House Bill hb1127c1

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    Florida House of Representatives - 2002             CS/HB 1127

        By the Council for Smarter Government and Representative
    Negron





  1                      A bill to be entitled

  2         An act relating to probate and trusts; amending

  3         s. 731.303, F.S.; clarifying existing law

  4         regarding representation in the administration

  5         of a trust; providing for retroactive

  6         application; amending s. 732.2075, F.S.;

  7         revising provisions governing sources from

  8         which the elective share is payable; amending

  9         s. 733.107, F.S.; clarifying the circumstances

10         which shift the burden of proof in certain

11         proceedings contesting the validity of a will;

12         amending s. 733.702, F.S.; clarifying the

13         limitation on the presentation of claims;

14         creating s. 737.115, F.S.; requiring certain

15         trusts to contain a specified notice; creating

16         s. 737.116, F.S.; providing for the

17         establishment of trusts for the care of an

18         animal; creating s. 737.209, F.S.; codifying

19         existing law regarding improper distribution in

20         the administration of a trust; amending s.

21         737.303, F.S.; making conforming amendments

22         relating to the duty to inform and with respect

23         to trust accounting; creating s. 737.3035,

24         F.S.; codifying trust accounting principles;

25         amending s. 737.307, F.S.; requiring notice of

26         statute of limitations to trust beneficiaries;

27         amending s. 660.46, F.S.; making conforming

28         amendments relating to trust accounts and

29         limitations period against trust entities;

30         providing for application; providing an

31         effective date.

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

  2

  3         Section 1.  Section 731.303, Florida Statutes, is

  4  amended to read:

  5         731.303  Representation.--In the administration of or

  6  in proceedings involving estates of decedents or trusts, the

  7  following apply:

  8         (1)  Persons are bound by orders binding others in the

  9  following cases:

10         (a)  Orders binding the sole holder or all coholders of

11  a power of revocation or a general, special, or limited power

12  of appointment, including one in the form of a power of

13  amendment or revocation to the extent that the power has not

14  become unexercisable in fact, bind all persons to the extent

15  that their interests, as persons who may take by virtue of the

16  exercise or nonexercise of the power, are subject to the

17  power.

18         (b)  To the extent there is no conflict of interest

19  between them or among the persons represented:

20         1.  Orders binding a guardian of the property bind the

21  ward.

22         2.  Orders binding a trustee bind beneficiaries of the

23  trust in proceedings to probate a will, in establishing or

24  adding to a trust, in reviewing the acts or accounts of a

25  prior fiduciary, and in proceedings involving creditors or

26  other third parties.

27         3.  Orders binding a personal representative bind

28  persons interested in the undistributed assets of a decedent's

29  estate, in actions or proceedings by or against the estate.

30         (c)  An unborn or unascertained person, or a minor or

31  any other person under a legal disability, who is not

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  1  otherwise represented is bound by an order to the extent that

  2  person's interest is represented by another party having the

  3  same or greater quality of interest in the proceeding.

  4         (2)  Orders binding a guardian of the person shall not

  5  bind the ward.

  6         (3)  In judicial proceedings involving the

  7  administration of estates or trusts, notice is required as

  8  follows:

  9         (a)  Notice as prescribed by the Florida Probate Rules

10  shall be given to every interested person, or to one who can

11  bind the interested person as described in paragraph (1)(a) or

12  paragraph (1)(b). Notice may be given both to the interested

13  person and to another who can bind him or her.

14         (b)  Notice is given to unborn or unascertained persons

15  who are not represented pursuant to paragraph (1)(a) or

16  paragraph (1)(b) by giving notice to all known persons whose

17  interests in the proceedings are the same as, or of a greater

18  quality than, those of the unborn or unascertained persons.

19         (4)  If the court determines that representation of the

20  interest would otherwise be inadequate, the court may, at any

21  time, appoint a guardian ad litem to represent the interests

22  of an incapacitated person, an unborn or unascertained person,

23  a minor or any other person otherwise under a legal

24  disability, or a person whose identity or address is unknown.

25  If not precluded by conflict of interest, a guardian ad litem

26  may be appointed to represent several persons or interests.

