Florida Senate - 2016                       CS for CS for SB 540
       
       
        
       By the Committees on Banking and Insurance; and Judiciary; and
       Senator Hukill
       
       
       
       
       597-01758-16                                           2016540c2
    1                        A bill to be entitled                      
    2         An act relating to estates; creating s. 731.1055,
    3         F.S.; providing that the validity and the effect of a
    4         specified disposition of real property be determined
    5         by Florida law; amending ss. 731.106 and 736.0105,
    6         F.S.; conforming provisions to changes made by the
    7         act, amending s. 736.0412, F.S.; providing
    8         applicability for nonjudicial modification of
    9         irrevocable trust; amending s. 736.0802, F.S.;
   10         defining the term “pleading”; authorizing a trustee to
   11         pay attorney fees and costs from the assets of the
   12         trust without specified approval or court
   13         authorization in certain circumstances; requiring the
   14         trustee to serve a written notice of intent upon each
   15         qualified beneficiary of the trust before the payment
   16         is made; requiring the notice of intent to contain
   17         specified information and to be served in a specified
   18         manner; providing that specified qualified
   19         beneficiaries may be entitled to an order compelling
   20         the refund of a specified payment to the trust;
   21         requiring the court to award specified attorney fees
   22         and costs in certain circumstances; authorizing the
   23         court to prohibit a trustee from using trust assets to
   24         make a specified payment; authorizing the court to
   25         enter an order compelling the return of specified
   26         attorney fees and costs to the trust with interest at
   27         the statutory rate; requiring the court to deny a
   28         specified motion unless the court finds a reasonable
   29         basis to conclude that there has been a breach of the
   30         trust; authorizing a court to deny the motion if it
   31         finds good cause to do so; authorizing the movant to
   32         show that a reasonable basis exists, and a trustee to
   33         rebut the showing, through specified means;
   34         authorizing the court to impose such remedies or
   35         sanctions as it deems appropriate; providing that a
   36         trustee is authorized to use trust assets in a
   37         specified manner if a claim or defense of breach of
   38         trust is withdrawn, dismissed, or judicially resolved
   39         in a trial court without a determination that the
   40         trustee has committed a breach of trust; providing
   41         that specified proceedings, remedies, and rights are
   42         not limited; amending ss. 736.0816 and 736.1007, F.S.;
   43         conforming provisions to changes made by the act;
   44         providing an effective date.
   45          
   46  Be It Enacted by the Legislature of the State of Florida:
   47  
   48         Section 1. Section 731.1055, Florida Statutes, is created
   49  to read:
   50         731.1055 Disposition of real property.-The validity and
   51  effect of a disposition, whether intestate or testate, of real
   52  property in this state shall be determined by Florida law.
   53         Section 2. Subsection (2) of section 731.106, Florida
   54  Statutes, is amended to read:
   55         731.106 Assets of nondomiciliaries.—
   56         (2) When a nonresident decedent, whether or not a citizen
   57  of the United States, provides by will that the testamentary
   58  disposition of tangible or intangible personal property having a
   59  situs within this state, or of real property in this state,
   60  shall be construed and regulated by the laws of this state, the
   61  validity and effect of the dispositions shall be determined by
   62  Florida law. The court may, and in the case of a decedent who
   63  was at the time of death a resident of a foreign country the
   64  court shall, direct the personal representative appointed in
   65  this state to make distribution directly to those designated by
   66  the decedent’s will as beneficiaries of the tangible or
   67  intangible property or to the persons entitled to receive the
   68  decedent’s personal estate under the laws of the decedent’s
   69  domicile.
   70         Section 3. Paragraph (k) of subsection (2) of section
   71  736.0105, Florida Statutes, is amended to read:
   72         736.0105 Default and mandatory rules.—
   73         (2) The terms of a trust prevail over any provision of this
   74  code except:
   75         (k) The ability to modify a trust under s. 736.0412, except
   76  as provided in s. 736.0412(4)(b) or (c).
