Senate Bill sb1434c1
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Florida Senate - 2006 CS for SB 1434
By the Committee on Banking and Insurance; and Senator Atwater
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1 A bill to be entitled
2 An act relating to conveyances of land;
3 creating s. 689.072, F.S.; providing for the
4 transfer and creation of custodial property in
5 an individual retirement account or certain
6 qualified plans; incorporating statutory
7 provisions into such transfer; providing powers
8 to the custodian or trustee of such custodial
9 property; providing protections for persons
10 dealing with the custodian or trustee;
11 exempting certain transfers from specific
12 claims; providing for the disposition of
13 custodian property held in an account, plan or
14 custodianship that is terminated; providing a
15 standard of care for the custodian or trustee;
16 providing for certain declarations to control
17 in specific legal proceedings; providing that
18 the act is inapplicable to a deed, mortgage, or
19 instrument to which s. 689.071, F.S., applies;
20 providing that provisions relating to deeds
21 under statute of uses are not applicable to a
22 transfer by a custodian or trustee under the
23 act; providing for liberal construction;
24 creating s. 694.17, F.S.; providing that
25 conveyances to a custodian or trustee before a
26 specified date are valid notwithstanding the
27 statute of uses; providing an effective date.
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29 Be It Enacted by the Legislature of the State of Florida:
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Florida Senate - 2006 CS for SB 1434
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1 Section 1. Section 689.072, Florida Statutes, is
2 created to read:
3 689.072 Real estate interests transferred to or by a
4 custodian or trustee of an individual retirement account or
5 qualified plan.--
6 (1)(a) A conveyance, deed, mortgage, lease assignment,
7 or other recorded instrument that transfers an interest in
8 real property in this state, including a leasehold or
9 mortgagee interest, to a person who is qualified to act as a
10 custodian or trustee for an individual retirement account
11 under 26 U.S.C. s. 408(a)(2), as amended, in which instrument
12 the transferee is designated "custodian," "as custodian,"
13 "trustee," or "as trustee" and the account owner or
14 beneficiary of the custodianship in the individual retirement
15 account is named, creates custodial property and transfers
16 title to the custodian or trustee when an interest in real
17 property is recorded in the name of the custodian or trustee,
18 followed by the words "as custodian, or trustee, for the
19 benefit of (name of individual retirement account owner or
20 beneficiary) IRA."
21 (b) This section also applies to a qualified stock
22 bonus, pension, or profit-sharing plan created under 26 U.S.C.
23 s. 401(a), as amended, in which instrument a person is
24 designated "custodian," "as custodian," "trustee," or "as
25 trustee" and the plan, plan participant, or plan beneficiary
26 of the custodianship in the plan also creates custodial
27 property and transfers title to the custodian or trustee when
28 an interest in real property is recorded in the name of the
29 custodian or trustee, followed by the words "as custodian, or
30 trustee, of the (name of plan) for the benefit of (name of
31 plan participant or beneficiary)."
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Florida Senate - 2006 CS for SB 1434
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1 (2) A transfer to a custodian or trustee of an
2 individual retirement account or qualified plan pursuant to
3 this section incorporates the provisions of this section into
4 the disposition and grants to the custodian or trustee the
5 power to protect, conserve, sell, lease, encumber, or
6 otherwise manage and dispose of the real property described in
7 the recorded instrument without the joinder of the named
8 individual retirement account owner, plan participant, or
9 beneficiary, except as provided in subsection (5).
10 (3) A person dealing with the custodian or trustee
11 does not have a duty to inquire into the qualifications of the
12 custodian or trustee and may rely on the powers of the
13 custodian or trustee for the custodial property created under
14 this section regardless of whether such powers are specified
15 in the recorded instrument. A grantee, mortgagee, lessee,
16 transferee, assignee, or person obtaining a satisfaction or
17 release or otherwise dealing with the custodian or trustee
18 regarding such custodial property is not required to:
19 (a) Inquire into the identification or status of any
20 named individual retirement account owner, plan participant,
21 or beneficiary of the individual retirement account or
22 qualified plan or his or her heirs or assigns to whom the
23 custodian or trustee may be accountable under the provisions
24 of the individual retirement account agreement or qualified
25 plan document;
26 (b) Inquire into the authority of the custodian or
27 trustee to act within and exercise the powers granted under
28 the individual retirement account agreement or qualified plan
29 document;
30 (c) Inquire into the adequacy or disposition or any
31 consideration provided to the custodian or trustee in
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Florida Senate - 2006 CS for SB 1434
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1 connection with any interest acquired from such custodian or
2 trustee; or
3 (d) Inquire into any provision of an individual
4 retirement account agreement or qualified plan document.
5 (4) A person dealing with the custodian or trustee
6 under the recorded instrument takes any interest transferred
7 by such custodian or trustee, within the authority provided
8 under this section, free of claims of the named owner, plan
9 participant, or beneficiary of the individual retirement
10 account or qualified plan or of anyone claiming by, through,
11 or under such owner, plan participant, or beneficiary.
12 (5) If notice of the revocation or termination of an
13 individual retirement account agreement, qualified plan, or
14 custodianship established under such individual retirement
15 account or qualified plan is recorded, any disposition or
16 encumbrance of the custodian property must be by an instrument
17 executed by the custodian or trustee or the successor and the
18 respective owner, plan participant, or beneficiary of the
19 individual retirement account or qualified plan.
20 (6) In dealing with custodial property created under
21 this section, a custodian or trustee must observe the standard
22 of care of a prudent person dealing with the property of
23 another person. This section does not relieve the custodian or
24 trustee from liability for breach of the individual retirement
25 account agreement, custodial agreement, or qualified plan
26 document.
27 (7) A provision of the recorded instrument which
28 defines and declares the interest of the owner, plan
29 participant, or beneficiary of the individual retirement
30 account or qualified plan to be personal property controls
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1 only if a determination becomes an issue in any legal
2 proceeding.
3 (8) As used in this section, the term "beneficiary"
4 applies only when the individual account owner or qualified
5 plan participant is deceased.
6 (9)(a) This section does not apply to any deed,
7 mortgage, or instrument to which s. 689.071 applies.
8 (b) Section 689.09 does not apply to transfers of real
9 property interests to a custodian or trustee under this
10 section.
11 (10) This section is remedial and shall be liberally
12 construed to effectively carry out its purposes.
13 Section 2. Section 694.17, Florida Statutes, is
14 created to read:
15 694.17 Validation of conveyances to custodian or
16 trustee of an individual retirement account or qualified
17 plan.--A conveyance, deed, mortgage, lease assignment, or
18 other recorded instrument transferring an interest in real
19 property in this state to a custodian or trustee which was
20 recorded before July 1, 2006, but which would be within the
21 scope of s. 689.072 if recorded after that date, is ratified,
22 confirmed, and validated in all respects, and shall be deemed
23 to have vested such interest in the custodian or trustee
24 without reversion or impairment as if such instrument had been
25 recorded after July 1, 2006, and s. 689.09 does not apply to
26 any such instrument regardless of when recorded.
27 Section 3. This act shall take effect July 1, 2006.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1434
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4 1. The committee substitute provides for retroactivity in
applying the provisions of the bill to transfers
5 involving existing Individual Retirement Accounts (IRA)
or qualifying plans, which were recorded before July 1,
6 2006, the effective date of the bill.
7 2. The bill also clarifies that the provisions relating to
the real estate interests transferred to or by a
8 custodian or trustee of an IRA or qualified plan do not
apply to any deed, mortgage, or instrument to which
9 provisions relating to land transfer under s. 689.071,
F.S.
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