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2018 Florida Statutes
Chapter 660
TRUST BUSINESS
TRUST BUSINESS
CHAPTER 660
TRUST BUSINESS
660.25 Definitions.
660.26 Trust department licensing.
660.265 Examination fees.
660.27 Deposit of securities with Chief Financial Officer.
660.28 Exemption from bond and other security as fiduciary.
660.29 Use of personnel and facilities.
660.30 Segregation of books, records, and assets; fiduciary assets not liable.
660.31 General trust business by trust companies and departments.
660.33 Trust service offices.
660.34 General powers.
660.35 Oaths, affidavits, and acknowledgments.
660.36 Fiduciary agency contracts.
660.37 Security for deposit of fiduciary funds.
660.38 Loans by and to fiduciary accounts.
660.39 Sales between fiduciary accounts.
660.40 Self dealing.
660.41 Corporations; certain fiduciary functions prohibited.
660.415 Investment by trust companies, trust departments, trustees, and fiduciaries.
660.417 Investment of fiduciary funds in investment instruments; permissible activity under certain circumstances; limitations.
660.418 Investment of fiduciary funds in syndicate securities.
660.42 Establishment of common trust funds.
660.43 Common trust fund investments.
660.431 Prudent investor rule.
660.44 Common trust fund to be audited annually.
660.45 Common trust fund court accountings.
660.46 Substitution of fiduciaries.
660.47 Surrender of fiduciary powers.
660.48 Receivership or voluntary liquidation.
660.25 Definitions.—Subject to other definitions contained in other sections of this code, and unless the context otherwise requires, in this chapter:
(1) “Commercial department” of a bank or association having trust powers means the functional divisions or departments of the bank or association which conduct its general bank or association business, including, but not limited to, the divisions or departments which accept demand and time deposits and paychecks, but excluding the trust department.
(2) “Fiduciary account” means the estate, trust, or other fiduciary relationship which, by any governing instrument or in any other lawful manner, has been or is established or provided for with a trust company, trust department, or other person and includes the assets, rights, liabilities, and obligations thereof.
(3) “Fiduciary capacity” means the status or position, assigned or assumed, of a fiduciary.
(4) “Governing instrument” means a will, trust agreement, trust indenture, or other communication which creates or provides for a trust in any lawful form or manner; an order, judgment, or decree of a court or an appointment by a court in any form; or any other designation, appointment, agreement, statement, instruction, message, or information, the terms or effect of which creates, establishes, or otherwise provides for a fiduciary account or relationship, or the terms or effect of which creates, appoints, or otherwise provides for or requires a person to act in a fiduciary capacity, or the terms or effect of which contains or provides for grants or limitations of, or directions or instructions to or with respect to, the authorities, powers, or discretions exercisable by a fiduciary with respect to a fiduciary account. A governing instrument may be written, transcribed, or recorded or otherwise transmitted or made if the contents thereof, if not in writing, can be converted to writing which can be determined to be a sufficient transcription of the appointment, designation, directions, instructions, message, or information of the originator thereof; however, nothing in this subsection shall be construed as amending, modifying, or otherwise affecting any law relating to wills, trust agreements, or other instruments required by law to be in writing, or the execution or manner of execution or amendment of any thereof.
(5) “Investment authority” means the responsibility or power conferred by action or operation of law or by a provision of a governing instrument to make, select, or change investments.
(6) “Investment instrument” means any security as defined in s. 2(a)(1) of the Securities Act of 1933; any security of an open-end or closed-end management investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended; any contract of sale of a commodity for future delivery within the meaning of s. 2(i) of the Commodity Exchange Act; or any other interest in securities, including, but not limited to, shares or interests in a private investment fund, including, but not limited to, a private investment fund organized as a limited partnership, a limited liability company, a statutory or common law business trust, a statutory trust, or a real estate investment trust, a joint venture, or any other general or limited partnership; derivatives or other interests of any nature in securities such as options, options on futures, and variable forward contracts; mutual funds; common trust funds; money market funds; hedge funds; private equity or venture capital funds; insurance contracts; and other entities or vehicles investing in securities or interests in securities whether registered or otherwise.
(7) Terms used but not defined in this chapter, but which are expressly defined in chapter 518, the financial institutions codes, chapter 732, chapter 733, chapter 734, chapter 735, chapter 736, chapter 738, chapter 744, or chapter 747, shall in this chapter, unless the context otherwise requires, have the meanings ascribed to them in said chapters; and references in any of said chapters to a “trust company” or to “trust companies” shall include every trust department as defined in s. 658.12.
History.—ss. 123, 152, ch. 80-260; s. 461, ch. 81-259; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 141, ch. 92-303; s. 17, ch. 2006-217.
660.26 Trust department licensing.—
(1) When authorized by the office as provided in this section, a state bank or association may establish a trust department for the purpose of conducting trust business.
(2) A written application for trust powers shall be filed with the office in such form as the commission prescribes and containing such information as the commission and office reasonably require. The application shall be accompanied by the required nonrefundable fee.
(3) Upon the filing of an application, the office shall investigate and consider:
(a) The general character and management ability of the principal executive officers of the applicant bank or association.
(b) The quality of the supervision to be given to the fiduciary activities, including the qualifications, experience, and character of the proposed principal officers of the trust department.
(c) The general condition of the applicant bank or association, and the sufficiency of earnings and earning prospects of the applicant bank or association, including the proposed trust department, to support the anticipated expenses and any anticipated operating losses of the trust department during its formative or initial years.
(d) Any other matters relevant to the application and the establishment and operation of the proposed trust department.
