property of a decedent, protected person, principal, or settlor has History: 2015 a. 300. the right to access the tangible personal property and any digital property stored in the tangible personal property. 711.14 Uniformity of application and construction. This chapter shall be applied and construed to effectuate its gen- (b) A fiduciary with authority over the tangible personal prop- eral purpose to make uniform the law with respect to the subject erty of a decedent, protected person, principal, or settlor is an authorized user of digital property stored in the tangible personal of this chapter among states enacting it. property for the purpose of computer fraud and unauthorized com- History: 2015 a. 300. puter access laws, including s. 943.70. 711.15 Relation to Electronic Signatures in Global and (6) A custodian may disclose information in a user’s account National Commerce Act. This chapter modifies, limits, or to a fiduciary of the user when the information is required to termi- supersedes the Electronic Signatures in Global and National Com- nate an account used to access digital property licensed to the user. merce Act, 15 USC 7001 et seq., but does not modify, limit, or (7) A fiduciary of a user may request a custodian to terminate supersede section 101 (c) of that act, 15 USC 7001 (c), or autho- the user’s account. A request for termination must be in writing, rize electronic delivery of any of the notices described in section in either physical or electronic form, and accompanied by all of 103 (b) of that act, 15 USC 7003 (b). the following: History: 2015 a. 300. (a) If the user is deceased, a certified copy of the death certifi- cate of the user. 711.16 Applicability. (1) This chapter applies to all of the (b) Any of the following that grants the fiduciary authority following: over the user’s account: (a) A fiduciary acting under a will or power of attorney exe- 1. A certified copy of the letters of appointment of a personal cuted before, on, or after April 1, 2016. representative. (b) A personal representative acting for a decedent who died 2. A certified copy of the letters of special administration. before, on, or after April 1, 2016. 3. A certified copy of a summary proceeding order under s. (c) A guardianship or conservatorship proceeding, whether 867.01 or 867.02. pending in a court or commenced before, on, or after April 1, 3m. An original or copy of an affidavit under s. 867.03. 2016. 4. An original or copy of an application under s. 867.046. (d) A trustee acting under a trust created before, on, or after 5. An original or copy of a power of attorney and a certifica- April 1, 2016. tion by the agent that the power of attorney is in effect. (2) This chapter applies to a custodian only if the user resides 6. A certification of the trust under s. 701.1013. in this state or resided in this state at the time of the user’s death. (c) If requested by the custodian, any of the following: (3) This chapter does not apply to digital property of an 1. A number, username, address, or other unique subscriber employer used by an employee in the ordinary course of the or account identifier assigned by the custodian to identify the employer’s business. user’s account. History: 2015 a. 300.

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

54.01 GUARDIANSHIPS AND CONSERVATORSHIPS Updated 13−14 Wis. Stats. 2 tody, and constitutes a substantial handicap to the afflicted indi- 7. If the proposed ward is receiving moneys paid, or if moneys vidual. The term does not include dementia that is primarily are payable, by the federal department of veterans affairs, a repre- caused by degenerative brain disorder. sentative of the federal department of veterans affairs, or, if the (9) “Durable power of attorney” has the meaning given in s. proposed ward is receiving moneys paid, or if moneys are pay- 244.02 (3). able, by the state department of veterans affairs, a representative (9g) “Foreign court” means a court of a foreign state having of the state department of veterans affairs. competent jurisdiction of a foreign ward. 8. If the proposed ward is receiving long−term support ser- (9i) “Foreign guardian” means a guardian appointed by a for- vices or similar public benefits, the county department of human eign court for a foreign ward. services or social services that is providing the services or bene- fits. (9k) “Foreign guardianship” means a guardianship issued by 9. The corporation counsel of the county in which the petition a foreign court. is filed and, if the petition is filed in a county other than the county (9m) “Foreign state” means a state other than this state. of the proposed ward’s residence, the corporation counsel of the (9p) “Foreign ward” means an individual who has been found county of the proposed ward’s residence. by a foreign court to be incompetent or a spendthrift and who is 10. Any other person required by the court. subject to a guardianship order or related order in a foreign state. (b) For purposes of proceedings subsequent to an order for (10) “Guardian” means a person appointed by a court under guardianship, any of the following: s. 54.10 to manage the income and assets, which may include, by 1. The guardian. court order, digital property, as defined in s. 711.03 (10), and pro- 2. The spouse or adult child of the ward or the parent of a vide for the essential requirements for health and safety and the minor ward. personal needs of a minor, an individual found incompetent, or a spendthrift. 3. The county of venue, through the county’s corporation counsel, if the county has an interest. (11) “Guardian of the estate” means a guardian appointed to comply with the duties specified in s. 54.19 and to exercise any of 4. Any person appointed as agent under a durable power of the powers specified in s. 54.20. attorney under ch. 244, unless the agency is revoked or terminated by a court. (12) “Guardian of the person” means a guardian appointed to comply with the duties specified in s. 54.25 (1) and to exercise any 5. Any other individual that the court may require, including of the powers specified in s. 54.25 (2). any fiduciary that the court may designate. (18) “Least restrictive” means that which places the least pos- (13) “Heir” means any person, including the surviving sible restriction on personal liberty and the exercise of rights and spouse, who is entitled under the statutes of intestate succession that promotes the greatest possible integration of an individual to an interest in property of a decedent. The state is an heir of the into his or her community that is consistent with meeting his or her decedent and a person interested under s. 45.37 (10) and (11) when essential requirements for health, safety, habilitation, treatment, the decedent was a member of the Wisconsin Veterans Home at and recovery and protecting him or her from abuse, exploitation, King or at the facilities operated by the department of veterans and neglect. affairs under s. 45.50 at the time of the decedent’s death. (19) “Meet the essential requirements for physical health or (14) “Impairment” means a developmental disability, serious safety” means perform those actions necessary to provide the and persistent mental illness, degenerative brain disorder, or other health care, food, shelter, clothes, personal hygiene, and other care like incapacities. without which serious physical injury or illness will likely occur. (15) “Incapacity” means the inability of an individual effec- (20) “Minor” means an individual who has not attained the tively to receive and evaluate information or to make or communi- age of 18 years. cate a decision with respect to the exercise of a right or power. (21) “Mortgage” means any agreement or arrangement in (16) “Individual found incompetent” means an individual which property is used as security. who has been adjudicated by a court as meeting the requirements (22) of s. 54.10 (3). “Other like incapacities” means those conditions incurred at any age that are the result of accident, organic brain (17) “Interested person” means any of the following: damage, mental or physical disability, or continued consumption (a) For purposes of a petition for guardianship, any of the fol- or absorption of substances, and that produce a condition that sub- lowing: stantially impairs an individual from providing for his or her own 1. The proposed ward, if he or she has attained 14 years of age. care or custody. 2. The spouse or adult child of the proposed ward, or the par- (23) “Personal representative” means any individual to whom ent of a proposed ward who is a minor. letters to administer a decedent’s estate have been granted by the 3. For a proposed ward who has no spouse, child, or parent, court or by the probate registrar under ch. 865, but does not an heir, as defined in s. 851.09, of the proposed ward that may be include a special administrator. reasonably ascertained with due diligence. (24) “Physician” has the meaning given in s. 448.01 (5). 4. Any individual who is nominated as guardian, any individ- (25) “Property” means any interest, legal or equitable, in real ual who is appointed to act as guardian or fiduciary for the pro- or personal property, without distinction as to kind, including posed ward by a court of any state, any trustee for a trust estab- money, rights of a beneficiary under a contractual arrangement, lished by or for the proposed ward, any person appointed as agent digital property, as defined in s. 711.03 (10), choses in action, and under a power of attorney for health care, as defined in s. 155.01 anything else that may be the subject of ownership. (4), or any person appointed as agent under a durable power of (26) “Proposed ward” means a minor, an individual alleged to attorney under ch. 244. be incompetent, or an alleged spendthrift, for whom a petition for 5. If the proposed ward is a minor, the individual who has guardianship is filed. exercised principal responsibility for the care and custody of the (27) “Psychologist” means a licensed psychologist, as proposed ward during the period of 60 consecutive days immedi- defined in s. 455.01 (4). ately before the filing of the petition. (28) “Psychotropic medication” means a prescription drug, as 6. If the proposed ward is a minor and has no living parent, defined in s. 450.01 (20), that is used to treat or manage a psychiat- any individual nominated to act as fiduciary for the minor in a will ric symptom or challenging behavior. or other written instrument that was executed by a parent of the (29) “Sale” includes an option or agreement to transfer minor. whether the consideration is cash or credit. It includes exchange,

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

7 Updated 13−14 Wis. Stats. GUARDIANSHIPS AND CONSERVATORSHIPS 54.21 appointed, apply to be appointed the ward’s representative payee, (L) Apply to the court for adjustment of any claims against the or ensure that a representative payee is appointed. ward incurred before entry of the order appointing the guardian or (10) Perform any other duty required by the court order. the filing of a lis pendens as provided in s. 54.47. The court shall History: 2005 a. 387 ss. 100, 388, 413; 2007 a. 45. by order fix the time and place it will adjust claims and the time within which all claims shall be presented. Notice of these times 54.20 Powers of guardian of the estate. (1) STANDARD. and the place shall be given by publication as provided in s. 879.05 In exercising the powers under this section, the guardian of the (4), and ch. 859 generally shall apply. After the court has made estate shall use the judgment and care that persons of prudence, the order, no action or proceeding may be commenced or main- discretion, and intelligence exercise in the management of their tained in any court against the ward upon any claim over which own affairs, including the permanent, rather than speculative, dis- the circuit court has jurisdiction. position of their funds and consideration of the probable income (m) Access the ward’s digital property in accordance with s. and safety of their capital. In addition, in exercising powers and 711.08. duties under this section, the guardian of the estate shall consider, (3) POWERS THAT DO NOT REQUIRE COURT APPROVAL. The consistent with the functional limitations of the ward, all of the fol- guardian of the estate may do any of the following on behalf of the lowing: ward without first receiving the court’s approval: (a) The ward’s understanding of the harm that he or she is (a) Provide support from the ward’s income and assets for an likely to suffer as the result of his or her inability to manage prop- individual whom the ward is legally obligated to support. erty and financial affairs. (b) Enter into a contract, other than a contract under sub. (2) (b) The ward’s personal preferences and desires with regard to or that is otherwise prohibited under this chapter. managing his or her activities of daily living. (c) Exercise options of the ward to purchase securities or other (c) The least restrictive form of intervention for the ward. property. (2) POWERS REQUIRING COURT APPROVAL. The guardian of the (d) Authorize access to or release of the ward’s confidential estate may do any of the following with respect to the ward’s financial records. income and assets only with the court’s prior written approval fol- (e) Apply for public and private benefits. lowing any petition and upon any notice and hearing that the court (f) Retain any real or personal property that the ward possesses requires: when the guardian is appointed or that the ward acquires by gift (a) Make gifts, under the terms, including the frequency, or inheritance during the guardian’s appointment. amount, and donees specified by the court in approval of a petition (g) Subject to ch. 786, sell, mortgage, pledge, lease, or under s. 54.21. exchange any asset of the ward at fair market value. (b) Transfer assets of the ward to the trustee of any existing (h) Invest and reinvest the proceeds of sale of any assets of the revocable living trust that the ward has created for himself or her- ward and any of the ward’s other moneys in the guardian’s posses- self and any dependents, or, if the ward is a minor, to the trustee sion in accordance with ch. 881. of any trust created for the exclusive benefit of the ward that dis- (i) Notwithstanding ch. 881, after such notice as the court tributes to him or her at age 18 or 21, or, if the ward dies before directs, and subject to ch. 786, invest the proceeds of sale of any age 18 or 21, to his or her estate, or as the ward has appointed by assets of the ward and any of the ward’s other moneys in the guard- a written instrument that is executed after the ward attains age 14. ian’s possession in the real or personal property that is determined (c) Establish a trust as specified under 42 USC 1396p (d) (4) by the court to be in the best interests of the estate of the ward. and transfer assets into the trust. (j) Settle all claims and accounts of the ward and appear for and (d) Purchase an annuity or insurance contract and exercise represent the ward in all actions and proceedings except those for rights to elect options or change beneficiaries under insurance and which another person is appointed. annuity policies and to surrender the policies for their cash value. (k) Take any other action, except an action specified under sub. (e) Ascertain, establish, and exercise any rights available to the (2), that is reasonable or appropriate to the duties of the guardian ward under a retirement plan or account. of the estate. History: 2005 a. 387 ss. 100, 380, 383, 390, 391, 393, 395, 396, 399, 415, 417; (f) Exercise any elective rights that accrue to the ward as the 2015 a. 300. result of the death of the ward’s spouse or parent. The standard for a trial court’s exercise of discretion for a guardian of a married person is whether the proposed action will benefit the ward, the estate, or members (g) Release or disclaim, under s. 854.13, any interest of the of the ward’s immediate family. In Matter of Guardianship of F.E.H. 154 Wis. 2d 576, ward that is received by will, intestate succession, nontestamen- 453 N.W.2d 882 (1990). tary transfer at death, or other transfer. 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. (h) If appointed for a married ward, exercise any management 2d 920, 540 N.W.2d 11 (Ct. App. 1995), 95−0580. and control right over the marital property or property other than A guardian may not sue for the loss of society and companionship of a ward, nor marital property and any right in the business affairs that the mar- bring a separate claim for costs incurred or income lost on account of injuries to the ward. Conant v. Physicians Plus Medical Group, Inc. 229 Wis. 2d 271, 600 N.W.2d ried ward could exercise under ch. 766 if the ward were not an 21 (Ct. App. 1999), 98−3285. individual found incompetent, consent to act together in or join in An interested party without a direct financial stake in the action had standing to any transaction for which consent or joinder of both spouses is appeal 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. required, or execute under s. 766.58 a marital property agreement NOTE: The above annotations relate to guardianships under ch. 880, stats., with the ward’s spouse or, if appointed for a ward who intends to prior to the revision of and renumbering of that chapter to ch. 54 by 2005 Wis. marry, with the ward’s intended spouse, but may not make, amend Act 387. or revoke a will. 54.21 Petition to transfer ward’s assets to another. (i) Provide support for an individual whom the ward is not (1) In this section: legally obligated to support. (a) “Disabled” has the meaning given in s. 49.468 (1) (a) 1. (j) Convey or release a contingent or expectation interest in property, including a marital property right and any right of survi- (b) “Other individual” means any of the following: vorship that is incidental to a joint tenancy or survivorship marital 1. The ward’s spouse, if any. property. 2. The ward’s close friend, if any, and if the close friend meets (k) In all cases in which the court determines that it is advanta- the requirements of s. 50.94 (3) (e) 1. and 2. geous to continue the business of a ward, continue the business on 3. The guardian ad litem of the ward’s minor child, if any. any terms and conditions specified in the order of the court. 4. The ward’s disabled child, if any.

