Florida Senate - 2021                             CS for SB 1070
       
       
        
       By the Committee on Judiciary; and Senator Berman
       
       
       
       
       
       590-03162-21                                          20211070c1
    1                        A bill to be entitled                      
    2         An act relating to estates and trusts; amending s.
    3         69.031, F.S.; requiring the court to allow an officer
    4         to elect to post and maintain a certain bond;
    5         requiring the court to vacate or terminate an order
    6         under certain circumstances; making technical changes;
    7         amending s. 732.507, F.S.; providing that certain
    8         provisions of a will are void upon dissolution of
    9         marriage; specifying when dissolution of marriage
   10         occurs; providing applicability; amending s. 736.0103,
   11         F.S.; defining terms; revising the definition of the
   12         term “terms of a trust”; amending s. 736.0105, F.S.;
   13         revising the exceptions for when the terms of a trust
   14         do not prevail over provisions of the Florida Trust
   15         Code; amending s. 736.0201, F.S.; authorizing certain
   16         proceedings to determine the homestead status of real
   17         property owned by a trust to be filed in the probate
   18         proceeding for the settlor’s estate; requiring that
   19         such proceedings be governed by the Florida Probate
   20         Rules; amending s. 736.0603, F.S.; transferring
   21         provisions that authorize a trustee to follow certain
   22         directions; amending s. 736.0703, F.S.; conforming
   23         provisions to changes made by the act; repealing s.
   24         736.0808, F.S., relating to powers to direct; amending
   25         s. 736.1008, F.S.; specifying that certain claims
   26         barred against a trustee or trust director are also
   27         barred against certain persons acting for that
   28         trustee; conforming provisions to changes made by the
   29         act; amending s. 736.1017, F.S.; revising the
   30         information required to be included in a certification
   31         of trust; amending s. 736.1105, F.S.; revising the
   32         effects that subsequent marriages, births, adoptions,
   33         or dissolutions of marriage have on a revocable trust;
   34         providing construction; providing applicability;
   35         creating s. 736.1109, F.S.; specifying how title
   36         passes for certain devises of homesteads which violate
   37         the State Constitution; specifying that certain powers
   38         do not subject an interest in a protected homestead to
   39         certain claims; providing applicability; creating part
   40         XIV of chapter 736, F.S., entitled the “Florida
   41         Uniform Directed Trust Act”; creating s. 736.1401,
   42         F.S.; providing a short title; creating s. 736.1403,
   43         F.S.; providing applicability; providing for the
   44         validity of certain terms in a directed trust which
   45         designate principal places of administration; creating
   46         s. 736.1405, F.S.; defining the term “power of
   47         appointment”; providing applicability; specifying the
   48         types of powers granted to persons other than
   49         trustees; creating s. 736.1406, F.S.; authorizing the
   50         terms of a trust to grant a power of direction to a
   51         trust director; specifying the powers included in a
   52         power of direction; creating s. 736.1407, F.S.;
   53         providing for limitations on trust directors; creating
   54         s. 736.1408, F.S.; providing duties and liabilities
   55         for trust directors; creating s. 736.1409, F.S.;
   56         providing duties and liabilities for directed
   57         trustees; creating s. 736.141, F.S.; requiring a
   58         trustee to provide certain information to a trust
   59         director; requiring a trust director to provide
   60         certain information to a trustee or another trust
   61         director and a qualified beneficiary; providing that a
   62         trustee or a trust director acting in reliance on
   63         certain information is not liable for a breach of
   64         trust in certain circumstances; creating s. 736.1411,
   65         F.S.; specifying that trustees and trust directors do
   66         not have a duty to monitor, inform, or advise
   67         specified persons under certain circumstances;
   68         creating s. 736.1412, F.S.; transferring provisions
   69         relating to the appointment of trustees; creating s.
   70         736.1413, F.S.; providing limitations on actions
   71         against trust directors; creating s. 736.1414, F.S.;
   72         authorizing trust directors to assert specified
   73         defenses in certain actions; creating s. 736.1415,
   74         F.S.; specifying that a trust director submits to
   75         specified personal jurisdiction by accepting
   76         appointment as a trust director; providing
   77         construction; creating s. 736.1416, F.S.; requiring
   78         trust directors to be considered a trustee for certain
   79         purposes; authorizing certain persons to make a
   80         specified written demand to accept or confirm prior
   81         acceptance of trust directorships; creating part XV of
   82         chapter 736, F.S., entitled the “Community Property
   83         Trust Act”; creating s. 736.1501, F.S.; providing a
   84         short title; creating s. 736.1502, F.S.; defining
   85         terms; creating s. 736.1503, F.S.; providing that an
   86         arrangement is a community property trust in certain
   87         circumstances; creating s. 736.1504, F.S.; authorizing
   88         settlor spouses to agree upon certain terms in an
   89         agreement establishing a community property trust;
   90         specifying when a community property trust may be
   91         amended or revoked; specifying qualified beneficiaries
   92         of community property trusts; creating s. 736.1505,
   93         F.S.; providing that settlor spouses may classify any
   94         property as community property by transferring that
   95         property to a community property trust regardless of
   96         domicile; providing for enforceability and duration of
   97         a community property trust; providing that the right
   98         to manage and control certain property is determined
   99         by the terms of the trust agreement; providing the
  100         effect of distributions from a community property
  101         trust; creating s. 736.1506, F.S.; providing for the
  102         satisfaction of obligations incurred by one or both
  103         spouses from a community property trust; creating s.
  104         736.1507, F.S.; providing for the disposition or
  105         distribution of certain property upon the death of a
  106         spouse; creating s. 736.1508, F.S.; providing for the
  107         termination of a community property trust upon
  108         dissolution of marriage; creating s. 736.1509, F.S.;
  109         providing that a community property trust does not
  110         adversely affect certain rights of a child; creating
  111         s. 736.151, F.S.; providing that certain property held
  112         in a community property trust qualifies as homestead
  113         property; creating s. 736.1511, F.S.; providing for
  114         the application of the Internal Revenue Code to a
  115         community property trust; creating s. 736.1512, F.S.;
  116         providing that a community property trust is not
  117         enforceable in certain circumstances; amending ss.
  118         736.0802, 736.08125, and 738.104, F.S.; conforming
  119         cross-references; amending s. 744.3679, F.S.;
  120         conforming a provision to changes made by the act;
  121         providing a directive to the Division of Law Revision;
  122         providing for severability; providing effective dates.
  123  
  124  Be It Enacted by the Legislature of the State of Florida:
  125  
  126         Section 1. Effective upon this act becoming a law, section
  127  69.031, Florida Statutes, is amended to read:
  128         69.031 Designated financial institutions for property
  129  assets in hands of guardians, curators, administrators,
  130  trustees, receivers, or other officers.—
  131         (1) When it is expedient in the judgment of any court
  132  having jurisdiction of any estate in process of administration
  133  by any guardian, curator, executor, administrator, trustee,
  134  receiver, or other officer, because the size of the bond
  135  required of the officer is burdensome or for other cause, the
  136  court may order part or all of the personal property assets of
  137  the estate placed with a bank, trust company, or savings and
  138  loan association (which savings and loan association is a member
  139  of the Federal Savings and Loan Insurance Corporation and doing
  140  business in this state) designated by the court, consideration
  141  being given to any bank, trust company or savings and loan
  142  association proposed by the officer. Notwithstanding the
  143  foregoing, in probate proceedings and in accordance with s.