(4) Expenses necessarily incurred by the office in the conduct of investigations required by this section shall, in the case of applications which require investigations by the office outside the state, be assessed against the applicant bank or association on an actual-cost-incurred basis and shall be in addition to other fees required by law. Failure to promptly reimburse the office upon its demand shall be grounds for denial of such application or revocation of any approval thereof.
(5) The office shall approve the application if it finds that:
(a) The general condition of the applicant bank or association is sufficient to support the proposed trust department.
(b) The earnings and earning prospects of the applicant bank or association, including the earning prospects of the proposed trust department, are sufficient to support the anticipated expenses and any anticipated operating losses of the trust department during its formative or initial years.
(c) The capital structure of the bank or association is adequate to support the trust department.
(d) The proposed trust officers have or will be supplied with sufficient trust and related investment, financial, and managerial experience, ability, and standing to operate the trust department.
(e) Provision has been made for the trust department to occupy suitable quarters at the location specified in the application.
(6) If applicable federal law requires the approval of a federal regulatory agency for the establishment of a trust department by the applicant bank or association, approval by the office, by final order or otherwise, shall be deemed subject to approval by such federal regulatory agency, and a final order of denial by such federal regulatory agency will terminate and revoke the final or other order issued by the office approving the application.
(7) Upon approval of an application by the office and such federal regulatory agency, if required, the office shall issue and deliver to the applicant a certificate or other document granting trust powers to the applicant and authorizing it to establish a trust department and engage in trust business.
History.—ss. 131, 152, ch. 80-260; ss. 2, 3, ch. 81-318; ss. 32, 51, ch. 84-216; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1807, ch. 2003-261.
660.265 Examination fees.—Each state trust company and each state bank or association exercising trust powers shall pay to the office, within 30 days after an examination pursuant to s. 655.045, a fee for the costs of the examination by the office pursuant to s. 655.045. For the purposes of this section, the term “costs” means the salary and travel expenses of field staff which are directly attributable to its examination of the financial institution and the travel expenses of any supervisory or support staff required as a result of examination findings.
History.—s. 142, ch. 92-303; s. 1808, ch. 2003-261.
660.27 Deposit of securities with Chief Financial Officer.—
(1) Before transacting any trust business in this state, every trust company and every state or national bank or state or federal association having trust powers shall give satisfactory security by the deposit or pledge of security of the kind or type provided in this section having at all times a market value in an amount equal to 25 percent of the issued and outstanding capital stock of such trust company, bank, or state or federal stock association or, in the case of a federal mutual association, an equivalent amount determined by the office, or the sum of $25,000, whichever is greater. However, the value of the security deposited or pledged pursuant to the provisions of this section shall not be required to exceed $500,000. Any notes, mortgages, bonds, or other securities, other than shares of stock, eligible for investment by a state bank, state association, or state trust company, or eligible for investment by fiduciaries, shall be accepted as satisfactory security for the purposes of this section.
(2) The trust company, bank, or association shall provide to the Chief Financial Officer the following:
(a) Written information which includes full legal name; federal employer identification number; principal place of business; amount of capital stock; and amount of required collateral.
(b) The required information listed in paragraph (a) shall be provided annually as of September 30 and shall be due November 15.
(3) The Chief Financial Officer shall determine whether the security deposited or pledged pursuant to this section, or tendered for such deposit or pledge, is of the kind or type permitted, and has a market value in the amount required, by subsection (1). The security required by this section shall be deposited with or to the credit of, or pledged to, the Chief Financial Officer for the account of each state or national bank, state or federal association, or trust company depositing or pledging the same and shall be used, if at all, by the liquidator of such bank, association, or trust company with first priority being given to claims on account of the trust business or fiduciary functions of such bank, association, or trust company or, prior to liquidation, for the payment of any judgment or decree which may be rendered against such bank, association, or trust company in connection with its trust business or its fiduciary functions if such judgment or decree is not otherwise paid by, or out of other assets of, such bank, association, or trust company.
(4) Any security of any kind which has been deposited or pledged as provided in this section may at any time, by or upon the direction of such bank, association, or trust company which deposited or pledged such security, be withdrawn and released from such pledge provided that simultaneously therewith satisfactory security as provided in this section, in such amount, if any, as may be necessary in order to comply with the requirements of this section, is substituted for the security so withdrawn and released.
(5) With the approval of the Chief Financial Officer, each trust company, bank, or association as pledgor may deposit eligible collateral with a custodian. This custodian shall not be affiliated or related to the trust company, bank, or association. Collateral must be deposited using the collateral agreements and provisions as set forth in s. 280.041(2) and (3).
History.—s. 3, ch. 28016, 1953; ss. 11, 12, 35, ch. 69-106; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 124, 151, 152, ch. 80-260; s. 10, ch. 81-285; ss. 2, 3, ch. 81-318; s. 148, ch. 83-216; s. 1, ch. 91-307; ss. 1, 143, ch. 92-303; s. 545, ch. 97-102; s. 6, ch. 2000-352; s. 101, ch. 2002-1; s. 1809, ch. 2003-261.
Note.—Former s. 660.08.
660.28 Exemption from bond and other security as fiduciary.—A trust company or trust department maintaining security with the Chief Financial Officer as required by s. 660.27 shall not be required by the state or any of its political subdivisions or by a court of this state to furnish any bond or other security as a condition of, or in connection with, acting in any fiduciary capacity which such trust company or trust department is lawfully permitted to accept or assume.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 125, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1810, ch. 2003-261.
