House Bill 0599er

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  2         An act relating to trusts; amending s. 689.225,

  3         F.S.; revising certain criteria for application

  4         of the rule against perpetuities to certain

  5         trusts; specifying exclusivity of application

  6         of the rule; excluding common-law expressions

  7         of the rule; amending s. 737.206, F.S.;

  8         removing provision governing timing for

  9         contesting validity of a trust; creating s.

10         737.2065, F.S.; providing timing for contesting

11         validity of a trust; amending s. 737.303, F.S.;

12         revising duty of trustee to inform or account

13         to beneficiaries of a trust; amending s.

14         737.625, F.S.; revising prohibition against a

15         killer's entitlement to benefits from a trust;

16         creating s. 737.626, F.S.; creating a provision

17         to govern evidence as to death or status in

18         trust proceedings; creating ss. 737.4031,

19         737.4032, and 737.4033, F.S.; providing for

20         judicial and nonjudicial modifications of

21         certain trusts under certain circumstances;

22         providing for representation of certain persons

23         in modification actions; specifying

24         nonapplication to certain trusts; providing

25         definitions; providing construction; providing

26         application relating to common law; providing

27         for award of costs and attorney fees in

28         modification proceedings; providing an

29         effective date.

30

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


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  1         Section 1.  Paragraph (f) is added to subsection (2) of

  2  section 689.225, Florida Statutes, and subsection (7) of said

  3  section is amended, to read:

  4         689.225  Statutory rule against perpetuities.--

  5         (2)  STATEMENT OF THE RULE.--

  6         (f)  As to any trust created after December 31, 2000,

  7  this section shall apply to a nonvested property interest or

  8  power of appointment contained in a trust by substituting 360

  9  years in place of "90 years" in each place such term appears

10  in this section unless the terms of the trust require that all

11  beneficial interests in the trust vest or terminate within a

12  lesser period.

13         (7)  RULE OF CONSTRUCTION.--With respect to any matter

14  relating to the validity of an interest within the rule

15  against perpetuities, unless a contrary intent appears, it

16  shall be presumed that the transferor of the interest intended

17  that the interest be valid. This section is the sole

18  expression of any rule against perpetuities or remoteness in

19  vesting in this state.  No common-law rule against

20  perpetuities or remoteness in vesting shall exist with respect

21  to any interest or power regardless of whether such interest

22  or power is governed by this section.

23         Section 2.  Section 737.206, Florida Statutes, is

24  amended to read:

25         737.206  Effect of fraud, duress, mistake, and undue

26  influence.--A trust is void if the execution is procured by

27  fraud, duress, mistake, or undue influence.  Any part of the

28  trust is void if so procured, but the remainder of the trust

29  not so procured is valid if it is not invalid for other

30  reasons.  An action to contest the validity of all or part of

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  1  a trust may not be commenced until the trust becomes

  2  irrevocable.

  3         Section 3.  Section 737.2065, Florida Statutes, is

  4  created to read:

  5         737.2065  Trust contests.--An action to contest the

  6  validity of all or part of a trust may not be commenced until

  7  the trust becomes irrevocable.

  8         Section 4.  Section 737.303, Florida Statutes, is

  9  amended to read:

10         737.303  Duty to inform and account to

11  beneficiaries.--The trustee shall keep the beneficiaries of

12  the trust reasonably informed of the trust and its

13  administration. The trustee's duty to inform and account

14  includes, but is not limited to, the following:

15         (1)  Within 30 days after acceptance of the trust, the

16  trustee shall inform the beneficiaries in writing of the

17  acceptance of the trust and the full name and address of the

18  trustee.

19         (2)  Upon reasonable request, the trustee shall provide

20  a beneficiary with a complete copy of the trust instrument,

21  including amendments.

22         (3)  Upon reasonable request, the trustee shall provide

23  a beneficiary with relevant information about the assets of

24  the trust and the particulars relating to administration.

25         (4)(a)  A beneficiary is entitled to a statement of the

26  accounts of the trust annually and upon termination of the

27  trust or upon change of the trustee except as provided under

28  paragraph (c).

29         (b)  For purposes of this section, the term

30  "beneficiary" means:

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  1         1.  All current income or principal beneficiaries,

  2  whether discretionary or mandatory; and

  3         2.  All reasonably ascertainable remainder

  4  beneficiaries who would take if all income interests

  5  immediately terminated.

  6         (c)  In the case of a trust described in s. 733.707(3),

  7  during the grantor's lifetime, the trustee's duties under this

  8  section paragraph (a) extend only to the grantor or the legal

  9  representative of the grantor during the grantor's lifetime.

10         (d)  A beneficiary or the beneficiary's representative,

11  as defined in s. 731.303, may waive, in writing, the trustee's

12  duty to account under paragraph (a).