  144  733.402, the court shall allow the officer at any time to elect
  145  to post and maintain bond for the value of the personal
  146  property, or such other reasonable amount determined by the
  147  court, whereupon the court shall vacate or terminate any order
  148  establishing the depository. When the property is assets are
  149  placed with the designated financial institution, it shall file
  150  a receipt therefor in the name of the estate and give the
  151  officer a copy. Such receipt shall acknowledge the property
  152  assets received by the financial institution. All interest,
  153  dividends, principal and other debts collected by the financial
  154  institution on account thereof shall be held by the financial
  155  institution in safekeeping, subject to the instructions of the
  156  officer authorized by order of the court directed to the
  157  financial institution.
  158         (2) Accountings shall be made to the officer at reasonably
  159  frequent intervals. After the receipt for the original property
  160  assets has been filed by the financial institution, the court
  161  shall waive the bond given or to be given or reduce it so that
  162  it shall apply only to the estate remaining in the hands of the
  163  officer, whichever the court deems proper.
  164         (3) When the court has ordered any property assets of an
  165  estate to be placed with a designated financial institution, any
  166  person or corporation having possession or control of any of the
  167  property assets, or owing interest, dividends, principal or
  168  other debts on account thereof, shall pay and deliver such
  169  property assets, interest, dividends, principal and other debts
  170  to the financial institution on its demand whether the officer
  171  has duly qualified or not, and the receipt of the financial
  172  institution relieves the person or corporation from further
  173  responsibility therefor.
  174         (4) Any bank, trust company, or savings and loan
  175  association which is designated under this section, may accept
  176  or reject the designation in any instance, and shall file its
  177  acceptance or rejection with the court making the designation
  178  within 15 days after actual knowledge of the designation comes
  179  to the attention of the financial institution, and if the
  180  financial institution accepts, it shall be allowed a reasonable
  181  amount for its services and expenses which the court may allow
  182  as a charge against the property assets placed with the
  183  financial institution.
  184         Section 2. Effective upon this act becoming a law, section
  185  732.507, Florida Statutes, is amended to read:
  186         732.507 Effect of subsequent marriage, birth, adoption, or
  187  dissolution of marriage.—
  188         (1) Neither subsequent marriage, birth, nor adoption of
  189  descendants shall revoke the prior will of any person, but the
  190  pretermitted child or spouse shall inherit as set forth in ss.
  191  732.301 and 732.302, regardless of the prior will.
  192         (2) Any provision of a will executed by a married person
  193  that affects the testator’s spouse is of that person shall
  194  become void upon dissolution of the marriage of the testator and
  195  the spouse, whether the marriage occurred before or after the
  196  execution of such will. Upon dissolution of marriage the divorce
  197  of that person or upon the dissolution or annulment of the
  198  marriage. After the dissolution, divorce, or annulment, the will
  199  shall be administered and construed as if the former spouse had
  200  died at the time of the dissolution of marriage, divorce, or
  201  annulment of the marriage, unless the will or the dissolution or
  202  divorce judgment expressly provides otherwise.
  203         (a)Dissolution of marriage occurs at the time the
  204  decedent’s marriage is judicially dissolved or declared invalid
  205  by court order.
  206         (b)This subsection does not invalidate a provision of a
  207  will:
  208         1.Executed by the testator after the dissolution of the
  209  marriage;
  210         2.If there is a specific intention to the contrary stated
  211  in the will; or
  212         3.If the dissolution of marriage judgment expressly
  213  provides otherwise.
  214         (3)This section applies to wills of decedents who die on
  215  or after the effective date of this section.
  216         Section 3. Present subsections (6) through (13), (14)
  217  through (21), and (22) and (23) of section 736.0103, Florida
  218  Statutes, are redesignated as subsections (8) through (15), (17)
  219  through (24), and (26) and (27), respectively, new subsections
  220  (6), (7), and (16) and subsection (25) are added to that
  221  section, and present subsection (21) of that section is amended,
  222  to read:
  223         736.0103 Definitions.—Unless the context otherwise
  224  requires, in this code:
  225         (6)“Directed trust” means a trust for which the terms of
  226  the trust grant a power of direction.
  227         (7)“Directed trustee” means a trustee that is subject to a
  228  trust director’s power of direction.
  229         (16)“Power of direction” means a power over a trust
  230  granted to a person by the terms of the trust to the extent the
  231  power is exercisable while the person is not serving as a
  232  trustee. The term includes a power over the investment,
  233  management, or distribution of trust property, a power to amend
  234  a trust instrument or terminate a trust, or a power over other
  235  matters of trust administration. The term excludes the powers
  236  excluded from part XIV of this chapter under s. 736.1405(2).
  237         (24)(21) “Terms of a trust” means:
  238         (a)Except as otherwise provided in paragraph (b), the
  239  manifestation of the settlor’s intent regarding a trust’s
  240  provisions as:
  241         1.Expressed in the trust instrument; or
  242         2.Established by other evidence that would be admissible
  243  in a judicial proceeding; or
  244         (b)The trust’s provisions as established, determined, or
  245  amended by:
  246         1.A trustee or trust director in accordance with
  247  applicable law;
  248         2.Court order; or
  249         3.A nonjudicial settlement agreement under s. 736.0111,
  250  relating to nonjudicial settlement agreements the manifestation
  251  of the settlor’s intent regarding a trust’s provisions as
  252  expressed in the trust instrument or as may be established by
  253  other evidence that would be admissible in a judicial
  254  proceeding.
  255         (25)“Trust director” means a person who is granted a power
  256  of direction by the terms of a trust to the extent the power is
  257  exercisable while the person is not serving as a trustee. The
  258  person is a trust director whether or not the terms of the trust
  259  refer to the person as a trust director and whether or not the
  260  person is a beneficiary or settlor of the trust.
  261         Section 4. Paragraph (b) of subsection (2) of section
  262  736.0105, Florida Statutes, is amended to read:
  263         736.0105 Default and mandatory rules.—
  264         (2) The terms of a trust prevail over any provision of this
  265  code except:
  266         (b) Subject to s. 736.1409, relating to the duties and
  267  liabilities of a directed trustee; s. 736.1411, relating to
  268  limitations on duties of a trustee or trust director to monitor,
  269  inform, or advise on matters involving the other; and s.
  270  736.1412, relating to the allocation of powers among cotrustees,
  271  requirements for excluded cotrustees to act as a directed
  272  trustee, and liability and related obligations of directing
  273  cotrustees, the duty of the trustee to act in good faith and in
  274  accordance with the terms and purposes of the trust and the
  275  interests of the beneficiaries.
  276         Section 5. Subsection (1) of section 736.0201, Florida
  277  Statutes, is amended, and subsection (7) is added to that
  278  section, to read:
  279         736.0201 Role of court in trust proceedings.—
  280         (1) Except as provided in subsections (5), and (6), and (7)
  281  and s. 736.0206, judicial proceedings concerning trusts shall be
  282  commenced by filing a complaint and shall be governed by the
  283  Florida Rules of Civil Procedure.
  284         (7)A proceeding to determine the homestead status of real
  285  property owned by a trust may be filed in the probate proceeding
  286  for the settlor’s estate if the settlor was treated as the owner
  287  of the interest held in the trust under s. 732.4015. The
  288  proceeding shall be governed by the Florida Probate Rules.
  289         Section 6. Subsection (3) is added to section 736.0603,
  290  Florida Statutes, to read:
  291         736.0603 Settlor’s powers; powers of withdrawal.—
  292         (3)Subject to ss. 736.0403(2) and 736.0602(3)(a), the
  293  trustee may follow a direction of the settlor that is contrary
  294  to the terms of the trust while a trust is revocable.