Note.—Former s. 660.07.
660.29 Use of personnel and facilities.—To the extent not prohibited by law, the trust department of a bank or association, for or in connection with any of its fiduciary functions or trust business or related activities, may utilize personnel, facilities, and services of the commercial department of that bank or the nontrust departments of that association and of any business organization which is a bank holding company under the provisions of the Bank Holding Company Act of 1956, as amended (12 U.S.C. ss. 1841 et seq.), or a savings and loan holding company of which that bank is a subsidiary as defined in said act or that association is a subsidiary, or of any other such subsidiary of that bank or savings and loan holding company; and, to the same extent, the commercial department of a bank or the nontrust departments of an association or any such bank or savings and loan holding company of which that bank or association is a subsidiary, or any other subsidiary of such bank or savings and loan holding company, for or in connection with any of the business activities or functions of such commercial department or nontrust departments, bank or savings and loan holding company, or other subsidiary, may utilize personnel, facilities, and services of the trust department of such bank or association.
History.—ss. 126, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 63, ch. 99-3.
660.30 Segregation of books, records, and assets; fiduciary assets not liable.—
(1) Each trust company and trust department shall maintain its fiduciary books and records separate and distinct from other records of the trust company or of the bank or association of which the trust department is a part and shall segregate all assets held in any fiduciary capacity from the general or other assets of the trust company or of the bank or association of which the trust department is a part.
(2) No assets received or held in a fiduciary capacity by any trust company or trust department shall be liable for the debts or the obligations of the trust company or of the bank or association of which the trust department is a part.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 127, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
Note.—Former s. 660.03.
660.31 General trust business by trust companies and departments.—The granting or issuance of a charter to a trust company and the granting of trust powers to a bank or association, with powers expressly restricted or otherwise limited to the conduct of less than a general trust business, are not authorized under this code.
History.—ss. 128, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
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).
660.34 General powers.—Every trust company and every trust department shall have:
(1) The right and power to act, alone or jointly with any other person, in any and every fiduciary capacity for or in connection with any and all fiduciary accounts of or pertaining to any business organization or other person, and any government, governmental body or other governmental entity or officer or body politic, and to engage in and conduct a general trust business.
(2) All the rights, privileges, and immunities, and all the duties and obligations, appertaining to any fiduciary capacity assigned to or assumed by it and to fiduciaries generally.
(3) The right and the power to effectuate, exercise, carry out, and otherwise implement, in any lawful manner, any and all its lawful duties, obligations, rights, privileges, and immunities in connection with any fiduciary capacity assigned to or assumed by it and in connection with the conduct of its trust business; however, nothing in this chapter shall be construed as authorizing a trust company or trust department to accept deposits except in its fiduciary capacity.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 132, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
Note.—Former s. 660.01.
660.35 Oaths, affidavits, and acknowledgments.—In any case in which a trust company or the trust department of a bank or association is required to make an oath, affirmation, affidavit, or acknowledgment in connection with any fiduciary capacity in which it is acting or is preparing to act, the chair of the board of directors, the president, any vice president, any trust officer or assistant trust officer, the cashier or secretary, or any other officer expressly authorized by action of the board of directors of such trust company, association, or bank shall make, and shall subscribe if required, any such oath, affirmation, affidavit, or acknowledgment for and on behalf of such trust company, association, or bank.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 133, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 547, ch. 97-102.
Note.—Former s. 660.09.
660.36 Fiduciary agency contracts.—Any trust company or trust department acting in a fiduciary capacity may employ any other trust company or trust department as an agent to advise or assist in the performance of its administrative duties and to render investment advice. Instead of acting personally, any trust company or trust department may employ any other trust company or trust department to perform any act of administration, whether or not discretionary, provided the trust company or trust department serving as such agent shall observe the same standard of care as is required of the principal fiduciary trust company or trust department with respect to each fiduciary account or other relationship affected by such agency. The establishment of such agency relationship shall neither diminish nor increase the standard by which the performance of the principal fiduciary trust company or trust department as a fiduciary is governed. In any suit or other proceeding involving an evaluation of fiduciary performance, such agent’s performance shall be deemed that of the principal fiduciary trust company or trust department.
History.—s. 1, ch. 76-37; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 134, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
Note.—Former s. 660.011.
660.37 Security for deposit of fiduciary funds.—
(1) If security, including insurance by the Federal Deposit Insurance Corporation, is furnished as provided in subsection (2), funds held in a fiduciary account by a trust company or a trust department awaiting investment, distribution, or payment of debts, taxes, or expenses may, unless prohibited by the governing instrument or by court order, be deposited in demand or time accounts of a bank or association. Unless otherwise expressly directed by the governing instrument or in writing by a beneficiary, a fiduciary shall not be required to invest current income accruing to a fiduciary account if, within 90 days after receipt thereof, such income is to be distributed or will be used for payment of debts, taxes, or expenses. In addition, in any case of a demonstrated need of or benefit to a fiduciary account or beneficiaries thereof, or when the investment or administration circumstances of a fiduciary account or beneficiaries thereof cause it to appear prudent or otherwise appropriate, a trust company or trust department may invest funds held by it in a fiduciary account in time deposits in, or issued by, a bank or association, of such type or maturity as appears appropriate at the time of the investment, including maturities in excess of 1 year; and in the case of a trust department, any such deposits may be made in the commercial department of the fiduciary bank or the nontrust departments of the fiduciary association. Funds so deposited and secured may be used by the depositary bank or association in the conduct of its business, and it shall pay interest on any such time deposits at a rate not less than the standard interest rate it pays on time deposits of the same type and having substantially the same characteristics, including size and maturity. If the depositary bank or association pays interest on such deposits at a rate equal to or in excess of such standard rates, it shall not be subject to any claim for an amount of interest or for potential earnings in excess of the interest so paid but is subject, however, in the case of the depositary trust company or trust department, to the provisions of s. 518.11. In this section, the term “depositing trust company or trust department” means the trust company or the trust department depositing funds of a fiduciary account, and “depositary bank or association” means the bank or association, including the fiduciary bank or association, in which such funds are deposited.