27         (5)  When a sole holder or coholder Agreements,

28  waivers, consents, approvals, accounts, or other statements

29  that fully disclose the matters that are the subject of the

30  accounts or statements and that bind the sole holder or all

31  coholders of a general, special, or limited power of

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  1  appointment, including an exercisable a power of amendment or

  2  revocation over property in an estate or trust, is bound by:

  3         (a)  Agreements, waivers, consents, or approvals; or

  4         (b)  Accounts, trust accountings, or other written

  5  reports that adequately disclose matters set forth therein to

  6  the extent that the power has not become unexercisable in

  7  fact, bind all persons to the extent that their interests,

  8

  9  then all as persons who may take by virtue of, and whose

10  interests are subject to, the exercise or nonexercise of the

11  power, are also bound, but only to the extent of their

12  interests subject to the power.

13         Section 2.  Paragraph (e) of subsection (1) of section

14  732.2075, Florida Statutes, is amended to read:

15         732.2075  Sources from which elective share payable;

16  abatement.--

17         (1)  Unless otherwise provided in the decedent's will

18  or, in the absence of a provision in the decedent's will, in a

19  trust referred to in the decedent's will, the following are

20  applied first to satisfy the elective share:

21         (e)  Property interests included in the elective estate

22  that pass or have passed to or for the benefit of the

23  surviving spouse, including interests that are contingent upon

24  making the election, but only to the extent that such

25  contingent interests do not diminish other property interests

26  that would be applied to satisfy the elective share in the

27  absence of the contingent interests.

28         Section 3.  Section 733.107, Florida Statutes, is

29  amended to read:

30         733.107  Burden of proof in contests; presumption of

31  undue influence.--

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  1         (1)  In all proceedings contesting the validity of a

  2  will, the burden shall be upon the proponent of the will to

  3  establish prima facie its formal execution and attestation.

  4  Thereafter, the contestant shall have the burden of

  5  establishing the grounds on which the probate of the will is

  6  opposed or revocation is sought.

  7         (2)  The presumption of undue influence implements

  8  public policy against abuse of fiduciary or confidential

  9  relationships and is therefore a presumption shifting the

10  burden of proof under ss. 90.301-90.304.

11         Section 4.  Subsection (1) of section 733.702, Florida

12  Statutes, is amended to read:

13         733.702  Limitations on presentation of claims.--

14         (1)  If not barred by s. 733.710, no claim or demand

15  against the decedent's estate that arose before the death of

16  the decedent, including claims of the state and any of its

17  political subdivisions, even if the claims are unmatured,

18  contingent, or unliquidated; no claim for funeral or burial

19  expenses; no claim for personal property in the possession of

20  the personal representative; and no claim for damages,

21  including, but not limited to, an action founded on fraud or

22  another wrongful act or omission of the decedent, is binding

23  on the estate, on the personal representative, or on any

24  beneficiary unless filed in the probate proceeding on or

25  before within the later of the date that is 3 months after the

26  time of the first publication of the notice to creditors or,

27  as to any creditor required to be served with a copy of the

28  notice to creditors, 30 days after the date of service on the

29  creditor, even though the personal representative has

30  recognized the claim or demand by paying a part of it or

31  interest on it or otherwise. The personal representative may

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  1  settle in full any claim without the necessity of the claim

  2  being filed when the settlement has been approved by the

  3  interested persons.

  4         Section 5.  Section 737.115, Florida Statutes, is

  5  created to read:

  6         737.115  Notice of trustee duties.--

  7         (1)  A trust described in s. 733.707(3) must contain a

  8  notice that the trustee may have duties and responsibilities

  9  in addition to those described in the instrument creating the

10  trust. The notice may, but need not, read as follows:

11

12         The trustee of a trust may have duties and

13         responsibilities in addition to those described

14         in the instrument creating the trust. If you

15         have questions, you should obtain legal advice.

16

17         (2)  The absence of the notice described in this

18  section in the trust instrument shall not affect the validity

19  of the trust. A trustee is not relieved of any duty if the

20  notice is not contained in the trust instrument. No person is

21  liable for failure to include the notice in the trust

22  instrument.

23         (3)  This section applies to all trusts described in s.