13         (e)  All rights provided a beneficiary under this

14  section may be asserted by a legal representative or natural

15  guardian of the beneficiary. Notice under subsection (1) and a

16  statement of accounts under paragraph (a) provided to a

17  representative of the beneficiary as defined in s. 731.303

18  shall bind the beneficiary, and the trustee shall not be

19  required to provide such notice or statement of accounts to

20  any beneficiary who would be bound by an order binding on a

21  representative of the beneficiary under s. 731.303, if such

22  notice or statement of accounts, respectively, is provided to

23  that representative.

24         Section 5.  Section 737.625, Florida Statutes, is

25  amended to read:

26         737.625  Killer not entitled to receive property or

27  other benefits by reason of victim's death.--

28         (1)A beneficiary of a trust who unlawfully and

29  intentionally kills or unlawfully and intentionally

30  participates in procuring the death of the grantor or another

31  person upon whose death such beneficiary's interest depends,


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  1  shall not be entitled to any trust interest, including

  2  homestead, dependent upon the victim's death, and such

  3  interest shall devolve as though the killer had predeceased

  4  the victim.

  5         (2)  A final judgment of conviction of murder in any

  6  degree is conclusive for the purposes of this section. In the

  7  absence of a murder conviction in any degree, the court may

  8  determine by the greater weight of the evidence whether the

  9  killing was unlawful and intentional for purposes of this

10  section.

11         Section 6.  Section 737.626, Florida Statutes, is

12  created to read:

13         737.626  Evidence as to death or status.--In

14  proceedings concerning trusts, this section relating to

15  determination of death and status is applicable:

16         (1)  An authenticated copy of a death certificate

17  issued by an official or agency of the place where the death

18  purportedly occurred is prima facie evidence of the fact,

19  place, date, and time of death and the identity of the

20  decedent.

21         (2)  A copy of any record or report of a governmental

22  agency, domestic or foreign, that a person is alive, missing,

23  detained, or, from the facts related, presumed dead is prima

24  facie evidence of the status and of the dates, circumstances

25  and places disclosed by the record or report.

26         (3)  A person who is absent from the place of his or

27  her last known domicile for a continuous period of five years

28  and whose absence is not satisfactorily explained after

29  diligent search and inquiry is presumed to be dead. The

30  person's death is presumed to have occurred at the end of the

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  1  period unless there is evidence establishing that death

  2  occurred earlier.

  3         (4)  This section does not preclude the establishment

  4  of death by direct or circumstantial evidence prior to

  5  expiration of the five year time period set forth in

  6  subsection (3).

  7         Section 7.  Sections 737.4031, 737.4032, and 737.4033,

  8  Florida Statutes, are created to read:

  9         737.4031  Judicial modification of trusts.--

10         (1)  If the purposes of a trust have been fulfilled or

11  have become illegal or impossible to fulfill or, if because of

12  circumstances not known to or anticipated by the settlor,

13  compliance with the terms of the trust would defeat or

14  substantially impair the accomplishment of a material purpose

15  of the trust or, if a material purpose of the trust no longer

16  exists, upon the application of a trustee of the trust or any

17  beneficiary a court at any time may modify the terms of a

18  trust which is not then revocable to:

19         (a)  Amend or change the terms of the trust, including

20  terms governing distribution of the trust income or principal,

21  or terms governing administration of the trust;

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

23         (c)  Direct or permit the trustee to do acts that are

24  not authorized or that are prohibited by the terms of the

25  trust; or

26         (d)  Prohibit the trustee from performing acts that are

27  permitted or required by the terms of the trust.

28         (2)  Upon the application of a trustee of the trust or

29  any beneficiary, a trust which is not then revocable may be

30  modified at any time by a court as provided in subsection (1),

31  and without regard to the reasons for modification provided in


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  1  subsection (1), if compliance with the terms of the trust is

  2  not in the best interest of the persons having a beneficial

  3  interest in the trust.

  4         (a)  The court shall exercise its discretion to order a

  5  modification of the trust under this subsection in a manner

  6  that conforms to the extent possible with the intention of the

  7  settlor, taking into account the current circumstances and

  8  best interests of the beneficiaries.

  9         (b)  This subsection shall not apply to a trust created

10  prior to January 1, 2001.

11         (c)  This subsection shall not apply to a trust created

12  after December 31, 2000, if:

13         1.  Under the terms of the trust, all beneficial

14  interests in the trust must vest or terminate within the

15  period prescribed by the rule against perpetuities in s.

16  689.225(2), notwithstanding s. 689.225(2)(f).

17         2.  The terms of the trust expressly prohibit judicial

18  modification.

19         (d)  Modification of a trust, as authorized in this

20  subsection, is not prohibited by a provision in the trust

21  instrument that prohibits amendment or revocation of the trust

22  if the provision does not expressly prohibit judicial

23  modification.

24         (3)  In exercising its discretion to order a

25  modification of a trust under this section, the court shall

26  consider the terms and purposes of the trust, the facts and

27  circumstances surrounding the creation of the trust, and

28  extrinsic evidence relevant to the proposed modification.

29         (4)  To the extent the interests of any person with a

30  beneficial interest in the trust who is unborn or

31  unascertained, whose identity is not then known for any


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  1  reason, or who is a minor or under a legal disability are not

  2  represented by another beneficiary, such person shall be

  3  represented by the person's legal guardian, if any, or, if

  4  none, by a guardian ad litem appointed by the court upon the

  5  court's own motion or upon application by the trustee or any

  6  beneficiary.