(2)(a) Except as provided by paragraph (b), a trust company or trust department shall not deposit any funds of a fiduciary account in any bank or association in an amount in excess of the insurance provided by the Federal Deposit Insurance Corporation unless the depositary bank or association shall first set aside under the control of the depositing trust company or trust department, as collateral security for the pro rata benefit of each fiduciary account whose funds are so deposited, readily marketable securities which are eligible under the laws of this state for investment by banks, associations, or fiduciaries, having a market value not less than the amount of the funds so deposited which exceeds the insurance provided by the Federal Deposit Insurance Corporation. Substitutions and withdrawals of such securities may be made from time to time, but the aggregate amount of the market value of the securities so set aside shall at all times be at least equal to the amount herein required, and it shall not be necessary that the securities so set aside be segregated as to the funds of each separate fiduciary account which are so deposited. Specifically identified securities effectively pledged for the purposes required herein, including those held under a safekeeping receipt as permitted by law, shall be deemed to be set aside under the control of the depositing trust company or trust department whether or not in its actual physical possession.
(b) This subsection does not apply to fiduciary accounts in which, pursuant to the terms of the governing instrument, full investment authority is retained by the grantor or is vested in persons or entities other than the bank, association, or trust company and the bank, association, or trust company as fiduciary does not have power to exert any influence over investment decisions.
(3) Until all funds of fiduciary accounts deposited by a depositing trust company or trust department have been withdrawn from the depositary bank or association, no other creditor or stockholder of the depositary bank or association shall have any claim or right to the securities so set aside as collateral; and in the event of the failure of the depositary bank or association, the depositing trust company or trust department, and the fiduciary accounts the funds of which were so deposited, shall have a first and paramount lien on the securities so set apart as collateral, in addition to their claim against the estate of the depositary bank or association.
History.—s. 3, ch. 28016, 1953; s. 1, ch. 29871, 1955; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 135, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 145, ch. 92-303.
Note.—Former ss. 660.04, 660.05.
660.38 Loans by and to fiduciary accounts.—
(1) A trust company or trust department may make a loan to a fiduciary account from the funds belonging to another fiduciary account if the making of such loans to a designated fiduciary account is authorized by the governing instrument of the fiduciary account from which such loans are made or is authorized by court order.
(2) A state bank or association having a trust department may make a loan from the funds used by the bank or association in its general business to a fiduciary account, including a fiduciary account held in its own trust department, and may take as security therefor assets of the fiduciary account, provided such transaction is fair to the fiduciary account.
History.—ss. 136, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
660.39 Sales between fiduciary accounts.—A trust company or a trust department may sell assets held by it in one fiduciary account to itself as fiduciary of another fiduciary account if the transaction is fair to both fiduciary accounts and if such transaction is not prohibited by the terms of the governing instrument of either fiduciary account.
History.—ss. 137, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
660.40 Self dealing.—
(1) Except as provided in s. 660.37, funds held by a trust company or a trust department shall not be invested in the obligations or securities of the trust company or of the bank or association of which the trust department is a part unless authorized by the governing instrument or by court order; however, if the retention of obligations or securities of the trust company or the bank or association of which the trust department is a part is authorized by the governing instrument or by court order, the trust company or trust department in its fiduciary capacity may exercise rights to purchase securities of the trust company or of the bank or association of which the trust department is a part, when offered pro rata to stockholders; and when the exercise of rights or receipt of a stock dividend results in fractional share holdings, additional fractional shares may be purchased to complement the fractional shares so acquired.
(2) Assets of a fiduciary account held by a trust company or a trust department shall not be sold or transferred, by loan or otherwise, to the trust company or the bank or association of which the trust department is a part or to its directors, officers, or employees except:
(a) When lawfully authorized by the governing instrument or by court order;
(b) As provided in ss. 660.42-660.45;
(c) With the approval of, or when required by, the office in order to prevent loss to a fiduciary account in any case where the trust company or the trust department has incurred a liability in the handling of the assets of the fiduciary account.
History.—ss. 138, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1812, ch. 2003-261.
660.41 Corporations; certain fiduciary functions prohibited.—All corporations are prohibited from exercising any of the powers or duties and from acting in any of the capacities, within this state, as follows:
(1) As personal representative of the estate of any decedent, whether such decedent was a resident of this state or not, and whether the administration of the estate of such decedent is original or ancillary; however, if the personal representative of the estate of a nonresident decedent is a corporation duly authorized, qualified, and acting as such personal representative in the jurisdiction of the domicile of the decedent, it may as a foreign personal representative perform such duties and exercise such powers and privileges as are required, authorized, or permitted by s. 734.101.
(2) As receiver or trustee under appointment of any court in this state.
(3) As assignee, receiver, or trustee of any insolvent person or corporation or under any assignment for the benefit of creditors.