  295         Section 7. Subsections (3), (7), and (9) of section
  296  736.0703, Florida Statutes, are amended to read:
  297         736.0703 Cotrustees.—
  298         (3) Subject to s. 736.1412, relating to the allocation of
  299  powers among cotrustees, requirements for excluded cotrustees to
  300  act as a directed trustee, and liability and related obligations
  301  of directing cotrustees, a cotrustee must participate in the
  302  performance of a trustee’s function unless the cotrustee is
  303  unavailable to perform the function because of absence, illness,
  304  disqualification under other provision of law, or other
  305  temporary incapacity or the cotrustee has properly delegated the
  306  performance of the function to another cotrustee.
  307         (7) Except as otherwise provided in s. 736.1412, relating
  308  to the allocation of powers among cotrustees, requirements for
  309  excluded cotrustees to act as a directed trustee, and liability
  310  and related obligations of directing cotrustees subsection (9),
  311  each cotrustee shall exercise reasonable care to:
  312         (a) Prevent a cotrustee from committing a breach of trust.
  313         (b) Compel a cotrustee to redress a breach of trust.
  314         (9)If the terms of a trust provide for the appointment of
  315  more than one trustee but confer upon one or more of the
  316  trustees, to the exclusion of the others, the power to direct or
  317  prevent specified actions of the trustees, the excluded trustees
  318  shall act in accordance with the exercise of the power. Except
  319  in cases of willful misconduct on the part of the excluded
  320  trustee, an excluded trustee is not liable, individually or as a
  321  fiduciary, for any consequence that results from compliance with
  322  the exercise of the power. An excluded trustee does not have a
  323  duty or an obligation to review, inquire, investigate, or make
  324  recommendations or evaluations with respect to the exercise of
  325  the power. The trustee or trustees having the power to direct or
  326  prevent actions of the excluded trustees shall be liable to the
  327  beneficiaries with respect to the exercise of the power as if
  328  the excluded trustees were not in office and shall have the
  329  exclusive obligation to account to and to defend any action
  330  brought by the beneficiaries with respect to the exercise of the
  331  power. The provisions of s. 736.0808(2) do not apply if the
  332  person entrusted with the power to direct the actions of the
  333  excluded trustee is also a cotrustee.
  334         Section 8. Section 736.0808, Florida Statutes, is repealed.
  335         Section 9. Present subsection (7) of section 736.1008,
  336  Florida Statutes, is redesignated as subsection (8), a new
  337  subsection (7) is added to that section, and paragraph (a) of
  338  subsection (1), subsection (2), and paragraphs (a) and (c) of
  339  subsection (4) of that section are amended, to read:
  340         736.1008 Limitations on proceedings against trustees.—
  341         (1) Except as provided in subsection (2), all claims by a
  342  beneficiary against a trustee for breach of trust are barred as
  343  provided in chapter 95 as to:
  344         (a) All matters adequately disclosed in a trust disclosure
  345  document issued by the trustee or a trust director, with the
  346  limitations period beginning on the date of receipt of adequate
  347  disclosure.
  348         (2) Unless sooner barred by adjudication, consent, or
  349  limitations, a beneficiary is barred from bringing an action
  350  against a trustee for breach of trust with respect to a matter
  351  that was adequately disclosed in a trust disclosure document
  352  unless a proceeding to assert the claim is commenced within 6
  353  months after receipt from the trustee or a trust director of the
  354  trust disclosure document or a limitation notice that applies to
  355  that disclosure document, whichever is received later.
  356         (4) As used in this section, the term:
  357         (a) “Trust disclosure document” means a trust accounting or
  358  any other written report of the trustee or a trust director. A
  359  trust disclosure document adequately discloses a matter if the
  360  document provides sufficient information so that a beneficiary
  361  knows of a claim or reasonably should have inquired into the
  362  existence of a claim with respect to that matter.
  363         (c) “Limitation notice” means a written statement of the
  364  trustee or a trust director that an action by a beneficiary
  365  against the trustee for breach of trust based on any matter
  366  adequately disclosed in a trust disclosure document may be
  367  barred unless the action is commenced within 6 months after
  368  receipt of the trust disclosure document or receipt of a
  369  limitation notice that applies to that trust disclosure
  370  document, whichever is later. A limitation notice may but is not
  371  required to be in the following form: “An action for breach of
  372  trust based on matters disclosed in a trust accounting or other
  373  written report of the trustee or a trust director may be subject
  374  to a 6-month statute of limitations from the receipt of the
  375  trust accounting or other written report. If you have questions,
  376  please consult your attorney.”
  377         (7)Any claim barred against a trustee or trust director
  378  under this section is also barred against the directors,
  379  officers, and employees acting for the trustee.
  380         Section 10. Present paragraphs (e), (f), and (g) of
  381  subsection (1) of section 736.1017, Florida Statutes, are
  382  redesignated as paragraphs (f), (g), and (h), respectively, and
  383  a new paragraph (e) is added to that subsection, to read:
  384         736.1017 Certification of trust.—
  385         (1) Instead of furnishing a copy of the trust instrument to
  386  a person other than a beneficiary, the trustee may furnish to
  387  the person a certification of trust containing the following
  388  information:
  389         (e)Whether the trust contains any powers of direction, and
  390  if so, the identity of the current trust directors, the trustee
  391  powers subject to a power of direction, and whether the trust
  392  directors have directed or authorized the trustee to engage in
  393  the proposed transaction for which the certification of trust
  394  was issued.
  395         Section 11. Effective upon this act becoming a law, section
  396  736.1105, Florida Statutes, is amended to read:
  397         (Substantial rewording of section. See
  398         s. 736.1105, F.S., for present text.)
  399         736.1105Effect of subsequent marriage, birth, adoption, or
  400  dissolution of marriage.—
  401         (1)Neither subsequent marriage, birth, nor adoption of
  402  descendants shall revoke the revocable trust of any person.
  403         (2)Any provision of a revocable trust that affects the
  404  settlor’s spouse is void upon dissolution of the marriage of the
  405  settlor and the spouse, whether the marriage occurred before or
  406  after the execution of such revocable trust. Upon dissolution of
  407  marriage, the revocable trust shall be construed as if the
  408  spouse had died at the time of the dissolution of marriage.
  409         (a)Dissolution of marriage occurs at the time the
  410  decedent’s marriage is judicially dissolved or declared invalid
  411  by court order.
  412         (b)This subsection does not invalidate a provision of a
  413  revocable trust:
  414         1.Executed by the settlor after the dissolution of the
  415  marriage;
  416         2.If there is a specific intention to the contrary stated
  417  in the revocable trust; or
  418         3.If the dissolution of marriage judgment expressly
  419  provides otherwise.
  420         (3)This section applies to revocable trusts of decedents
  421  who die on or after the effective date of this section.
  422         Section 12. Section 736.1109, Florida Statutes, is created
  423  to read:
  424         736.1109Testamentary and revocable trusts; homestead
  425  protections.—
  426         (1)If a devise of homestead under a trust violates the
  427  limitations on the devise of homestead in s. 4(c), Art. X of the
  428  State Constitution, title shall pass as provided in s. 732.401
  429  at the moment of death.
  430         (2)A power of sale or general direction to pay debts,
  431  expenses and claims within the trust instrument does not subject
  432  an interest in the protected homestead to the claims of
  433  decedent’s creditors, expenses of administration, and
  434  obligations of the decedent’s estate as provided in s.
  435  736.05053.
