Senate Bill 2068
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Florida Senate - 1999 SB 2068
By Senator Grant
13-801B-99
1 A bill to be entitled
2 An act relating to trusts and trust powers;
3 amending s. 689.225, F.S.; providing additional
4 exclusions from the statutory rule against
5 perpetuities; providing legislative intent with
6 respect to exclusiveness of statutory rule;
7 amending s. 737.306, F.S.; revising standards
8 governing when a successor trustee is not under
9 a duty to institute an action against a prior
10 trustee or the prior trustee's estate; creating
11 s. 737.2035, F.S.; providing for costs and
12 attorney's fees in trust proceedings; providing
13 applicability; amending s. 660.41, F.S.;
14 excluding certain banks or associations and
15 trust companies from a prohibition against
16 exercising certain powers and duties and acting
17 within certain capacities in this state;
18 providing effective dates.
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20 Be It Enacted by the Legislature of the State of Florida:
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22 Section 1. Effective July 1, 2000, subsection (5) of
23 section 689.225, Florida Statutes, is amended to read:
24 689.225 Statutory rule against perpetuities.--
25 (5) EXCLUSIONS FROM STATUTORY RULE AGAINST
26 PERPETUITIES.--Subsection (2) does not apply to:
27 (a) A nonvested property interest or a power of
28 appointment arising out of a nondonative transfer, except a
29 nonvested property interest or a power of appointment arising
30 out of:
31 1. A premarital or postmarital agreement;
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Florida Senate - 1999 SB 2068
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1 2. A separation or divorce settlement;
2 3. A spouse's election;
3 4. A similar arrangement arising out of a prospective,
4 existing, or previous marital relationship between the
5 parties;
6 5. A contract to make or not to revoke a will or
7 trust;
8 6. A contract to exercise or not to exercise a power
9 of appointment;
10 7. A transfer in satisfaction of a duty of support; or
11 8. A reciprocal transfer;
12 (b) A fiduciary's power relating to the administration
13 or management of assets, including the power of a fiduciary to
14 sell, lease, or mortgage property, and the power of a
15 fiduciary to determine principal and income;
16 (c) A power to appoint a fiduciary;
17 (d) A discretionary power of a trustee to distribute
18 principal before termination of a trust to a beneficiary
19 having an indefeasibly vested interest in the income and
20 principal;
21 (e) A nonvested property interest held by a charity,
22 government, or governmental agency or subdivision, if the
23 nonvested property interest is preceded by an interest held by
24 another charity, government, or governmental agency or
25 subdivision;
26 (f) A nonvested property interest in, or a power of
27 appointment with respect to, a trust or other property
28 arrangement forming part of a pension, profit-sharing, stock
29 bonus, health, disability, death benefit, income deferral, or
30 other current or deferred benefit plan for one or more
31 employees, independent contractors, or their beneficiaries or
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Florida Senate - 1999 SB 2068
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1 spouses, to which contributions are made for the purpose of
2 distributing to or for the benefit of the participants, or
3 their beneficiaries or spouses, the property, income, or
4 principal in the trust or other property arrangement, except a
5 nonvested property interest or a power of appointment that is
6 created by an election of a participant or a beneficiary or
7 spouse; or
8 (g) A property interest, power of appointment, or
9 arrangement that was not subject to the common-law rule
10 against perpetuities or is excluded by another statute of this
11 state; or.
12 (h) A nonvested property interest or a power of
13 appointment when the grantor or creator of such interest or
14 power expresses his or her intention in the written instrument
15 creating such interest or power that the provisions of this
16 section not apply. An election under this paragraph shall be
17 made by a statement in the written instrument that identifies
18 the interest or interests to which the election applies,
19 coupled with an expression of the grantor's or creator's
20 intention that the rule against perpetuities not apply to the
21 interest or interests identified. An election shall not be
22 deemed to have been made by implication merely because
23 provisions of the written instrument violate this section.
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25 This section is the sole expression of any rule against
26 perpetuities, remoteness in vesting, or restraint upon the
27 power of alienation or accumulations in this state. No
28 common-law rule against perpetuities, remoteness in vesting,
29 or restraint upon the power of alienation or accumulations
30 shall exist with respect to interests or powers that are
31 either governed by or excluded from this section.
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Florida Senate - 1999 SB 2068
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1 Section 2. Subsection (3) of section 737.306, Florida
2 Statutes, is amended, and subsection (5) is added to that
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 before or 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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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. Section 737.2035, Florida Statutes, is
28 created to read:
29 737.2035 Costs and attorney's fees in trust
30 proceedings.--
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1 (1) In all trust proceedings, costs may be awarded as
2 in chancery actions.
3 (2) Any attorney who has rendered services to a trust
4 may apply to the court for an order awarding attorney's fees,
5 and, after notice and service upon the trustee and all
6 beneficiaries entitled to an accounting under s. 737.303, the
7 court shall enter its order on the fee application.
8 (3) When costs and attorney's fees are to be paid out
9 of the trust, the court may in its discretion direct from what
10 part of the trust they shall be paid.