  7         (5)  The court shall consider spendthrift provisions as

  8  a factor in making a decision whether to modify a trust under

  9  this section, but the court is not precluded from exercising

10  authority to modify the trust because the trust contains

11  spendthrift provisions.

12         (6)  For purposes of this section:

13         (a)  "Beneficiary" means:

14         1.  All current income or principal beneficiaries,

15  whether the beneficiaries' beneficial interests are

16  discretionary or mandatory.

17         2.  All reasonably ascertainable beneficiaries if all

18  current income interests immediately terminated, determined as

19  if any power of appointment over the trust assets were not

20  exercised.

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

22         (c)  A trust is revocable if revocable by the settlor

23  alone or in conjunction with any other person.  A trust is not

24  revocable for purposes of this section if revocable by the

25  settlor only with the consent of all persons having a

26  beneficial interest in the property.

27         (d)  A trust which is revocable shall be treated as

28  created when the right of revocation terminates.

29         (7)  The provisions of this section are in addition to,

30  and not in derogation of, rights under the common law to

31  modify, amend, or revoke trusts.


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  1         737.4032  Nonjudicial modification of trusts.--

  2         (1)  A trust which is not revocable may be modified at

  3  any time after the settlor's death, upon the unanimous

  4  agreement of the trustee and all beneficiaries of the trust,

  5  to:

  6         (a)  Amend or change the terms of the trust, including

  7  terms governing distribution of the trust income or principal

  8  or terms governing administration of the trust;

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

10         (c)  Direct or permit the trustee to do acts that are

11  not authorized or that are prohibited by the terms of the

12  trust; or

13         (d)  Prohibit the trustee from performing acts that are

14  permitted or required by the terms of the trust.

15         (2)  This section shall not apply to any trust for

16  which a charitable deduction is allowed or allowable under the

17  Internal Revenue Code until the termination of all charitable

18  interests in the trust.

19         (3)  An agreement to modify a trust under this section

20  shall be binding upon a person with a beneficial interest in

21  the trust who is unborn or unascertained, whose identity is

22  not then known for any reason, or who is a minor or under a

23  legal disability, to the extent that his or her interest is

24  represented by another beneficiary having the same or greater

25  quality of beneficial interest in the trust, but only to the

26  extent there is no conflict of interest between such person

27  and such beneficiary or among the persons represented.

28         (4)  To the extent the interests of any person having a

29  beneficial interest in a trust who is unborn or unascertained,

30  whose identity is not then known for any reason, or who is a

31  minor or under a legal disability are not represented by a


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  1  beneficiary under subsection (3), such person shall be

  2  represented by the person's legal guardian if there is one or,

  3  if the person does not have a legal guardian, such person

  4  shall be represented by a guardian ad litem appointed by the

  5  court upon application by the trustee or any beneficiary.

  6  Unless the court requires otherwise, the guardian ad litem's

  7  decision whether to consent to modify the trust shall be

  8  binding upon any person represented by the guardian ad litem

  9  without seeking court approval.

10         (5)  This section shall not apply to a trust created

11  prior to January 1, 2001.

12         (6)  This section shall not apply to a trust created

13  after December 31, 2000, if, under the terms of the trust, all

14  beneficial interests in the trust must vest or terminate

15  within the period prescribed by the rule against perpetuities

16  in s. 689.225(2), notwithstanding s. 689.225(2)(f), unless the

17  terms of the trust expressly permit modification under this

18  section.

19         (7)  Modification of a trust as authorized in this

20  section is not prohibited by a spendthrift clause, or by a

21  provision in the trust instrument that prohibits amendment or

22  revocation of the trust.

23         (8)  For purposes of this section:

24         (a)  "Beneficiary" means:

25         1.  All current income or principal beneficiaries,

26  whether the beneficiaries' beneficial interests are

27  discretionary or mandatory.

28         2.  All reasonably ascertainable beneficiaries if all

29  current income interests immediately terminated, determined as

30  if any power of appointment over the trust assets were not

31  exercised.


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

  2         (c)  A trust is revocable if revocable by the settlor

  3  alone or in conjunction with any other person.  A trust is not

  4  revocable for purposes of this section if revocable by the

  5  settlor only with the consent of all persons having a

  6  beneficial interest in the property.

  7         (d)  A trust which is revocable shall be treated as

  8  created when the right of revocation terminates.

  9         (9)  The provisions of this section are in addition to,

10  and not in derogation of, rights under the common law to

11  modify, amend, or revoke trusts.

12         737.4033  Costs and attorney's fees.--In all

13  proceedings under s. 737.4031 or s. 737.4032, the court shall

14  award taxable costs as in chancery actions, including

15  attorney's fees and guardian ad litem fees, and such costs may

16  be paid from the trust or as otherwise directed by the court.

17         Section 8.  This act shall take effect December 31,

18  2000.

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