Wisconsin Living Trust

Introduction

Key Things to Know

1. 1

   A Wisconsin living trust can last forever without any dynasty-trust statute. Wis. Stat. Section 700.16 replaces the common-law rule against perpetuities with a suspension-of-alienation test, but Section 700.16(3) removes any durational limit entirely whenever the trustee has the power to sell trust property, express or implied, or a living person holds an unlimited power to terminate the trust. An ordinary living trust's own boilerplate terms almost always give the trustee that power, so the trust can run indefinitely.

2. 2

   Wisconsin is not a community property state by name, but the Marital Property Act, Wis. Stat. ch. 766, produces the same result: each spouse presumptively owns an undivided one-half interest in marital property, and moving it into a trust does not change that classification (Section 766.31(5)). In a joint revocable trust, either spouse may revoke alone as to the marital-property portion, but amending it takes both spouses acting together (Section 701.0602(2)(a)).

3. 3

   Wisconsin's homestead exemption, Wis. Stat. Section 815.20(1), protects $75,000 per owner, or $150,000 for a married couple who own the home jointly, a fixed statutory amount not adjusted for inflation, from creditors' claims. No Wisconsin statute or reported decision on the books says whether that protection survives once the home is deeded into your trust, so the trust, not you, becomes the titleholder. Confirm this with a Wisconsin attorney before funding your homestead.

4. 4

   Funding your home into a Wisconsin living trust does not trigger the state's real estate transfer fee. Wis. Stat. Section 77.25(16) exempts a conveyance to a trust where a transfer from you to your trust's beneficiary would itself be exempt, and the Department of Revenue's own transfer fee exemption guide confirms this covers an individual funding their own revocable trust.

5. 5

   No notary, witness, or will formality is required to create a Wisconsin living trust. Wis. Stat. Section 701.0402(1) requires only settlor capacity, an indicated intent, trust property, a definite beneficiary, and trustee duties to perform, and Section 701.0407 even enforces a purely oral trust on clear and convincing evidence. Notarization is still standard practice because the deed funding real property into the trust must be authenticated to record.

6. 6

   A Wisconsin trustee can furnish a certification of trust under Section 701.1013 instead of the full trust instrument, and a bank or title company that demands the full instrument or extra excerpts in bad faith is liable for the trustee's costs, fees, and damages under Section 701.1013(8), a broader fee-shift than the bare uniform model.

7. 7

   A Wisconsin living trust gives its settlor no creditor protection during life. Section 701.0505(1)(a)1 subjects a revocable trust's property to the settlor's own creditors outright, and Wisconsin is not a self-settled asset protection trust state. A surviving spouse cannot always be fully disinherited either: the narrower deferred marital property elective share, Section 861.02, can reach assets that passed through a revocable trust.

Wisconsin Requirements for Living Trust

• Wisconsin No Notary or Witness Required to Create the Trust

  Wis. Stat. Section 701.0402(1) requires only settlor capacity, an indicated intent, trust property, a definite beneficiary, and trustee duties to perform. No notary, witness, or will formality applies to the trust itself, though the funding deed for real property must be authenticated to record.

• Wisconsin Homestead Protection Gap for Trust-Owned Property

  Wis. Stat. Section 815.20(1) exempts $75,000 per owner, or $150,000 for a married couple who own the home jointly, a fixed statutory amount not adjusted for inflation, from creditors' claims. no statute confirms whether that protection survives once the home is deeded into a revocable trust.

• Wisconsin Marital Property Preserved in a Joint Trust

  Wis. Stat. Section 766.31(5) preserves marital-property classification when an asset moves into a trust. In a joint revocable trust, either spouse may revoke alone as to the marital-property portion, but amendment requires both spouses acting jointly (Section 701.0602(2)(a)).

• Wisconsin Real Estate Transfer Fee Exemption for Funding

  Wis. Stat. Section 77.25(16) exempts a conveyance funding an individual's own revocable trust from the state's fixed, non-adjusted 30-cents-per-$100 real estate transfer fee, confirmed by the Department of Revenue's transfer fee exemption guide. A later distribution out of the trust for no consideration is separately exempt under Section 77.25(9).

• Wisconsin Certificate of Trust Fee-Shifting Protection

  Wis. Stat. Section 701.1013 lets a trustee furnish a certification of trust instead of the full instrument. A recipient who demands the full instrument or extra excerpts in bad faith is liable for the trustee's costs, fees, and damages under Section 701.1013(8).

• Wisconsin Trusts Can Escape the Perpetuities Limit

  Wis. Stat. Section 700.16(3) removes any durational limit on a trust whenever the trustee has the power to sell trust property, express or implied, or a living person holds an unlimited power to terminate it, conditions an ordinary living trust's own terms almost always satisfy.