CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 The Committee on Judicial Oversight offered the following:
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13 Amendment (with title amendment)
14 Remove everything after the enacting clause
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16 and insert:
17 Section 1. Section 731.303, Florida Statutes, is
18 amended to read:
19 731.303 Representation.--In the administration of or
20 in proceedings involving estates of decedents or trusts, the
21 following apply:
22 (1) Persons are bound by orders binding others in the
23 following cases:
24 (a) Orders binding the sole holder or all coholders of
25 a power of revocation or a general, special, or limited power
26 of appointment, including one in the form of a power of
27 amendment or revocation to the extent that the power has not
28 become unexercisable in fact, bind all persons to the extent
29 that their interests, as persons who may take by virtue of the
30 exercise or nonexercise of the power, are subject to the
31 power.
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 (b) To the extent there is no conflict of interest
2 between them or among the persons represented:
3 1. Orders binding a guardian of the property bind the
4 ward.
5 2. Orders binding a trustee bind beneficiaries of the
6 trust in proceedings to probate a will, in establishing or
7 adding to a trust, in reviewing the acts or accounts of a
8 prior fiduciary, and in proceedings involving creditors or
9 other third parties.
10 3. Orders binding a personal representative bind
11 persons interested in the undistributed assets of a decedent's
12 estate, in actions or proceedings by or against the estate.
13 (c) An unborn or unascertained person, or a minor or
14 any other person under a legal disability, who is not
15 otherwise represented is bound by an order to the extent that
16 person's interest is represented by another party having the
17 same or greater quality of interest in the proceeding.
18 (2) Orders binding a guardian of the person shall not
19 bind the ward.
20 (3) In judicial proceedings involving the
21 administration of estates or trusts, notice is required as
22 follows:
23 (a) Notice as prescribed by the Florida Probate Rules
24 shall be given to every interested person, or to one who can
25 bind the interested person as described in paragraph (1)(a) or
26 paragraph (1)(b). Notice may be given both to the interested
27 person and to another who can bind him or her.
28 (b) Notice is given to unborn or unascertained persons
29 who are not represented pursuant to paragraph (1)(a) or
30 paragraph (1)(b) by giving notice to all known persons whose
31 interests in the proceedings are the same as, or of a greater
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 quality than, those of the unborn or unascertained persons.
2 (4) If the court determines that representation of the
3 interest would otherwise be inadequate, the court may, at any
4 time, appoint a guardian ad litem to represent the interests
5 of an incapacitated person, an unborn or unascertained person,
6 a minor or any other person otherwise under a legal
7 disability, or a person whose identity or address is unknown.
8 If not precluded by conflict of interest, a guardian ad litem
9 may be appointed to represent several persons or interests.
10 (5) When a sole holder or coholder Agreements,
11 waivers, consents, approvals, accounts, or other statements
12 that fully disclose the matters that are the subject of the
13 accounts or statements and that bind the sole holder or all
14 coholders of a general, special, or limited power of
15 appointment, including an exercisable a power of amendment or
16 revocation over property in an estate or trust, is bound by:
17 (a) Agreements, waivers, consents, or approvals; or
18 (b) Accounts, trust accountings, or other written
19 reports that adequately disclose matters set forth therein. to
20 the extent that the power has not become unexercisable in
21 fact, bind all persons to the extent that their interests, as
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23 then all persons who may take by virtue of, and whose
24 interests are subject to, the exercise or nonexercise of the
25 power, are also bound, but only to the extent of their
26 interests subject to the power.
27 Section 2. Paragraph (e) of subsection (1) of section
28 732.2075, Florida Statutes, is amended to read:
29 732.2075 Sources from which elective share payable;
30 abatement.--
31 (1) Unless otherwise provided in the decedent's will
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 or, in the absence of a provision in the decedent's will, in a
2 trust referred to in the decedent's will, the following are
3 applied first to satisfy the elective share:
4 (e) Property interests included in the elective estate
5 that pass or have passed to or for the benefit of the
6 surviving spouse, including interests that are contingent upon
7 making the election, but only to the extent that such
8 contingent interests do not diminish other property interests
9 that would be applied to satisfy the elective share in the
10 absence of the contingent interests.