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

1 Updated 13−14 Wis. Stats. UNIFORM POWER OF ATTORNEY 244.03

CHAPTER 244

UNIFORM POWER OF ATTORNEY FOR FINANCES AND PROPERTY

SUBCHAPTER I SUBCHAPTER II GENERAL PROVISIONS AUTHORITY 244.01 Short title. 244.41 Authority that requires specific grant, grant of general authority. 244.02 Definitions. 244.42 Incorporation of authority. 244.03 Applicability. 244.43 Construction of authority generally. 244.04 Power of attorney is durable. 244.44 Real property. 244.05 Execution of power of attorney. 244.445 Digital property. 244.06 Validity of power of attorney. 244.45 Tangible personal property. 244.07 Meaning and effect of power of attorney. 244.46 Stocks and bonds. 244.08 Nomination of guardian; relation of agent to court−appointed fiduciary. 244.47 Commodities and options. 244.09 When a power of attorney is effective. 244.48 Banks and other financial institutions. 244.10 Termination of power of attorney or agent’s authority. 244.49 Operation of entity or business. 244.11 Coagents and successor agents. 244.50 Insurance and annuities. 244.12 Reimbursement and compensation of agent. 244.51 Estates, trusts, and other beneficial interests. 244.13 Agent’s acceptance. 244.52 Claims and litigation. 244.14 Agent’s duties. 244.53 Personal and family maintenance. 244.15 Exoneration of agent. 244.54 Benefits from governmental programs or civil or military service. 244.16 Judicial relief. 244.55 Retirement plans. 244.17 Agent’s liability. 244.56 Taxes. 244.18 Agent’s resignation; notice. 244.57 Gifts. 244.19 Protection of persons that accept and rely upon an acknowledged power 244.61 Statutory Form Power of Attorney for Finances and Property. of attorney. 244.62 Agent’s certification. 244.20 Refusal to accept acknowledged power of attorney. 244.63 Distribution of forms. 244.21 Laws applicable to financial institutions and entities. 244.64 Relation to power of attorney for health care.

SUBCHAPTER I (10) “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power GENERAL PROVISIONS of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the princi- 244.01 Short title. This chapter may be cited as the Uniform pal’s estate, the principal’s creditors, or the creditors of the princi- Power of Attorney for Finances and Property Act. pal’s estate. The term does not include a power exercisable in a History: 2009 a. 319. fiduciary capacity or only by will. The term includes a power of Procedural Gray Areas: New Power of Attorney for Finances. Beermann & John- appointment that is exercisable only when one of the following son. Wis. Law. Oct. 2011. circumstances exists: 244.02 Definitions. In this chapter: (a) The occurrence of a specified event. (1) “Agent” means a person granted authority to act for a prin- (b) The satisfaction of an ascertainable standard. cipal under a power of attorney, whether denominated an agent, (c) The passage of a specified period only after the occurrence attorney−in−fact, or otherwise. of the specified event, the satisfaction of the ascertainable stan- (2) “Domestic partner” has the meaning given in s. 770.01 (1). dard, or the passage of the specified period. (3) “Durable power of attorney” means a power of attorney (11) “Principal” means an individual who grants authority to that is not terminated by the principal’s incapacity. an agent in a power of attorney. (4) “Electronic” means relating to technology having electri- (12) “Property” means anything that may be the subject of cal, digital, magnetic, wireless, optical, electromagnetic, or simi- ownership, including real or personal property, digital property, as lar capabilities. defined in s. 711.03 (10), or any interest or right in that property. (5) “Genuine” means free of forgery or counterfeiting. (13) “Record” means information that is inscribed on a tangi- ble medium or that is stored in an electronic or other medium and (6) “Good faith” means honesty in fact. is retrievable in perceivable form. (7) “Incapacity” means inability of an individual to manage (14) “Sign” means, with present intent to authenticate or property, finances, or business affairs because the individual adopt a record, any of the following: meets one of the following criteria: (a) To execute or adopt a tangible symbol. (a) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use (b) To attach to or logically associate with the record an elec- of technological assistance. tronic sound, symbol, or process. (b) Is missing. (15) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether (c) Is detained, including incarceration in a correctional facil- held directly, indirectly, or in any other manner. The term does not ity. include commodity futures contracts and call or put options on (d) Is outside the United States and unable to return. stocks or stock indexes. (8) “Person” means an individual, corporation, business trust, History: 2009 a. 319; 2015 a. 300. estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental 244.03 Applicability. This chapter applies to all powers of subdivision, agency, or instrumentality, or any other legal or com- attorney except for the following: mercial entity. (1) A power to the extent it is coupled with an interest in the (9) “Power of attorney” means a writing or other record that subject of the power, including a power given to or for the benefit grants authority to an agent to act in the place of the principal, of a creditor in connection with a credit transaction. whether or not the term power of attorney is used. (2) A power to make health−care decisions.

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

5 Updated 13−14 Wis. Stats. UNIFORM POWER OF ATTORNEY 244.43

(c) The person has no good faith basis for refusal under sub. port, an interest in the principal’s property, whether by gift, right (1). of survivorship, beneficiary designation, disclaimer, or otherwise. (3) If a person requests a certification, a translation, or an (3) Subject to subs. (1), (2), (4), and (5), if a power of attorney opinion of counsel under s. 244.19 (4), the person shall accept the grants to an agent the authority to do all acts that a principal could power of attorney no later than 5 business days after receipt of the do, the agent has the general authority described in ss. 244.44 to certification, translation, or opinion of counsel, provided that 244.56. there is no other good faith reason to refuse under sub. (1). (4) Unless the power of attorney otherwise provides, a grant (4) It is not a refusal to accept an acknowledged power of of authority to make a gift is subject to s. 244.57. attorney if any of the following applies: (5) Subject to subs. (1), (2), and (4), if the subjects over which (a) The person requests but does not require that an additional authority is granted in a power of attorney are similar or overlap, or different power of attorney form be used. the broadest authority controls. (b) The person has requested but has not received a certifica- (6) Authority granted in a power of attorney is exercisable tion, a translation, or an opinion of counsel under s. 244.19 (4). with respect to property that the principal has when the power of (5) If a person refuses to accept an acknowledged power of attorney is executed or acquires later, whether or not the property attorney in violation of this section, the person requesting the is located in this state and whether or not the authority is exercised acceptance may request that a court order all of the following: or the power of attorney is executed in this state. (a) Acceptance of the power of attorney. (7) An act performed by an agent pursuant to a power of attor- (b) In any action or proceeding that confirms the validity of the ney has the same effect and inures to the benefit of and binds the power of attorney or mandates acceptance of the power of attor- principal and the principal’s successors in interest as if the princi- ney, payment of reasonable attorney fees, notwithstanding s. pal had performed the act. 814.04 (1), and costs by the person who refuses to accept the History: 2009 a. 319; 2015 a. 300. power of attorney. (6) If a court determines that a proceeding to mandate accept- 244.42 Incorporation of authority. (1) An agent has the ance of an acknowledged power of attorney was brought other authority described in this subchapter if the power of attorney than in good faith, the court may award reasonable attorney fees refers to general authority as indicated by section titles for ss. and costs to the prevailing party. 244.44 to 244.56 or cites the section in which the authority is History: 2009 a. 319. described. 244.21 Laws applicable to financial institutions and (2) A reference in a power of attorney to general authority entities. This chapter does not supersede any other law applica- with respect to the descriptive term for a subject in ss. 244.44 to ble to financial institutions or insurance companies, and the other 244.56 or a citation to any of ss. 244.44 to 244.56 incorporates the law controls if in conflict with this chapter. entire section as if it were set out in full in the power of attorney. History: 2009 a. 319. (3) A principal may modify authority incorporated by refer- ence. History: 2009 a. 319. SUBCHAPTER II 244.43 Construction of authority generally. Except as AUTHORITY otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in ss. 244.41 Authority that requires specific grant, grant of 244.44 to 244.56 or that grants to an agent authority to do all acts general authority. (1) An agent under a power of attorney may that a principal could do under s. 244.41 (3), a principal authorizes do any of the following on behalf of the principal or with the prin- the agent, with respect to that subject, to do all of the following: cipal’s property only if the power of attorney expressly grants the (1) Demand, receive, and obtain by any lawful means, money agent the authority and the exercise of that authority is not other- or another thing of value to which the principal is, may become, wise prohibited by another agreement or instrument to which the or claims to be entitled, and conserve, invest, disburse, or use any- authority or property is subject: thing so received or obtained for the purposes intended. (a) Create, amend, revoke, or terminate an inter vivos trust. (2) Contract with any person, on terms agreeable to the agent, (b) Make a gift. to accomplish a purpose of a transaction and perform, rescind, (c) Create or change rights of survivorship. cancel, terminate, reform, restate, release, or modify the contract (d) Create or change a beneficiary designation. or another contract made by or on behalf of the principal. (e) Delegate authority granted under the power of attorney. (3) Execute, acknowledge, seal, deliver, file, or record any (f) Waive the principal’s right to be a beneficiary of a joint and instrument or communication the agent considers desirable to survivor annuity, including a survivor benefit under a retirement accomplish a purpose of a transaction, including creating a sched- plan. ule listing some or all of the principal’s property and attaching it (g) Exercise fiduciary powers that the principal has authority to the power of attorney. to delegate. (4) Initiate, participate in, submit to alternative dispute resolu- (h) Disclaim property, including a power of appointment. tion, settle, oppose, or propose or accept a compromise with (i) Access the content of an electronic communication, as respect to a claim existing in favor of or against the principal or defined in s. 711.03 (6), sent or received by the principal. intervene in litigation relating to the claim. (2) Notwithstanding a grant of authority to do an act described (5) Seek on the principal’s behalf the assistance of a court or in sub. (1), unless the power of attorney otherwise provides, an other governmental agency to carry out an act authorized in the agent who is not a spouse or domestic partner of the principal, may power of attorney. not do any of the following: (6) Engage, compensate, and discharge an attorney, account- (a) Exercise authority under a power of attorney to create in the ant, discretionary investment manager, expert witness, or other agent an interest in the principal’s property, whether by gift, right advisor. of survivorship, beneficiary designation, disclaimer, or otherwise. (7) Prepare, execute, and file a record, report, or other docu- (b) Exercise authority under a power of attorney to create in ment to safeguard or promote the principal’s interest under a stat- an individual to whom the agent owes a legal obligation of sup- ute, rule, or regulation.

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

244.57 UNIFORM POWER OF ATTORNEY Updated 13−14 Wis. Stats. 10

(a) Make outright to, or for the benefit of, a person, a gift of any ACT TOGETHER UNLESS YOU INCLUDE THAT REQUIRE- of the principal’s property, including by the exercise of a presently MENT IN THE SPECIAL INSTRUCTIONS. exercisable general power of appointment held by the principal, IF YOUR AGENT IS UNABLE OR UNWILLING TO ACT in an amount per donee not to exceed the annual dollar limits of FOR YOU, YOUR POWER OF ATTORNEY WILL END the federal gift tax exclusion under section 2503 (b) of the Internal UNLESS YOU HAVE NAMED A SUCCESSOR AGENT. YOU Revenue Code, without regard to whether the federal gift tax MAY ALSO NAME A 2ND SUCCESSOR AGENT. exclusion applies to the gift, or if the principal’s spouse agrees to THIS POWER OF ATTORNEY BECOMES EFFECTIVE consent to a split gift under section 2513 of the Internal Revenue IMMEDIATELY UNLESS YOU STATE OTHERWISE IN THE Code, in an amount per donee not to exceed twice the annual fed- SPECIAL INSTRUCTIONS. THIS POWER OF ATTORNEY eral gift tax exclusion limit. DOES NOT REVOKE ANY POWER OF ATTORNEY (b) Consent, under section 2513 of the Internal Revenue Code, EXECUTED PREVIOUSLY UNLESS YOU SO PROVIDE IN to the splitting of a gift made by the principal’s spouse in an THE SPECIAL INSTRUCTIONS. amount per donee not to exceed the aggregate annual gift tax exclusions for both spouses. IF YOU REVOKE THIS POWER OF ATTORNEY, YOU SHOULD NOTIFY YOUR AGENT AND ANY OTHER PER- (c) Make a gift of the principal’s property only as the agent SON TO WHOM YOU HAVE GIVEN A COPY. IF YOUR determines is consistent with the principal’s objectives if actually AGENT IS YOUR SPOUSE OR DOMESTIC PARTNER AND known by the agent and, if unknown, as the agent determines is YOUR MARRIAGE IS ANNULLED OR YOU ARE consistent with the principal’s best interest based on all relevant DIVORCED OR LEGALLY SEPARATED OR THE DOMES- factors, including all of the following: TIC PARTNERSHIP IS TERMINATED AFTER SIGNING 1. The value and nature of the principal’s property. THIS DOCUMENT, THE DOCUMENT IS INVALID. 2. The principal’s foreseeable obligations and need for main- IF YOU HAVE QUESTIONS ABOUT THE POWER OF tenance. ATTORNEY OR THE AUTHORITY YOU ARE GRANTING 3. Minimization of taxes, including income, estate, inheri- TO YOUR AGENT, YOU SHOULD SEEK LEGAL ADVICE tance, generation skipping transfer, and gift taxes. BEFORE SIGNING THIS FORM. 4. Eligibility for a benefit, a program, or assistance under a DESIGNATION OF AGENT statute, rule, or regulation. I .... (name of principal) name the following person as my 5. The principal’s personal history of making or joining in agent: making gifts. Name of agent: .... History: 2009 a. 319. Agent’s address: .... 244.61 Statutory Form Power of Attorney for Finances Agent’s telephone number: .... and Property. A document substantially in the following form DESIGNATION OF SUCCESSOR AGENT(S) (OPTIONAL) may be used to create a statutory form power of attorney that has If my agent is unable or unwilling to act for me, I name as my the meaning and effect prescribed by this chapter. An appendix successor agent: shall be attached to this form that includes the text of ss. 244.44 Name of successor agent: .... to 244.56. The appendix is for definitions only. The agent has powers only regarding the subjects initialed on the form. Successor agent’s address: .... WISCONSIN STATUTORY FORM Successor agent’s telephone number: .... POWER OF ATTORNEY If my successor agent is unable or unwilling to act for me, I FOR FINANCES AND PROPERTY name as my 2nd successor agent: IMPORTANT INFORMATION Name of 2nd successor agent: .... THIS POWER OF ATTORNEY AUTHORIZES ANOTHER Second successor agent’s address: .... PERSON (YOUR AGENT) TO MAKE DECISIONS CON- Second successor agent’s telephone number: .... CERNING YOUR PROPERTY FOR YOU (THE PRINCIPAL). GRANT OF GENERAL AUTHORITY YOUR AGENT WILL BE ABLE TO MAKE DECISIONS AND ACT WITH RESPECT TO YOUR PROPERTY (INCLUDING I grant my agent and any successor agent general authority to YOUR MONEY) WHETHER OR NOT YOU ARE ABLE TO act for me with respect to the following subjects as defined in the ACT FOR YOURSELF. THE MEANING OF AUTHORITY Uniform Power of Attorney for Finances and Property Act in OVER SUBJECTS LISTED ON THIS FORM IS EXPLAINED chapter 244 of the Wisconsin statutes: IN THE UNIFORM POWER OF ATTORNEY FOR FINANCES INITIAL each subject you want to include in the agent’s gen- AND PROPERTY ACT IN CHAPTER 244 OF THE WIS- eral authority. CONSIN STATUTES. .... Real property THIS POWER OF ATTORNEY DOES NOT AUTHORIZE .... Tangible personal property THE AGENT TO MAKE HEALTH−CARE DECISIONS FOR .... Digital property YOU. .... Stocks and bonds YOU SHOULD SELECT SOMEONE YOU TRUST TO .... Commodities and options SERVE AS YOUR AGENT. UNLESS YOU SPECIFY OTHER- WISE, GENERALLY THE AGENT’S AUTHORITY WILL .... Banks and other financial institutions CONTINUE UNTIL YOU DIE OR REVOKE THE POWER OF .... Operation of entity or business ATTORNEY OR THE AGENT RESIGNS OR IS UNABLE TO .... Insurance and annuities ACT FOR YOU. .... Estates, trusts, and other beneficial interests YOUR AGENT IS ENTITLED TO REASONABLE COM- .... Claims and litigation PENSATION UNLESS YOU STATE OTHERWISE IN THE SPECIAL INSTRUCTIONS. .... Personal and family maintenance THIS FORM PROVIDES FOR DESIGNATION OF ONE .... Benefits from governmental programs or civil or military AGENT. IF YOU WISH TO NAME MORE THAN ONE service AGENT YOU MAY NAME A COAGENT IN THE SPECIAL .... Retirement plans INSTRUCTIONS. COAGENTS ARE NOT REQUIRED TO .... Taxes