(4) As fiscal agent, transfer agent, or registrar of any municipal or private corporation, except that this prohibition shall not be so construed as to prevent banks, associations, and trust companies not located in this state from acting within the state where located as fiscal agent, transfer agent, or registrar of municipal or private corporations of this state. Nothing herein shall prevent any Florida corporation that is not a bank, association, or trust company and that does not have trust powers from being its own fiscal agent, transfer agent, or registrar concerning its own affairs, stock, or securities. Nothing herein shall prevent any Florida corporation or corporation having its principal place of business in Florida registered as a transfer agent with the Federal Deposit Insurance Corporation, the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, or the Securities and Exchange Commission from acting as a transfer agent for any other private corporation. Nothing in this section or in any other law of this state shall be construed to prohibit a foreign bank, foreign association, or foreign trust company as trustee of any charitable foundation or endowment, employees’ pension, retirement or profit-sharing trust, alone or together with a cotrustee, from: making loans or committing to make loans to any other person; contracting, in this state or elsewhere, with any person to acquire from such person a part or the entire interest in a loan which such person proposes to make, has heretofore made, or hereafter makes, together with a like interest in any security instrument covering real or personal property in the state proposed to be given or hereafter or heretofore given to such person to secure or evidence such loan; servicing directly or entering into servicing contracts with persons, and enforcing in this state the loans made by it or obligations heretofore or hereafter acquired by it in the transaction of business outside this state or in the transaction of any business authorized or permitted hereby; or acquiring, holding, leasing, mortgaging, contracting with respect to, or otherwise protecting, managing, or conveying property in this state which has heretofore or may hereafter be assigned, transferred, mortgaged, or conveyed to it as security for, or in whole or in part in satisfaction of, a loan or loans made by it or obligations acquired by it in the transaction of any business authorized or permitted hereby. However, no such foreign bank, foreign association, or foreign trust company shall be deemed to be transacting business in this state, shall be required to qualify so to do, or shall be deemed to be unlawfully exercising powers or duties, acting in an unlawful or prohibited capacity, or violating any of the provisions of this section or of any other law of this state solely by reason of the performance of any of the acts or business hereinbefore permitted or authorized hereby; further, nothing herein shall be construed as authorizing or permitting any foreign bank, association, or trust company to maintain an office within this state.
This section does not apply to banks or associations and trust companies incorporated under the laws of this state and having trust powers, banks or associations and trust companies resulting from an interstate merger transaction with a Florida bank pursuant to s. 658.2953 and having trust powers, or national banking associations or federal associations authorized and qualified to exercise trust powers in Florida.
History.—s. 3, ch. 28016, 1953; s. 1, ch. 57-409; s. 1, ch. 71-55; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 139, 151, 152, ch. 80-260; ss. 1, 2, ch. 81-250; s. 462, ch. 81-259; ss. 2, 3, ch. 81-318; s. 4, ch. 88-33; s. 2, ch. 88-111; s. 15, ch. 91-110; s. 1, ch. 91-307; ss. 1, 214, ch. 92-303; s. 1, ch. 99-145.
Note.—Former s. 660.10.
660.415 Investment by trust companies, trust departments, trustees, and fiduciaries.—In the absence of an express provision to the contrary, when a governing instrument directs, requires, authorizes, or permits investment in United States Government obligations, a trust company, trust department, trustee, or other fiduciary may invest in such obligations, either directly or in the form of securities of, or other interests in, any open-end or closed-end management-type investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq., or a duly authorized common trust fund. However, the portfolio of such investment company, investment trust, or common trust fund is limited to United States Government obligations and repurchase agreements fully collateralized by such United States Government obligations and any such investment company, investment trust, or common trust fund shall take delivery of such collateral either directly or through an authorized custodian.
History.—s. 40, ch. 85-82; s. 1, ch. 91-307; ss. 1, 146, ch. 92-303.
660.417 Investment of fiduciary funds in investment instruments; permissible activity under certain circumstances; limitations.—
(1) In addition to other investments authorized by law for the investment of funds held by a fiduciary, or by the instrument governing the fiduciary relationship, a bank or trust company acting as a fiduciary, agent or otherwise may, in the exercise of its investment discretion or at the direction of another person authorized to direct investment of funds held by the bank or trust company as fiduciary, invest and reinvest in investment instruments so long as the investment instruments consist substantially of investments not prohibited by the governing instrument.
(2) The fact that such bank or trust company or an affiliate of the bank or trust company provides services with respect to investment instruments such as that of an investment adviser, administrator, broker, custodian, transfer agent, placement agent, servicing agent, registrar, underwriter, sponsor, distributor, or manager or in any other capacity, and is receiving reasonable compensation for those services, shall not preclude such bank or trust company from investing or reinvesting in investment instruments. However, with respect to any funds so invested, the basis (expressed as a percentage of asset value or otherwise) upon which such compensation is calculated shall be disclosed (by prospectus, account statement or otherwise) to all persons to whom statements of such account are rendered.
(3) The fact that such bank or trust company or an affiliate of the bank or trust company owns or controls investment instruments shall not preclude the bank or trust company acting as a fiduciary from investing or reinvesting in such investment instruments, provided such investment instruments:
(a) Are held for sale by the bank or trust company or by an affiliate of the bank or trust company in the ordinary course of its business of providing investment services to its customers and do not include any such interests held by the bank or trust company or by an affiliate of the bank or trust company for its own account.
(b) When sold to accounts for which the bank or trust company is acting as a trustee of a trust as defined in s. 731.201:
1. Are available for sale to accounts of other customers; and
2. If sold to other customers, are not sold to the trust accounts upon terms that are less favorable to the buyer than the terms upon which they are normally sold to the other customers.
