House Bill 1659c1

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    Florida House of Representatives - 1999             CS/HB 1659

        By the Committee on Real Property & Probate and
    Representatives Bilirakis, Crow, C. Green, Detert, Henriquez
    and Dockery




  1                      A bill to be entitled

  2         An act relating to trusts and trust powers;

  3         creating s. 737.2035, F.S.; providing for costs

  4         and attorney's fees in trust proceedings;

  5         providing applicability; amending s. 737.306,

  6         F.S.; revising standards governing when a

  7         successor trustee is not under a duty to

  8         institute an action against a prior trustee or

  9         the prior trustee's estate; providing an

10         effective date.

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12  Be It Enacted by the Legislature of the State of Florida:

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14         Section 1.  Section 737.2035, Florida Statutes, is

15  created to read:

16         737.2035  Costs and attorney's fees in trust

17  proceedings.--

18         (1)  In all trust proceedings, costs may be awarded as

19  in chancery actions.

20         (2)  Any attorney who has rendered services to a trust

21  may apply to the court for an order awarding attorney's fees,

22  and, after notice and service upon the trustee and all

23  beneficiaries entitled to an accounting under s. 737.303, the

24  court shall enter its order on the fee application.

25         (3)  When costs and attorney's fees are to be paid out

26  of the trust, the court may, in its discretion, direct from

27  what part of the trust they shall be paid.

28         (4)  The provisions of this section shall apply only to

29  services of an attorney rendered on or after July 1, 1999.

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    Florida House of Representatives - 1999             CS/HB 1659

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  1         Section 2.  Subsection (3) of section 737.306, Florida

  2  Statutes, is amended, and subsection (5) is added to said

  3  section, to read:

  4         737.306  Personal liability of trustee.--

  5         (3)  A successor trustee succeeding a trustee who was

  6  also the grantor of the trust is not personally liable for any

  7  action taken or omitted to be taken by any such prior trustee;

  8  nor does any such successor trustee have a duty to institute

  9  any action against any such prior trustee, or file any claim

10  against any such prior trustee's estate, for any of the prior

11  trustee's acts or omissions as trustee under any of the

12  following circumstances:. This subsection applies only with

13  respect to a trust that is revocable during the time that the

14  grantor serves as trustee.

15         (a)  The successor trustee succeeds a trustee who was

16  also the grantor of a trust that was revocable during the time

17  that the grantor served as trustee;

18         (b)  As to any beneficiary who has waived any

19  accounting required by s. 737.303, but only as to the periods

20  included in such waiver;

21         (c)  As to any beneficiary who has released the

22  successor trustee from such duty to institute any action or

23  file any claim;

24         (d)  As to any person who is not a beneficiary within

25  the meaning of s. 737.303(4)(b); or

26         (e)  As to any beneficiary described in s.

27  737.303(4)(b):

28         1.  If a super majority of the reasonably ascertainable

29  current income or principal beneficiaries described in s.

30  737.303(4)(b)1. and a super majority of the reasonably

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    Florida House of Representatives - 1999             CS/HB 1659

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  1  ascertainable remainder beneficiaries described in s.

  2  737.303(4)(b)2. have released the successor trustee;

  3         2.  If the beneficiary has not delivered a written

  4  request to the successor trustee to institute an action or

  5  file a claim against the prior trustee within 6 months after

  6  the date of the successor trustee's acceptance of the trust,

  7  if the successor trustee has notified the beneficiary in

  8  writing of its acceptance in accordance with s. 737.303(1) and

  9  such writing advises the beneficiary that, unless the

10  beneficiary delivers such written request within 6 months

11  after the date of acceptance, his or her right to proceed

12  against the successor trustee will be barred pursuant to this

13  section; or

14         3.  For any action or claim that the beneficiary is

15  barred from bringing against the prior trustee.

16         (5)  For the purposes of this section, a super majority

17  of beneficiaries means at least two-thirds in interest of the

18  beneficiaries if the interests of the beneficiaries are

19  reasonably ascertainable; otherwise, it means at least

20  two-thirds in number of the beneficiaries. A release or waiver

21  under this section may be exercised by a legal representative

22  or natural guardian of the beneficiary without the filing of

23  any proceeding or approval of any court. Nothing in subsection

24  (3) affects any liability of the prior trustee or the right of

25  the successor trustee or any beneficiary to pursue an action

26  or claim against the prior trustee.

27         Section 3.  This act shall take effect July 1, 1999.

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