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The Florida Senate

2018 Florida Statutes

Title XXXVIII BANKS AND BANKING
Chapter 660 TRUST BUSINESS Entire Chapter
SECTION 33
Trust service offices.
F.S. 660.33
660.33 Trust service offices.—
(1) In addition to its principal office and any branch trust company authorized under s. 658.26, a trust company or trust department with its principal place of doing business in this state may maintain one or more trust service offices at the location of any bank, association, or credit union that is organized under the laws of this state or under the laws of the United States with its principal place of doing business in this state. However, a trust service office may be established only after the trust company or trust department has secured the consent of a majority of the stockholders or members entitled to vote on such proposal at a meeting of stockholders or members, and of a majority of the board of directors, of the bank, association, or credit union at which a trust service office is proposed to be maintained, and after a certificate of authorization has been issued to the trust company or trust department by the office.
(2)(a) An application for approval to establish a trust service office shall be in such form as the commission prescribes and contain such information as the commission or office reasonably requires and be accompanied by the required nonrefundable fee.
(b) The office shall issue a certificate approving the establishment of a trust service office by a trust company or a trust department if the office determines that:
1. The trust company or trust department has complied with the applicable capital requirements;
2. Provision has been made for suitable quarters and staffing for the trust service office; and
3. If the trust service office is to be established at a bank or association without existing trust powers or at a credit union, the establishment of the proposed trust service office will not unduly injure any existing trust companies or trust departments in the community where the trust service office is to be located.
(3) The trust company or trust department shall have the power to conduct any trust business at a trust service office which it is permitted to conduct at its principal office unless limited by the provisions of any agreement between the bank, association, or credit union and the trust company or trust department.
(4)(a) Unless an election has been made pursuant to paragraph (b), when a trust service office is established by a trust company or a trust department at the location of a bank or association which has trust powers, the bank or association may retain and continue to exercise its trust powers following the establishment of the trust service office.
(b) If the bank or association and the trust company or trust department so elect in the application for approval to establish a trust service office at the location of a bank or association that has trust powers, and if the office is satisfied that the interests of beneficiaries of the estates, trusts, and other fiduciary relationships being serviced will be adequately protected, the office shall issue an order authorizing the following:
1. The trust company or trust department, upon complying with all applicable requirements of law, shall be substituted for, succeed to, and replace the bank or association as fiduciary. The trust company or trust department, as the successor fiduciary, shall thereupon succeed to all the powers, rights, duties, and privileges of the bank or association as fiduciary of all such estates, trusts, guardianships, and other fiduciary relationships in which the bank or association is serving to which the trust company or trust department shall have been lawfully substituted.
2. During the time the trust company or trust department maintains a trust service office at the location of the bank or association, the trust company or trust department shall be deemed to be named the fiduciary in all instruments in which the bank or association is named the fiduciary, even if the bank or association is not serving as fiduciary at the time the trust service office is established, in the manner, to the extent, and with the same effect as though there had been a merger of the bank and the trust company or trust department.
3. Upon complying with all requirements of law with respect thereto, the bank or association shall be relieved from all of its fiduciary duties in connection with all fiduciary accounts and relationships with respect to which the trust company or trust department has been substituted as fiduciary or with respect to which it has resigned and been relieved as provided by law, and, upon being so relieved of all its fiduciary duties, the bank or association, although retaining its trust powers in an inactive status unless it surrenders them as provided by law, shall not thereafter exercise its trust powers so long as there is a trust service office transacting business at the bank or association. The substitution of the trust company or trust department for the bank or association as fiduciary shall occur and be effective on the day the trust company or trust department opens the trust service office for business, or on such later date as may be specified by court order, or by any written consent or agreement, which lawfully effectuates the designation, by substitution or otherwise, of the trust company or trust department as the fiduciary with respect to any particular fiduciary account.