History.—s. 147, ch. 92-303; s. 18, ch. 2006-217; s. 1, ch. 2007-153; s. 158, ch. 2008-4; s. 19, ch. 2009-115.
660.418 Investment of fiduciary funds in syndicate securities.—Notwithstanding any other provision of law, any financial institution with fiduciary powers may, in its fiduciary capacity, purchase bonds or other securities underwritten or otherwise distributed by the financial institution or by a syndicate that includes the financial institution, or an affiliate of the financial institution, provided that such purchase is made through a licensed securities dealer, is otherwise prudent, and is not prohibited by the instrument governing the fiduciary relationship and that disclosure is made at least annually to those persons entitled to a statement of accounts pursuant to s. 736.0813 indicating that such securities have been or may be purchased. This section applies to purchases of bonds or other securities made at the time of the initial offering of such bonds or securities or at any time after such initial offering.
History.—s. 1, ch. 96-168; s. 20, ch. 2006-217.
660.42 Establishment of common trust funds.—
(1) Any trust company or trust department may establish one or more common trust funds for the exclusive purpose of furnishing investments to itself as fiduciary, including estates, guardianships, managing agencies, and all other fiduciary relationships, now in existence or hereafter created, requiring or authorizing investment of funds held as fiduciary including managing agencies, or to itself and others, as cofiduciaries. It may, as such fiduciary or cofiduciary, invest funds which it lawfully holds for investment in interests in such common trust funds if such investment is not prohibited by the instrument, judgment, decree, or order creating such fiduciary relationship and if, in the case of cofiduciaries, the trust company or trust department procures the consent of its cofiduciary or cofiduciaries to such investment, which consent such cofiduciary is hereby authorized to grant. The full management of the fund shall at all times be in full charge of such trust company or trust department, and no cofiduciary shall have any right to interfere in the management of such common trust funds.
(2) For the purposes of this section, the term “trust company or trust department” includes two or more trust companies or trust departments which are members of the same affiliated group as defined in s. 1504 of the Internal Revenue Code of 1954, as amended, of which any of such trust companies or trust departments is trustee or of which two or more of such trust companies or trust departments are cotrustees. The fiduciary relationship that exists between an individual trust company or trust department and its customer is not altered due to the fact of the enactment of this subsection.
History.—s. 3, ch. 28016, 1953; s. 1, ch. 67-365; s. 3, ch. 76-168; ss. 1, 2, ch. 77-42; s. 1, ch. 77-457; ss. 140, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 148, ch. 92-303.
Note.—Former s. 660.11.
660.43 Common trust fund investments.—No bank, association, or trust company shall mingle its own funds with any common trust fund managed by such bank, association, or trust company.
History.—s. 3, ch. 28016, 1953; s. 1, ch. 67-336; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 141, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 5, ch. 93-257.
Note.—Former s. 660.12.
660.431 Prudent investor rule.—
(1) A bank, association, trust company, or affiliate thereof, in establishing, maintaining, and administering one or more common trust funds for the purposes of furnishing investments to itself as fiduciary as set forth in s. 660.42, shall have a duty to invest and manage such common trust fund assets as follows:
(a) The bank, association, trust company, or affiliate has a duty to invest and manage common trust assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the common trust fund. This standard requires the exercise of reasonable care, any special skills or expertise that the trustee has, and caution and is to be applied to investments not in isolation, but in the context of the common trust fund portfolio as a whole and as a part of an overall investment strategy that should incorporate risk and return objectives reasonably suitable to the common trust fund.
(b) No specific investment or course of action is, taken alone, prudent or imprudent. The bank, association, trust company, or affiliate may invest in every kind or property and type of investment, subject to this section. The bank’s, association’s, trust company’s, or affiliate’s investment decisions and actions are to be judged in terms of its reasonable business judgment regarding the anticipated effect on the common trust fund portfolio as a whole under the facts and circumstances prevailing at the time of the decision or action. The standard set forth in this subsection is a test of conduct and not of resulting performance.
(c) The circumstances that the bank, association, trust company, or affiliate may consider in making investment decisions include, without limitation, the general economic conditions, the possible effect of inflation, the role each investment or course of action plays within the overall portfolio, and the expected total return.
(2) A bank, association, trust company, or affiliate may not delegate the investment functions of a common trust fund established or operating under s. 584 of the Internal Revenue Code of 1986, as amended, pursuant to s. 660.42 except as authorized by the Bureau of the Comptroller of the Currency of the United States Department of the Treasury. A bank, association, trust company, or affiliate may hire one or more agents to give the trustee advice with respect to investments of a common trust fund and pay reasonable and appropriate compensation to the agent provided that the final investment decisions and the exclusive management of the common trust fund remain with the bank, association, trust company, or affiliate.
(3) This section applies to all existing and future common trust funds, but only as to acts or omissions occurring after October 1, 1993.
History.—s. 6, ch. 93-257.
660.44 Common trust fund to be audited annually.—A trust company or trust department administering a common trust fund shall keep proper records, which in addition to all other necessary and proper matters shall show at all times the proportionate interest of each fiduciary account in the common trust fund, and, at least once during each period of 12 months, shall cause an audit to be made of the common trust fund by auditors responsible only to the board of directors of the trust company or trust department. The report of such audit shall include a list of the investments comprising the common trust fund at the time of the audit, which shall show the valuation placed on each item on such list by the board of directors or the trust investment committee of the trust company or trust department as of the date of the audit; a statement of purchases, sales, and any other investment changes and of income and disbursements since the last audit; and appropriate comments as to any investment in default as to payment of principal or interest. The reasonable expenses of any such audit made by independent public accountants may be charged to the common trust fund. The bank, association, or trust company shall manage such common trust funds without charge, save necessary expenses, and it shall send a copy of the latest report of such audit annually to each person to whom a regular periodic accounting of the fiduciary accounts participating in the common trust fund ordinarily would be rendered or shall send advice to each such person annually that the report is available and that a copy will be furnished without charge upon request.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 142, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; ss. 1, 149, ch. 92-303.