  436         (3)If a trust directs the sale of property that would
  437  otherwise qualify as protected homestead, and the property is
  438  not subject to the constitutional limitations on the devise of
  439  homestead under the State Constitution, title shall remain
  440  vested in the trustee and subject to the provisions of the
  441  trust.
  442         (4)This section applies only to trusts described in s.
  443  733.707(3) and to testamentary trusts.
  444         (5)This section is intended to clarify existing law and
  445  applies to the administration of trusts and estates of decedents
  446  who die before, on, or after July 1, 2021.
  447         Section 13. Part XIV of chapter 736, Florida Statutes,
  448  consisting of ss. 736.1401-736.1416, Florida Statutes, is
  449  created and entitled the “Florida Uniform Directed Trust Act.”
  450         Section 14. Section 736.1401, Florida Statutes, is created
  451  to read:
  452         736.1401Short title.—This part may be cited as the
  453  “Florida Uniform Directed Trust Act.”
  454         Section 15. Section 736.1403, Florida Statutes, is created
  455  to read:
  456         736.1403Application; principal place of administration.
  457         (1)This part applies to a trust subject to this chapter,
  458  whenever created, that has its principal place of administration
  459  in the state, subject to the following rules:
  460         (a)If the trust was created before July 1, 2021, this part
  461  applies only to a decision or action occurring on or after July
  462  1, 2021.
  463         (b)If the principal place of administration of the trust
  464  is changed to the state on or after July 1, 2021, this part
  465  applies only to a decision or action occurring on or after the
  466  date of the change.
  467         (2)In addition s. 736.0108, relating to a trust’s
  468  principal place of administration, in a directed trust, terms of
  469  the trust that designate the principal place of administration
  470  of the trust in the state are valid and controlling if a trust
  471  director’s principal place of business is located in or a trust
  472  director is a resident of the state.
  473         Section 16. Section 736.1405, Florida Statutes, is created
  474  to read:
  475         736.1405Exclusions.—
  476         (1)As used in this section, the term “power of
  477  appointment” means a power that enables a person acting in a
  478  nonfiduciary capacity to designate a recipient of an ownership
  479  interest in or another power of appointment over trust property.
  480         (2)Unless the terms of a trust expressly provide otherwise
  481  by specific reference to this part, section, or paragraph, this
  482  part does not apply to:
  483         (a)A power of appointment;
  484         (b)A power to appoint or remove a trustee or trust
  485  director;
  486         (c)A power of a settlor over a trust while the trust is
  487  revocable by that settlor;
  488         (d)A power of a beneficiary over a trust to the extent the
  489  exercise or nonexercise of the power affects the beneficial
  490  interest of:
  491         1.The beneficiary; or
  492         2.Another beneficiary represented by the beneficiary under
  493  ss. 736.0301-736.0305 with respect to the exercise or
  494  nonexercise of the power;
  495         (e)A power over a trust if the terms of the trust provide
  496  that the power is held in a nonfiduciary capacity; and
  497         1.The power must be held in a nonfiduciary capacity to
  498  achieve the settlor’s tax objectives under the United States
  499  Internal Revenue Code of 1986, as amended, and regulations
  500  issued thereunder, as amended; or
  501         2.It is a power to reimburse the settlor for all or a part
  502  of the settlor’s income tax liabilities attributable to the
  503  income of the trust; or
  504         (f)A power to add or to release a power under the trust
  505  instrument if the power subject to addition or release causes
  506  the settlor to be treated as the owner of all or any portion of
  507  the trust for federal income tax purposes.
  508         (3)Unless the terms of a trust provide otherwise, a power
  509  granted to a person other than a trustee:
  510         (a)To designate a recipient of an ownership interest in
  511  trust property, including a power to terminate a trust, is a
  512  power of appointment and not a power of direction.
  513         (b)To create, modify, or terminate a power of appointment
  514  is a power of direction and not a power of appointment, except a
  515  power to create a power of appointment that is an element of a
  516  broader power to affect an ownership interest in trust property
  517  beyond the mere creation of a power of appointment, such as a
  518  power to appoint trust property in further trust, is a power of
  519  appointment and not a power of direction.
  520         Section 17. Section 736.1406, Florida Statutes, is created
  521  to read:
  522         736.1406Power of trust director.—
  523         (1)Subject to s. 736.1407, relating to trust directors
  524  being subject to the same rules as a trustee regarding Social
  525  Security Act reimbursement requirements and charitable trust
  526  instruments, the terms of a trust may grant a power of direction
  527  to a trust director.
  528         (2)A power of direction includes only those powers granted
  529  by the terms of the trust.
  530         (3)Unless the terms of a trust provide otherwise:
  531         (a)A trust director may exercise any further power
  532  appropriate to the exercise or nonexercise of a power of
  533  direction granted to the trust director under subsection (1);
  534  and
  535         (b)Trust directors with joint powers must act by majority
  536  decision.
  537         Section 18. Section 736.1407, Florida Statutes, is created
  538  to read:
  539         736.1407Limitations on trust director.—A trust director is
  540  subject to the same rules as a trustee in a like position and
  541  under similar circumstances in the exercise or nonexercise of a
  542  power of direction or further power under s. 736.1406(3)(a),
  543  relating to additional power granted to a trust director in
  544  furtherance of an express power of direction, regarding:
  545         (1)A payback provision in the terms of a trust necessary
  546  to comply with the reimbursement requirements of s. 1917 of the
  547  Social Security Act, 42 U.S.C. s. 1396p(d)(4)(A), as amended,
  548  and regulations issued thereunder, as amended.
  549         (2)A charitable interest in the trust, including notice
  550  regarding the interest to the Attorney General.
  551         Section 19. Section 736.1408, Florida Statutes, is created
  552  to read:
  553         736.1408Duty and liability of trust director.—
  554         (1)Subject to subsection (2), with respect to a power of
  555  direction or further power under s. 736.1406(3)(a), relating to
  556  additional power granted to a trust director in furtherance of
  557  an express power of direction:
  558         (a)A trust director has the same fiduciary duty and
  559  liability in the exercise or nonexercise of the power:
  560         1.If the power is held individually, as a sole trustee in
  561  a like position and under similar circumstances; or
  562         2.If the power is held jointly with a trustee or another
  563  trust director, as a cotrustee in a like position and under
  564  similar circumstances.
  565         (b)The terms of the trust may vary the trust director’s
  566  duty or liability to the same extent the terms of the trust may
  567  vary the duty or liability of a trustee in a like position and
  568  under similar circumstances.
  569         (2)Unless the terms of a trust provide otherwise, if a
  570  trust director is licensed, certified, or otherwise authorized
  571  or permitted by law other than this part to provide health care
  572  in the ordinary course of the trust director’s business or
  573  practice of a profession, to the extent the trust director acts
  574  in that capacity the trust director has no duty or liability
  575  under this part.
  576         (3)The terms of a trust may impose a duty or liability on
  577  a trust director in addition to the duties and liabilities under
  578  this section.
  579         Section 20. Section 736.1409, Florida Statutes, is created
  580  to read:
  581         736.1409Duty and liability of directed trustee.—
  582         (1)Subject to subsection (2), a directed trustee shall
  583  take reasonable action to comply with a trust director’s
  584  exercise or nonexercise of a power of direction or further power
  585  under s. 736.1406(3)(a), relating to additional power granted to
  586  a trust director in furtherance of an express power of
  587  direction, and the trustee is not liable for such reasonable
  588  action.
  589         (2)A directed trustee may not comply with a trust
  590  director’s exercise or nonexercise of a power of direction or
  591  further power under s. 736.1406(3)(a), relating to additional
  592  power granted to a trust director in furtherance of an express
  593  power of direction, to the extent that by complying the trustee
  594  would engage in willful misconduct.