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

244.43 UNIFORM POWER OF ATTORNEY Updated 13−14 Wis. Stats. 6

(8) Communicate with any representative or employee of a (1) Find, access, manage, protect, distribute, dispose of, trans- government or governmental subdivision, agency, or instrumen- fer, transfer ownership rights in, or otherwise control digital tality, on behalf of the principal. devices, and any digital property stored thereon, with digital (9) Access communications intended for, and communicate devices to include desktops, laptops, tablets, peripherals, storage on behalf of, the principal by any means. devices, mobile telephones, smartphones, and any similar digital (10) Do any lawful act with respect to a subject described in device, either currently in existence or that may exist as technol- ss. 244.44 to 244.56 and all property related to that subject. ogy develops. History: 2009 a. 319. (2) Access, manage, distribute, delete, terminate, transfer, transfer ownership rights in, or otherwise control [my] digital 244.44 Real property. Unless the power of attorney other- accounts, other than the content of electronic communications, as wise provides, language in a power of attorney granting general defined in s. 711.03 (6), with digital accounts to include [my] bank authority with respect to real property authorizes the agent to do or other financial institution accounts, electronic mail accounts, all of the following: blogs, software licenses, social network accounts, social media (1) Demand, buy, lease, receive, accept as a gift or as security accounts, file−sharing and storage accounts, financial manage- for an extension of credit, or otherwise acquire or reject an interest ment accounts, domain registration accounts, domain name ser- in real property or a right incident to real property. vice accounts, Web hosting accounts, tax preparation service accounts, online store accounts, and affiliated programs currently (2) Sell; exchange; convey with or without covenants, repre- in existence or that may exist as technology develops. sentations, or warranties; quit claim; release; surrender; retain title NOTE: The word in brackets is unnecessary. Corrective legislation is pend- for security; encumber; partition; consent to partitioning; subject ing. to an easement or covenant; subdivide; apply for zoning or other (3) Access, manage, distribute, delete, transfer, transfer own- governmental permits; plat or consent to platting; develop; grant ership rights in, or otherwise control any digital property the prin- an option concerning; lease; sublease; contribute to an entity in cipal may own or otherwise possess rights to, other than the con- exchange for an interest in that entity; or otherwise grant or dis- tent of electronic communications, as defined in s. 711.03 (6), pose of an interest in real property or a right incident to real prop- regardless of the ownership of the digital device on which the digi- erty. tal property is stored or the ownership of the digital account within (3) Pledge or mortgage an interest in real property or right which the digital property is stored. incident to real property as security to borrow money or pay, History: 2015 a. 300. renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal. 244.45 Tangible personal property. Unless the power of attorney otherwise provides, language in a power of attorney (4) Release, assign, satisfy, or enforce by any lawful means a granting general authority with respect to tangible personal prop- mortgage, deed of trust, conditional sale contract, encumbrance, erty authorizes the agent to do all of the following: lien, or other claim to real property which exists or is asserted. (1) Demand, buy, receive, accept as a gift or as security for an (5) Manage or conserve an interest in real property or a right extension of credit, or otherwise acquire or reject ownership or incident to real property owned or claimed to be owned by the possession of tangible personal property or an interest in tangible principal, including by doing any of the following: personal property. (a) Insuring against liability or casualty or other loss. (2) Sell; exchange; convey with or without covenants, repre- (b) Obtaining or regaining possession of or protecting the sentations, or warranties; quit claim; release; surrender; create a interest or right by litigation or otherwise. security interest in; grant options concerning; lease; sublease; or (c) Paying, assessing, compromising, or contesting taxes or otherwise dispose of tangible personal property or an interest in assessments or applying for and receiving refunds in connection tangible personal property. with taxes or assessments. (3) Grant a security interest in tangible personal property or an (d) Purchasing supplies, hiring assistance or labor, and making interest in tangible personal property as security to borrow money repairs or alterations to the real property. or pay, renew, or extend the time of payment of a debt of the princi- (6) Use, develop, alter, replace, remove, erect, or install struc- pal or a debt guaranteed by the principal. tures or other improvements upon real property in or incident to (4) Release, assign, satisfy, or enforce by litigation or other- which the principal has, or claims to have, an interest or right. wise, a security interest, lien, or other claim on behalf of the princi- (7) Participate in a reorganization with respect to real property pal, with respect to tangible personal property or an interest in tan- or an entity that owns an interest in or right incident to real prop- gible personal property. erty and receive, hold, and act with respect to stocks and bonds or (5) Manage or conserve tangible personal property or an inter- other property received in a plan of reorganization, including by est in tangible personal property on behalf of the principal, includ- doing any of the following: ing by doing any of the following: (a) Selling or otherwise disposing of the stocks, bonds, or (a) Insuring against liability or casualty or other loss. property. (b) Obtaining or regaining possession of or protecting the (b) Exercising or selling an option, right of conversion, or sim- property or interest, by litigation or otherwise. ilar right with respect to the stocks, bonds, or property. (c) Paying, assessing, compromising, or contesting taxes or (c) Exercising any voting rights in person or by proxy. assessments or applying for and receiving refunds in connection (8) Change the form of title of an interest in or right incident with taxes or assessments. to real property. (d) Moving the property from place to place. (9) Dedicate to public use, with or without consideration, (e) Storing the property for hire or under a gratuitous bailment. easements or other real property in which the principal has, or (f) Using and making repairs, alterations, or improvements to claims to have, an interest. the property. History: 2009 a. 319. (6) Change the form of title of an interest in tangible personal property. 244.445 Digital property. Unless the power of attorney History: 2009 a. 319. otherwise provides, language in a power of attorney granting gen- eral authority with respect to digital property authorizes the agent, 244.46 Stocks and bonds. Unless the power of attorney subject to s. 711.06 (1), to do all of the following: otherwise provides, language in a power of attorney granting gen-

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

3 Updated 13−14 Wis. Stats. TRUSTS 701.0106

(18) “Power of appointment” has the meaning given in s. appointment, in a capacity other than as a trustee or a directing 702.02 (6). party. (19) “Power of withdrawal” means a presently exercisable History: 2013 a. 92; 2015 a. 300. general power of appointment but does not include any of the fol- lowing: 701.0104 Knowledge. (1) Subject to sub. (2), a person has knowledge of a fact if any of the following applies: (a) A power exercisable by a trustee and limited by an ascer- tainable standard. (a) The person has actual knowledge of the fact. (b) The person has received a notice or notification of the fact. (b) A power exercisable by another person only upon consent of a trustee or of a person holding an adverse interest. (c) The person has reason to know the fact from all the facts and circumstances known to the person at the time in question. (20) “Property” means anything that may be the subject of ownership, whether real or personal, legal or equitable, or digital (2) An organization that conducts activities through employ- property, as defined in s. 711.03 (10), or any interest therein. ees has notice or knowledge of a fact involving a trust only from the time the information was received by an employee having (21) “Qualified beneficiary” means a beneficiary who, on the responsibility to act for the trust, or would have been received by date on which the beneficiary’s qualification is determined, satis- the employee if the organization had exercised reasonable dili- fies any of the following: gence. An organization exercises reasonable diligence if it main- (a) Is a distributee or permissible distributee of trust income or tains reasonable routines for communicating significant infor- principal. mation to the employee having responsibility to act for the trust (b) Without considering the existence or exercise of a power and there is reasonable compliance with the routines. Reasonable of appointment, other than a power of appointment that has been diligence does not require an employee of the organization to irrevocably exercised and notice of the exercise has been given to communicate information unless the communication is part of the the trustee, would be any of the following: individual’s regular duties or the individual knows a matter 1. A distributee or permissible distributee of trust income or involving the trust would be materially affected by the informa- principal if the interests of the distributees described in par. (a) ter- tion. minated on that date without causing the trust to terminate. History: 2013 a. 92. 2. A distributee or permissible distributee of trust income or 701.0105 Default and mandatory rules. (1) Except as principal if the trust terminated on that date. otherwise provided in the terms of the trust, this chapter governs (22) “Revocable,” as applied to a trust, means that the trust the duties and powers of trustees, directing parties, and trust pro- can be revoked by the settlor without the consent of the trustee or tectors; relations among trustees, directing parties, and trust pro- a person holding an adverse interest, regardless of whether the set- tectors; and the rights and interests of beneficiaries. tlor is incapacitated. (2) The terms of a trust prevail over any provision of this chap- (23) “Settlor” means a person, including a testator, who ter except for the following: creates or contributes property to a trust. If more than one person (a) The requirements for creating a trust. creates or contributes property to a trust, each person is a settlor (b) The duty of a trustee or a directing party to act in good faith of the portion of the trust property attributable to that person’s con- and in accordance with the terms and purposes of a trust instru- tribution except to the extent another person has the power to ment and the interests of the beneficiaries. revoke the trust or withdraw that portion. (c) The requirement that a trust and its terms be for the benefit (24) “Special power of appointment” has the meaning given of its beneficiaries, and that the trust have a purpose that is lawful. in s. 702.02 (7). (d) The power of a court to modify or terminate a trust under (25) “Spendthrift provision” means a term of a trust that ss. 701.0410 to 701.0416. restrains either or both of a voluntary or involuntary transfer of a (e) The effect of a spendthrift provision and the rights of cer- beneficiary’s interest. tain creditors and assignees to reach a trust as provided in ss. (26) “State” means a state of the United States, the District of 701.0501 to 701.0508. Columbia, Puerto Rico, the United States Virgin Islands, any terri- (f) The power of the court under s. 701.0702. tory or insular possession subject to the jurisdiction of the United (g) The power of the court under s. 701.0708 (2) to adjust a States, and an Indian tribe, band, or nation recognized by federal trustee’s, directing party’s, or trust protector’s compensation law or formally acknowledged by a state. specified in the terms of the trust. (27) “Terms of a trust” means the manifestation of the settlor’s (h) The effect of an exculpatory term under s. 701.1008. intent regarding a trust’s provisions as expressed in the trust (i) The rights under ss. 701.1010 to 701.1013 of a person other instrument or as may be established by other evidence that would than a trustee or beneficiary. be admissible in a judicial proceeding. (j) Periods of limitation for commencing a judicial proceeding. (28) “Trustee” includes an original, additional, and successor trustee, and a cotrustee. (k) The power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice. (29) “Trust for an individual with a disability” means a trust that is established for the benefit of an individual with a disability (L) The jurisdiction of the court and venue for commencing a proceeding as provided in ss. 701.0202, 701.0203, and 701.0204. of any age, if the assets of the trust would not be counted as resources of the individual with a disability for purposes of eligi- (m) The jurisdiction of the court under ss. 701.0807 (4), bility for medical assistance under subch. IV of ch. 49, if he or she 701.0808 (9), and 701.0818 (12). applied for medical assistance and was otherwise eligible. (n) The legal capacity under s. 701.0818 (2) (c) in which a trust (30) “Trust instrument” means an instrument, including any protector who is also serving as a trustee or a directing party must amendments or modifications to the instrument under s. 701.0111 exercise any power granted to the trust protector. or subch. IV, that is executed by the settlor that contains terms of History: 2013 a. 92; 2013 a. 151 s. 28. a trust or is created under a statute, judgment, or decree that orders 701.0106 Common law of trusts; principles of equity. property to be transferred to a trustee to be administered for the The common law of trusts and principles of equity supplement benefit of a beneficiary. this chapter, except to the extent modified by this chapter or (31) “Trust protector” means a person who, in a trust instru- another statute of this state. ment or court order, is granted a power, other than a power of History: 2013 a. 92.