   77         Section 4. Section 736.0412, Florida Statutes, is amended
   78  to read:
   79         736.0412 Nonjudicial modification of irrevocable trust.—
   80         (1) After the settlor’s death, a trust may be modified at
   81  any time as provided in s. 736.04113(2) upon the unanimous
   82  agreement of the trustee and all qualified beneficiaries.
   83         (2) Modification of a trust as authorized in this section
   84  is not prohibited by a spendthrift clause or by a provision in
   85  the trust instrument that prohibits amendment or revocation of
   86  the trust.
   87         (3) An agreement to modify a trust under this section is
   88  binding on a beneficiary whose interest is represented by
   89  another person under part III of this code.
   90         (4) This section does shall not apply to any trust:
   91         (a) Any trust Created prior to January 1, 2001.
   92         (b) Any trust Created after December 31, 2000, and before
   93  July 1, 2016, if, under the terms of the trust, all beneficial
   94  interests in the trust must vest or terminate within the period
   95  prescribed by the rule against perpetuities in s. 689.225(2),
   96  notwithstanding s. 689.225(2)(f), unless the terms of the trust
   97  expressly authorize nonjudicial modification.
   98         (c) Created on or after July 1, 2016, during the first 90
   99  years after it is created, unless the terms of the trust
  100  expressly authorize nonjudicial modification.
  101         (d)Any trust For which a charitable deduction is allowed
  102  or allowable under the Internal Revenue Code until the
  103  termination of all charitable interests in the trust.
  104         (5) For purposes of subsection (4), a revocable trust shall
  105  be treated as created when the right of revocation terminates.
  106         (6) The provisions of this section are in addition to, and
  107  not in derogation of, rights under the common law to modify,
  108  amend, terminate, or revoke trusts.
  109         Section 5. Subsection (10) of section 736.0802, Florida
  110  Statutes, is amended to read:
  111         736.0802 Duty of loyalty.—
  112         (10) Unless otherwise provided in this subsection, payment
  113  of costs or attorney attorney’s fees incurred in any proceeding
  114  from the assets of the trust may be made by a the trustee from
  115  assets of the trust without the approval of any person and
  116  without court authorization, unless the court orders otherwise
  117  as provided in ss. 736.0816(20) and 736.1007(1) paragraph (b).
  118         (a) As used in this subsection, the term “pleading” means a
  119  pleading as defined in Rule 1.100 of the Florida Rules of Civil
  120  Procedure.
  121         (b) If a trustee incurs attorney fees or costs in
  122  connection with a claim or defense of breach of trust which is
  123  made in a filed pleading, the trustee may pay such attorney fees
  124  or costs from trust assets without the approval of any person
  125  and without any court authorization. However, the trustee must
  126  serve a written notice of intent upon each qualified beneficiary
  127  of the trust whose share of the trust may be affected by the
  128  payment before such payment is made. The notice of intent does
  129  not need to be served upon a qualified beneficiary whose
  130  identity or location is unknown to, and not reasonably
  131  ascertainable by, the trustee.
  132         (c) The notice of intent must identify the judicial
  133  proceeding in which the claim or defense of breach of trust has
  134  been made in a filed pleading and must inform the person served
  135  of his or her right under paragraph (e) to apply to the court
  136  for an order prohibiting the trustee from using trust assets to
  137  pay attorney fees or costs as provided in paragraph (b) or
  138  compelling the return of such attorney fees and costs to the
  139  trust. The notice of intent must be served by any commercial
  140  delivery service or form of mail requiring a signed receipt; the
  141  manner provided in the Florida Rules of Civil Procedure for
  142  service of process; or, as to any party over whom the court has
  143  already acquired jurisdiction in that judicial proceeding, in
  144  the manner provided for service of pleadings and other documents
  145  by the Florida Rules of Civil Procedure.
  146         (d)If a trustee has used trust assets to pay attorney fees
  147  or costs described in paragraph (b) before service of a notice
  148  of intent, any qualified beneficiary who is not barred under s.