Note.—Former s. 660.13.
660.45 Common trust fund court accountings.—Unless ordered by a court of competent jurisdiction, the trust company or trust department operating such common trust funds is not required to render a court accounting with regard to such funds; but it may, by application to the circuit court, secure approval of such an accounting after such notice and on such conditions as the court may establish.
History.—s. 3, ch. 28016, 1953; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 143, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303.
Note.—Former s. 660.14.
660.46 Substitution of fiduciaries.—
(1) The provisions of this section shall apply to the transfer of fiduciary accounts by substitution, and for those purposes these provisions shall constitute alternative procedures to those provided or required by any other provisions of law relating to the transfer of fiduciary accounts or the substitution of persons acting or who are to act in a fiduciary capacity. In this section, and only for its purposes, the term:
(a) “Limitation notice” has the meaning ascribed in s. 736.1008(4).
(b) “Original fiduciary” means any trust company or trust department which, at the time of the initiation of the proceedings provided for in this section, holds or has been named or otherwise designated to hold a fiduciary capacity, alone or with others, with respect to any fiduciary account and which proposes in the proceedings provided for in this section to terminate its fiduciary capacity with respect to such fiduciary account by the substitution of a proposed substitute fiduciary.
(c) “Proposed substitute fiduciary” means any trust company or trust department qualified under the laws of this state to act in the fiduciary capacity to which it is proposed in said proceedings to be substituted in the place and stead of the original fiduciary.
(d) “Trust accounting” has the meaning ascribed in s. 736.08135.
(e) “Trust disclosure document” has the meaning ascribed in s. 736.1008(4)(a).
(2) Any original fiduciary and any proposed substitute fiduciary may, with respect to any fiduciary account or accounts which they shall mutually select, initiate proceedings by joining in the filing of a petition in the circuit court, requesting the substitution of the proposed substitute fiduciary for the original fiduciary as to such fiduciary account or accounts. The petition may be filed in the county in which the main office of the original fiduciary is located and, except to the extent inconsistent with the provisions of this section, shall be governed by the Florida Rules of Civil Procedure; however, if any fiduciary account is then the subject of a proceeding in a court in this state pursuant to the Florida Probate Code, the Florida Guardianship Law, chapter 736, or chapter 747, the petition relating to such fiduciary account shall be filed in that proceeding and shall be governed by the procedural or other relevant rules applicable to such proceeding except to the extent inconsistent with the provisions of this section.
(3) Unless a waiver or consent shall be filed in the proceedings as provided in subsection (4), the provisions of s. 731.301(1) and (2) shall apply with respect to notice of the proceedings to all persons who are then cofiduciaries with the original fiduciary, other than a person joining as a petitioner in the proceedings; to all persons named in the governing instrument as substitutes or successors to the fiduciary capacity of the original fiduciary; to the persons then living who are entitled under the governing instrument to appoint a substitute or successor to act in the fiduciary capacity of the original fiduciary; to all vested beneficiaries of the fiduciary account; and to all then-living originators of the governing instrument. Unless a waiver or consent shall be filed in the proceedings as provided in subsection (4), the provisions of s. 731.301 shall apply with respect to notice to all contingent beneficiaries of the fiduciary account. Only the persons or classes of persons described in the foregoing provisions of this subsection shall be deemed to be interested persons for the purposes of this section and the proceedings and notices provided for in this section; and the provisions of ss. 731.301(3) and 731.303(3) and (4) and part III of chapter 736, relating to notice requirements, the effect of notice, and representation of interests, shall apply to the proceedings provided for in this section.
(4) Any interested person, including a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, may waive any right of notice and may consent to any action or proceeding which may be permitted by this section. Any such waiver or consent must be filed in the proceedings and may be filed at any time, and the notice requirements of this section shall not apply to any person who files any such waiver or consent.
(5) If no answer which constitutes an objection to the petition or the relief requested therein, or which otherwise requires a hearing, is served on the petitioners and filed with the court in which the proceeding is pending by any interested person or class of persons to whom notice has been given as provided in subsection (3), within 30 days from the service of such notice, the petition shall be considered ex parte as to such interested person or class of persons. If an answer which constitutes an objection to the petition or the relief requested therein, or which otherwise requires a hearing, is timely served and filed by any interested person or class of persons, a hearing shall be set and reasonable notice shall be given. The court, upon consideration of the petition and the interests of the interested persons, shall either grant or deny the relief requested by the petition; and, if the relief is granted, the court shall order the proposed substitute fiduciary to be substituted in the place and stead of the original fiduciary, in the fiduciary capacity theretofore held by the original fiduciary, effective on such date as shall be specified in the court order which shall not be more than 30 days from the date of the entry of such order unless a longer period, not exceeding 90 days from the date of the entry of such order, shall be requested by the petitioners. The date so specified may be referred to in this section as the effective date of the order for substitution. The court shall order the requested substitution unless it determines that such substitution would constitute or create a material detriment to the estate, trust, or other fiduciary account or to the interests of the beneficiaries thereof.
