The Florida Senate

737.4032  Nonjudicial modification of trusts.--

(1)  A trust which is not revocable may be modified at any time after the settlor's death, upon the unanimous agreement of the trustee and all beneficiaries of the trust, to:

(a)  Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust;

(b)  Terminate the trust in whole or in part;

(c)  Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or

(d)  Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.

(2)  This section shall not apply to any trust for which a charitable deduction is allowed or allowable under the Internal Revenue Code until the termination of all charitable interests in the trust.

(3)  An agreement to modify a trust under this section shall be binding upon a person with a beneficial interest in the trust who is unborn or unascertained, whose identity is not then known for any reason, or who is a minor or under a legal disability, to the extent that his or her interest is represented by another beneficiary having the same or greater quality of beneficial interest in the trust, but only to the extent there is no conflict of interest between such person and such beneficiary or among the persons represented.

(4)  To the extent the interests of any person having a beneficial interest in a trust who is unborn or unascertained, whose identity is not then known for any reason, or who is a minor or under a legal disability are not represented by a beneficiary under subsection (3), such person shall be represented by the person's legal guardian if there is one or, if the person does not have a legal guardian, such person shall be represented by a guardian ad litem appointed by the court upon application by the trustee or any beneficiary. Unless the court requires otherwise, the guardian ad litem's decision whether to consent to modify the trust shall be binding upon any person represented by the guardian ad litem without seeking court approval.

(5)  This section shall not apply to a trust created prior to January 1, 2001.

(6)  This section shall not apply to a trust created after December 31, 2000, if, under the terms of the trust, all beneficial interests in the trust must vest or terminate within the period prescribed by the rule against perpetuities in s. 689.225(2), notwithstanding s. 689.225(2)(f), unless the terms of the trust expressly permit modification under this section.

(7)  Modification of a trust as authorized in this section is not prohibited by a spendthrift clause, or by a provision in the trust instrument that prohibits amendment or revocation of the trust.

(8)  For purposes of this section:

(a)  "Beneficiary" means:

1.  All current income or principal beneficiaries, whether the beneficiaries' beneficial interests are discretionary or mandatory.

2.  All reasonably ascertainable beneficiaries if all current income interests immediately terminated, determined as if any power of appointment over the trust assets were not exercised.

(b)  "Trust" means trust as defined in s. 731.201

(c)  A trust is revocable if revocable by the settlor alone or in conjunction with any other person. A trust is not revocable for purposes of this section if revocable by the settlor only with the consent of all persons having a beneficial interest in the property.

(d)  A trust which is revocable shall be treated as created when the right of revocation terminates.

(9)  The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, or revoke trusts.

History.--s. 7, ch. 2000-245.