11 Section 3. Section 733.107, Florida Statutes, is
12 amended to read:
13 733.107 Burden of proof in contests; presumption of
14 undue influence.--
15 (1) In all proceedings contesting the validity of a
16 will, the burden shall be upon the proponent of the will to
17 establish prima facie its formal execution and attestation.
18 Thereafter, the contestant shall have the burden of
19 establishing the grounds on which the probate of the will is
20 opposed or revocation is sought.
21 (2) The presumption of undue influence implements
22 public policy against abuse of fiduciary or confidential
23 relationships and is therefore a presumption shifting the
24 burden of proof under ss. 90.301 through 90.304.
25 Section 4. Subsection (1) of section 733.702, Florida
26 Statutes, is amended to read:
27 733.702 Limitations on presentation of claims.--
28 (1) If not barred by s. 733.710, no claim or demand
29 against the decedent's estate that arose before the death of
30 the decedent, including claims of the state and any of its
31 political subdivisions, even if the claims are unmatured,
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 contingent, or unliquidated; no claim for funeral or burial
2 expenses; no claim for personal property in the possession of
3 the personal representative; and no claim for damages,
4 including, but not limited to, an action founded on fraud or
5 another wrongful act or omission of the decedent, is binding
6 on the estate, on the personal representative, or on any
7 beneficiary unless filed in the probate proceeding on or
8 before within the later of the date that is 3 months after the
9 time of the first publication of the notice to creditors or,
10 as to any creditor required to be served with a copy of the
11 notice to creditors, 30 days after the date of service on the
12 creditor, even though the personal representative has
13 recognized the claim or demand by paying a part of it or
14 interest on it or otherwise. The personal representative may
15 settle in full any claim without the necessity of the claim
16 being filed when the settlement has been approved by the
17 interested persons.
18 Section 5. Section 737.115, Florida Statutes, is
19 created to read:
20 737.115 Notice of trustee duties.--
21 (1) A trust described in s. 733.707(3) must contain a
22 notice that the trustee may have duties and responsibilities
23 in addition to those described in the instrument creating the
24 trust. The notice may, but need not, read as follows:
25 "The trustee of a trust may have duties and
26 responsibilities in addition to those described
27 in the instrument creating the trust. If you
28 have questions you should obtain legal advice."
29 (2) The absence of the notice described in this
30 section in the trust instrument does not affect the validity
31 of the trust. A trustee is not relieved of any duty if the
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 notice is not contained in the trust instrument. No person is
2 liable for the failure to include the notice in the trust
3 instrument.
4 (3) This section applies to all trusts described in s.
5 733.707(3) and amendments to those trusts executed on or after
6 January 1, 2003.
7 Section 6. Section 737.116, Florida Statutes, is
8 created to read:
9 737.116 Trust for care of animal.--
10 (1) A trust may be created to provide for the care of
11 an animal alive during the settlor's lifetime. The trust
12 terminates upon the death of the animal or, if the trust was
13 created to provide for the care of more than one animal alive
14 during the settlor's lifetime, upon the death of the last
15 surviving animal.
16 (2) Except as provided in this section, the law of
17 this state regarding the creation and administration of
18 express trusts applies to a trust for the care of an animal.
19 (3) A trust authorized by this section may be enforced
20 by a person appointed in the terms of the trust or, if no
21 person is so appointed, by a person appointed by the court. A
22 person having an interest in the welfare of the animal may
23 request the court to appoint a person to enforce the trust or
24 to remove a person appointed. The appointed person shall have
25 the rights of a trust beneficiary for the purpose of enforcing
26 the trust, including receiving accountings, notices, and other
27 information from the trustee and providing consents.