  149  736.1008 and whose share of the trust may have been affected by
  150  such payment is entitled, upon the filing of a motion to compel
  151  the return of such payment to the trust, to an order compelling
  152  the return of such payment, with interest at the statutory rate.
  153  The court shall award attorney fees and costs incurred in
  154  connection with the motion to compel as provided in s. 736.1004.
  155         (e)Upon the motion of any qualified beneficiary who is not
  156  barred under s. 736.1008 and whose share of the trust may be
  157  affected by the use of trust assets to pay attorney fees or
  158  costs as provided in paragraph (b), the court may prohibit the
  159  trustee from using trust assets to make such payment and, if
  160  such payment has been made from trust assets after service of a
  161  notice of intent, the court may enter an order compelling the
  162  return of the attorney fees and costs to the trust, with
  163  interest at the statutory rate. In connection with any hearing
  164  on a motion brought under this paragraph:
  165         1. The court shall deny the motion unless it finds a
  166  reasonable basis to conclude that there has been a breach of
  167  trust. If the court finds there is a reasonable basis to
  168  conclude there has been a breach of trust, the court may still
  169  deny the motion if it finds good cause to do so.
  170         2. The movant may show that such reasonable basis exists,
  171  and the trustee may rebut any such showing by presenting
  172  affidavits, answers to interrogatories, admissions, depositions,
  173  and any evidence otherwise admissible under the Florida Evidence
  174  Code.
  175         (f) If a trustee fails to comply with an order of the court
  176  prohibiting the use of trust assets to pay attorney fees or
  177  costs described in paragraph (b) or fails to comply with an
  178  order compelling that such payment be refunded to the trust, the
  179  court may impose such remedies or sanctions as the court deems
  180  appropriate, including, without limitation, striking the
  181  defenses or pleadings filed by the trustee.
  182         (g) Notwithstanding the entry of an order prohibiting the
  183  use of trust assets to pay attorney fees and costs as provided
  184  in paragraph (b), or compelling the return of such attorney fees
  185  or costs, if a claim or defense of breach of trust is withdrawn,
  186  dismissed, or judicially resolved in the trial court without a
  187  determination that the trustee has committed a breach of trust,
  188  the trustee is authorized to use trust assets to pay attorney
  189  fees and costs as provided in paragraph (b) and may do so
  190  without service of a notice of intent or order of the court. The
  191  attorney fees and costs may include fees and costs that were
  192  refunded to the trust pursuant to an order of the court.
  193         (h) This subsection does not limit proceedings under s.
  194  736.0206 or remedies for breach of trust under s. 736.1001, or
  195  the right of any interested person to challenge or object to the
  196  payment of compensation or costs from the trust.
  197         (a) If a claim or defense based upon a breach of trust is
  198  made against a trustee in a proceeding, the trustee shall
  199  provide written notice to each qualified beneficiary of the
  200  trust whose share of the trust may be affected by the payment of
  201  attorney’s fees and costs of the intention to pay costs or
  202  attorney’s fees incurred in the proceeding from the trust prior
  203  to making payment. The written notice shall be delivered by
  204  sending a copy by any commercial delivery service requiring a
  205  signed receipt, by any form of mail requiring a signed receipt,
  206  or as provided in the Florida Rules of Civil Procedure for
  207  service of process. The written notice shall inform each
  208  qualified beneficiary of the trust whose share of the trust may
  209  be affected by the payment of attorney’s fees and costs of the
  210  right to apply to the court for an order prohibiting the trustee
  211  from paying attorney’s fees or costs from trust assets. If a
  212  trustee is served with a motion for an order prohibiting the
  213  trustee from paying attorney’s fees or costs in the proceeding
  214  and the trustee pays attorney’s fees or costs before an order is
  215  entered on the motion, the trustee and the trustee’s attorneys
  216  who have been paid attorney’s fees or costs from trust assets to
  217  defend against the claim or defense are subject to the remedies
  218  in paragraphs (b) and (c).