24  733.707(3) and amendments to those trusts executed on or after

25  January 1, 2003.

26         Section 6.  Section 737.116, Florida Statutes, is

27  created to read:

28         737.116  Trust for care of animal.--

29         (1)  A trust may be created to provide for the care of

30  an animal alive during the settlor's lifetime. The trust

31  terminates upon the death of the animal or, if the trust was

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  1  created to provide for the care of more than one animal alive

  2  during the settlor's lifetime, upon the death of the last

  3  surviving animal.

  4         (2)  Except as provided in this section, the law of

  5  this state regarding the creation and administration of

  6  express trusts applies to a trust for the care of an animal.

  7         (3)  A trust authorized by this section may be enforced

  8  by a person appointed in the terms of the trust or, if no

  9  person is so appointed, by a person appointed by the court. A

10  person having an interest in the welfare of the animal may

11  request the court to appoint a person to enforce the trust or

12  to remove a person appointed. The appointed person shall have

13  the rights of a trust beneficiary for the purpose of enforcing

14  the trust, including receiving accountings, notices, and other

15  information from the trustee and providing consents.

16         (4)  Property of a trust authorized by this section may

17  be applied only to its intended use, except to the extent the

18  court determines that the value of the trust property exceeds

19  the amount required for the intended use. Property not

20  required for the intended use, including the trust property

21  remaining upon its termination, shall be distributed in the

22  following order of priority:

23         (a)  As directed by the terms of the trust;

24         (b)  To the settlor, if then living;

25         (c)  Pursuant to the residuary clause of the settlor's

26  will if the trust for the animal was created in a preresiduary

27  clause in the settlor's will;

28         (d)  If the settlor is deceased, pursuant to the

29  residuary provisions of the inter vivos trust if the trust for

30  the animal was created in a preresiduary clause in the trust

31  instrument; or

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  1         (e)  To the settlor's heirs.

  2         (5)  This section applies to trusts created on or after

  3  January 1, 2003.

  4         Section 7.  Section 737.209, Florida Statutes, is

  5  created to read:

  6         737.209  Improper distribution or payment; liability of

  7  distributee.--A distributee who was paid improperly must

  8  return the assets or funds received and the income from those

  9  assets or interest on the funds since distribution or payment,

10  unless the distribution or payment cannot be questioned

11  because of adjudication, estoppel, or limitations. If the

12  distributee does not have the property, its value at the date

13  of disposition, income thereon, and gain received by the

14  distributee must be returned.

15         Section 8.  Subsection (4) of section 737.303, Florida

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

17  section, to read:

18         737.303  Duty to inform and account to

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

20  the trust reasonably informed of the trust and its

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

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

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

24  accounts of the trust accounting, as set forth in s. 737.3035,

25  annually and upon termination of the trust or upon change of

26  the trustee except as provided under paragraph (c).

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

28  "beneficiary" means:

29         1.  All current income or principal beneficiaries,

30  whether discretionary or mandatory; and

31

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  1         2.  All reasonably ascertainable remainder

  2  beneficiaries who would take if all income interests

  3  immediately terminated.

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

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

  6  section extend only to the grantor or the legal representative

  7  of the grantor.

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

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

10  duty to account under paragraph (a).

11         (e)  All rights provided a beneficiary under this

12  section may be asserted by a legal representative or natural

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

14  trust accounting statement of accounts under paragraph (a)

15  provided to a representative of the beneficiary as defined in

16  s. 731.303 shall bind the beneficiary, and the trustee shall

17  not be required to provide such notice or trust accounting

18  statement of accounts to any beneficiary who would be bound by

19  an order binding on a representative of the beneficiary under

20  s. 731.303, if such notice or trust accounting statement of

21  accounts, respectively, is provided to that representative.

22         (5)  This section applies to trust accountings rendered

23  for accounting periods beginning on or after January 1, 2003.

24         Section 9.  Section 737.3035, Florida Statutes, is

25  created to read:

26         737.3035  Trust accountings.--

27         (1)  A trust accounting must be a reasonably

28  understandable report from the date of the last accounting or,

29  if none, from the date upon which the trustee became

30  accountable, which adequately discloses the information

31  required in subsection (2).

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  1         (2)(a)  The accounting must begin with a statement

  2  identifying the trust, the trustee furnishing the accounting,

  3  and the time period covered by the accounting.

  4         (b)  The accounting must show all cash and property

  5  transactions and all significant transactions affecting

  6  administration during the accounting period, including

  7  compensation paid to the trustee and the trustee's agents.