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

11 Updated 13−14 Wis. Stats. TRUSTS 701.0419 trustee may appoint assets to a 2nd trust under sub. (2) upon 3. If no person who is entitled to receive notice under subd. notice, without court approval, under the procedure described in 1. files an objection with the court or any objection that has been par. (b), or with court approval, under the procedure described in filed with the court is withdrawn, the court shall enter an order par. (c). approving the appointment of assets under sub. (2) as set forth in (b) 1. If a trustee chooses to proceed without a court order, the the trustee’s notice unless the court determines that the appoint- trustee shall give notice of the manner in which the trustee intends ment of assets does not comply with the requirements of this sec- to appoint assets to a 2nd trust under sub. (2) to all of the following: tion. a. The qualified beneficiaries of the first trust. (6) SUBSEQUENTLY DISCOVERED ASSETS. (a) The appointment b. Each trust protector appointed under the terms of the first of all of the assets of the first trust in favor of the trustee of the 2nd trust. trust includes subsequently discovered assets otherwise belong- ing to the first trust and assets paid to or acquired by the first trust c. Each directing party appointed under the terms of the first subsequent to the appointment in favor of the 2nd trust. trust. (b) Except as otherwise provided by the trustee of the first d. The settlor of the first trust, if living. trust, the appointment of part but not all of the assets of the first 2. To satisfy the trustee’s notice obligation under this para- trust in favor of the 2nd trust does not include subsequently dis- graph, a trustee shall provide each person entitled to receive notice covered assets belonging to the first trust or assets paid to or under subd. 1. all of the following: acquired by the first trust subsequent to the appointment in favor a. A copy of the proposed written instrument under which the of the 2nd trust, which remain the assets of the first trust. trustee will appoint assets to a 2nd trust. (7) LIABILITY. (a) This section does not create or imply a duty b. The proposed effective date of the appointment. on a trustee to appoint assets to a 2nd trust under sub. (2). A trustee c. A copy of the trust instrument of the first trust. that does not appoint assets to a 2nd trust under sub. (2) is not liable for the failure to do so. d. A copy of the trust instrument of the 2nd trust. (b) A trustee who appoints assets to a 2nd trust under sub. (2) 3. A trustee may not appoint assets to the 2nd trust until 30 is not liable to any beneficiary for any loss related to the appoint- days after the trustee provides notice as required under this para- ment unless the trustee did not appoint the assets in good faith. graph unless every person who is entitled to receive notice under subd. 1. waives the 30−day notice period by delivering a signed (8) MISCELLANEOUS PROVISIONS. (a) The appointment of written instrument to the trustee. A person’s waiver of the 30−day assets to a 2nd trust under sub. (2) is not an exercise of a general notice period does not constitute that person’s consent to the trust- power of appointment. ee’s appointment of assets to a 2nd trust. (b) A trustee may appoint assets to a 2nd trust under sub. (2) 4. If a person entitled to receive notice under subd. 1. delivers even if the first trust includes a spendthrift clause or a provision a written objection to the trustee before the effective date of the that prohibits amendment or revocation of the trust. appointment of assets to a 2nd trust, the trustee may not appoint (c) This section does not limit a trustee who has a power to the assets to a 2nd trust, as specified in the trustee’s notice, without invade principal to appoint property in further trust to the extent obtaining court approval under par. (c) unless the written objec- the power arises under the terms of the first trust or under any other tion is withdrawn. section of this chapter or under another provision of law or under 5. If the trustee does not receive a written objection from any common law. person entitled to receive notice under subd. 1. before the effective (d) The restriction relating to a trustee under sub. (3) (c) does date of the appointment of assets to the 2nd trust or all written not preclude a cotrustee who does not have a beneficial interest in objections to the proposed appointment of assets to the 2nd trust the first trust from appointing assets to a 2nd trust under sub. (2) are withdrawn, the trustee may appoint the assets to a 2nd trust, as even if the terms of the first trust, applicable law, or other circum- specified in the notice. stances would otherwise require the majority or unanimous action (c) 1. If a trustee chooses to proceed with court approval, of the trustees of the first trust. including after receiving a written objection to a proposed (e) For purposes of this section, if beneficiaries of a first trust appointment of assets, the trustee shall petition a court to approve are defined as a class of persons, the class shall include any person a proposed appointment of assets to a 2nd trust under sub. (2). The who falls within the class of persons after the trustee appoints trustee shall provide notice of the petition to all qualified benefi- assets to the 2nd trust. ciaries of the first trust, each trust protector appointed under the (f) Notwithstanding s. 701.0103 (23), a trustee of a first trust first trust, each directing party appointed under the first trust, and who appoints assets to a 2nd trust under sub. (2) or creates a 2nd to the settlor of the first trust, if living. The trustee shall include trust instrument under sub. (4) is not the settlor of the 2nd trust. in the notice of the petition the proposed effective date of the (g) To the extent a directing party or trust protector has the appointment of assets to a 2nd trust. The trustee shall also provide power to invade the principal of a first trust, as described in sub. to each person who is entitled to receive notice under this para- (2), this section applies to the directing party or trust protector as graph a copy of the proposed instrument under which the trustee if the directing party or trust protector is a trustee. will appoint assets to a 2nd trust, the proposed effective date of the History: 2013 a. 92. appointment, a copy of the trust instrument of the first trust, and a copy of the trust instrument of the 2nd trust. 701.0419 Transfers to trusts. (1) VALIDITY AND EFFECT. 2. If a person who is entitled to receive notice under subd. 1. The order of execution of a trust instrument and a will or other files an objection with the court, in determining whether to grant instrument purporting to transfer or appoint property to the trust or deny a petition under subd. 1., the court shall consider all of the evidenced by the trust instrument shall be disregarded in deter- following: mining the validity of the transfer or appointment. No reference in any will to a trust shall cause assets in such trust to be included a. The purpose of the proposed appointment of assets under in property administered as part of the testator’s estate. sub. (2). (2) GOVERNING TERMS. Property transferred or appointed by b. The reasons for any objection made by a person entitled to a will or by a beneficiary designation under an employee benefit receive notice under subd. 1. plan, life insurance policy, or online tool, as defined in s. 711.03 c. Changes in circumstances that have occurred since the cre- (18), or other instrument permitting designation of a beneficiary ation of the first trust. to a trust, shall be administered in accordance with the terms of the d. Whether the appointment of assets under sub. (2) complies trust as the terms of the trust may have been modified prior to the with the requirements of this section. testator’s or designator’s death, even though the will, beneficiary

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

701.0419 TRUSTS Updated 13−14 Wis. Stats. 12 designation, online tool, or other instrument was not reexecuted to make payment for support of the beneficiary’s child, the court or republished after exercise of the power to modify, unless the may do any of the following: will, beneficiary designation, online tool, or other instrument (a) If the beneficiary is entitled to receive income or principal expressly provides otherwise. under the trust, order the trustee to satisfy part or all of the claim (3) DISPOSITION WHEN NO EXISTING TRUST. If at the death of a out of part or all of payments of income or principal as they are testator a trust has been completely revoked, or otherwise termi- due, presently or in the future; nated, a provision in the testator’s will purporting to transfer or (b) If a beneficiary may receive income or principal at the trust- appoint property to the trust shall have the following effect, unless ee’s discretion under the trust, order the trustee to satisfy part or the will provides otherwise: all of the claim out of part or all of future payments of income or (a) If the testator was a necessary party to the revocation or principal that are made pursuant to the exercise of the trustee’s dis- other termination of the trust, the provision in the testator’s will cretion in favor of such beneficiary. shall be invalid. (2) CLAIMS FOR PUBLIC SUPPORT. Notwithstanding s. 701.0502 (b) If the testator was not a necessary party to the revocation and except as provided in sub. (3), if the settlor is legally obligated or other termination of such trust, the provision in the testator’s to pay for the public support of a beneficiary under s. 46.10, will shall be deemed to create a trust upon the terms of the trust 49.345, or 301.12 or the beneficiary is legally obligated to pay for instrument at the time the will was executed or as otherwise pro- the beneficiary’s public support or for support furnished to the vided where sub. (2) is applicable. beneficiary’s spouse or minor child under s. 46.10, 49.345, or History: 1971 c. 66; 1991 a. 316; 2013 a. 92 s. 132; Stats. 2013 s. 701.0419; 2015 301.12, upon application by the appropriate state department or a. 300. county official, the court may do any of the following: (a) If the beneficiary is entitled to receive income or principal SUBCHAPTER V under the trust, order the trustee to satisfy part or all of the liability out of part or all of payments of income or principal as they are due, presently or in the future; CREDITOR’S CLAIMS; SPENDTHRIFT (b) 1. Except as provided in subd. 2., if the beneficiary may AND DISCRETIONARY TRUSTS receive income or principal at the trustee’s discretion under the trust, order the trustee to satisfy part or all of the liability out of part 701.0501 Rights of beneficiary’s creditor or assignee. or all of future payments of income or principal which are to be (1) (a) To the extent a beneficiary’s interest is not protected by made pursuant to the exercise of the trustee’s discretion in favor a spendthrift provision, the court may authorize a judgment credi- of the beneficiary. tor or an assignee of the beneficiary to reach the beneficiary’s 2. In the case of a beneficiary who may receive income or interest by attachment of present or future distributions to or for principal of the trust at the trustee’s discretion and who is a settlor the benefit of the beneficiary or other means. The court may limit or a spouse or minor child of the settlor, order the trustee to satisfy the award to such relief as is appropriate under the circumstances. part or all of the liability without regard to whether the trustee has (b) This subsection does not apply to a trust for an individual then exercised or may thereafter exercise the trustee’s discretion with a disability. in favor of the beneficiary. (2) A trustee is not liable to any creditor of a beneficiary for (3) TRUST FOR AN INDIVIDUAL WITH A DISABILITY. Subsection any distributions made to or for the benefit of the beneficiary if (2) does not apply to any trust for an individual with a disability. any of the following applies: (4) SUBSEQUENT MODIFICATION OF COURT’S ORDER. Any order (a) The beneficiary’s interest is protected by a spendthrift pro- entered by a court under sub. (1) or (2) may be modified upon vision. application of an interested person. (b) The trust is a trust for an individual with a disability. (5) EXEMPT ASSETS. Assets of a trust that are exempt from History: 2013 a. 92. claims of creditors under other statutes are not subject to sub. (1) or (2). 701.0502 Spendthrift provision. (1) A spendthrift provi- History: 2013 a. 92 ss. 97, 103 to 107, 111, 112; Stats. 2013 s. 701.0503. sion is valid only if any of the following applies: 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. (a) The beneficiary is a person other than the settlor and is not Grohmann v. Grohmann, 189 Wis. 2d 532, 525 N.W.2d 261 (1995). treated as the settlor under s. 701.0505 (2). 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 rationale (b) The trust is a trust for an individual with a disability. of Grohmann is applicable to both grantor and nongrantor trusts if there is an obliga- (2) Subject to sub. (1), a term of a trust providing that the inter- tion to report that trust’s income as one’s own because it is the obligation to report the income that makes the income reachable for calculations of a child support obliga- est of a beneficiary is held subject to a spendthrift trust, or words tion. Stevenson v. Stevenson, 2009 WI App 29, 316 Wis. 2d 442, 765 N.W.2d 811, of similar import, restrains both a voluntary and involuntary trans- 07−2143. fer of the beneficiary’s interest. (3) A beneficiary may not transfer an interest in a trust in 701.0504 Discretionary trusts; effect of standard. violation of a valid spendthrift provision and, except as otherwise (1) For purposes of this subchapter, and except as provided in provided in this subchapter, a creditor or assignee of the benefi- sub. (3), a beneficiary’s interest in a trust that is subject to the trust- ciary may not attach, garnish, execute on, or otherwise reach the ee’s discretion does not constitute an interest in property or an interest or a distribution by the trustee before its receipt by the enforceable right even if the discretion is expressed in the form of beneficiary. a standard of distribution or the beneficiary is then serving as sole trustee or cotrustee. (4) Real property or tangible personal property that is owned by the trust but that is made available for a beneficiary’s occu- (2) Except as provided in this subchapter, a creditor or other pancy or use in accordance with the trustee’s authority under the claimant may not attach present or future distributions from a trust instrument may not be considered to have been distributed by beneficiary’s interest in property or an enforceable right, obtain an the trustee or received by the beneficiary for purposes of allowing order from a court forcing the judicial sale of the interest or com- a creditor or assignee of the beneficiary to reach the property. pelling the trustee to make distributions, or reach the interest or History: 2013 a. 92. right by any other means, even if the trustee has abused the trust- ee’s discretion. 701.0503 Exceptions to spendthrift provision. (1) (3) Subsections (1) and (2) do not apply if a beneficiary is act- CLAIMS FOR CHILD SUPPORT. Notwithstanding s. 701.0502, upon ing as sole trustee of a trust for his or her benefit and his or her dis- application of a person having a valid order directing a beneficiary cretion to make distributions to himself or herself is not limited by