(c)1. Anything in this section or any other law to the contrary notwithstanding and subject to compliance with this subsection, an affiliated trust company or an affiliated bank’s trust department, if authorized to exercise trust powers in this state, shall be deemed substituted as fiduciary without further authorization where the successor has an established trust service office in the predecessor’s principal place of business or any branch of the predecessor located in this state. The successor may conduct therein any trust business incidental thereto that it is otherwise permitted to conduct in this state, but it may not accept deposits at the offices of the predecessor bank except as incidental to the trust business.
2. To effect the substitution referred to in subparagraph 1., a predecessor shall enter into an agreement with the successor that sets forth the fiduciary powers, rights, privileges, duties, and liabilities of the parties and, more specifically, those to which the successor will succeed, including, but not limited to, those described in subparagraph 7. The agreement will be approved by the boards of directors of the predecessor, successor, and parent corporations. The agreement shall then be filed with the office. The effective date of the agreement shall be the date on which the office approves the agreement under subparagraph 6. unless another, later date is specified in the agreement, which other date shall be no later than 75 days after the date on which the agreement is filed with the office under this subparagraph; however, no such agreement may take effect without approval by the office.
3.a. Not sooner than 30 days before or later than 30 days after the date on which the agreement is filed with the office under subparagraph 2., the predecessor and successor shall cause notice of the filing of such agreement with the office, along with the procedure for objection thereto as hereinafter provided, to be published in a newspaper of general circulation in the county in which the predecessor’s principal place of business is located and file a copy of such written notice in any applicable court-administered fiduciary proceeding, including, but not limited to, probate and guardianship proceedings, and additionally, they shall serve written notice upon the following:
(I) Each cofiduciary that serves with the predecessor;
(II) Each surviving grantor of a revocable trust;
(III) Each person who alone or in conjunction with others has the power to remove the predecessor;
(IV) Each principal for whom the predecessor serves as agent or custodian;
(V) Each guardian of the person for whom the predecessor serves as guardian of the property for their ward;
(VI) Each beneficiary or the beneficiary’s legal or natural guardian, when applicable, currently receiving or entitled as a matter of right to receive a current mandatory or discretionary distribution, as opposed to a remainder distribution, of principal or income from a trust, estate, or other fund with respect to which a substitution of fiduciary under this subsection is to be effected. However, when applicable and in lieu thereof, such service will be made upon the sole holder or a majority of the coholders of a general or limited power of appointment, including one in the form of a power of amendment, or revocation, in which case they shall be deemed to act for any beneficiary who may take by virtue of the exercise or failure to exercise the power;
(VII) Upon any other person or entity required by the court in any referenced court-administered fiduciary proceeding; and
(VIII) In the case of a trust described in the Internal Revenue Code of 1986 s. 401(a) as it may from time to time hereafter be amended, upon the employer or employee organization or both responsible for the maintenance of such trust.
b. Service of such written notice will not be required upon the persons or entities listed in sub-subparagraph a. when the documents or other writings that created the fiduciary relationship permit a substitution of fiduciaries.
c. Service of written notice shall be made upon the persons or entities listed in sub-subparagraph a. in the manner provided for the service of formal notice under the applicable Florida Probate Rules. Service of written notice by mail shall be completed upon receipt or refusal of the notice by the persons or entities listed in sub-subparagraph a. If such written notice is made by mail or delivery, proof of mailing or delivery shall be by verified statement of the person mailing or delivering the written notice, and there shall be attached to the verified statement the signed receipt, appropriate affidavit of delivery by the person effecting such delivery, or other evidence satisfactory to the office or to a court of competent jurisdiction that notice was given properly to or refused by the addressee or agent of the addressee. The original of such proof shall be filed with the office with copies to the file or the account maintained by the predecessor or successor and to the court in any court-administered fiduciary administration.