  8  Gains and losses realized during the accounting period and all

  9  receipts and disbursements must be shown.

10         (c)  The accounting must, to the extent feasible,

11  identify and value trust assets on hand at the close of the

12  accounting period. For each asset or class of assets

13  reasonably capable of valuation, the accounting shall contain

14  two values: the asset acquisition value or carrying value and

15  the estimated current value. The accounting must identify each

16  known noncontingent liability with an estimated current amount

17  of the liability if known.

18         (d)  To the extent feasible, the accounting must show

19  significant transactions that do not affect the amount for

20  which the trustee is accountable, including name changes in

21  investment holdings, adjustments to carrying value, a change

22  of custodial institutions, and stock splits.

23         (e)  The accounting must reflect the allocation of

24  receipts, disbursements, accruals, or allowances between

25  income and principal when the allocation affects the interest

26  of any beneficiary of the trust.

27         (3)  This section applies to all trust accountings

28  rendered for any accounting periods beginning on or after

29  January 1, 2003.

30         Section 10.  Section 737.307, Florida Statutes, is

31  amended to read:

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  1         737.307  Limitations on proceedings against trustees

  2  after beneficiary receives trust disclosure documents

  3  account.--

  4         (1)  Unless previously barred by adjudication, consent,

  5  or limitations, an action against a trustee for breach of

  6  trust is barred for any beneficiary who has received a trust

  7  disclosure document adequately final, annual, or periodic

  8  account or other statement fully disclosing the matter unless

  9  a proceeding to assert the claim is commenced within 6 months

10  after receipt from the trustee of the trust disclosure

11  document or the limitation notice that applies to the trust

12  disclosure document, whichever is received later. All claims

13  against a trustee who has issued a trust disclosure document

14  adequately disclosing a matter but who has not delivered a

15  limitation notice that applies to that trust disclosure

16  document are barred as provided in chapter 95 as to the

17  matters disclosed in the trust disclosure document of the

18  final, annual, or periodic account or statement.  In any

19  event, and notwithstanding lack of adequate full disclosure or

20  delivery of a limitation notice, all claims against a trustee

21  who has issued a final trust accounting account or statement

22  received by the beneficiary and has informed the beneficiary

23  of the location and availability of records for his or her

24  examination are barred as provided in chapter 95.

25         (2)  As used in this section, the term "trust

26  disclosure document" means a trust accounting as described in

27  s. 737.3035 or any other written report of the trustee. A

28  trust disclosure document adequately discloses a matter if it

29  provides sufficient information so that a beneficiary knows of

30  a claim or reasonably should have inquired into the existence

31  of a claim with respect to that matter. An accounting that

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  1  adequately discloses the information required by and that

  2  substantially complies with the standards set forth in s.

  3  737.3035 is a trust accounting under this section.

  4         (3)  As used in this section, the term "limitation

  5  notice" means a written statement of the trustee that an

  6  action by a beneficiary against the trustee for breach of

  7  trust based on any matter adequately disclosed in a trust

  8  disclosure document may be barred unless the action is

  9  commenced within 6 months after receipt of the trust

10  disclosure document or receipt of a limitation notice that

11  applies to that trust disclosure document, whichever is later.

12         (a)  A limitation notice may be contained as a part of

13  the trust disclosure document, may be accompanied concurrently

14  by the trust disclosure document, or may be delivered

15  separately from the trust disclosure document.

16         (b)  A limitation notice may, but is not required to,

17  be in the following form: "An action for breach of trust based

18  on matters disclosed in a trust accounting or other written

19  report of the trustee may be subject to a 6-month statute of

20  limitations from the receipt of the trust accounting or other

21  written report. If you have questions, please consult your

22  attorney."