  595         (3)Before complying with a trust director’s exercise of a
  596  power of direction, the directed trustee shall determine whether
  597  or not the exercise is within the scope of the trust director’s
  598  power of direction. The exercise of a power of direction is not
  599  outside the scope of a trust director’s power of direction
  600  merely because the exercise constitutes or may constitute a
  601  breach of trust.
  602         (4)An exercise of a power of direction under which a trust
  603  director may release a trustee or another trust director from
  604  liability for breach of trust is not effective if:
  605         (a)The breach involved the trustee’s or other director’s
  606  willful misconduct;
  607         (b)The release was induced by improper conduct of the
  608  trustee or other director in procuring the release; or
  609         (c)At the time of the release, the trust director did not
  610  know the material facts relating to the breach.
  611         (5)A directed trustee that has reasonable doubt about its
  612  duty under this section may apply to the court for instructions,
  613  with attorney fees and costs to be paid from assets of the trust
  614  as provided in this code.
  615         (6)The terms of a trust may impose a duty or liability on
  616  a directed trustee in addition to the duties and liabilities
  617  under this part.
  618         Section 21. Section 736.141, Florida Statutes, is created
  619  to read:
  620         736.141Duty to provide information.—
  621         (1)Subject to s. 736.1411, relating to limitations on the
  622  duties of trustees or trust directors to monitor, inform, or
  623  advise on matters involving the other, a trustee shall provide
  624  information to a trust director to the extent the information is
  625  reasonably related to the powers or duties of the trust
  626  director.
  627         (2)Subject to s. 736.1411, relating to limitations on the
  628  duties of trustees or trust directors to monitor, inform, or
  629  advise on matters involving the other, a trust director shall
  630  provide information to a trustee or another trust director to
  631  the extent the information is reasonably related to the powers
  632  or duties of the trustee or other trust director.
  633         (3)A trustee that acts in reliance on information provided
  634  by a trust director is not liable for a breach of trust to the
  635  extent the breach resulted from the reliance, unless by so
  636  acting the trustee engages in willful misconduct.
  637         (4)A trust director that acts in reliance on information
  638  provided by a trustee or another trust director is not liable
  639  for a breach of trust to the extent the breach resulted from the
  640  reliance, unless by so acting the trust director engages in
  641  willful misconduct.
  642         (5)A trust director shall provide information within the
  643  trust director’s knowledge or control to a qualified beneficiary
  644  upon a written request of a qualified beneficiary to the extent
  645  the information is reasonably related to the powers or duties of
  646  the trust director.
  647         Section 22. Section 736.1411, Florida Statutes, is created
  648  to read:
  649         736.1411No duty to monitor, inform, or advise.—
  650         (1)Notwithstanding s. 736.1409(1), relating to the duty of
  651  a directed trustee to take reasonable action when directed and
  652  to the release of liability for such action, unless the terms of
  653  a trust provide otherwise:
  654         (a)A trustee does not have a duty to:
  655         1.Monitor a trust director; or
  656         2.Inform or give advice to a settlor, beneficiary,
  657  trustee, or trust director concerning an instance in which the
  658  trustee might have acted differently than the trust director.
  659         (b)By taking an action described in paragraph (a), a
  660  trustee does not assume the duty excluded by paragraph (a).
  661         (2)Notwithstanding s. 736.1408(1), relating to the
  662  fiduciary duty of a trust director, unless the terms of a trust
  663  provide otherwise:
  664         (a)A trust director does not have a duty to:
  665         1.Monitor a trustee or another trust director; or
  666         2.Inform or give advice to a settlor, beneficiary,
  667  trustee, or another trust director concerning an instance in
  668  which the trust director might have acted differently than a
  669  trustee or another trust director.
  670         (b)By taking an action described in paragraph (a), a trust
  671  director does not assume the duty excluded by paragraph (a).
  672         Section 23. Section 736.1412, Florida Statutes, is created
  673  to read:
  674         736.1412Application to cotrustee.—
  675         (1)The terms of a trust may provide for the appointment of
  676  more than one trustee but confer upon one or more of the
  677  trustees, to the exclusion of the others, the power to direct or
  678  prevent specified actions of the trustees.
  679         (2)The excluded trustees shall act in accordance with the
  680  exercise of the power in the manner, and with the same duty and
  681  liability, as directed trustees with respect to a trust
  682  director’s power of direction under s. 736.1409, relating to the
  683  duties and liabilities of a directed trustee; s. 736.141,
  684  relating to the duties of a trustee and trust director to
  685  provide and rely on information; and s. 736.1411, relating to
  686  limitations on the duties of trustees or trust directors to
  687  monitor, inform, or advise on matters involving the other.
  688         (3)The trustee or trustees having the power to direct or
  689  prevent actions of the excluded trustees shall be liable to the
  690  beneficiaries with respect to the exercise of the power as if
  691  the excluded trustees were not in office and shall have the
  692  exclusive obligation to account to and to defend any action
  693  brought by the beneficiaries with respect to the exercise of the
  694  power.
  695         Section 24. Section 736.1413, Florida Statutes, is created
  696  to read:
  697         736.1413Limitation of action against trust director.—
  698         (1)An action against a trust director for breach of trust
  699  must be commenced within the same limitation period for an
  700  action for breach of trust against a trustee in a like position
  701  and under similar circumstances under s. 736.1008, relating to
  702  limitations on proceedings against trustees.
  703         (2)A trust accounting or any other written report of a
  704  trustee or a trust director has the same effect on the
  705  limitation period for an action against a trust director for
  706  breach of trust that such trust accounting or written report
  707  would have under s. 736.1008, relating to limitations on
  708  proceedings against trustees, in an action for breach of trust
  709  against a trustee in a like position and under similar
  710  circumstances.
  711         Section 25. Section 736.1414, Florida Statutes, is created
  712  to read:
  713         736.1414Defenses in action against trust director.—In an
  714  action against a trust director for breach of trust, the trust
  715  director may assert the same defenses a trustee in a like
  716  position and under similar circumstances could assert in an
  717  action for breach of trust against the trustee.
  718         Section 26. Section 736.1415, Florida Statutes, is created
  719  to read:
  720         736.1415Jurisdiction over trust director.—
  721         (1)By accepting appointment as a trust director of a trust
  722  subject to this part, the trust director submits to the personal
  723  jurisdiction of the courts of the state regarding any matter
  724  related to a power or duty of the trust director.
  725         (2)This section does not preclude other methods of
  726  obtaining jurisdiction over a trust director.
  727         Section 27. Section 736.1416, Florida Statutes, is created
  728  to read:
  729         736.1416Office of trust director.—
  730         (1)Unless the terms of a trust provide otherwise, a trust
  731  director shall be considered a trustee for purposes of the
  732  following:
  733         (a)Role of court in trust proceedings under s. 736.0201.
  734         (b)Proceedings for review of employment of agents and
  735  review of compensation of trustee and employees of a trust under
  736  s. 736.0206.
  737         (c)Representation by holder of power of appointment under
  738  s. 736.0302(4), relating to how trustees with discretionary
  739  power to make trust distributions do not have a power of
  740  appointment for purposes of representing persons affected by
  741  such power.
  742         (d)Prohibition on a trustee acting as a designated
  743  representative under s. 736.0306(2).
  744         (e)Validation of power to select a beneficiary from an
  745  indefinite class under s. 736.0402(3).