4. Within 60 days after the date on which newspaper notice is published under subparagraph 3., after any date of a signed or refused receipt pertaining to the written notice by mail under subparagraph 3., after any date of delivery as set forth in the affidavit referenced in subparagraph 3., or after the date on which service is otherwise accomplished, the latest date being operative, but not thereafter, the persons or entities listed in subparagraph 3. or the court in a court-administered fiduciary proceeding on its own motion may object to such substitution of fiduciaries by serving written notice, executed by the persons, entities, or court, upon the predecessor, successor, and office. Such notice shall be served in the same manner as provided for service of the original notice upon interested persons or entities in subparagraph 3. Execution of such notice shall be in the same manner as is required for the execution and recordation of deeds to real property in this state except that notice by a court may be signed by the judge. If such notice of objection is executed by all of the cofiduciaries that serve with the predecessor, by each surviving grantor of a revocable trust, by all of the persons that have the power to remove the predecessor as fiduciary, by all of the principals for whom the predecessor serves as agent or custodian, by the guardian of the person for whom the predecessor serves as guardian of the property for their ward, by all of the beneficiaries currently receiving or entitled as a matter of right to receive a current mandatory or discretionary distribution, as opposed to a remainder distribution, of principal or income, or by the sole holder or a majority of the coholders of a general or limited power of appointment including one in the form of a power of amendment or revocation, the successor will not be substituted for the predecessor and the predecessor will remain or be reinstated as fiduciary but only as to the fiduciary relationship that is the subject of such objection. Reinstatement shall take effect immediately upon receipt of such notice by the predecessor, successor, and office. If the notice of objection is executed by less than all of the persons or entities of any category specified in this subparagraph, or if entered by the court of a court-administered fiduciary proceeding on its own motion, then, with regard to the fiduciary relationship that is the subject of such notice of objection, the predecessor and successor may elect to do either of the following:
a. File a subsequent agreement with the office, with copies of such agreement to be mailed to all of the specified persons or entities, which states that the successor will not be substituted for the predecessor as to that fiduciary relationship, and such agreement shall cause the predecessor to remain or be reinstated, instanter, as fiduciary in that fiduciary relationship. The filing of such subsequent agreement with the office does not prejudice the predecessor or the successor from filing another agreement that affects such fiduciary relationship under subparagraph 2.; or
b. File a petition with the court having jurisdiction of any court-administered fiduciary proceeding or commence a civil action in a court of competent jurisdiction as to any other applicable fiduciary relationship. The court shall then determine whether such substitution is appropriate and whether it is in the best interest of those specifically interested in the premises. The court shall then enter judgment accordingly and specify the party to serve thereafter as the fiduciary. The predecessor, the successor, the office, and those for whom the fiduciary relationship is the subject of the civil action and upon whom service of written notice was required under subparagraph 3. shall be necessary parties in any civil action that concerns an objection to the substitution. Any such petition or separate civil action must be filed within 60 days after service of the notice of objection. Failure to do so will be deemed to be an agreement pursuant to sub-subparagraph a., and the alternative provided in sub-subparagraph a. will be deemed to have been selected automatically.
5. At any time while a civil action is pending pursuant to sub-subparagraph 4.b., the predecessor and successor may file a subsequent agreement with the office in the same manner set forth under alternative sub-subparagraph 4.a. and file a copy of the same along with a withdrawal of the petition or a voluntary dismissal with the court in which the petition was filed or the civil action is pending. Such filing will have the same force and effect as set forth under sub-subparagraph 4.a.; however, it shall be without prejudice to the right of the predecessor or successor to file another agreement that affects such fiduciary relationship under subparagraph 2.
6. Within 30 days after the date on which a fiduciary agreement is filed with the office under subparagraph 2., the office shall approve the agreement if it finds both that the successor is:
a. Legally authorized to exercise trust powers in this state; and
b. Has otherwise met the requirements for the establishment of a trust service office at the predecessor’s principal place of business or branch.