(6) All court costs and the fees of guardians ad litem arising in connection with any proceeding hereunder shall be paid by the petitioners and shall not be charged to any fiduciary account.
(7) On the effective date of the order for substitution, the original fiduciary shall transfer and deliver, to the trust company or trust department so substituted by the court order for substitution, each fiduciary account with respect to which the order for substitution is applicable, together with all documents and records pertaining thereto and all other information in the possession of the original fiduciary which may be necessary for the proper continuation of the fiduciary functions; and thereupon the trust company or trust department so substituted shall hold the fiduciary capacity previously held by the original fiduciary and shall have all the rights, powers, and duties theretofore held or exercisable by the original fiduciary by virtue of its former fiduciary capacity, but the trust company or trust department so substituted shall not exercise any right or power which, by the governing instrument, is expressly made personal to the original fiduciary. The proceedings in which the order for substitution was entered shall not be finally terminated until settlement of the final account of the original fiduciary pursuant to the provisions of subsection (8).
(8) Within 30 days after the effective date of an order for substitution entered hereunder, the original fiduciary shall file a final trust accounting with the court and shall send a copy thereof to each interested person who does not file a waiver or consent, together with a notice of the filing of the final trust accounting. The trust company or trust department substituted for the original fiduciary by the court order for substitution shall be deemed to be an interested party for the purposes of this subsection. Objections to a final trust accounting may be filed by any interested party who has not filed a waiver or consent, and, to be considered by the court, any such objections must be filed with the court and served on the original fiduciary within 60 days after a copy of the final trust accounting and notice of the filing of the final trust accounting have been sent to such interested person. Objections shall be tried and determined by the court upon the application of the original fiduciary or any interested person who has not filed a waiver or consent. Upon expiration of the time for filing objections if no objections have been timely filed, or at such earlier time as waivers or consents have been filed by all interested persons, or, if objections have been timely filed by an interested person entitled to do so, then upon the hearing on any such objections, the court shall enter an appropriate order on such final trust accounting and on all unapproved annual or other trust accounting previously filed. If consents to a final trust accounting are filed with the court by all interested persons to whom a copy of the final trust accounting is required hereunder to be sent, the court shall enter an order approving such trust accounting and all unapproved annual or other trust accounting previously filed.
(9) Unless previously or otherwise barred by adjudication, waiver, consent, limitation, or the provisions of subsection (8), an action for breach of trust or breach of fiduciary duties or responsibilities against an original fiduciary in whose place and stead another trust company or trust department has been substituted pursuant to the provisions of this section is barred for any beneficiary who has received a trust disclosure document adequately disclosing the matter unless a proceeding to assert the claim is commenced within 6 months after receipt of the trust disclosure document or the limitation notice that applies to the trust disclosure document, whichever is received later. In any event, and notwithstanding lack of adequate disclosure, all claims against such original fiduciary which has complied with the requirements of s. 736.1008 are barred as provided in chapter 95. Section 736.1008(4)(a) and (c) applies to this subsection.
(10) A beneficiary has received a final trust disclosure document or a limitation notice if, when the beneficiary is an adult, it is received by him or her or if, when the beneficiary is a minor or a disabled person, it is received by his or her representative as provided in part III of chapter 736.
(11) The filing of a petition hereunder or the substitution of fiduciaries pursuant to law shall not be deemed as the resignation by any trust company or trust department of any fiduciary capacity or relationship.
(12) This section applies to trust accountings for accounting periods beginning on or after January 1, 2003, and to written reports, other than trust accountings, received by a beneficiary on or after January 1, 2003.
History.—s. 1, ch. 76-37; s. 3, ch. 76-168; s. 1, ch. 77-174; s. 1, ch. 77-457; ss. 144, 151, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 548, ch. 97-102; s. 192, ch. 2001-226; s. 1, ch. 2002-82; s. 24, ch. 2003-154; s. 19, ch. 2006-217.
Note.—Former s. 660.012.
660.47 Surrender of fiduciary powers.—Any state bank or association which has been granted trust powers and which desires to surrender such rights shall file with the office a certified copy of the resolution of its board of directors signifying such desire. Upon receipt of such resolution, the office shall make an investigation, and when it is satisfied that the trust department has been discharged from all fiduciary duties which it has undertaken, it shall issue a certificate to such bank or association certifying that it is no longer authorized to exercise trust powers.
History.—ss. 145, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1813, ch. 2003-261.
660.48 Receivership or voluntary liquidation.—
(1) If a liquidator or receiver is appointed for a trust company or a state bank or association having a trust department, the liquidator or receiver shall, pursuant to the instructions of the office and the orders of any court and the federal regulatory agency having jurisdiction, proceed to close such fiduciary accounts as can be closed promptly and transfer all other fiduciary accounts to substitute fiduciaries.
(2) If a trust company or a state bank or association having a trust department is placed in voluntary liquidation, the liquidating agent shall, in accordance with applicable law, proceed at once to liquidate the affairs of the trust company and the trust department with respect to its fiduciary accounts, as follows:
(a) All fiduciary accounts over which a court is exercising jurisdiction shall be closed or disposed of as soon as practicable in accordance with the orders or instructions of such court; and
(b) All other fiduciary accounts which can be closed promptly shall be closed as soon as practicable and final accounting shall be made therefor, and all remaining accounts shall be transferred to substitute fiduciaries in accordance with law.
History.—ss. 146, 152, ch. 80-260; ss. 2, 3, ch. 81-318; s. 1, ch. 91-307; s. 1, ch. 92-303; s. 1814, ch. 2003-261.