  746         (f)As to allowing application by the trust director for
  747  judicial modification of a trust when such modification is not
  748  inconsistent with the settlor’s purpose under s. 736.04113, for
  749  judicial construction of provisions relating to federal taxes
  750  under s. 736.04114, for judicial modification of a trust when
  751  such modification is in the best interest of the beneficiaries
  752  under s. 736.04115, or for judicial modification or termination
  753  of an uneconomic trust under s. 736.0414(2), if the trust
  754  director is so authorized by the terms of the trust.
  755         (g)Discretionary trusts and the effect of a standard under
  756  s. 736.0504, relating to special provisions regarding
  757  discretionary trusts.
  758         (h)Trust assets not being subject to creditor claims by
  759  reason of discretionary powers granted to a trustee under s.
  760  736.0505(1)(c).
  761         (i)A trustee’s duty to pay trust obligations and expenses
  762  before paying obligations and expenses of the settlor’s estate
  763  under s. 736.05053(4).
  764         (j)Acceptance or declination of a trusteeship under s.
  765  736.0701.
  766         (k)Requirement to give bond to secure performance under
  767  certain circumstances and court discretions relating to such
  768  bonds under s. 736.0702.
  769         (l)Filling trustee vacancies and court appointment of an
  770  additional trustee or special fiduciary under s. 736.0704.
  771         (m)Resignation of a trustee under s. 736.0705, including
  772  requirements, court authorizations, and remaining liabilities.
  773         (n)Court removal of a trustee, including who may request a
  774  removal, under s. 736.0706, but not to give the trust director
  775  the power to request removal of a trustee.
  776         (o)Reasonable compensation of a trustee or professional
  777  acting as a trustee under s. 736.0708.
  778         (p)Entitlement of a trustee to reimbursement of expenses
  779  and liens to secure advances under s. 736.0709.
  780         (q)Authority to pay costs or attorney fees without
  781  approval under s. 736.0802(10), if the trust director has a
  782  power of direction or, if the trust director has a further power
  783  to direct, the payment of such costs or attorney fees under s.
  784  736.1406(2), relating to the explicit power of direction granted
  785  to a trust director, or s. 736.1406(3)(a), relating to the
  786  implied additional power of a director in furtherance of an
  787  express power of direction.
  788         (r)Limitations on a trustee’s discretionary powers under
  789  s. 736.0814.
  790         (s)Administration of trusts by trustees without regard to
  791  pending contests or proceedings, except as the court directs,
  792  under s. 736.08165.
  793         (t)A trustee’s obligation to invest in accordance with
  794  chapter 518 under s. 736.0901.
  795         (u)The exception to the prudent investor rule for life
  796  insurance under s. 736.0902.
  797         (v)Remedies available for a trustee breach of trust under
  798  s. 736.1001.
  799         (w)Damages against a trustee for breach of trust under s.
  800  736.1002.
  801         (x)A trustee’s immunity from liability for loss or no
  802  profit under s. 736.1003 if there is no breach of trust.
  803         (y)Court-awarded attorney fees and costs under s. 736.1004
  804  for breach of trust challenges.
  805         (z)Fees available to a trustee’s attorney for
  806  extraordinary service under s. 736.1007(5), court variance of
  807  compensation for a trustee’s attorney under s. 736.1007(6), and
  808  agreements between a settlor and an attorney for fees to be
  809  provided to a trustee under s. 736.1007(7).
  810         (aa)A trustee’s immunity from liability for a breach of
  811  trust under s. 736.1009 if the trustee relied on the trust
  812  instrument terms.
  813         (bb)Limitations on a trustee’s liability for acting
  814  without knowledge of relevant events under s. 736.1010.
  815         (cc)Limitations on a trustee’s exculpation of liability
  816  under the terms of a trust under s. 736.1011.
  817         (dd)The release of a trustee from liability with consent,
  818  the release or ratification of a beneficiary, and the
  819  limitations on such actions under s. 736.1012.
  820         (ee)Limitations on imposing liability on a trustee for
  821  obligations of a settlor under s. 736.1014.
  822         (2)If a person has not accepted a trust directorship under
  823  the terms of the trust or has accepted or declined a trusteeship
  824  under s. 736.0701 or a trustee, settlor, or a qualified
  825  beneficiary of the trust is uncertain whether such acceptance
  826  has occurred, a trustee, settlor, or a qualified beneficiary of
  827  the trust may make a written demand on a person designated to
  828  serve as a trust director, with a written copy to the trustees,
  829  to accept or confirm prior acceptance of the trust directorship
  830  in writing. A written acceptance, written acknowledgment of
  831  prior acceptance, or written declination of the trust
  832  directorship shall be delivered by the designated trust director
  833  within 60 days after receipt of such demand to all trustees,
  834  qualified beneficiaries, and the settlor if living.
  835         Section 28. Part XV of chapter 736, Florida Statutes,
  836  consisting of ss. 736.1501-736.1512, Florida Statutes, is
  837  created and entitled the “Community Property Trust Act.”
  838         Section 29. Section 736.1501, Florida Statutes, is created
  839  to read:
  840         736.1501Short title.—This part may be cited as the
  841  “Community Property Trust Act.”
  842         Section 30. Section 736.1502, Florida Statutes, is created
  843  to read:
  844         736.1502Definitions.—Unless the context otherwise
  845  requires, as used in this part:
  846         (1)“Community property” means the property and the
  847  appreciation of and income from the property owned by a
  848  qualified trustee of a community property trust during the
  849  marriage of the settlor spouses. The property owned by a
  850  community property trust pursuant to this part and the
  851  appreciation of and income from such property shall be deemed to
  852  be community property for purposes of general law.
  853         (2)“Community property trust” means an express trust that
  854  complies with s. 736.1503 and is created on or after July 1,
  855  2021.
  856         (3)“Decree” means a judgment or other order of a court of
  857  competent jurisdiction.
  858         (4)“Dissolution” means either:
  859         (a)Termination of a marriage by a decree of dissolution,
  860  divorce, annulment, or declaration of invalidity; or
  861         (b)Entry of a decree of legal separation maintenance.
  862         (5)“During marriage” means a period that begins at
  863  marriage and ends upon the dissolution of marriage or upon the
  864  death of a spouse.
  865         (6)“Qualified trustee” means either:
  866         (a)A natural person who is a resident of the state; or
  867         (b)A company authorized to act as a trustee in the state.
  868  
  869  A qualified trustee’s powers include, but are not limited to,
  870  maintaining records for the trust on an exclusive or a
  871  nonexclusive basis and preparing or arranging for the
  872  preparation of, on an exclusive or a nonexclusive basis, any
  873  income tax returns that must be filed by the trust.
  874         (7)“Settlor spouses” means a married couple who
  875  establishes a community property trust pursuant to this part.
  876         Section 31. Section 736.1503, Florida Statutes, is created
  877  to read:
  878         736.1503Requirements for community property trust.—An
  879  arrangement is a community property trust if one or both settlor
  880  spouses transfer property to a trust that:
  881         (1)Expressly declares that the trust is a community
  882  property trust within the meaning of this part.
  883         (2)Has at least one trustee who is a qualified trustee,
  884  provided that both spouses or either spouse also may be a
  885  trustee.
  886         (3)Is signed by both settlor spouses consistent with the
  887  formalities required for the execution of a trust under this
  888  chapter.
