House Bill 1659er

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    1999 Legislature                   CS/HB 1659, First Engrossed



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  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; requiring attorneys to

  6         give notice to trustees in specified

  7         circumstances; allowing courts to adjust

  8         attorney's fees when notice is late amending s.

  9         737.306, F.S.; revising standards governing

10         when a successor trustee is not under a duty to

11         institute an action against a prior trustee or

12         the prior trustee's estate; providing an

13         effective date.

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

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17         Section 1.  Section 737.2035, Florida Statutes, is

18  created to read:

19         737.2035  Costs and attorney's fees in trust

20  proceedings.--

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

22  in chancery actions.

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

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

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

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

27  court shall enter its order on the fee application.

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

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

30  what part of the trust they shall be paid.

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    1999 Legislature                   CS/HB 1659, First Engrossed



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

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

  3         (5)  Except when a trustee's interest may be adverse in

  4  a particular matter, the attorney shall give reasonable notice

  5  in writing to the trustee of the attorney's retention by an

  6  interested person and the attorney's entitlement to fees

  7  pursuant to this section.  A court may reduce any fee award

  8  for services rendered by the attorney prior to the date of

  9  actual notice to the trustee, if the actual notice date is

10  later than a date of reasonable notice.  In exercising this

11  discretion, the court may exclude compensation for services

12  rendered after the reasonable notice date but prior to the

13  date of actual notice.

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

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

16  section, to read:

17         737.306  Personal liability of trustee.--

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

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

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

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

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

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

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

25  following circumstances:. This subsection applies only with

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

27  grantor serves as trustee.

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

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

30  that the grantor served as trustee;

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    1999 Legislature                   CS/HB 1659, First Engrossed



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

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

  3  included in such waiver;

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

  5  successor trustee from such duty to institute any action or

  6  file any claim;

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

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

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

10  737.303(4)(b):

11         1.  If a super majority of the reasonably ascertainable

12  current income or principal beneficiaries described in s.

13  737.303(4)(b)1. and a super majority of the reasonably

14  ascertainable remainder beneficiaries described in s.

15  737.303(4)(b)2. have released the successor trustee;

16         2.  If the beneficiary has not delivered a written

17  request to the successor trustee to institute an action or

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

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

20  if the successor trustee has notified the beneficiary in

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

22  such writing advises the beneficiary that, unless the

23  beneficiary delivers such written request within 6 months

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

25  against the successor trustee will be barred pursuant to this

26  section; or

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

28  barred from bringing against the prior trustee.

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

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

31  beneficiaries if the interests of the beneficiaries are


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    1999 Legislature                   CS/HB 1659, First Engrossed



  1  reasonably ascertainable; otherwise, it means at least

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

  3  under this section may be exercised by a legal representative

  4  or natural guardian of the beneficiary without the filing of

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

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

  7  the successor trustee or any beneficiary to pursue an action

  8  or claim against the prior trustee.

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

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