28 (4) Property of a trust authorized by this section may
29 be applied only to its intended use, except to the extent the
30 court determines that the value of the trust property exceeds
31 the amount required for the intended use. Property not
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 required for the intended use, including the trust property
2 remaining upon its termination, shall be distributed in the
3 following order of priority:
4 (a) As directed by the terms of the trust;
5 (b) To the settlor, if then living;
6 (c) Pursuant to the residuary clause of the settlor's
7 will if the trust for the animal was created in a preresiduary
8 clause in the settlor's will;
9 (d) If the settlor is deceased, pursuant to the
10 residuary provisions of the inter vivos trust if the trust for
11 the animal was created in a preresiduary clause in the trust
12 instrument; or
13 (e) To the settlor's heirs.
14 (5) This section applies to trusts created on or after
15 January 1, 2003.
16 Section 7. Section 737.209, Florida Statutes, is
17 created to read:
18 737.209 Improper distribution or payment; liability of
19 distributee.--A distributee who was paid improperly must
20 return the assets or funds received and the income from those
21 assets or interest on the funds since distribution or payment,
22 unless the distribution or payment cannot be questioned
23 because of adjudication, estoppel, or limitations. If the
24 distributee does not have the property, its value at the date
25 of disposition, income thereon, and gain received by the
26 distributee must be returned.
27 Section 8. Subsection (4) of section 737.303, Florida
28 Statutes, is amended, and subsection (5) is added to that
29 section, to read:
30 737.303 Duty to inform and account to
31 beneficiaries.--The trustee shall keep the beneficiaries of
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 the trust reasonably informed of the trust and its
2 administration. The trustee's duty to inform and account
3 includes, but is not limited to, the following:
4 (4)(a) A beneficiary is entitled to a statement of the
5 accounts of the trust accounting, as set forth in s. 737.3035,
6 annually and upon termination of the trust or upon change of
7 the trustee except as provided under paragraph (c).
8 (b) For purposes of this section, the term
9 "beneficiary" means:
10 1. All current income or principal beneficiaries,
11 whether discretionary or mandatory; and
12 2. All reasonably ascertainable remainder
13 beneficiaries who would take if all income interests
14 immediately terminated.
15 (c) In the case of a trust described in s. 733.707(3),
16 during the grantor's lifetime, the trustee's duties under this
17 section extend only to the grantor or the legal representative
18 of the grantor.
19 (d) A beneficiary or the beneficiary's representative,
20 as defined in s. 731.303, may waive, in writing, the trustee's
21 duty to account under paragraph (a).
22 (e) All rights provided a beneficiary under this
23 section may be asserted by a legal representative or natural
24 guardian of the beneficiary. Notice under subsection (1) and a
25 trust accounting statement of accounts under paragraph (a)
26 provided to a representative of the beneficiary as defined in
27 s. 731.303 shall bind the beneficiary, and the trustee shall
28 not be required to provide such notice or trust accounting
29 statement of accounts to any beneficiary who would be bound by
30 an order binding on a representative of the beneficiary under
31 s. 731.303, if such notice or trust accounting statement of
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 accounts, respectively, is provided to that representative.
2 (5) This section applies to trust accountings rendered
3 for accounting periods beginning on or after January 1, 2003.
4 Section 9. Section 737.3035, Florida Statutes, is
5 created to read:
6 737.3035 Trust accountings.--
7 (1) A trust accounting must be a reasonably
8 understandable report from the date of the last accounting or,
9 if none, from the date upon which the trustee became
10 accountable, which adequately discloses the information
11 required in subsection (2).
12 (2)(a) The accounting must begin with a statement
13 identifying the trust, the trustee furnishing the accounting,
14 and the time period covered by the accounting.
15 (b) The accounting must show all cash and property
16 transactions and all significant transactions affecting
17 administration during the accounting period, including
18 compensation paid to the trustee and the trustee's agents.