  889         (4)Contains substantially the following language in
  890  capital letters at the beginning of the community property trust
  891  agreement:
  892  
  893         THE CONSEQUENCES OF THIS COMMUNITY PROPERTY TRUST MAY
  894         BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR
  895         RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD
  896         PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE DURING THE
  897         COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND
  898         UPON THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY,
  899         THIS TRUST AGREEMENT SHOULD BE SIGNED ONLY AFTER
  900         CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT
  901         THIS TRUST AGREEMENT, YOU SHOULD SEEK COMPETENT AND
  902         INDEPENDENT LEGAL ADVICE.
  903  
  904         Section 32. Section 736.1504, Florida Statutes, is created
  905  to read:
  906         736.1504Agreement establishing community property trust;
  907  amendments and revocation.—
  908         (1)In the agreement establishing a community property
  909  trust, the settlor spouses may agree upon:
  910         (a)The rights and obligations in the property transferred
  911  to the trust, notwithstanding when and where the property is
  912  acquired or located.
  913         (b)The management and control of the property transferred
  914  into the trust.
  915         (c)The disposition of the property transferred to the
  916  trust on dissolution, death, or the occurrence or nonoccurrence
  917  of another event, subject to ss. 736.1507 and 736.1508.
  918         (d)Whether the trust is revocable or irrevocable.
  919         (e)Any other matter that affects the property transferred
  920  to the trust and does not violate public policy or general law
  921  imposing a criminal penalty, or result in the property not being
  922  treated as community property under the laws of any
  923  jurisdiction.
  924         (2)In the event of the death of a settlor spouse, the
  925  surviving spouse may amend a community property trust regarding
  926  the disposition of that spouse’s one-half share of the community
  927  property, regardless of whether the agreement provides that the
  928  community property trust is irrevocable.
  929         (3)A community property trust may be amended or revoked by
  930  the settlor spouses unless the agreement itself specifically
  931  provides that the community property trust is irrevocable.
  932         (4)Notwithstanding any other provision of this code, the
  933  settlor spouses shall be deemed to be the only qualified
  934  beneficiaries of a community property trust until the death of
  935  one of the settlor spouses, regardless of whether the trust is
  936  revocable or irrevocable. After the death of one of the settlor
  937  spouses, the surviving spouse shall be deemed to be the only
  938  qualified beneficiary as to his or her share of the community
  939  property trust.
  940         Section 33. Section 736.1505, Florida Statutes, is created
  941  to read:
  942         736.1505Classification of property as community property;
  943  enforcement; duration; management and control; effect of
  944  distributions.—
  945         (1)Whether both, one, or neither is domiciled in the
  946  state, settlor spouses may classify any or all of their property
  947  as community property by transferring that property to a
  948  community property trust and providing in the trust that the
  949  property is community property pursuant to this part.
  950         (2)A community property trust is enforceable without
  951  consideration.
  952         (3)All property owned by a community property trust is
  953  community property under the laws of the state during the
  954  marriage of the settlor spouses.
  955         (4)The right to manage and control property that is
  956  transferred to a community property trust is determined by the
  957  terms of the trust agreement.
  958         (5)When property is distributed from a community property
  959  trust, the property shall no longer constitute community
  960  property within the meaning of this part, provided that
  961  community property as classified by a jurisdiction other than
  962  the state retains its character as community property to the
  963  extent otherwise provided by ss. 732.216-732.228.
  964         Section 34. Section 736.1506, Florida Statutes, is created
  965  to read:
  966         736.1506Satisfaction of obligations.—Except as provided in
  967  s. 4, Art. X of the State Constitution:
  968         (1)An obligation incurred by only one spouse before or
  969  during the marriage may be satisfied from that spouse’s one-half
  970  share of a community property trust.
  971         (2)An obligation incurred by both spouses during the
  972  marriage may be satisfied from a community property trust of the
  973  settlor spouses.
  974         Section 35. Section 736.1507, Florida Statutes, is created
  975  to read:
  976         736.1507Death of a spouse.—Upon the death of a spouse,
  977  one-half of the aggregate value of the property held in a
  978  community property trust established by the settlor spouses
  979  reflects the share of the surviving spouse and is not subject to
  980  testamentary disposition by the decedent spouse or distribution
  981  under the laws of succession of the state. The other one-half of
  982  the value of that property reflects the share of the decedent
  983  spouse and is subject to testamentary disposition or
  984  distribution under the laws of succession of the state. Unless
  985  provided otherwise in the community property trust agreement,
  986  the trustee has the power to distribute assets of the trust in
  987  divided or undivided interests and to adjust resulting
  988  differences in valuation. A distribution in kind may be made on
  989  the basis of a non-pro rata division of the aggregate value of
  990  the trust assets, on the basis of a pro rata division of each
  991  individual asset, or by using both methods. The decedent’s
  992  spouse’s one-half share shall not be included in the elective
  993  estate.
  994         Section 36. Section 736.1508, Florida Statutes, is created
  995  to read:
  996         736.1508Dissolution of marriage.—Upon the dissolution of
  997  the marriage of the settlor spouses, the community property
  998  trust shall terminate and the trustee shall distribute one-half
  999  of the trust assets to each spouse, with each spouse receiving
 1000  one-half of each asset, unless otherwise agreed to in writing by
 1001  both spouses. For purposes of this act, s. 61.075 does not apply
 1002  to the disposition of the assets and liabilities held in a
 1003  community property trust.
 1004         Section 37. Section 736.1509, Florida Statutes, is created
 1005  to read:
 1006         736.1509Right of child to support.—A community property
 1007  trust does not adversely affect the right of a child of the
 1008  settlor spouses to support that either spouse would be required
 1009  to give under the applicable laws of the settlor spouses’ state
 1010  of domicile.
 1011         Section 38. Section 736.151, Florida Statutes, is created
 1012  to read:
 1013         736.151Homestead property.—
 1014         (1)Property that is transferred to or acquired subject to
 1015  a community property trust may continue to qualify or may
 1016  initially qualify as the settlor spouses’ homestead within the
 1017  meaning of s. 4(a)(1), Art. X of the State Constitution and for
 1018  all purposes of general law, provided that the property would
 1019  qualify as the settlor spouses’ homestead if title was held in
 1020  one or both of the settlor spouses’ individual names.
 1021         (2)The settlor spouses shall be deemed to have beneficial
 1022  title in equity to the homestead property held subject to a
 1023  community property trust for all purposes, including for
 1024  purposes of s. 196.031.
 1025         Section 39. Section 736.1511, Florida Statutes, is created
 1026  to read:
 1027         736.1511Application of Internal Revenue Code; community
 1028  property classified by another jurisdiction.—For purposes of the
 1029  application of s. 1014(b)(6) of the Internal Revenue Code of
 1030  1986, 26 U.S.C. s. 1014(b)(6), as of January 1, 2021, a
 1031  community property trust is considered a trust established under
 1032  the community property laws of the state. Community property, as
 1033  classified by a jurisdiction other than this state, which is
 1034  transferred to a community property trust retains its character
 1035  as community property while in the trust. If the trust is
 1036  revoked and property is transferred on revocation of the trust,
 1037  the community property as classified by a jurisdiction other
 1038  than the state retains its character as community property to
 1039  the extent otherwise provided by ss. 732.216-732.228.
 1040         Section 40. Section 736.1512, Florida Statutes, is created
 1041  to read:
 1042         736.1512Unenforceable trusts.—
 1043         (1)A community property trust executed during marriage is
 1044  not enforceable if the spouse against whom enforcement is sought
 1045  proves that:
 1046         (a)The trust was unconscionable when made;
 1047         (b)The spouse against whom enforcement is sought did not
 1048  execute the community property trust agreement voluntarily; or
 1049         (c)Before execution of the community property trust
 1050  agreement, the spouse against whom enforcement is sought:
 1051         1.Was not given a fair and reasonable disclosure of the
 1052  property and financial obligations of the other spouse.