23         (c)  For purposes of this section, a limitation notice

24  applies to a trust disclosure document when the limitation

25  notice is:

26         1.  Contained as a part of the trust disclosure

27  document;

28         2.  Accompanied concurrently by the trust disclosure

29  document or delivered separately within 10 days after the

30  delivery of the trust disclosure document;

31

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  1         3.  Contained as a part of another trust disclosure

  2  document received within 1 year prior to the receipt of the

  3  latter trust disclosure document;

  4         4.  Accompanied concurrently by another trust

  5  disclosure document that was received within 1 year prior to

  6  the receipt of the latter trust disclosure document or that

  7  was delivered separately within 10 days after the earlier

  8  trust disclosure document to the beneficiary; or

  9         5.  Received after the trust disclosure document, but

10  only if the limitation notice references that trust disclosure

11  document and:

12         a.  Offers to provide to the beneficiary upon request

13  another copy of that trust disclosure document if it was

14  received by the beneficiary within 1 year prior to receipt of

15  the limitation notice; or

16         b.  Is accompanied by another copy of that trust

17  disclosure document if the trust disclosure document was

18  received by the beneficiary 1 year or more prior to the

19  receipt of the limitation notice.

20         (d)  A limitation notice is not delivered separately if

21  it is accompanied by another written communication other than

22  a written communication which refers only to the limitation

23  notice.

24         (4)  A beneficiary has received a trust disclosure

25  document or a limitation notice final, annual, or periodic

26  account or statement if, being an adult, it is received by the

27  beneficiary or if, being a minor, disabled person, or person

28  who may take by virtue of the exercise or nonexercise of a

29  power of appointment, it is received by the beneficiary's

30  representative as defined described in s. 731.303.

31

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  1         (5)  This section applies to trust accountings for

  2  accounting periods beginning on or after January 1, 2003, and

  3  to written reports, other than trust accountings, received by

  4  a beneficiary on or after January 1, 2003.

  5         Section 11.  Section 660.46, Florida Statutes, is

  6  amended to read:

  7         660.46  Substitution of fiduciaries.--

  8         (1)  The provisions of this section shall apply to the

  9  transfer of fiduciary accounts by substitution, and for those

10  purposes these provisions shall constitute alternative

11  procedures to those provided or required by any other

12  provisions of law relating to the transfer of fiduciary

13  accounts or the substitution of persons acting or who are to

14  act in a fiduciary capacity.  In this section, and only for

15  its purposes:

16         (a)  "Limitation notice" has the meaning ascribed in s.

17  737.307(3).

18         (b)(a)  "Original fiduciary" means any trust company or

19  trust department which, at the time of the initiation of the

20  proceedings provided for in this section, holds or has been

21  named or otherwise designated to hold a fiduciary capacity,

22  alone or with others, with respect to any fiduciary account

23  and which proposes in the proceedings provided for in this

24  section to terminate its fiduciary capacity with respect to

25  such fiduciary account by the substitution of a proposed

26  substitute fiduciary.

27         (c)(b)  "Proposed substitute fiduciary" means any trust

28  company or trust department qualified under the laws of this

29  state to act in the fiduciary capacity to which it is proposed

30  in said proceedings to be substituted in the place and stead

31  of the original fiduciary.

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  1         (d)  "Trust accounting" has the meaning ascribed in s.

  2  737.3035.

  3         (e)  "Trust disclosure document" has the meaning

  4  ascribed in s. 737.307(2).

  5         (2)  Any original fiduciary and any proposed substitute

  6  fiduciary may, with respect to any fiduciary account or

  7  accounts which they shall mutually select, initiate

  8  proceedings by joining in the filing of a petition in the

  9  circuit court, requesting the substitution of the proposed

10  substitute fiduciary for the original fiduciary as to such

11  fiduciary account or accounts. The petition may be filed in

12  the county in which the main office of the original fiduciary

13  is located and, except to the extent inconsistent with the

14  provisions of this section, shall be governed by the Florida

15  Rules of Civil Procedure; however, if any fiduciary account is

16  then the subject of a proceeding in a court in this state

17  pursuant to the Florida Probate Code, the Florida Guardianship

18  Law, chapter 737, or chapter 747, the petition relating to

19  such fiduciary account shall be filed in that proceeding and

20  shall be governed by the procedural or other relevant rules

21  applicable to such proceeding except to the extent

22  inconsistent with the provisions of this section.