  219         (b) If a claim or defense based upon breach of trust is
  220  made against a trustee in a proceeding, a party must obtain a
  221  court order to prohibit the trustee from paying costs or
  222  attorney’s fees from trust assets. To obtain an order
  223  prohibiting payment of costs or attorney’s fees from trust
  224  assets, a party must make a reasonable showing by evidence in
  225  the record or by proffering evidence that provides a reasonable
  226  basis for a court to conclude that there has been a breach of
  227  trust. The trustee may proffer evidence to rebut the evidence
  228  submitted by a party. The court in its discretion may defer
  229  ruling on the motion, pending discovery to be taken by the
  230  parties. If the court finds that there is a reasonable basis to
  231  conclude that there has been a breach of trust, unless the court
  232  finds good cause, the court shall enter an order prohibiting the
  233  payment of further attorney’s fees and costs from the assets of
  234  the trust and shall order attorney’s fees or costs previously
  235  paid from assets of the trust to be refunded. An order entered
  236  under this paragraph shall not limit a trustee’s right to seek
  237  an order permitting the payment of some or all of the attorney’s
  238  fees or costs incurred in the proceeding from trust assets,
  239  including any fees required to be refunded, after the claim or
  240  defense is finally determined by the court. If a claim or
  241  defense based upon a breach of trust is withdrawn, dismissed, or
  242  resolved without a determination by the court that the trustee
  243  committed a breach of trust after the entry of an order
  244  prohibiting payment of attorney’s fees and costs pursuant to
  245  this paragraph, the trustee may pay costs or attorney’s fees
  246  incurred in the proceeding from the assets of the trust without
  247  further court authorization.
  248         (c) If the court orders a refund under paragraph (b), the
  249  court may enter such sanctions as are appropriate if a refund is
  250  not made as directed by the court, including, but not limited
  251  to, striking defenses or pleadings filed by the trustee. Nothing
  252  in this subsection limits other remedies and sanctions the court
  253  may employ for the failure to refund timely.
  254         (d) Nothing in this subsection limits the power of the
  255  court to review fees and costs or the right of any interested
  256  persons to challenge fees and costs after payment, after an
  257  accounting, or after conclusion of the litigation.
  258         (e) Notice under paragraph (a) is not required if the
  259  action or defense is later withdrawn or dismissed by the party
  260  that is alleging a breach of trust or resolved without a
  261  determination by the court that the trustee has committed a
  262  breach of trust.
  263         Section 6. Subsection (20) of section 736.0816, Florida
  264  Statutes, is amended to read:
  265         736.0816 Specific powers of trustee.—Except as limited or
  266  restricted by this code, a trustee may:
  267         (20) Employ persons, including, but not limited to,
  268  attorneys, accountants, investment advisers, or agents, even if
  269  they are the trustee, an affiliate of the trustee, or otherwise
  270  associated with the trustee, to advise or assist the trustee in
  271  the exercise of any of the trustee’s powers and pay reasonable
  272  compensation and costs incurred in connection with such
  273  employment from the assets of the trust, subject to s.
  274  736.0802(10) with respect to attorney fees and costs, and act
  275  without independent investigation on the recommendations of such
  276  persons.
  277         Section 7. Subsection (1) of section 736.1007, Florida
  278  Statutes, is amended to read:
  279         736.1007 Trustee’s attorney’s fees.—
  280         (1) If the trustee of a revocable trust retains an attorney
  281  to render legal services in connection with the initial
  282  administration of the trust, the attorney is entitled to
  283  reasonable compensation for those legal services, payable from
  284  the assets of the trust, subject to s. 736.0802(10), without
  285  court order. The trustee and the attorney may agree to
  286  compensation that is determined in a manner or amount other than
  287  the manner or amount provided in this section. The agreement is
  288  not binding on a person who bears the impact of the compensation
  289  unless that person is a party to or otherwise consents to be
  290  bound by the agreement. The agreement may provide that the
  291  trustee is not individually liable for the attorney attorney’s
  292  fees and costs.
  293         Section 8. This act shall take effect July 1, 2016.
  294