CODING: Words stricken are deletions; words underlined are additions.



                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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  4  ______________________________________________________________

  5                                           ORIGINAL STAMP BELOW

  6

  7

  8

  9

10  ______________________________________________________________

11  Representative(s) Goodlette offered the following:

12

13         Amendment (with title amendment) 

14  remove:  everything after the enacting clause,

15

16  and insert:

17         Section 1.  Sections 738.101, 738.102, 738.103,

18  738.104, 738.1041, 738.105, 738.201, 738.202, 738.301,

19  738.302, 738.303, 738.401, 738.402, 738.403, 738.501, 738.502,

20  738.503, 738.504, 738.601, 738.602, 738.603, 738.604, 738.605,

21  738.606, 738.607, 738.608, 738.701, 738.702, 738.703, 738.704,

22  738.705, 738.706, 738.801, 738.802, 738.803, and 738.804,

23  Florida Statutes, are created to read:

24         738.101  Short title.--This chapter may be cited as the

25  "Florida Uniform Principal and Income Act."

26         738.102  Definitions.--As used in this chapter, the

27  term:

28         (1)  "Accounting period" means a calendar year unless

29  another 12-month period is selected by a fiduciary.  The term

30  includes a portion of a calendar year or other 12-month period

31  that begins when an income interest begins or ends when an

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  income interest ends.

  2         (2)  "Beneficiary" means, in the case of a decedent's

  3  estate, an heir or devisee and, in the case of a trust, an

  4  income beneficiary or a remainder beneficiary.

  5         (3)  "Fiduciary" means a personal representative or a

  6  trustee.  The term includes an executor, administrator,

  7  successor personal representative, special administrator, or a

  8  person performing substantially the same function.

  9         (4)  "Income" means money or property that a fiduciary

10  receives as current return from a principal asset.  The term

11  includes a portion of receipts from a sale, exchange, or

12  liquidation of a principal asset, to the extent provided in

13  ss. 738.401-738.403 and s. 738.503.

14         (5)  "Income beneficiary" means a person to whom net

15  income of a trust is or may be payable.

16         (6)  "Income interest" means the right of an income

17  beneficiary to receive all or part of net income, whether the

18  terms of the trust require the net income to be distributed or

19  authorize the net income to be distributed in the trustee's

20  discretion.

21         (7)  "Mandatory income interest" means the right of an

22  income beneficiary to receive net income that the terms of the

23  trust require the fiduciary to distribute.

24         (8)  "Net income" means the total receipts allocated to

25  income during an accounting period minus the disbursements

26  made from income during the period, plus or minus transfers

27  under this chapter to or from income during the period.

28         (9)  "Person" means an individual, corporation,

29  business trust, estate, trust, partnership, limited liability

30  company, association, joint venture, public corporation, or

31  any other legal or commercial entity or a government or

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  governmental subdivision, agency, or instrumentality.

  2         (10)  "Principal" means property held in trust for

  3  distribution to a remainder beneficiary when the trust

  4  terminates.

  5         (11)  "Remainder beneficiary" means a person entitled

  6  to receive principal when an income interest ends.

  7         (12)  "Terms of a trust" means the manifestation of the

  8  intent of a grantor or decedent with respect to the trust,

  9  expressed in a manner that admits of its proof in a judicial

10  proceeding, whether by written or spoken words or by conduct.

11         (13)  "Trustee" includes an original, additional, or

12  successor trustee, whether or not appointed or confirmed by a

13  court.

14         738.103  Fiduciary duties; general principles.--

15         (1)  In allocating receipts and disbursements to or

16  between principal and income, and with respect to any matter

17  within the scope of ss. 738.201 and 738.202 and ss.

18  738.301-738.303, a fiduciary:

19         (a)  Shall administer a trust or estate in accordance

20  with the terms of the trust or the will, even if there is a

21  different provision in this chapter.

22         (b)  May administer a trust or estate by the exercise

23  of a discretionary power of administration given to the

24  fiduciary by the terms of the trust or the will, even if the

25  exercise of the power produces a result different from a

26  result required or permitted by this chapter.

27         (c)  Shall administer a trust or estate in accordance

28  with this chapter if the terms of the trust or the will do not

29  contain a different provision or do not give the fiduciary a

30  discretionary power of administration.

31         (d)  Shall add a receipt or charge a disbursement to

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  principal to the extent the terms of the trust and this

  2  chapter do not provide a rule for allocating the receipt or

  3  disbursement to or between principal and income.

  4         (2)  In exercising the power to adjust under s.

  5  738.104(1) or a discretionary power of administration

  6  regarding a matter within the scope of this chapter, whether

  7  granted by the terms of a trust, a will, or this chapter, a

  8  fiduciary shall administer a trust or estate impartially,

  9  based on what is fair and reasonable to all of the

10  beneficiaries, except to the extent the terms of the trust or

11  the will clearly manifest an intention that the fiduciary

12  shall or may favor one or more of the beneficiaries.  A

13  determination in accordance with this chapter is presumed to

14  be fair and reasonable to all of the beneficiaries.

15         738.104  Trustee's power to adjust.--

16         (1)  A trustee may adjust between principal and income

17  to the extent the trustee considers necessary if the trustee

18  invests and manages trust assets as a prudent investor, the

19  terms of the trust describe the amount that may or shall be

20  distributed to a beneficiary by referring to the trust's

21  income, and the trustee determines, after applying the rules

22  in s. 738.103(1), that the trustee is unable to comply with s.

23  738.103(2).