11 Section 4. Section 3 applies only to the services of
12 an attorney which are rendered on or after July 1, 1999.
13 Section 5. Effective September 1, 1999, section
14 660.41, Florida Statutes, is amended to read:
15 660.41 Corporations; certain fiduciary functions
16 prohibited.--All corporations, except banks or associations
17 and trust companies incorporated under the laws of this state
18 and having trust powers and except national banking
19 associations or federal associations located in this state and
20 having trust powers, are prohibited from exercising any of the
21 powers or duties and from acting in any of the capacities,
22 within this state, as follows:
23 (1) As personal representative of the estate of any
24 decedent, whether such decedent was a resident of this state
25 or not, and whether the administration of the estate of such
26 decedent is original or ancillary; however, if the personal
27 representative of the estate of a nonresident decedent is a
28 corporation duly authorized, qualified, and acting as such
29 personal representative in the jurisdiction of the domicile of
30 the decedent, it may as a foreign personal representative
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1 perform such duties and exercise such powers and privileges as
2 are required, authorized, or permitted by s. 734.101.
3 (2) As receiver or trustee under appointment of any
4 court in this state.
5 (3) As assignee, receiver, or trustee of any insolvent
6 person or corporation or under any assignment for the benefit
7 of creditors.
8 (4) As fiscal agent, transfer agent, or registrar of
9 any municipal or private corporation, except that this
10 prohibition shall not be so construed as to prevent banks,
11 associations, and trust companies not located in this state
12 from acting within the state where located as fiscal agent,
13 transfer agent, or registrar of municipal or private
14 corporations of this state. Nothing herein shall prevent any
15 Florida corporation that is not a bank, association, or trust
16 company and that does not have trust powers from being its own
17 fiscal agent, transfer agent, or registrar concerning its own
18 affairs, stock, or securities. Nothing herein shall prevent
19 any Florida corporation or corporation having its principal
20 place of business in Florida registered as a transfer agent
21 with the Federal Deposit Insurance Corporation, the
22 Comptroller of the Currency, the Board of Governors of the
23 Federal Reserve System, or the Securities and Exchange
24 Commission from acting as a transfer agent for any other
25 private corporation. Nothing in this section or in any other
26 law of this state shall be construed to prohibit a foreign
27 bank, foreign association, or foreign trust company as trustee
28 of any charitable foundation or endowment, employees' pension,
29 retirement or profit-sharing trust, alone or together with a
30 cotrustee, from: making loans or committing to make loans to
31 any other person; contracting, in this state or elsewhere,
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1 with any person to acquire from such person a part or the
2 entire interest in a loan which such person proposes to make,
3 has heretofore made, or hereafter makes, together with a like
4 interest in any security instrument covering real or personal
5 property in the state proposed to be given or hereafter or
6 heretofore given to such person to secure or evidence such
7 loan; servicing directly or entering into servicing contracts
8 with persons, and enforcing in this state the loans made by it
9 or obligations heretofore or hereafter acquired by it in the
10 transaction of business outside this state or in the
11 transaction of any business authorized or permitted hereby; or
12 acquiring, holding, leasing, mortgaging, contracting with
13 respect to, or otherwise protecting, managing, or conveying
14 property in this state which has heretofore or may hereafter
15 be assigned, transferred, mortgaged, or conveyed to it as
16 security for, or in whole or in part in satisfaction of, a
17 loan or loans made by it or obligations acquired by it in the
18 transaction of any business authorized or permitted hereby.
19 However, no such foreign bank, foreign association, or foreign
20 trust company shall be deemed to be transacting business in
21 this state, shall be required to qualify so to do, or shall be
22 deemed to be unlawfully exercising powers or duties, acting in
23 an unlawful or prohibited capacity, or violating any of the
24 provisions of this section or of any other law of this state
25 solely by reason of the performance of any of the acts or
26 business hereinbefore permitted or authorized hereby; further,
27 nothing herein shall be construed as authorizing or permitting
28 any foreign bank, association, or trust company to maintain an
29 office within this state.
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1 This section does not apply to banks or associations and trust
2 companies incorporated under the laws of this state and having
3 trust powers, banks or associations and trust companies
4 resulting from an interstate merger transaction with a Florida
5 bank pursuant to s. 658.2953 and having trust powers, or
6 national banking associations or federal associations located
7 in this state and having trust powers.
8 Section 6. This act shall take effect July 1, 1999.
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11 SENATE SUMMARY
12 Excludes certain instruments from the statutory rule
against perpetuities when the maker expressly declares
13 his or her intent that it not do so. Provides that the
statutory rule against perpetuities is the sole
14 expression of any rule against perpetuities, remoteness
in vesting, or restraint upon the power of alienation or
15 accumulations. Provides circumstances under which a
successor trustee is not under a duty to institute an
16 action against a prior trustee or the prior trustee's
estate. Authorizes the award of costs and attorney's fees
17 in trust proceedings. Excludes banks or associations and
trust companies resulting from an interstate merger
18 transaction with a Florida bank under Florida law and
having trust powers from a prohibition against
19 corporations conducting trust business in Florida. (See
bill for details.)
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