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The Florida Senate

2005 Florida Statutes

Powers of trustees conferred by this part in relation to environmental or human health laws affecting trust property or to trust property contaminated with hazardous or toxic substances; liability.
Section 737.4025, Florida Statutes 2005

737.4025  Powers of trustees conferred by this part in relation to environmental or human health laws affecting trust property or to trust property contaminated with hazardous or toxic substances; liability.--

(1)  From the creation of a trust until final distribution of the assets from the trust, the trustee has, without court authorization, the powers specified in subsection (2).

(2)  Unless otherwise provided in the trust instrument, a trustee has the power, acting reasonably and for the benefit of the beneficiaries:

(a)  To inspect or investigate, or cause to be inspected or investigated, property held by the trustee, including interests in sole proprietorships, partnerships, or corporations and any assets owned by any such business entity for the purpose of determining compliance with an environmental law affecting that property or to respond to an actual or threatened violation of an environmental law affecting that property;

(b)  To take, on behalf of the trust, any action necessary to prevent, abate, or otherwise remedy an actual or potential violation of an environmental law affecting property held by the trustee, either before or after initiation of an enforcement action by a governmental body;

(c)  To refuse to accept property in trust if the trustee determines that any property to be donated or conveyed to the trustee either is contaminated with a hazardous substance or is being used or has been used for an activity directly or indirectly involving a hazardous substance, which circumstance could result in liability to the trust or trustee or otherwise impair the value of the assets to be held;

(d)  To settle or compromise at any time any claim against the trust or trustee that may be asserted by a governmental body or private party which involves the alleged violation of an environmental law affecting property of any trust over which the trustee has responsibility;

(e)  To disclaim any power granted by any document, statute, or rule of law which, in the sole judgment of the trustee, may cause the trustee to incur personal liability, or the trust to incur liability, under any environmental law;

(f)  To decline to serve as a trustee, or having undertaken to serve as a trustee, to resign at any time, if the trustee believes that there is or may be a conflict of interest in its fiduciary capacity and in its individual capacity because of potential claims or liabilities that may be asserted against it on behalf of the trust by reason of the type or condition of the assets held; or

(g)  To charge against the income and principal of the trust the cost of any inspection, investigation, review, abatement, response, cleanup, or remedial action that this section authorizes the trustee to take; and, in the event of the closing or termination of the trust or the transfer of the trust property to another trustee, to hold assets sufficient to cover the cost of cleaning up any known environmental problem.

(3)  A trustee is not personally liable to any beneficiary or any other party for a decrease in value of assets in a trust by reason of the trustee's compliance or efforts to comply with an environmental law, specifically including any reporting requirement under that law.

(4)  A trustee that acquires ownership or control of a vessel or other property without having owned, operated, or materially participated in the management of that vessel or property before assuming ownership or control as trustee is not considered an owner or operator for purposes of liability under chapter 376, chapter 403, or any other environmental law. A trustee that willfully, knowingly, or recklessly causes or exacerbates a release or threatened release of a hazardous substance is personally liable for the cost of the response, to the extent that the release or threatened release is attributable to the trustee's activities. This subsection does not preclude the filing of claims against the assets that constitute the trust held by the trustee or the filing of actions against the trustee in its representative capacity. In any such action, an award or judgment against the trustee must be satisfied only from the assets of the trust.

(5)  Neither the acceptance by the trustee of the property nor a failure by the trustee to inspect or investigate the property creates any inference as to whether there is liability under an environmental law with respect to that property.

(6)  For the purposes of this section, the term "environmental law" means a federal, state, or local law, rule, regulation, or ordinance that relates to protection of the environment or human health, and the term "hazardous substance" means a substance defined as hazardous or toxic, or any contaminant, pollutant, or constituent thereof, or otherwise regulated by an environmental law.

(7)  This section does not apply to any trust created under a document executed before July 1, 1995, unless the trust is amendable and the settlor amends the trust at any time to incorporate the provisions of this section.

History.--s. 19, ch. 95-401.