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

701.0816 TRUSTS Updated 13−14 Wis. Stats. 20

(b) Paying the amount to the beneficiary’s custodian under the specify the legal capacity in which a particular power is exercis- Uniform Transfers to Minors Act under ss. 54.854 to 54.898 or the able by a trust protector and whether a power granted to the trust Uniform Custodial Trust Act under ss. 54.950 to 54.988, and, for protector in a capacity other than a fiduciary capacity must be that purpose, creating a custodianship or custodial trust. exercised in good faith. (c) If the trustee does not know of a conservator, guardian of (b) If the settlor, court, or interested persons do not specify the the estate, custodian, or custodial trustee, paying the amount to an legal capacity in which a particular power is exercisable by the adult relative or other person having legal or physical care or cus- trust protector, all of the following apply: tody of the beneficiary or to the guardian of the person of the bene- 1. The power is exercisable in a fiduciary capacity if it is a ficiary, to be expended on the beneficiary’s behalf. power to do any of the following: (d) Managing the amount as a separate fund on the beneficia- a. Interpret or enforce the terms of the trust at the request of ry’s behalf, subject to the beneficiary’s continuing right to with- the trustee. draw the distribution. b. Review and approve the trustee’s reports or accounting. (22) On distribution of trust property or the division or ter- c. Resolve disputes between the trustee or a directing party mination of a trust, make distributions in divided or undivided and a beneficiary. interests, allocate particular assets in proportionate or dispropor- tionate shares, value the trust property for those purposes, and d. Consent to or veto distributions to a beneficiary. adjust for resulting differences in valuation. e. Consent to or veto investment actions. (23) Resolve a dispute concerning the interpretation of the 2. If it is not a power described in subd. 1. a. to e., the power trust or its administration by mediation, arbitration, or other pro- is exercisable in a nonfiduciary capacity, including a power to do cedure for alternative dispute resolution. any of the following: (24) Prosecute or defend an action, claim, or judicial proceed- a. Modify or amend the trust instrument to respond to oppor- ing in any jurisdiction to protect trust property or the trustee, a tunities related to, or changes in, restraints on alienation or other directing party, or a trust protector in the performance of the trust- state laws restricting the terms of a trust, the distribution of trust ee’s, directing party’s or trust protector’s duties. property, or the administration of the trust. (25) Sign and deliver contracts and other instruments that are b. Modify or amend the trust instrument to achieve a different useful to achieve or facilitate the exercise of the trustee’s, direct- tax status or to respond to changes in federal or state law. ing party’s or trust protector’s powers. c. Change the principal place of administration, the tax situs (26) On termination of the trust, exercise the powers appropri- of the trust, or the governing law of the trust. ate to wind up the administration of the trust and distribute the trust d. Eliminate or modify the interests of a beneficiary, add a property to the persons entitled to it. new beneficiary or class of beneficiaries, or select a beneficiary (27) Create or fund a plan under section 529 of the Internal from an indefinite class. Revenue Code, or other college savings vehicle, for a beneficia- e. Modify the terms of a power of appointment granted under ry’s benefit. the trust. (28) Obtain digital property, as provided under s. 711.07. f. Remove, replace, or appoint a trustee, trust protector, or History: 2013 a. 92; 2015 a. 300. directing party or a successor trustee, trust protector, or directing party. 701.0817 Distribution upon termination. (1) Upon ter- g. Terminate the trust. mination or partial termination of a trust, the trustee may send a h. Appoint assets to a new trust under s. 701.0418. proposal for distribution to the beneficiaries of the trust. The right of any beneficiary to whom the proposal is sent to object to the i. Advise the trustee on matters concerning a beneficiary, proposed distribution terminates if the beneficiary does not notify including whether to provide information to a beneficiary under the trustee of an objection within 30 days after the proposal was s. 701.0813. sent but only if the proposal informed the beneficiary of the right j. Correct errors or ambiguities in the terms of the trust that to object and of the time allowed for objection. might otherwise require court construction or defeat the settlor’s (2) Upon the occurrence of an event terminating or partially intent. terminating a trust, the trustee shall proceed within a reasonable 3. Notwithstanding subds. 1. and 2., a trust protector who is time to distribute the trust property to the persons entitled to it, also the settlor may exercise any power granted to the trust protec- subject to the right of the trustee to retain a reasonable reserve for tor in the trust protector’s personal interests. the payment of debts, expenses, and taxes. 4. Notwithstanding subd. 2., a trust protector who is also a (3) A release by a beneficiary of a trustee from liability for qualified beneficiary may exercise any power granted to the trust breach of trust is invalid to the extent any of the following applies: protector that is exercisable in a nonfiduciary capacity in the trust (a) The release was induced by improper conduct of the protector’s personal interests. trustee. (c) Notwithstanding pars. (a) and (b) and any provision in the (b) The beneficiary, at the time of the release, did not know of trust instrument to the contrary, a trust protector who is also serv- the beneficiary’s rights or of the material facts relating to the ing as the trustee or a directing party shall exercise any power breach. granted to the trust protector in a fiduciary capacity. History: 2013 a. 92. (3) TRUST PROTECTOR DUTIES. (a) If a power is exercisable in a fiduciary capacity, the trust protector shall act in good faith and 701.0818 Trust protectors. (1) APPOINTMENT. A settlor in shall exercise the power in a manner that is consistent with the a trust instrument, a court in a trust instrument or court order, or terms and purposes of the trust instrument, court order, or nonjudi- interested persons in a nonjudicial settlement agreement may pro- cial settlement agreement and the interests of the beneficiaries. vide for the appointment of a trust protector, whether referred to (b) If a power is exercisable in a nonfiduciary capacity, the as a trust protector, another title, or no title. A trust protector has trust protector shall act in good faith unless the trust instrument, only the powers granted to the trust protector in the trust instru- court order, or nonjudicial settlement agreement provides other- ment, court order, or nonjudicial settlement agreement. wise. (2) TRUST PROTECTOR POWERS; LEGAL CAPACITY. (a) A settlor (c) A trust protector does not have a duty to exercise its powers, in a trust instrument, a court in a trust instrument or court order, to monitor the conduct of the trustee or a directing party, or to or interested persons in a nonjudicial settlement agreement may monitor changes in the law or circumstances of the beneficiaries.

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

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

(d) Any sums in a marital account may be paid, on request, to 705.09 Applicability of general transfers at death pro- either party without regard to whether the other party is under visions. Chapter 854 applies to transfers at death under this sub- legal disability or is deceased, unless the financial institution chapter. receives actual notice that the other party is deceased. After History: 1997 a. 188. receipt of actual notice of the death of one party to a marital Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998. account, the financial institution may pay on request not more than 50% of the sums on deposit to the surviving party, and 50% of that SUBCHAPTER II amount to the personal representative of the deceased party or if applicable to any P.O.D. beneficiary of the deceased party’s inter- est, unless before payment is made the financial institution NONPROBATE TRANSFERS AT DEATH; receives a verified statement under s. 865.201 or a certified copy NONPROBATE TRANSFER OF REAL PROPERTY of a certificate or recorded application concerning survivorship rights under s. 867.046, in which case the financial institution 705.10 Nonprobate transfers on death. (1) A provision shall make payment as provided in that document. for a nonprobate transfer on death in an insurance policy, contract (2) Payment made under this subchapter discharges the finan- of employment, bond, mortgage, promissory note, certificated or cial institution from all claims for amounts so withdrawn. If the uncertificated security, account agreement, custodial agreement, institution has reason to believe that a dispute exists as to the rights deposit agreement, compensation plan, pension plan, individual of the parties to an account or their successors it may, but shall not retirement plan, employee benefit plan, trust, conveyance, online be required to, refuse to pay funds in the account to any persons tool, as defined in s. 711.03 (18), deed of gift, marital property pending instructions from a court, or it may pay the proceeds to agreement, or other written instrument of a similar nature is non- a court. An institution may but need not recognize the authority testamentary. This subsection governs a written provision that: of an agent, other than one with continuing authority under s. (a) Money or other benefits due, controlled by or owned by a 705.05 (3), until it knows of the fact of death or adjudication of decedent before death must be paid after the decedent’s death to incompetence of all parties appointing such agent and has reason- a person whom the decedent designates either in the instrument or able opportunity to act. in a separate writing, including a will executed either before or at (3) The protection provided by this section shall have no bear- the same time as the instrument, or later; ing on the rights of parties or their successors in disputes concern- (b) Money due or to become due under the instrument ceases ing the beneficial ownership of funds in or withdrawn from an to be payable in the event of death of the promisee or the promisor account. before payment or demand; or History: 1973 c. 291; 1983 a. 186; 1987 a. 27; 1989 a. 331; 2005 a. 216. (c) Any property controlled by or owned by the decedent A personal representative is not a “party” to an account held as a “joint account” before death which is the subject of the instrument passes to a per- by the decedent and another who survives; a bank who disburses the funds of the joint account to the personal representative is not entitled to immunity under this section. son whom the decedent designates either in the instrument or in In Matter of Estate of Martz, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992). a separate writing, including a will executed either before or at the Joint bank accounts in Wisconsin. O’Flaherty, 53 MLR 118 (1970). same time as the instrument, or later. (2) This section does not limit rights of creditors under other 705.07 Rights of creditors. (1) Only the creditors of any laws of this state. living party to an account may subject the entire sums on deposit (3) Chapter 854 applies to transfers at death under this section. to their claims, as if such sums resulted solely from contributions made by the debtor party. If a joint or P.O.D. account requires the (4) A transfer under this section does not require confirmation signatures of all of the parties for purposes of withdrawal, such in any procedure under s. 867.01, 867.02, or 867.03 or ch. 856 or account shall not be subject to the claims of creditors of a debtor 865. A transfer under this section may be confirmed under s. party to the extent of the net contributions of the other parties to 867.046 (1m) or (2). History: 1989 a. 331; 1997 a. 188; 2005 a. 206 s. 5; 2005 a. 216 s. 35; Stats. 2005 the account. Such other parties shall have the burden of proving s. 705.10; 2007 a. 97 s. 198; 2015 a. 300. their net contributions by clear and convincing evidence. 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 defeat (2) For purposes of ch. 242, a debtor party shall be deemed to a marital agreement that does not make the transfer. Reichel v. Jung, 2000 WI App have made a transfer only at the time some other party withdraws 151, 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, or all or part of the sums on deposit, or at the time of the debtor party’s to agree to prohibit court involvement in implementing a marital property agreement. death as to sums not previously withdrawn. In the case of a with- That “Washington Will” provisions permit transfer of property without probate does drawal while the debtor party is living, the sole grounds for deter- not 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. mining any such transfer to be fraudulent shall be whether the Maciolek v. City of Milwaukee Employees’ Retirement System Annuity and Pension debtor party is or will be thereby rendered insolvent under s. Board, 2006 WI 10, 288 Wis. 2d 62, 709 N.W.2d 360, 04−1254. 242.05 (1) or whether the debtor party is engaged or is about to Wisconsin’s New Probate Code. Erlanger. Wis. Law. Oct. 1998. engage in a business or transaction for which the assets remaining in the debtor party’s hands after the transfer are unreasonably 705.15 Nonprobate transfer of real property on death. small under s. 242.04 (1) (b) 1. In the case of a transfer by reason (1) An interest in real property that is solely owned, owned by of the death of the debtor party, the sole ground for determining spouses as survivorship marital property, or owned by 2 or more any such transfer to be fraudulent shall be whether the debtor persons as joint tenants may be transferred without probate to a party’s estate subject to administration is insolvent under s. designated TOD beneficiary as provided in this section on the 242.02. For purposes of this subsection, the amount transferred death of the sole owner or the last to die of the multiple owners. shall be deemed to consist of those assets which the creditors of (2) A TOD beneficiary may be designated on a deed that evi- the debtor party could have made subject to their claims immedi- dences ownership of the property interest in the owner or owners ately prior to the transfer, less any sums which such creditors by including the words “transfer on death” or “pay on death,” or could have made so subject to their claims immediately after the the abbreviation “TOD” or “POD,” after the name of the owner or transfer. owners of the property and before the name of the beneficiary or History: 1973 c. 291; 1987 a. 192. beneficiaries. The designation may be included on the original deed that passes the property interest to the owner or owners or 705.08 Construction. This subchapter shall be construed in may be made at a later time by the sole owner or all then surviving such a manner as to ensure reasonable certainty of legal result for owners by executing and recording another deed that designates those who establish a multiple−party or agency account. a TOD beneficiary. A TOD beneficiary designation is not effec- History: 1973 c. 291; 1989 a. 331. tive unless the deed on which the designation is made is recorded.