19 Gains and losses realized during the accounting period, and
20 all receipts and disbursements must be shown.
21 (c) The accounting must, to the extent feasible,
22 identify and value trust assets on hand at the close of the
23 accounting period. For each asset or class of assets
24 reasonably capable of valuation, the accounting shall contain
25 two values, the asset acquisition value or carrying value and
26 the estimated current value. The accounting must identify each
27 known noncontingent liability with an estimated current amount
28 of the liability if known.
29 (d) To the extent feasible, the accounting must show
30 significant transactions that do not affect the amount for
31 which the trustee is accountable, including name changes in
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 investment holdings, adjustments to carrying value, a change
2 of custodial institutions and stock splits.
3 (e) The accounting must reflect the allocation of
4 receipts, disbursements, accruels, or allowances between
5 income and principal when the allocation affects the interest
6 of any beneficiary of the trust.
7 (3) This section applies to all trust accountings
8 rendered for any accounting periods beginning on or after
9 January 1, 2003.
10 Section 10. Section 737.307, Florida Statutes, is
11 amended to read:
12 737.307 Limitations on proceedings against trustees
13 after beneficiary receives trust disclosure documents
14 account.--
15 (1) Unless previously barred by adjudication, consent,
16 or limitations, an action against a trustee for breach of
17 trust is barred for any beneficiary who has received a trust
18 disclosure document adequately final, annual, or periodic
19 account or other statement fully disclosing the matter unless
20 a proceeding to assert the claim is commenced within 6 months
21 after receipt from the trustee of the trust disclosure
22 document or the limitation notice that applies to the trust
23 disclosure document, whichever is received later. All claims
24 against a trustee who has issued a trust disclosure document
25 adequately disclosing a matter but who has not delivered a
26 limitation notice that applies to that trust disclosure
27 document are barred as provided in chapter 95 as to the
28 matters disclosed in the trust disclosure document. of the
29 final, annual, or periodic account or statement. In any
30 event, and notwithstanding lack of adequate full disclosure or
31 delivery of a limitation notice, all claims against a trustee
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 who has issued a final trust accounting account or statement
2 received by the beneficiary and has informed the beneficiary
3 of the location and availability of records for his or her
4 examination are barred as provided in chapter 95.
5 (2) As used in this section, the term "trust
6 disclosure document" means a trust accounting as defined in s.
7 737.3035 or any other written report of the trustee. A trust
8 disclosure document adequately discloses a matter if it
9 provides sufficient information so that a beneficiary knows of
10 a claim or reasonably should have inquired into the existence
11 of a claim with respect to that matter. An accounting that
12 adequately discloses the information required by and that
13 substantially complies with the standards set forth in s.
14 737.3035 is a trust accounting under this section.
15 (3) As used in this section, the term "limitation
16 notice" means a written statement of the trustee that an
17 action by a beneficiary against the trustee for breach of
18 trust based on any matter adequately disclosed in a trust
19 disclosure document may be barred unless the action is
20 commenced within 6 months after receipt of the trust
21 disclosure document or receipt of a limitation notice that
22 applies to that trust disclosure document, whichever is later.
23 (a) A limitation notice may be contained as a part of
24 the trust disclosure document, may be accompanied concurrently
25 by the trust disclosure document, or may be delivered
26 separately from the trust disclosure document.
27 (b) A limitation notice may, but is not required to
28 be, in the following form: "An action for breach of trust
29 based on matters disclosed in a trust accounting or other
30 written report of the trustee may be subject to a 6-month
31 statute of limitations from the receipt of the trust
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 accounting or other written report. If you have questions,
2 please consult your attorney."