7. Upon the effective date of an agreement filed under subparagraph 2. and regardless of any petition filed or any civil action pending pursuant to subparagraph 4., the successor will be deemed substituted for the predecessor as fiduciary without further authorization of any kind such that the successor shall succeed to and be substituted for the predecessor as to all fiduciary powers, rights, privileges, duties, and liabilities of the predecessor in its capacity as fiduciary for all estate, trust, guardianship, agency, and custodial accounts and any other fiduciary relationship for which the predecessor is then, or but for such agreement would be, serving as fiduciary, except as may be otherwise specified in such agreement and in any subsequent agreement filed with the office under subparagraph 4. or subparagraph 5. The successor shall also be deemed the fiduciary in all writings, including, but not limited to, wills, trusts, deeds, policies of insurance, stock certificates, court orders, and similar documents and instruments which name or have named the predecessor as fiduciary and which were signed before or after the effective date of such agreement except as may be otherwise specified in such agreement and any subsequent agreement filed with the office under subparagraph 4. or subparagraph 5. This section does not absolve or discharge any predecessor exercising trust powers from liability arising out of any breach of its fiduciary duties or obligations which occurred before the effective date of such agreement.
8. As used herein:
a. Trust companies, banks, or associations are “affiliated” if they are connected through stock ownership with a common parent corporation that is a registered multibank or multiassociation holding company and such parent owns directly stock that possesses at least 80 percent of the total voting power of the stock of such trust company, bank, or association and has a value equal to at least 80 percent of the total value of the stock of such trust company, bank, or association.
b. The term “predecessor” refers to an affiliated trust company or affiliated bank’s or affiliated association’s trust department for the position of which in its trust relations the successor is substituted.
c. The term “successor” refers to an affiliated trust company or affiliated bank’s or affiliated association’s trust department which is substituted for a predecessor in the predecessor’s trust relationships including all powers, duties, and responsibilities associated therewith.
(d) When a trust service office is established at a bank or association that has retained its trust powers in an active status, the trust company or trust department may at any time be substituted as fiduciary as provided in paragraph (b) by filing an election with the office. The election to substitute the trust company or trust department for the bank or association as fiduciary must contain the consent of a majority of the stockholders or members entitled to vote on such proposal at a meeting of stockholders or members and of a majority of the board of directors, of the bank or association at which the trust service office has been established.
(e) This subsection shall not affect any substitution of fiduciaries made under former s. 659.061(6) prior to May 31, 1976.
(5) Nothing in the financial institutions codes shall be construed to prohibit a person from serving in a dual capacity as an officer or director of a bank, association, or credit union at which a trust service office is located and an officer or director of the trust company or trust department which has a trust service office at that bank, association, or credit union.
(6) A trust company or trust department may terminate a trust service office only with the prior approval of the office, which shall only grant its approval after being satisfied that the interests of all beneficiaries of the estates, trusts, and other fiduciary relationships being serviced by the trust company or trust department as fiduciary at that trust service office will be adequately protected. Upon termination of the trust service office, the trust company or trust department shall continue to exercise its fiduciary powers, rights, duties, and privileges as fiduciary of the estates, trusts, and other fiduciary relationships which, at the time of such termination, were being serviced at that trust service office and shall continue to be deemed the named fiduciary of all instruments naming the bank or association as fiduciary which became effective and operative prior to the termination of the trust service office. However, any beneficiary of an estate or trust being serviced at the trust service office at the time of the termination of the trust service office may petition the court of competent jurisdiction in the county where, at the time of such termination, the trust service office was located for removal of the trust company or the trust department as fiduciary and for appointment of a successor fiduciary. The court shall grant the petition upon being satisfied that such action is in the best interests of the beneficiaries of the trust or estate.
(7) A trust service office as provided for in this section is a special service facility and is not a branch or a branch office of a trust company or a trust department.
History.—s. 6, ch. 73-119; s. 2, ch. 75-217; s. 1, ch. 76-41; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 1, ch. 78-317; ss. 130, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 45, ch. 82-214; s. 1, ch. 88-105; s. 1, ch. 91-307; ss. 1, 144, ch. 92-303; s. 54, ch. 95-211; s. 546, ch. 97-102; s. 1811, ch. 2003-261; s. 5, ch. 2015-64.
Note.—Former s. 659.061(2), (3), (5)-(8).