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

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

(b) An account is “held” by the person who, by the terms of the not be adversely affected by 1987 Wisconsin Act 393, sections 10, account, has a present right, subject to request, to payment from 11, 15, 16, 27, 29 and 32. the account other than as an agent. Accounts that are so “held” (6) This chapter does not affect the property available to sat- include accounts under s. 705.01 (1) and brokerage accounts. isfy an obligation incurred by a spouse that is attributable to an (c) An uncertificated security, as defined under s. 408.102 (1) obligation arising when one or both spouses are not domiciled in (r), is “held” by the person identified as the registered owner of the this state or to an act or omission occurring when one or both security upon books maintained for that purpose by or on behalf spouses are not domiciled in this state. of the issuer. If the registered owner of an uncertificated security History: 1987 a. 393; 1991 a. 301. is identified as a brokerage account, the security is “held” as pro- NOTE: 1991 Wis. Act 301, contains legislative council notes. vided under par. (b). (d) The property rights, as specified and described in ss. 766.15 Responsibility between spouses. (1) Each 178.0401 (1), 178.0501, and 178.0502, of a partner in a general spouse shall act in good faith with respect to the other spouse in partnership are “held” by the partner. matters involving marital property or other property of the other NOTE: Par. (d) is shown as amended eff. 7−1−16 by 2015 Wis. Act 295. Prior spouse. This obligation may not be varied by a marital property to 7−1−16 it reads: agreement. (d) The property rights, as specified and described in ss. 178.21 and 178.22, (2) Management and control by a spouse of that spouse’s of a partner in a general partnership are “held” by the partner. property that is not marital property in a manner that limits, dimin- (10) “Income” means wages, salaries, commissions, bonuses, ishes or fails to produce income from that property does not vio- gratuities, payments in kind, deferred employment benefits, pro- late sub. (1). ceeds, other than death benefits, of any health, accident or disabil- History: 1983 a. 186. ity insurance policy or of any plan, fund, program or other Intentional misrepresentation is a breach of the duty of good faith for which the arrangement providing benefits similar to those forms of insur- exclusive pre−divorce remedy is s. 766.70 (1). Gardner v. Gardner, 175 Wis. 2d 420, 499 N.W.2d 266 (Ct. App. 1993). ance, other economic benefits having value attributable to the effort of a spouse, dividends, dividends on life insurance and annuity contracts to the extent that the aggregate of the dividends 766.17 Variation by marital property agreement. exceeds the aggregate premiums paid, interest, income distributed (1) Except as provided in ss. 766.15, 766.55 (4m), 766.57 (3) and from trusts and estates, and net rents and other net returns attribut- 766.58 (2), a marital property agreement may vary the effect of able to investment, rental, licensing or other use of property, this chapter. unless attributable to a return of capital or to appreciation. (2) Section 859.18 (6) governs the effect of a marital property (11) “Management and control” means the right to buy, sell, agreement upon property available for satisfaction of obligations use, transfer, exchange, abandon, lease, consume, expend, assign, after the death of a spouse. create a security interest in, mortgage, encumber, dispose of, insti- History: 1983 a. 186; 1985 a. 37. tute or defend a civil action regarding or otherwise deal with prop- erty as if it were property of an unmarried person. 766.31 Classification of property of spouses. (1) GEN- (12) “Marital property agreement” means an agreement that ERAL. All property of spouses is marital property except that complies with s. 766.58, 766.585, 766.587, 766.588 or 766.589. which is classified otherwise by this chapter and that which is The term does not include the financial disclosure form under s. described in sub. (8). 766.588 (9) or 766.589 (10). (2) PRESUMPTION. All property of spouses is presumed to be (13) A person has “notice” of a fact if the person has knowl- marital property. edge of it, receives a notification of it, or has reason to know that (3) SPOUSE’S INTEREST IN MARITAL PROPERTY. Each spouse has it exists from the facts and circumstances known to the person. a present undivided one−half interest in each item of marital prop- (15) “Property” means an interest, present or future, legal or erty, subject to all of the following: equitable, vested or contingent, in real or personal property, (a) Terminable interest in deferred employment benefit plan. including digital property, as defined in s. 711.03 (10). As provided in s. 766.62 (5), the marital property interest of the (16) “Written consent” means a document signed by a person nonemployee spouse in a deferred employment benefit plan or in against whose interests it is sought to be enforced. assets in an individual retirement account that are traceable to the History: 1983 a. 186; 1985 a. 37; 1987 a. 393; 1991 a. 301; 1997 a. 297; 2015 a. rollover of a deferred employment benefit plan terminates at the 295, 300. death of the nonemployee spouse if he or she predeceases the NOTE: 1991 Wis. Act 301, contains legislative council notes. employee spouse. From Common Law Property to Community Property: Wisconsin’s Marital Prop- erty Act Four Years Later. Erlanger and Weisberger. 1990 WLR 769. (b) Division based on aggregate value at death. 1. Spouses may provide in a marital property agreement that at the death of a spouse some or all of their marital property will be divided based 766.03 Applicability. (1) Except as provided in sub. (4) and on aggregate value rather than divided item by item. However, at ss. 766.58 (5), (11) and (12) and 766.585, this chapter first applies the death of a spouse, a marital property agreement is not neces- to spouses upon their determination date. sary for a division of marital property that is not item by item. (2) After this chapter first applies to spouses, it continues to 2. The surviving spouse and the successor in interest to the apply to spouses during marriage. Section 766.75 applies after a decedent’s share of marital property may enter into an agreement dissolution. If at the time of the death of a spouse both spouses are providing that some or all of the marital property in which each domiciled in this state, the provisions of this chapter which have has an interest will be divided based on aggregate value rather than application after the death of a spouse apply. divided item by item. (3) The cessation of the application of this chapter because a 3. The surviving spouse and a distributee who is a successor spouse is no longer domiciled in this state does not by itself affect in interest to all or part of the decedent’s one−half interest in mari- any property, right, interest or remedy acquired under this chapter tal property may petition the court to approve an exchange of by either spouse or by a 3rd party or the satisfaction of any obliga- interests in the marital property authorized under subd. 1. or 2., but tion incurred by a spouse under this chapter. court approval of the exchange is not required for the agreement (4) Section 766.97 applies to a spouse in this state whether or under subd. 1. or 2. to be effective. If the court approves the not that person is domiciled in this state. exchange, the surviving spouse and the distributee shall exchange (5) Any property, right, interest or remedy of a spouse or 3rd their respective interests in 2 or more items of marital property and party acquired or property that is available to satisfy an obligation distribute the items in a manner to conform with the exchange. incurred on or after January 1, 1986, and before May 3, 1988, shall The exchange shall:

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

851.19 PROBATE Ċ DEFINITIONS AND GENERAL Updated 13−14 Wis. Stats. 2 PROVISIONS 851.19 Person. “Person” includes natural persons, corpora- 851.295 Surviving domestic partner. “Surviving domes- tions and other organizations. tic partner” means a person who was in a domestic partnership under ch. 770 with the decedent, at the time of the decedent’s 851.21 Person interested. (1) WHO ARE “PERSONS INTER- death. ESTED”. The following are “persons interested”: History: 2009 a. 28. (a) An heir of the decedent. 851.30 Surviving spouse. (1) Subject to sub. (2), “surviv- (b) Except as provided in s. 853.32 (2) (e), a beneficiary named ing spouse” means a person who was married to the decedent at in any document offered for probate as the will of the decedent and the time of the decedent’s death. includes a person named or acting as a trustee of any trust, inter (2) “Surviving spouse” does not include any of the following: vivos or testamentary, named as a beneficiary. (a) An individual who obtains or consents to a final decree or (c) A beneficiary of a trust created under any document offered judgment of divorce from the decedent or an annulment of their for probate as the will of the decedent. marriage, if the decree or judgment is not recognized as valid in (d) A person named as personal representative in any docu- this state, unless they subsequently participate in a marriage cere- ment offered for probate as the will of the decedent. mony purporting to marry each other or they subsequently hold (e) Additional persons as the court by order includes as “inter- themselves out as husband and wife. ested persons”. (b) An individual who, following an invalid decree or judg- (2) WHO CEASE TO BE “PERSONS INTERESTED”. The following ment of divorce or annulment obtained by the decedent, partici- cease to be “persons interested”: pates in a marriage ceremony with a 3rd individual. (a) An heir of the decedent who is not a beneficiary under the (c) An individual who was party to a valid proceeding con- will of the decedent, upon admission of the will to probate under cluded by an order purporting to terminate all property rights ch. 856 or entry of a statement of informal administration under based on the marriage. ch. 865. History: 1997 a. 188. (b) A beneficiary named in documents offered for probate as the will of the decedent who is not an heir of the decedent, upon 851.31 Will. Unless the context or subject matter indicates denial of probate to such documents. otherwise, “will” includes a codicil and any document incorpo- rated by reference in a testamentary document under s. 853.32 (1) (c) A person named as personal representative or testamentary or (2). “Will” does not include a copy, unless the copy has been trustee in the will of the decedent, upon the person’s failure to be proven as a will under s. 856.17, but “will” does include a properly appointed, the denial of letters by the court, or upon the person’s executed duplicate original. discharge. History: 1997 a. 188; 2005 a. 216. (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 offered SUBCHAPTER II for probate as the will of the decedent upon the admission of the decedent’s will to probate and the issuance of letters of trust to the GENERAL PROBATE PROVISIONS trustee. (f) A parent who is barred from inheriting from his or her 851.40 Basis for attorney fees. (1) Any attorney perform- child’s intestate estate under s. 852.14 (3). ing services for the estate of a deceased person in any proceeding (3) ADDITIONAL PERSONS INTERESTED. In any proceedings in under chs. 851 to 879, including a proceeding for informal admin- which the interest of a trustee of an inter vivos or testamentary istration under ch. 865, shall be entitled to just and reasonable trust, including a trust under documents offered for probate, con- compensation for such services. flicts with the trustee’s duty as a personal representative, or in (2) Any personal representative, heir, beneficiary under a will which the trustee or competent beneficiary of the trust cannot rep- or other interested party may petition the court to review any attor- resent the interest of the beneficiary under the doctrine of virtual ney’s fee which is subject to sub. (1). If the decedent died intestate representation, the beneficiary is a person interested in the pro- or the testator’s will contains no provision concerning attorney ceedings. fees, the court shall consider the following factors in determining History: 1973 c. 39; 1993 a. 486; 2005 a. 216; 2015 a. 224. what is a just and reasonable attorney’s fee: A trust for the benefit of grandchildren includes an illegitimate child whose parents (a) The time and labor required. entered into a void marriage after the child’s birth. In re Trust of Parsons, 56 Wis. 2d 613, 203 N.W.2d 40 (1973). (b) The experience and knowledge of the attorney. Testamentary dispositions to “children” as including illegitimates — a change in (c) The complexity and novelty of the problems involved. Wisconsin law? 57 MLR 174. (d) The extent of the responsibilities assumed and the results 851.23 Personal representative. “Personal representa- obtained. tive” means any person to whom letters to administer a decedent’s (e) The sufficiency of assets properly available to pay for the estate have been granted by the court or by the probate registrar services, except that the value of the estate may not be the control- under ch. 865, but does not include a special administrator. ling factor. History: 1973 c. 39. History: 1975 c. 329; 1993 a. 490. Cross−reference: See s. 865.16 (1m) review of attorney fees by the probate regis- trar. 851.27 Property. “Property” means any interest, legal or An attorney’s failure to communicate with one of the heirs, in violation of a court equitable, in real or personal property, without distinction as to order, was an appropriate basis for reducing attorney fees. In Matter of Estate of kind, including money, rights of a beneficiary under a contractual Huehne, 175 Wis. 2d 33, 498 N.W.2d 870 (Ct. App. 1993). arrangement, choses in action, digital property, as defined in s. 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 of 711.03 (10), and anything else that may be the subject of owner- Konopka, 175 Wis. 2d 100, 498 N.W.2d 853 (Ct. App. 1993). ship. Sub. (1) did not authorize payment for an attorney’s services when it was in the History: 1997 a. 188; 2015 a. 300. estate’s interest to let the interested parties litigate an issue and when, if the attorney’s position 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. 851.29 Sale. “Sale” includes an option or agreement to trans- Professional responsibility and probate practices. Martin, 1975 WLR 911. fer whether the consideration is cash or credit. It includes exchange, partition and settlement of title disputes. The intent of 851.50 Status of adopted persons. The status of adopted this section is to extend and not to limit the meaning of “sale”. persons for purposes of inheritance and transfers under wills or

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

853.13 WILLS Updated 13−14 Wis. Stats. 4

(2) The execution of a joint will or mutual wills does not create (a) A written designation in accordance with the terms of any a presumption of a contract not to revoke the will or wills. insurance, annuity, or endowment contract. History: 1995 a. 225; 1997 a. 188. (b) Any agreement issued or entered into by an insurance com- 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. pany supplemental to or in settlement of any insurance, annuity, Estate of Schultz, 53 Wis. 2d 643, 193 N.W.2d 655 (1972). or endowment contract. Whether clear and convincing evidence of a contract exists is a fact to be found by (c) Any written designation made under a contract, plan, sys- the trial court and given deference by an appellate court. Estate of Czerniejewski, 185 Wis. 2d 892, 619 N.W.2d 702 (Ct. App. 1994). tem, or trust providing for pension, retirement, deferred com- NOTE: The preceding cases were decided prior to the adoption of 1997 Wis. pensation, stock bonus, profit−sharing, or death benefits, or an Act 188, which made extensive revisions to this section. employment or commission contract, of any person to be a benefi- Joint and mutual wills. Kroncke, 43 WBB, No. 5. ciary, payee, or owner of any right, title, or interest thereunder Contracts to make joint or mutual wills. O’Donnell, 55 MLR 103. upon the death of another, or any assignment of rights under any of the foregoing. 853.15 Equitable election if will attempts to dispose of property belonging to beneficiary. (1) NECESSITY FOR (d) Directions provided in an online tool, as defined in s. ELECTION. (a) Unless the will provides otherwise, this subsection 711.03 (18). applies if a will gives a devise to one beneficiary and also clearly (2) This section applies to such designations or assignments purports to give to another beneficiary property that does not pass made either before or after June 25, 1969, by persons who die on under the will but belongs to the first beneficiary by right of own- or after that date. This section creates no implication of invalidity ership, survivorship, beneficiary designation or otherwise. as to any designation or assignment, of the nature described in sub. (b) If the conditions in par. (a) are fulfilled, the first beneficiary (1), made by any person who dies before that date or as to any dec- must elect either to take under the will and transfer his or her prop- laration, agreement or contract for the payment of money or other erty in accordance with the will or to retain his or her property and transfer of property at death not specified under sub. (1). not take under the will. If the first beneficiary elects not to take 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 under the will, unless the will provides otherwise his or her devise statutes establishing formalities for the execution of a valid will. In Matter of Estate under the will shall be assigned to the other beneficiary. of Habelman, 145 Wis. 2d 228, 426 N.W.2d 363 (Ct. App. 1988). (c) This section does not require an election if the property belongs to the first beneficiary because of transfer or beneficiary 853.19 Advancement. The effect of a lifetime gift by the tes- designation made by the decedent after the execution of the will. tator on the rights of a beneficiary under the will is governed by s. 854.09. (2) ROCEDURE FOR ELECTION. P If an election is required under History: 1993 a. 486; 1997 a. 188. sub. (1), the following provisions apply: (a) The court may by order set a time within which the benefi- 853.25 Unintentional failure to provide for issue of tes- ciary is required to file with the court a written election either to tator. (1) CHILDREN BORN OR ADOPTED AFTER MAKING OF THE take under the will and forego, waive or transfer the beneficiary’s WILL. (a) Applicability. Except as provided in sub. (5), if a will property interest in favor of the other person to whom it is given fails to provide for a child of the testator born or adopted after exe- by the will, or to retain such property interest and not take under cution of the will, the child is entitled to a share of the estate unless the will. The time set shall be not earlier than one month after the any of the following applies: necessity for such an election and the nature of the interest given 1. It appears from the will or from other evidence that the to the beneficiary under the will have been determined. omission was intentional. (b) If a written election by the beneficiary to take under the will 2. The testator provided for the omitted child by transfer out- and transfer the beneficiary’s property interest in accordance with side the will and the intent that the transfer be in lieu of a testamen- the will has not been filed with the court within the time set by tary provision is shown by the testator’s statements or is reason- order, or if no order setting a time has been entered, then prior to ably inferred from the amount of the transfer or other evidence. the final judgment, the beneficiary is deemed to have elected not to take under the will. (b) Share if testator had no living child at execution. Except as provided in sub. (5), if a will fails to provide for a child of the (c) Except as provided above, participation in the administra- testator born or adopted after the execution of the will and the tes- tion by the beneficiary does not constitute an election to take under tator had no child living when he or she executed the will, the the will. omitted child receives a share in the estate equal in value to that History: 1983 a. 186; 1985 a. 37; 1987 a. 393 s. 53; 1993 a. 486; 1997 a. 188. which the child would have received under ch. 852. This para- graph does not apply if the will devised all or substantially all of 853.17 Effect of will provision changing beneficiary of the estate to or for the benefit of the other parent of the omitted life insurance or annuity. (1) Any provision in a will which child and that other parent survives the testator and is entitled to purports to name a different beneficiary of a life insurance or take under the will. annuity contract than the beneficiary properly designated in accordance with the contract with the issuing company, or its (c) Share if testator had living child at execution. Except as bylaws, is ineffective to change the contract beneficiary unless the provided in sub. (5), if a will fails to provide for a child of the testa- contract or the company’s bylaws authorizes such a change by tor born or adopted after the execution of the will and the testator will. had one or more children living when he or she executed the will and the will devised property to one or more of the then−living (2) This section does not prevent the court from requiring the children, the omitted child is entitled to share in the testator’s contract beneficiary to elect under s. 853.15 in order to take prop- estate as follows: erty under the will. History: 2013 a. 92. 1. The portion that the omitted child is entitled to share is lim- ited to devises made to the testator’s then−living children under 853.18 Designation of beneficiary, payee or owner. the will. (1) Except as otherwise provided in s. 853.15 or 853.17 (1) or ch. 2. The omitted child is entitled to receive the share of the testa- 766, none of the following is subject to or defeated or impaired by tor’s estate, as limited in subd. 1., that the child would have any statute or rule of law governing the transfer of property by received had the testator included all omitted after−born and will, gift, or intestacy, even though the designation or assignment after−adopted children with the children to whom devises were is revocable or the rights of the beneficiary, payee, owner, or made under the will and had given an equal share of the estate to assignee are otherwise subject to defeasance: each child.