3 (c) For purposes of this section, a limitation notice
4 applies to a trust disclosure document when the limitation
5 notice:
6 1. Is contained as a part of the trust disclosure
7 document;
8 2. Is accompanied concurrently by the trust disclosure
9 document or is delivered separately within 10 days of the
10 delivery of the trust disclosure document;
11 3. Is contained as a part of another trust disclosure
12 document received within 1 year prior to the receipt of the
13 latter trust disclosure document;
14 4. Is accompanied concurrently by another trust
15 disclosure document that was received within 1 year prior to
16 the receipt of the latter trust disclosure document or that
17 was delivered separately within 10 days of the earlier trust
18 disclosure document to the beneficiary; or
19 5. Is received after the trust disclosure document,
20 but only if the limitation notice references that trust
21 disclosure document and:
22 a. Offers to provide to the beneficiary upon request
23 another copy of that trust disclosure document if it was
24 received by the beneficiary within 1 year prior to receipt of
25 the limitation notice; or
26 b. Is accompanied by another copy of that trust
27 disclosure document if the trust disclosure document was
28 received by the beneficiary 1 year or more prior to the
29 receipt of the limitation notice.
30 (d) A limitation notice is not delivered separately if
31 it is accompanied by another written communication, other than
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 a written communication which refers only to the limitation
2 notice.
3 (4) A beneficiary has received a trust disclosure
4 document or a limitation notice final, annual, or periodic
5 account or statement if, being an adult, it is received by the
6 beneficiary or if, being a minor, disabled person, or person
7 who may take by virtue of the exercise or nonexercise of a
8 power of appointment, it is received by the beneficiary's
9 representative as defined described in s. 731.303.
10 (5) This section applies to trust accountings for
11 accounting periods beginning on or after January 1, 2003, and
12 to written reports, other than trust accountings received by a
13 beneficiary on or after January 1, 2003.
14 Section 11. (1) Section 731.303, Florida Statutes, as
15 amended by this act, shall be given retroactive application.
16 (2) Section 737.303, Florida Statutes, as it existed
17 prior to the effective date of this act shall be preserved and
18 shall continue to apply to accounting periods beginning before
19 January 1, 2003.
20 (3) Section 737.307, Florida Statutes, as it existed
21 prior to the effective date of this act shall be preserved and
22 shall continue to apply to any final, annual, or periodic
23 account for periods beginning before January 1, 2003, and
24 other statement fully disclosing the matter received by the
25 beneficiary before January 1, 2003.
26 Section 12. Except as otherwise provided in this act,
27 this act shall take effect upon becoming a law.
28
29
30 ================ T I T L E A M E N D M E N T ===============
31 And the title is amended as follows:
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HOUSE AMENDMENT
Bill No. HB 1127
Amendment No. 01 (for drafter's use only)
1 On page 1, lines 2-12,
2 remove: all of said lines
3
4 and insert:
5 An act relating to probate and trusts; amending
6 s. 731.303, F.S.; clarifying existing law
7 regarding representation in the administration
8 of a trust; providing for retroactive
9 application; amending s. 732.2075, F.S.;
10 revising provisions governing sources from
11 which the elective share is payable; amending
12 s. 733.107, F.S.; clarifying the circumstances
13 which shift the burden of proof in certain
14 proceedings contesting the validity of a will;
15 amending s. 733.702, F.S.; clarifying the
16 limitation on the presentation of claims;
17 creating s. 737.115, F.S.; requiring certain
18 trusts to contain a specified notice; creating
19 s. 737.116, F.S.; providing for the
20 establishment of trusts for an animal; creating
21 s. 737.209, F.S.; codifying existing law
22 regarding improper distribution in the
23 administration of a trust; amending s. 737.303,
24 F.S.; making conforming amendments relating to
25 the duty to inform and with respect to trust
26 accounting; creating s. 737.3035, F.S.;
27 codifying trust accounting principles; amending
28 s. 737.307, F.S.; requiring notice of statute
29 of limitations to trust beneficiaries;
30 providing for application; providing an
31 effective date.
14
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