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Q: Can a Deposit Account with a Payable on Death Beneficiary have a Contingent Beneficiary?

A: No. Wisconsin Section 705 covers non-probate transfers at death. WBA does not read section 705 to permit contingent beneficiaries.

The WBA payable on death beneficiary designation form was created in accordance with the below interpretation of Wisconsin Section 705 and thus does not permit contingent beneficiaries. It has been WBA’s longstanding opinion that the POD statute does not permit identification of contingent beneficiaries to accounts governed by Subchapter 1 of the Chapter 705. Accounts covered by this statute include most standard checking, savings and certificate of deposit accounts established by a standard deposit account agreement.

The POD statute specifies who is entitled to payment on a POD account on the death of the last surviving accountholder. Under 705.06(1)(c), the funds are paid to the beneficiaries who survive the death of the last surviving accountholder. If none of the beneficiaries survive, the funds are paid to the estate of the last surviving accountholder. This is the way the WBA form is drafted.

The statute provides a second option under 705.04(2)(d), under which funds otherwise payable to a beneficiary who predeceases the death of the last surviving accountholder, would pass to the beneficiary's issue who would take under 854.06(3).

When the option to pay the beneficiary's issue was added to the POD statute, it was WBA’s understanding that the decision was made not to draft for this option. We believe that not all persons would want the issue (without identification of specific children) to receive payment. Further, the bank would not have any easy way to identify all of the issue who would be entitled to the payment. The identity of a person's issue can change throughout the term of the account.

However, the statute does not permit any other payment of fund in a POD account. The statue does not authorize payment to named contingent beneficiaries.

The WBA POD beneficiary form was drafted to follow the above. Thus, if a bank wishes to contract in a way to appoint contingent beneficiaries for a customer's deposit account we recommend working with the bank's own counsel to either modify WBA's form or create a separate designation. If your bank does not use WBA forms we recommend consulting with your forms drafters to determine what their interpretation of Section 705 is with respect to contingent beneficiaries.

Note: The above information is not intended to provide legal advice; rather, it is intended to provide general information about banking issues. Consult your institution's attorney for special legal advice or assistance.

By, Scott Birrenkott

Events

WBA’s Trust Conference is an all-encompassing event that concentrates on updating its attendees on new and upcoming changes in regulations, the economy, and overall trust department functions. Join us for this year’s WBA Trust Conference being held at the WBA Office on May 25th. The conference will kick off at 9:00 a.m. and adjourn at approximately 3:00 p.m.

The WBA Trust Conference is approved for 5.25 CTFA credit through ABA.

Who Should Attend?

The conference is designed for all those that are involved in trust and estate planning, including trust officers, wealth managers and trust administrators.

Topics Include:

  • WBA Update and Government Relations Update – Wisconsin Bankers Association, John Cronin
  • Trust Code Update & Trust Administration Panel
  • Preparing for the New RMD Regulations – Ascensus – Ben Maas
  • Cryptocurrency – Compliance Alliance – Julia Gutierrez
  • Recognizing and Responding to Elder Abuse and Undue Influence – Godfrey & Kahn, S.C. – Jonathan Ingrisano & Nicholas Bezier

Registration Information:

Trust Section Members:

  • $220 – Per Attendee

WBA Bank Members – Non Trust Section Members:

  • $245 – Per Attendee

WBA Associate Members

  • $245 – Per Attendee

Attendee Registration: The registration fee of $245/attendee includes conference materials, lunch and refreshment breaks. Members of the WBA Trust Banking Section* receive a discounted registration fee of $220/attendee.

 

*Membership in the WBA Trust Banking Section is by bank – all employees of section member banks can register at the discounted rate. Please contact WBA’s Scott Birrenkott via email with any questions regarding section membership.

Refund Policy: A refund, less a $25 administrative fee, is provided for cancellations requested on or before Thursday, May 13, 2021.