23         (3)  Unless a waiver or consent shall be filed in the

24  proceedings as provided in subsection (4), the provisions of

25  s. 731.301(1) and (2) shall apply with respect to notice of

26  the proceedings to all persons who are then cofiduciaries with

27  the original fiduciary, other than a person joining as a

28  petitioner in the proceedings; to all persons named in the

29  governing instrument as substitutes or successors to the

30  fiduciary capacity of the original fiduciary; to the persons

31  then living who are entitled under the governing instrument to

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  1  appoint a substitute or successor to act in the fiduciary

  2  capacity of the original fiduciary; to all vested

  3  beneficiaries of the fiduciary account; and to all then-living

  4  originators of the governing instrument. Unless a waiver or

  5  consent shall be filed in the proceedings as provided in

  6  subsection (4), the provisions of s. 731.301 shall apply with

  7  respect to notice to all contingent beneficiaries of the

  8  fiduciary account. Only the persons or classes of persons

  9  described in the foregoing provisions of this subsection shall

10  be deemed to be interested persons for the purposes of this

11  section and the proceedings and notices provided for in this

12  section; and the provisions of ss. 731.301(3) and 731.303(3),

13  and (4), and (5), relating to notice requirements, the effect

14  of notice, and representation of interests, shall apply to the

15  proceedings provided for in this section.

16         (4)  Any interested person, including a guardian ad

17  litem, administrator ad litem, guardian of the property,

18  personal representative, trustee, or other fiduciary, may

19  waive any right of notice and may consent to any action or

20  proceeding which may be permitted by this section.  Any such

21  waiver or consent must be filed in the proceedings and may be

22  filed at any time, and the notice requirements of this section

23  shall not apply to any person who files any such waiver or

24  consent.

25         (5)  If no answer which constitutes an objection to the

26  petition or the relief requested therein, or which otherwise

27  requires a hearing, is served on the petitioners and filed

28  with the court in which the proceeding is pending by any

29  interested person or class of persons to whom notice has been

30  given as provided in subsection (3), within 30 days from the

31  service of such notice, the petition shall be considered ex

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  1  parte as to such interested person or class of persons.  If an

  2  answer which constitutes an objection to the petition or the

  3  relief requested therein, or which otherwise requires a

  4  hearing, is timely served and filed by any interested person

  5  or class of persons, a hearing shall be set and reasonable

  6  notice shall be given.  The court, upon consideration of the

  7  petition and the interests of the interested persons, shall

  8  either grant or deny the relief requested by the petition;

  9  and, if the relief is granted, the court shall order the

10  proposed substitute fiduciary to be substituted in the place

11  and stead of the original fiduciary, in the fiduciary capacity

12  theretofore held by the original fiduciary, effective on such

13  date as shall be specified in the court order which shall not

14  be more than 30 days from the date of the entry of such order

15  unless a longer period, not exceeding 90 days from the date of

16  the entry of such order, shall be requested by the

17  petitioners.  The date so specified may be referred to in this

18  section as the effective date of the order for substitution.

19  The court shall order the requested substitution unless it

20  determines that such substitution would constitute or create a

21  material detriment to the estate, trust, or other fiduciary

22  account or to the interests of the beneficiaries thereof.

23         (6)  All court costs and the fees of guardians ad litem

24  arising in connection with any proceeding hereunder shall be

25  paid by the petitioners and shall not be charged to any

26  fiduciary account.

27         (7)  On the effective date of the order for

28  substitution, the original fiduciary shall transfer and

29  deliver, to the trust company or trust department so

30  substituted by the court order for substitution, each

31  fiduciary account with respect to which the order for

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  1  substitution is applicable, together with all documents and

  2  records pertaining thereto and all other information in the

  3  possession of the original fiduciary which may be necessary

  4  for the proper continuation of the fiduciary functions; and

  5  thereupon the trust company or trust department so substituted

  6  shall hold the fiduciary capacity previously held by the

  7  original fiduciary and shall have all the rights, powers, and

  8  duties theretofore held or exercisable by the original

  9  fiduciary by virtue of its former fiduciary capacity, but the

10  trust company or trust department so substituted shall not

11  exercise any right or power which, by the governing

12  instrument, is expressly made personal to the original

13  fiduciary.  The proceedings in which the order for

14  substitution was entered shall not be finally terminated until

15  settlement of the final account of the original fiduciary

16  pursuant to the provisions of subsection (8).

