Wisconsin Statutes 702.05 – Exercise of a power of appointment
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Terms Used In Wisconsin Statutes 702.05
- Creating instrument: means the will, trust agreement, or other document which creates or reserves the power of appointment. See Wisconsin Statutes 702.02
- Donee: means the person in whom the power of appointment is created or reserved. See Wisconsin Statutes 702.02
- Donee: The recipient of a gift.
- Donor: means the person who creates or reserves the power of appointment. See Wisconsin Statutes 702.02
- Donor: The person who makes a gift.
- Fiduciary: A trustee, executor, or administrator.
- Following: when used by way of reference to any statute section, means the section next following that in which the reference is made. See Wisconsin Statutes 990.01
- Land: includes lands, tenements and hereditaments and all rights thereto and interests therein. See Wisconsin Statutes 990.01
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Personal representative: means a person, however denominated, who is authorized to administer a decedent's estate. See Wisconsin Statutes 990.01
- Power of appointment: means a power to appoint legal or equitable interests in real or personal property. See Wisconsin Statutes 702.02
- Property: includes real and personal property. See Wisconsin Statutes 990.01
- Trustee: A person or institution holding and administering property in trust.
(1) Capacity to exercise a power of appointment. A power of appointment can be exercised only by a person who would have the capacity to transfer the property covered by the power of appointment.
(2) Kind of instrument and formalities of execution. A donee can exercise a power of appointment only by an instrument which meets the intent of the donor as to kind of instrument and formalities of execution. If the power of appointment is exercisable by will, this means a will executed with the formalities necessary for a valid will. A written instrument signed by the donee is sufficient if the donor fails to require any additional formalities or fails to indicate a will, but if the power of appointment is to appoint interests in land, it can be exercised only by an instrument executed with sufficient formalities for that purpose.
(3) Consent of 3rd persons. When the consent of the donor or of any other person is required by the donor for the exercise of a power of appointment, such consent must be expressed in the creating instrument exercising the power of appointment or in a separate written instrument, signed in either case by the persons whose consent is required. If any person whose consent is required dies or becomes legally incapable of consenting, the power of appointment may be exercised by the donee without the consent of that person unless the donor has manifested a contrary intent in the creating instrument.
(4) Power of appointment vested in 2 or more donees. Unless the donor manifests a contrary intent, when a power of appointment is vested in 2 or more persons, all must unite in its exercise, but if one or more of the donees dies, becomes incapable of exercising the power of appointment, or renounces, releases, or disclaims the power of appointment, the power of appointment may be exercised by the others.
(5) Presumption of nonexercise of a power of appointment. A personal representative, trustee, or other fiduciary who holds property subject to a power of appointment may administer that property as if the power of appointment was not exercised if the personal representative, trustee, or other fiduciary has no notice of the existence of any of the following within 6 months after the death of the donee of the power of appointment:
(a) A document purporting to be a will of the donee of the power of appointment if the power of appointment is exercisable by a will.
(b) Some other documentation of the donee purporting to exercise the power of appointment if the power of appointment is exercisable other than by a will.