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

5 Updated 13−14 Wis. Stats. WILLS 853.32

3. To the extent feasible, the interest granted an omitted child acquired by the testator after the execution of the will or acquired under this section shall be of the same character, whether equitable by the testator’s estate. or legal, present or future, as that devised to the testator’s then− History: 1993 a. 486; 1997 a. 188. living children under the will. 4. In satisfying a share provided by this paragraph, devises to 853.31 Presumption that will passes all of testator’s the testator’s children who were living when the will was executed interest in property. Any gift of property by will is presumed abate ratably. In abating the devises of the then−living children, to pass all the estate or interest which the testator could lawfully the court shall preserve to the maximum extent possible the char- will in the property unless it clearly appears by the will, interpreted acter of the testamentary plan adopted by the testator. in light of the surrounding circumstances, that the testator intended to pass a less estate or interest. (d) Rights of issue. Except as provided in sub. (5), if a child entitled to a share under this section dies before the testator, and 853.32 Effect of reference to another document. the child leaves issue who survive the testator, the issue who repre- (1) NCORPORATION. sent the deceased child are entitled to the deceased child’s share. I (am) A will may incorporate by reference another writing or document if all of the following apply: (2) LIVING ISSUE OMITTED BY MISTAKE. (a) Except as provided in sub. (5), if clear and convincing evidence proves that the testa- 1. The will, either expressly or as construed from extrinsic tor failed to provide in the testator’s will for a child living at the evidence, manifests an intent to incorporate the other writing or time of making of the will, or for the issue of any then deceased document. child, by mistake or accident, including the mistaken belief that 2. The other writing or document was in existence when the the child or issue of a deceased child was dead at the time the will will was executed. was executed, the child or issue is entitled to receive a share in the 3. The other writing or document is sufficiently described in estate of the testator as if the child or issue was born or adopted the will to permit identification with reasonable certainty. after the execution of the will, as follows: 4. The will was executed in compliance with s. 853.03 or 1. If no children were included in the will but some or all of 853.05. those children were omitted by mistake, then sub. (1) (b) provides (bm) A writing or document is incorporated into a will under for the share of any child or issue omitted by mistake. par. (am) even if the writing or document is not executed in com- 2. If some children were included in the will but other children pliance with s. 853.03 or 853.05. were omitted by mistake, then sub. (1) (c) provides for the share (2) DISPOSITION OF TANGIBLE PERSONAL PROPERTY AND DIGITAL of any child or issue omitted by mistake. PROPERTY. (a) 1. A reference in a will to another document that (b) Failure to mention a child or issue in the will is not in itself lists tangible personal property not otherwise specifically dis- evidence of mistake or accident. posed of in the will disposes of that property if the other document (3) TIME FOR PRESENTING DEMAND FOR RELIEF. A demand for describes the property and the distributees with reasonable cer- relief under this section must be presented to the court in writing tainty and is signed and dated by the decedent. The court may not later than (a) entry of the final judgment, or (b) 6 months after enforce a document that is not dated but that fulfills all of the other allowance of the will, whichever first occurs. requirements under this paragraph. (4) FROM WHAT ESTATE SHARE IS TO BE TAKEN. Except as pro- 2. A reference in a will to another document that lists digital vided in sub. (5), the court shall in its final judgment assign a share property, as defined in s. 711.03 (10), not otherwise specifically provided under sub. (1) (b) as follows: disposed of in the will disposes of that digital property if the other (a) First, from intestate property. document describes the digital property and the distributees with reasonable certainty and is signed and dated by the decedent. The (b) Any balance from each devise to a beneficiary under the court may enforce a document that is not dated but that fulfills all will in proportion to the value of the estate each beneficiary would of the other requirements under this paragraph. have received under the will as written. If the intention of the tes- tator, shown by clear and convincing evidence, in relation to some (am) Another document under par. (a) is valid if it was signed specific gift or other provision in the will would be defeated by in compliance with s. 853.03 (1) or with the law of the place where assignment of the share as provided in this paragraph, the court the document was signed, or where the testator resided, was domi- may adopt a different apportionment and may exempt a specific ciled, or was a national at the time the document was signed or at devise or other provision. the time of death, even if it was not otherwise executed in com- pliance with s. 853.03 (2) or 853.05. (5) DISCRETIONARY POWER OF COURT TO ASSIGN DIFFERENT SHARE. If in any case under sub. (1) or (2) the court determines that (b) Another document under par. (a) is valid even if any of the the share is in a different amount or form from what the testator following applies: would have wanted to provide for the omitted child or issue of a 1. The document does not exist when the will is executed. deceased child, the court may in its final judgment make such pro- 2. The document is changed after the will is executed. vision for the omitted child or issue out of the estate as it deems 3. The document has no significance except for its effect on would best accord with the intent of the testator. the disposition of property by the will. History: 1993 a. 486; 1997 a. 188; 2005 a. 216. (c) If the document described in par. (a) is not located by the 853.27 Lapse. The rights under a will of a beneficiary who personal representative, or delivered to the personal representa- predeceases the testator are governed by s. 854.06. tive or circuit court with jurisdiction over the matter, within 30 History: 1993 a. 486; 1997 a. 188. days after the appointment of the personal representative, the per- A will clause providing that if any beneficiary dies within 5 months of the testator, sonal representative may dispose of tangible personal property the deceased beneficiary’s share is to be treated as if the beneficiary predeceased the according to the provisions of the will as if no such document testator, 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. exists. If a valid document is located after some or all of the tangi- 1999), 98−0586. ble personal property has been disposed of, the document controls the distribution of the property described in it, but the personal 853.29 After−acquired property. A will is presumed to representative incurs no liability for the prior distribution or sale pass all property that the testator owns at the testator’s death and of the property, as long as the time specified in this paragraph has that the testator has power to transfer by will, including property elapsed.

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

943.60 CRIMES AGAINST PROPERTY Updated 13−14 Wis. Stats. 24 duties and files, enters or records any instrument relating to title (2m) This section does not apply to a savings and loan associ- on behalf of another person. ation, credit union, bank, savings bank, or a mortgage banker, History: 1979 c. 221; 1995 a. 224; 1997 a. 27; 2001 a. 109. mortgage loan originator, or mortgage broker licensed under s. Whether a document is frivolous was for the jury to answer. State v. Leist, 141 Wis. 224.72 or 224.725. 2d 34, 414 N.W.2d 45 (Ct. App. 1987). (3) (a) Advance payments to cover reasonably estimated 943.61 Theft of library material. (1) In this section: costs are excluded from the requirements of sub. (2) if the cus- tomer first signs a written agreement which recites in capital and (a) “Archives” means a place in which public or institutional lowercase letters of not less than 12−point boldface type all of the records are systematically preserved. following: (b) “Library” means any public library; library of an educa- 1. The estimated costs by item. tional, historical or eleemosynary institution, organization or society; archives; or museum. 2. The estimated total costs. (c) “Library material” includes any book, plate, picture, photo- 3. Money advanced for incurred costs will not be refunded. graph, engraving, painting, drawing, map, newspaper, magazine, (b) If a cost under par. (a) is not incurred, the person shall pamphlet, broadside, manuscript, document, letter, public record, refund that amount to the customer. microform, sound recording, audiovisual materials in any format, (4) Whoever violates this section is guilty of: magnetic or other tapes, electronic data processing records, arti- (a) A Class A misdemeanor, if the value of the advance pay- facts or other documentary, written or printed materials, regard- ment or required refund, as applicable, does not exceed $2,500. less of physical form or characteristics, belonging to, on loan to (c) A Class F felony, if the value of the advance payment or or otherwise in the custody of a library. required refund, as applicable, exceeds $2,500. (2) Whoever intentionally takes and carries away, transfers, History: 1981 c. 20; 1983 a. 167; 1987 a. 359; 1987 a. 403 s. 256; 1995 a. 27; 1997 conceals or retains possession of any library material without the a. 145; 2001 a. 16, 109; 2009 a. 2. consent of a library official, agent or employee and with intent to deprive the library of possession of the material may be penalized 943.70 Computer crimes. (1) DEFINITIONS. In this section: as provided in sub. (5). (ag) “Access” means to instruct, communicate with, interact (3) The concealment of library material beyond the last station with, intercept, store data in, retrieve data from, or otherwise use for borrowing library material in a library is evidence of intent to the resources of. deprive the library of possession of the material. The discovery (am) “Computer” means an electronic device that performs of library material which has not been borrowed in accordance logical, arithmetic and memory functions by manipulating elec- with the library’s procedures or taken with consent of a library tronic or magnetic impulses, and includes all input, output, pro- official, agent or employee and which is concealed upon the per- cessing, storage, computer software and communication facilities son or among the belongings of the person or concealed by a per- that are connected or related to a computer in a computer system son upon the person or among the belongings of another is evi- or computer network. dence of intentional concealment on the part of the person so (b) “Computer network” means the interconnection of com- concealing the material. munication lines with a computer through remote terminals or a (4) An official or adult employee or agent of a library who has complex consisting of 2 or more interconnected computers. probable cause for believing that a person has violated this section (c) “Computer program” means an ordered set of instructions in his or her presence may detain the person in a reasonable man- or statements that, when executed by a computer, causes the com- ner for a reasonable length of time to deliver the person to a peace puter to process data. officer, or to the person’s parent or guardian in the case of a minor. (d) “Computer software” means a set of computer programs, The detained person shall be promptly informed of the purpose for procedures or associated documentation used in the operation of the detention and be permitted to make phone calls, but shall not a computer system. be interrogated or searched against his or her will before the (dm) “Computer supplies” means punchcards, paper tape, arrival of a peace officer who may conduct a lawful interrogation magnetic tape, disk packs, diskettes and computer output, includ- of the accused person. Compliance with this subsection entitles ing paper and microform. the official, agent or employee effecting the detention to the same (e) “Computer system” means a set of related computer equip- defense in any action as is available to a peace officer making an ment, hardware or software. arrest in the line of duty. (f) “Data” means a representation of information, knowledge, (5) Whoever violates this section is guilty of: facts, concepts or instructions that has been prepared or is being (a) A Class A misdemeanor, if the value of the library materials prepared in a formalized manner and has been processed, is being does not exceed $2,500. processed or is intended to be processed in a computer system or (c) A Class H felony, if the value of the library materials computer network. Data may be in any form including computer exceeds $2,500. printouts, magnetic storage media, punched cards and as stored in History: 1979 c. 245; Stats. 1979 s. 943.60; 1979 c. 355 s. 232; Stats. 1979 s. the memory of the computer. Data are property. 943.61; 1991 a. 39; 2001 a. 16, 109. (g) “Financial instrument” includes any check, draft, warrant, 943.62 Unlawful receipt of payments to obtain loan for money order, note, certificate of deposit, letter of credit, bill of another. (1) In this section, “escrow agent” means a state or fed- exchange, credit or credit card, transaction authorization mecha- erally chartered bank, savings bank, savings and loan association nism, marketable security and any computer representation of or credit union located in this state. them. (2) Except as provided in sub. (2m), no person may receive a (gm) “Interruption in service” means inability to access a com- payment from a customer as an advance fee, salary, deposit or puter, computer program, computer system, or computer network, money for the purpose of obtaining a loan or a lease of personal or an inability to complete a transaction involving a computer. property for the customer unless the payment is immediately (h) “Property” means anything of value, including but not lim- placed in escrow subject to the condition that the escrow agent ited to financial instruments, information, electronically produced shall deliver the payment to the person only upon satisfactory data, digital property, as defined in s. 711.03 (10), computer soft- proof of the closing of the loan or execution of the lease within a ware, and computer programs. period of time agreed upon in writing between the person and the (i) “Supporting documentation” means all documentation customer; otherwise the payment shall be returned to the customer used in the computer system in the construction, clarification, immediately upon expiration of the time period. implementation, use or modification of the software or data.

2013−14 Wisconsin Statutes updated through 2015 Wis. Act 370 and all Supreme Court Orders entered before April 21, 2016. Published and certified under s. 35.18. Changes effective after April 21, 2016 are designated by NOTES. (Published 4−21−16) 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 17 711.15. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT 18

711.16. APPLICABILITY 3

---- SEVERABILITY 19

---- REPEALS; CONFORMING AMENDMENTS 20

---- EFFECTIVE DATE 21 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 Brief Summary Changes made to corresponding RUFADAA section Chapter 711 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 Section 2

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. Wis. Stat. Counterpart Brief Summary Changes made to corresponding RUFADAA section Chapter 711 Section in RUFADAA 711.03 sub (21) “Power of Attorney” - means an “instrument” to (cont'd) 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 Title - changed to emphasize the priorities the user has. Section 4 Direction 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

Title - changed to emphasize personal representative section 711.05 Disclosures - personal Combine RUFADAA Sections 7 and 8 into one section Sections 7 & 8 representative 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. Wis. Stat. Counterpart Brief Summary Changes made to corresponding RUFADAA section Chapter 711 Section in RUFADAA

711.06 Disclosures - agent Title - changed to emphasize agent under POA section Sections 9 & 10 under power of attorney Combine RUFADAA Sections 9 and 10 into one section

Reverse content and catalogue sections of RUFADAA to emphasize frequency of usage of the respective sections - place RUFADAA section 10 requirements under 711.06 (1) and place RUFADAA section 9 requirements under 711.06 (2)

Emphasis on differences in requested documentation between 711.06 (1) and (2) by breaking out additional custodian requirements if content is requested under 711.06 (2).