17         (8)  Within 30 days after the effective date of an

18  order for substitution entered hereunder, the original

19  fiduciary shall file a final trust accounting account with the

20  court and shall send a copy thereof to each interested person

21  who does not file a waiver or consent, together with a notice

22  of the filing of the final trust accounting account. The trust

23  company or trust department substituted for the original

24  fiduciary by the court order for substitution shall be deemed

25  to be an interested party for the purposes of this subsection.

26  Objections to a final trust accounting account may be filed by

27  any interested party who has not filed a waiver or consent,

28  and, to be considered by the court, any such objections must

29  be filed with the court and served on the original fiduciary

30  within 60 days after a copy of the final trust accounting

31  account and notice of the filing of the final trust accounting

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  1  account have been sent to such interested person. Objections

  2  shall be tried and determined by the court upon the

  3  application of the original fiduciary or any interested person

  4  who has not filed a waiver or consent.  Upon expiration of the

  5  time for filing objections if no objections have been timely

  6  filed, or at such earlier time as waivers or consents have

  7  been filed by all interested persons, or, if objections have

  8  been timely filed by an interested person entitled to do so,

  9  then upon the hearing on any such objections, the court shall

10  enter an appropriate order on such final trust accounting

11  account and on all unapproved annual or other trust

12  accountings accounts previously filed.  If consents to a final

13  trust accounting account are filed with the court by all

14  interested persons to whom a copy of the final trust

15  accounting account is required hereunder to be sent, the court

16  shall enter an order approving such trust accounting account

17  and all unapproved annual or other trust accountings accounts

18  previously filed.

19         (9)  Unless previously or otherwise barred by

20  adjudication, waiver, consent, limitation, or the foregoing

21  provisions of this subsection (8), an action for breach of

22  trust or breach of fiduciary duties or responsibilities

23  against an original fiduciary in whose place and stead another

24  trust company or trust department has been substituted

25  pursuant to the provisions of this section is barred for any

26  beneficiary who has received a trust disclosure document

27  adequately final, annual or periodic account or other

28  statement fully disclosing the matter unless a proceeding to

29  assert the claim is commenced within 6 months after receipt of

30  the trust disclosure document or the limitation notice that

31  applies to the trust disclosure document, whichever is

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  1  received later final, annual or periodic account or statement.

  2  In any event, and notwithstanding lack of adequate full

  3  disclosure, all claims against such original fiduciary which

  4  has issued a final trust disclosure document account or

  5  statement received by the beneficiary and has informed the

  6  beneficiary of the location and availability of records for

  7  his or her examination are barred as provided in chapter 95.

  8  Subsections (2) and (3) of s. 737.307 apply to this

  9  subsection.

10         (10)  A beneficiary has received a final trust

11  disclosure document or a limitation notice account or

12  statement if, when the beneficiary is an adult, it is received

13  by him or her or if, when the beneficiary is a minor or a

14  disabled person, it is received by his or her representative

15  as defined described in s. 731.303.

16         (11)(9)  The filing of a petition hereunder or the

17  substitution of fiduciaries pursuant to law shall not be

18  deemed as the resignation by any trust company or trust

19  department of any fiduciary capacity or relationship.

20         (12)  This section applies to trust accountings for

21  accounting periods beginning on or after January 1, 2003, and

22  to written reports, other than trust accountings, received by

23  a beneficiary on or after January 1, 2003.

24         Section 12.  (1)  Section 731.303, Florida Statutes, as

25  amended by this act, shall be given retroactive application.

26         (2)  Section 737.303, Florida Statutes, as it existed

27  prior to the effective date of this act, shall be preserved

28  and shall continue to apply to accounting periods beginning

29  before January 1, 2003.

30         (3)  Section 737.307, Florida Statutes, as it existed

31  prior to the effective date of this act, shall be preserved

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  1  and shall continue to apply to any final, annual, or periodic

  2  account for periods beginning before January 1, 2003, and

  3  other statements fully disclosing the matter received by the

  4  beneficiary before January 1, 2003.

  5         (4)  Section 660.46, Florida Statutes, as it existed

  6  prior to the effective date of this act, shall be preserved

  7  and shall continue to apply to any final, annual, or periodic

  8  account for periods beginning before January 1, 2003, and

  9  other statements fully disclosing the matter received by the

10  beneficiary before January 1, 2003.

11         Section 13.  This act shall take effect upon becoming a

12  law.

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