 1053         2.Did not voluntarily sign a written waiver expressly
 1054  waiving right to disclosure of the property and financial
 1055  obligations of the other spouse beyond the disclosure provided.
 1056         3.Did not have notice of the property or financial
 1057  obligations of the other spouse.
 1058         (2)Whether a community property trust is unconscionable
 1059  shall be determined by a court as a matter of law.
 1060         (3)A community property trust may not be deemed
 1061  unenforceable because the settlor spouses did not have separate
 1062  legal representation when executing the trust.
 1063         Section 41. Paragraph (f) of subsection (5) of section
 1064  736.0802, Florida Statutes, is amended to read:
 1065         736.0802 Duty of loyalty.—
 1066         (5)
 1067         (f)1. The trustee of a trust as defined in s. 731.201 may
 1068  request authority to invest in investment instruments described
 1069  in this subsection other than a qualified investment instrument,
 1070  by providing to all qualified beneficiaries a written request
 1071  containing the following:
 1072         a. The name, telephone number, street address, and mailing
 1073  address of the trustee and of any individuals who may be
 1074  contacted for further information.
 1075         b. A statement that the investment or investments cannot be
 1076  made without the consent of a majority of each class of the
 1077  qualified beneficiaries.
 1078         c. A statement that, if a majority of each class of
 1079  qualified beneficiaries consent, the trustee will have the right
 1080  to make investments in investment instruments, as defined in s.
 1081  660.25(6), which are owned or controlled by the trustee or its
 1082  affiliate, or from which the trustee or its affiliate receives
 1083  compensation for providing services in a capacity other than as
 1084  trustee, that such investment instruments may include investment
 1085  instruments sold primarily to trust accounts, and that the
 1086  trustee or its affiliate may receive fees in addition to the
 1087  trustee’s compensation for administering the trust.
 1088         d. A statement that the consent may be withdrawn
 1089  prospectively at any time by written notice given by a majority
 1090  of any class of the qualified beneficiaries.
 1091  
 1092  A statement by the trustee is not delivered if the statement is
 1093  accompanied by another written communication other than a
 1094  written communication by the trustee that refers only to the
 1095  statement.
 1096         2. For purposes of paragraph (e) and this paragraph:
 1097         a. “Majority of the qualified beneficiaries” means:
 1098         (I) If at the time the determination is made there are one
 1099  or more beneficiaries as described in s. 736.0103(19)(c) s.
 1100  736.0103(16)(c), at least a majority in interest of the
 1101  beneficiaries described in s. 736.0103(19)(a) s.
 1102  736.0103(16)(a), at least a majority in interest of the
 1103  beneficiaries described in s. 736.0103(19)(b) s.
 1104  736.0103(16)(b), and at least a majority in interest of the
 1105  beneficiaries described in s. 736.0103(19)(c) s.
 1106  736.0103(16)(c), if the interests of the beneficiaries are
 1107  reasonably ascertainable; otherwise, a majority in number of
 1108  each such class; or
 1109         (II) If there is no beneficiary as described in s.
 1110  736.0103(19)(c) s. 736.0103(16)(c), at least a majority in
 1111  interest of the beneficiaries described in s. 736.0103(19)(a) s.
 1112  736.0103(16)(a) and at least a majority in interest of the
 1113  beneficiaries described in s. 736.0103(19)(b) s.
 1114  736.0103(16)(b), if the interests of the beneficiaries are
 1115  reasonably ascertainable; otherwise, a majority in number of
 1116  each such class.
 1117         b. “Qualified investment instrument” means a mutual fund,
 1118  common trust fund, or money market fund described in and
 1119  governed by s. 736.0816(3).
 1120         c. An irrevocable trust is created upon execution of the
 1121  trust instrument. If a trust that was revocable when created
 1122  thereafter becomes irrevocable, the irrevocable trust is created
 1123  when the right of revocation terminates.
 1124         Section 42. Paragraph (a) of subsection (2) of section
 1125  736.08125, Florida Statutes, is amended to read:
 1126         736.08125 Protection of successor trustees.—
 1127         (2) For the purposes of this section, the term:
 1128         (a) “Eligible beneficiaries” means:
 1129         1. At the time the determination is made, if there are one
 1130  or more beneficiaries as described in s. 736.0103(19)(c) s.
 1131  736.0103(16)(c), the beneficiaries described in s.
 1132  736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
 1133         2. If there is no beneficiary as described in s.
 1134  736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
 1135  in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
 1136         Section 43. Paragraph (d) of subsection (9) of section
 1137  738.104, Florida Statutes, is amended to read:
 1138         738.104 Trustee’s power to adjust.—
 1139         (9)
 1140         (d) For purposes of subsection (8) and this subsection, the
 1141  term:
 1142         1. “Eligible beneficiaries” means:
 1143         a. If at the time the determination is made there are one
 1144  or more beneficiaries described in s. 736.0103(19)(c) s.
 1145  736.0103(16)(c), the beneficiaries described in s.
 1146  736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
 1147         b. If there is no beneficiary described in s.
 1148  736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
 1149  in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
 1150         2. “Super majority of the eligible beneficiaries” means:
 1151         a. If at the time the determination is made there are one
 1152  or more beneficiaries described in s. 736.0103(19)(c) s.
 1153  736.0103(16)(c), at least two-thirds in interest of the
 1154  beneficiaries described in s. 736.0103(19)(a) s. 736.0103(16)(a)
 1155  or two-thirds in interest of the beneficiaries described in s.
 1156  736.0103(19)(c) s. 736.0103(16)(c), if the interests of the
 1157  beneficiaries are reasonably ascertainable; otherwise, it means
 1158  two-thirds in number of either such class; or
 1159         b. If there is no beneficiary described in s.
 1160  736.0103(19)(c) s. 736.0103(16)(c), at least two-thirds in
 1161  interest of the beneficiaries described in s. 736.0103(19)(a) s.
 1162  736.0103(16)(a) or two-thirds in interest of the beneficiaries
 1163  described in s. 736.0103(19)(b) s. 736.0103(16)(b), if the
 1164  interests of the beneficiaries are reasonably ascertainable,
 1165  otherwise, two-thirds in number of either such class.
 1166         Section 44. Subsection (1) of section 744.3679, Florida
 1167  Statutes, is amended to read:
 1168         744.3679 Simplified accounting procedures in certain
 1169  cases.—
 1170         (1) In a guardianship of property, when all property assets
 1171  of the estate is are in designated depositories under s. 69.031
 1172  and the only transactions that occur in that account are
 1173  interest accrual, deposits from a settlement, or financial
 1174  institution service charges, the guardian may elect to file an
 1175  accounting consisting of:
 1176         (a) The original or a certified copy of the year-end
 1177  statement of the ward’s account from the financial institution;
 1178  and
 1179         (b) A statement by the guardian under penalty of perjury
 1180  that the guardian has custody and control of the ward’s property
 1181  as shown in the year-end statement.
 1182         Section 45. The Division of Law Revision is directed to
 1183  replace the phrase “the effective date of this section” wherever
 1184  it occurs in this act with the date those sections become law.
 1185         Section 46. If any provision of this act or the application
 1186  thereof to any person or circumstance is held invalid, the
 1187  invalidity does not affect other provisions or applications of
 1188  this act which can be given effect without the invalid provision
 1189  or application, and to this end the provisions of this act are
 1190  severable.
 1191         Section 47. Except as otherwise expressly provided in this
 1192  act and except for this section, which shall take effect upon
 1193  this act becoming a law, this act shall take effect July 1,
 1194  2021.