STYLE changes.

711.07 Disclosures - trustee Title - changed to emphasize trustee section Sections 11, 12 & 13 Combine RUFADAA Sections 11, 12 and 13 into one section

Reverse content and catalogue sections of RUFADAA to emphasize frequency of usage of the respective sections - place RUFADAA section 11 requirements under 711.07 (1) and place RUFADAA section 13 requirements under 711.07 (2) and place RUFADAA section 12 requirements under 711.07 (3)

Emphasis on differences in requested documentation between 711.07 (2) and (3) by breaking out additional custodian requirements if content is requested under 711.07 (3).

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.

711.08 Disclosures - Title - changed to emphasize conservator/guardian section Section 14 conservator or guardian Addition of guardian provisions.

STYLE changes. Wis. Stat. Counterpart Brief Summary Changes made to corresponding RUFADAA section Chapter 711 Section in RUFADAA

711.09 Custodian choice of Title - Emphasize choice of methods for the custodian Section 6 methods to disclose digital proeprty 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.

711.10 Custodian compliance Placement of sections 711.09, 711.10 and 711.11consecutively Section 16 and immunity in the Chapter to consolidate custodian related sections.

Inclusion of reference to 711.12(7), and an online tool, under 711.10 (1).

STYLE changes.

711.11 Terms of Service Placement of sections 711.09, 711.10 and 711.11consecutively Section 5 Agreements in the Chapter to consolidate custodian related sections.

Inclusion of “designated recipient” under 711.11 (2).

STYLE changes.

Removal of detailed duties under 711.12 (1). 711.12 Fiduciary duty and Section 15 authority 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.

711.13 Marital Property No counterpart in RUFADAA classification

711.14 Uniformity of Section 17 STYLE changes. application and construction

711.15 Relation to Electronic Identical to RUFADAA Section 18 Signatures in Global and National Commerce Act

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

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

1 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

2 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.

3

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

4 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

5

(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

6 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).

7

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:

(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 affidavit or court order]; and

(4) 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;

(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.

8

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:

(1) a written request for disclosure in physical or electronic form;

(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

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier 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:

(1) a written request for disclosure in physical or electronic form;

(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;

9

(3) a certification by the agent, under penalty of perjury, that the power of attorney is in effect; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier 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:

(1) a written request for disclosure in physical or electronic form;

(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

10 trustee is a currently acting trustee of the trust; and

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier 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:

(1) a written request for disclosure in physical or electronic form;

(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

(4) if requested by the custodian:

(A) a number, username, address, or other unique subscriber or account identifier assigned by the custodian to identify the trust’s account; or

(B) evidence linking the account to the trust.

11

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:

(1) a written request for disclosure in physical or electronic form;

(2) a [certified] copy of the court order that gives the [conservator] authority over the digital assets of the [protected person]; and

(3) if requested by the custodian:

(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.

12

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

13

(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

(3) 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 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.

14

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].

15

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….

16

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 Devices 9 Desktop computers

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Laptop computers

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Tablet

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 iPad

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 2 of 11 9 Storage Device

Ex. - external hard drive; USB flash drive; tape drive; CD; DVD; Zip disk

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Smartphone

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Web cam/ digital camera

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Other

Location

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

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

Service Provider Contact e-mail and/or phone #

9 Social Media Accounts

Ex. - Facebook, Twitter, LinkedIn, YaHoo!, YouTube, Skype, MySpace, Zynga

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

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 business accounts, automatic bill paying accounts (utilities, internet, cable), credit card accounts - Amer. Expr,, VISA, Master Card

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Digital Music Accounts

Ex. - iTunes, Amazon MP3, Spotify, Pandora

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Digital Photograph Accounts

Ex. - Picassa, Flicker, Twikpic, Pinterest, Smugmug,

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 5 of 11 9 Digital e-book Accounts

Ex. - Amazon Kindle, Barnes & Noble Nook, Google Play

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Digital Audio/Video Accounts

Ex. - Netflix, Hulu, YouTube, Audible.com

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Domain Name Accounts

Ex. - personal and business, Network Solutions, GoDaddy, Namecheap, Domain.com, Name.com,

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 6 of 11 9 Websites

Ex. - personal and business, password protected research sites or organization sites, Ancestry.com

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Blogs

Ex. - Blogger,WordPress.com, WordPress.org, Dreamhost, Bluehost

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Tax Preparation Service Accounts

Ex. - TurboTax, TaxAct, TaxSlayer, CCH CompleteTax

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 7 of 11 9 Online Sales and Purchasing Accounts

Ex. - eBay, PayPal, Amazon, Checkout, Groupon Goods, Craigslist, StubHub,

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Online Backup/Storage Accounts

Ex. - Carbonite, Mozy, Crashplan, Acronis Backblaze, Spider Oak, SugarSync, Elephant Drive, Livedrive, Barracuda Backup, SOS Online Backup Dolly Drive - Mac iCloud, Google Drive, Amazon Cloud Drive, Drop Box, Skydrive, Docubank

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 File Sharing Accounts

Ex. - BitTorrent; now more likely associated with online storage accounts

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 8 of 11 9 Video Game and Virtual Worlds Accounts

Ex. - World of Warcraft, Second Life, Farmville

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Other

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Other

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Other

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 9 of 11 Other

9 Home Security Systems

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Voicemail

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 External hard drive backup

Location

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

Page 10 of 11 9 Medical Records Accounts

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

9 Intellectual Property

Ex. - “digital data” created by computer programmers, graphic or web designers, photographers, writers, musicians, and artists

Description

Digital Content

Disposition

Service Provider Contact e-mail and/or phone #

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 Inventory Digital Devices Desktop: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Laptop: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Tablet: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

iPad: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Storage Device: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Smartphone: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Web cam: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Other: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Digital Accounts

(Note - include security questions and answers, two factor authentication procedures, or similar additional identification information)

E-Mail Account: Description: (include e-mail address)

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Security Question: Other:

Security Answer:

Social Media Account: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Security Question: Other:

Security Answer:

Digital Financial Account: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Security Question: Other:

Security Answer: IM (Instant Messaging) Account: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Security Question: Other:

Security Answer:

Digital Music Account: (If not otherwise listed in sales and purchasing accts) Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Digital Photograph Account: (If not otherwise listed in sales and purchasing accts) Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Digital e-book Account: (If not otherwise listed in sales and purchasing accts) Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Digital audio/video Account: (If not otherwise listed in sales and purchasing accts) Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Domain Account:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Website:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Blog:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Tax Preparation Service Account:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Online Sales and Purchasing Account: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Online Backup/Storage Account:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

File Sharing Account:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Video Game and Virtual Worlds Account:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Other:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Other:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

OTHER

Home Security System: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Voicemail: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Other: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Other: Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

Other:

Master Password:

Description:

Username Password/Pin/Pattern Service Provider e-mail and/or phone #

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 all powers that an absolute owner would have and any other powers appropriate to achieve the proper investment, management, and distribution of: (I) any kind of computing device of mine; (2) any kind of data storage device or medium of mine; (3) any electronically stored information of mine; (4) any user account of mine; and (5) any domain name of mine. The personal representative may obtain copies of any electronically stored information of mine from any person or entity that possesses, custodies, or controls that information. I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information of mine or that provides to me an electronic communication service or remote computing service, whether public or private, to divulge to the personal representative: (l) any electronically stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. This authorization is to be construed to be my lawful consent under the Electronic Communications 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 may employ any consultants or agents to advise or assist the personal representative in decrypting any encrypted electronically stored information of mine or in bypassing, resetting, or recovering any password or other kind of authentication or authorization, and I hereby authorize the personal representative to take any of these actions to access: (1) any kind of computing device of mine; (2) any kind of data storage device or medium of mine; (3) any electronically stored information of mine; and (4) any user account of mine. The terms used in this paragraph are to be construed as broadly as possible, and the term "user account" includes without limitation an established relationship between a user and a computing device or between a user and a provider of Internet or other network access, electronic communication services, or remote computing services, whether public or private.

1 B. DIGITAL PROPERTY AUTHORIZATION

NOTE: The following is a stand-alone authorization and consent document that could be executed separately from a power of attorney, will, or trust document from The Digital Death Conundrum*:

Authorization and Consent for Release of Electronically Stored Information

I hereby authorize any person or entity that possesses, custodies, or controls any electronically stored information 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 stored information of mine; (2) the contents of any communication that is in electronic storage by that service or that is carried or maintained on that service; and (3) any record or other information pertaining to me with respect to that service. The terms used in this authorization are to be construed as broadly as possible, and the 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 Communications 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. This authorization is effective immediately. Unless this authorization is revoked by me in writing while I am competent, this authorization continues to be 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 revoked by me, that person or entity receiving this authorization may act in reliance on the presumption that it is valid and 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 original document.

Signed

Name STATE OF WISCONSIN) : ss. County of )

Personally came before me this day of , 20 , the above named , to me known to be the person who executed the foregoing instrument and acknowledged the same.

* Source: 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.

2 C. TRUST PROVISION - DIGITAL PROPERTY

OPTION 1

Digital Property. To access, take control of, conduct, continue, terminate or receive other disclosure pursuant to Wis. Stat. 711, of the Donor's accounts on any website or held by any custodian with an online component, including any social networking site, photo sharing site, micro blogging or short message service website or any email service website (except as provided herein). All service providers or custodians for such accounts may release the Donor's log-on credentials, including username and password, to the Trustee serving hereunder. The Trustee may, in such person's sole discretion and on behalf of the trust, indemnify and hold harmless any website service provider or custodian for any damages, causes of action or claims that may result from the disclosure. The authority granted to the Trustee hereunder is intended to constitute "lawful consent" to a service provider or custodian to divulge the contents 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 Trustee acting hereunder shall be an authorized user for purposes of applicable computer-fraud and unauthorized-computeraccess laws, including, but not limited to Wis. Stat. 943.70. Notwithstanding the foregoing, the powers granted above do not authorize access to email accounts generally or to receive the content of electronic 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 electronic communications ofthe Donor pursuant to Wis. Stat. 711.07(2) (unless the Donor has made other arrangements with the a particular service provider).

3 OPTION 2

My Personal Representative or the Trustee may take any action (including, without limitation, changing a terms of service agreement or other governing instrument) with respect to my Digital Assets and Digital Accounts as my Personal Representative or the Trustee shall deem appropriate, and as shall be permitted under applicable state and Federal law. My Personal Representative or the Trustee may engage experts or consultants or any other third party as necessary or appropriate to effectuate such actions with respect to my Digital Assets or Digital Accounts, including, but not limited to, such authority as may be necessary or appropriate to decrypt electronically stored information or to bypass, reset or recover any password or other kind of authentication or authorization. If my Personal Representative or the Trustee shall determine that it is necessary or appropriate to engage and delegate authority to an individual pursuant to this paragraph, it is my request that [DIGITAL ASSET FIDUCIARY] be engaged for this purposes. This authority is intended to constitute “lawful consent” to a service provider to divulge the contents 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 Trustee acting 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 and Digital Accounts associated with or used in connection with the Business (as defined herein). The authority granted under this paragraph is intended to provide my Personal Representative or the Trustee with full authority to access and manage my Digital Assets and Digital Accounts to the extent permitted under applicable state and Federal law and shall not limit any authority granted to my Personal Representative or the Trustee under such laws. “Digital Account” means an electronic system for creating, generating, sending, sharing, communicating, receiving, storing, displaying or processing information which provides access to a Digital Asset stored on a digital device, regardless of the ownership 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 physical device upon which the digital item was created, generated, sent, communicated, shared, received or stored.”

4 D. SHORT VERSION POWERS - WILL - DIGITAL PROPERTY

To possess the power to achieve the proper access, investment, management, and distribution 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 any person or entity that stores that information (i.e., from a provider of online services or from 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 be my lawful consent under the Electronic Communications 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;

To possess the authority to decrypt any of my encrypted digital property and authority to bypass, reset, or recover any password or other kind of authentication or authorization so my personal representative can access my digital devices, digital accounts and digital property.

The above listed powers shall apply to all of my digital property whether I have maintained such property in my individual name, in the name of a trust or other entity, or in the name of a nominee, 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 storage device 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

5 E. ADDITIONAL PARAGRAPHS FOR CONSIDERATION IN FULL VERSION POWERS - WILL - DIGITAL PROPERTY

To find, access, use, protect and control my digital devices for purposes including, but not limited to, finding, accessing, valuing, protecting, transferring or otherwise controlling my digital accounts and digital property, and, to access, manage, distribute, delete, terminate, transfer or transfer ownership rights in, or otherwise control any digital account which I may own or otherwise possess rights to, which currently 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 property which I may own or otherwise possess rights to, regardless of the ownership of the digital device on which the digital property is stored or the ownership of the digital account within which the digital property is stored, which currently exist or may exist as technology develops with respect to 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 listed herein regarding any digital property.

To have 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 be my lawful consent under the Electronic Communications 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.

To possess the authority to decrypt any of my encrypted digital property and authority to bypass, reset, or recover any password or other kind of authentication or authorization so my personal representative can access my digital devices, digital accounts and digital property.

To obtain, use, access, bypass, reset, recover or otherwise change any of my usernames and/or passwords regarding any digital property.

To communicate with any software licensor, internet service provider, voice mail or home security system service provider, or other similar third party regarding any digital property.

To protect and otherwise maintain or preserve any intellectual property rights regarding any digital property.

6 To maintain and renew, in the fiduciary’s discretion, licenses and contracts, including software licenses, domain registrations, and similar or comparable licenses or contracts or other contractual rights necessary to access any digital property.

The above listed powers shall apply to all of my digital property whether I have maintained such property in my individual name, in the name of a trust or other entity, or in the name of a nominee, and are to be construed as broadly as possible.

Note - similar full version language would be utilized for Trust powers paragraphs

7 F. POWER OF ATTORNEY PROVISION - DIGITAL PROPERTY

Digital Property

To possess the power to achieve the proper access, investment, management, and distribution of any 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 any person or entity that stores that information (i.e., from a provider of online services or from 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 be my lawful consent under the Electronic Communications 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;

To possess the authority to decrypt any of my encrypted digital property and authority to bypass, reset, or recover any password or other kind of authentication or authorization so my 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 storage device 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).

8 IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA

IN RE: GUARDIANSHIP OF File No.: JOHN DOE 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.

st Respectfully dated this 21 day of April, 2016.

______Attorney