24         (2)  In deciding whether and to what extent to exercise

25  the power conferred by subsection (1), a trustee shall

26  consider all factors relevant to the trust and its

27  beneficiaries, including the following factors to the extent

28  they are relevant:

29         (a)  The nature, purpose, and expected duration of the

30  trust.

31         (b)  The intent of the grantor.

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (c)  The identity and circumstances of the

  2  beneficiaries.

  3         (d)  The needs for liquidity, regularity of income, and

  4  preservation and appreciation of capital.

  5         (e)  The assets held in the trust; the extent to which

  6  the assets consist of financial assets, interests in closely

  7  held enterprises, tangible and intangible personal property,

  8  or real property; the extent to which an asset is used by a

  9  beneficiary; and whether an asset was purchased by the trustee

10  or received from the grantor.

11         (f)  The net amount allocated to income under the other

12  sections of this chapter and the increases or decreases in the

13  value of the principal assets, which the trustee may estimate

14  as to assets for which market values are not readily

15  available.

16         (g)  Whether and to what extent the terms of the trust

17  give the trustee the power to invade principal or accumulate

18  income or prohibit the trustee from invading principal or

19  accumulating income and the extent to which the trustee has

20  exercised a power from time to time to invade principal or

21  accumulate income.

22         (h)  The actual and anticipated effect of economic

23  conditions on principal and income and effects of inflation

24  and deflation.

25         (i)  The anticipated tax consequences of an adjustment.

26         (3)  A trustee may not make an adjustment:

27         (a)  That diminishes the income interest in a trust

28  that requires all of the income to be paid at least annually

29  to a spouse and for which an estate tax or gift tax marital

30  deduction would be allowed, in whole or in part, if the

31  trustee did not have the power to adjust;

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (b)  That reduces the actuarial value of the income

  2  interest in a trust to which a person transfers property with

  3  the intent to qualify for a gift tax exclusion;

  4         (c)  That changes the amount payable to a beneficiary

  5  as a fixed annuity or a fixed fraction of the value of the

  6  trust assets;

  7         (d)  From any amount that is permanently set aside for

  8  charitable purposes under a will or the terms of a trust

  9  unless both income and principal are so set aside;

10         (e)  If possessing or exercising the power to adjust

11  causes an individual to be treated as the owner of all or part

12  of the trust for income tax purposes and the individual would

13  not be treated as the owner if the trustee did not possess the

14  power to adjust;

15         (f)  If possessing or exercising the power to adjust

16  causes all or part of the trust assets to be included for

17  estate tax purposes in the estate of an individual who has the

18  power to remove a trustee or appoint a trustee, or both, and

19  the assets would not be included in the estate of the

20  individual if the trustee did not possess the power to adjust;

21         (g)  If the trustee is a beneficiary of the trust; or

22         (h)  If the trustee is not a beneficiary of the trust

23  but the adjustment would benefit the trustee directly or

24  indirectly.

25         (4)  If paragraph (3)(e), paragraph (3)(f), paragraph

26  (3)(g), or paragraph (3)(h) applies to a trustee and there is

27  more than one trustee, a cotrustee to whom the provision does

28  not apply may make the adjustment unless the exercise of the

29  power by the remaining trustee is not permitted by the terms

30  of the trust.

31         (5)  A trustee may release the entire power to adjust

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  conferred by subsection (1) or may release only the power to

  2  adjust from income to principal or the power to adjust from

  3  principal to income if the trustee is uncertain about whether

  4  possessing or exercising the power will cause a result

  5  described in paragraphs (3)(a)-(f) or paragraph (3)(h) or if

  6  the trustee determines that possessing or exercising the power

  7  will or may deprive the trust of a tax benefit or impose a tax

  8  burden not described in subsection (3).  The release may be

  9  permanent or for a specified period, including a period

10  measured by the life of an individual.

11         (6)  Terms of a trust that limit a trustee's power to

12  adjust between principal and income do not affect the

13  application of this section unless it is clear from the terms

14  of the trust that the terms are intended to deny the trustee

15  the power to adjust conferred by subsection (1).

16         (7)  Nothing in this chapter is intended to create or

17  imply a duty to make an adjustment and no inference of

18  impropriety shall be made as a result of a trustee not

19  exercising the power to adjust conferred by subsection (1).

20         (8)  With respect to a trust in existence on January 1,

21  2003:

22         (a)  A trustee shall not have the power to adjust under

23  this section if, within 60 days after the date of the

24  statement required in subsection (9), a super majority of the

25  trust beneficiaries deliver to the trustee a written objection

26  to the application of this section to such trust. An objection

27  shall be deemed to be delivered to the trustee on the date the

28  objection is mailed to the mailing address listed in the

29  notice provided in subsection (9).

30         (b)  An objection under this section may be executed by

31  a legal representative or natural guardian of a beneficiary

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  without the filing of any proceeding or approval of any court.

  2         (c)  If an objection is delivered to the trustee, then

  3  the trustee may petition the circuit court for an order

  4  quashing the objection and vesting in such trustee the power

  5  to adjust under this section.  The burden will be on the

  6  objecting beneficiaries to prove that the power to adjust

  7  would be inequitable, illegal, or otherwise in contravention

  8  of the grantor's intent.  The court may award costs and

  9  attorney's fees relating to the trustee's petition in the same

10  manner as in chancery actions.  When costs and attorney's fees

11  are to be paid out of the trust, the court may, in its

12  discretion, direct from which part of the trust they shall be

13  paid.

14         (d)  If no timely objection is made or if the trustee

15  is vested with the power to adjust by court order, the trustee

16  may thereafter exercise the power to adjust without providing

17  notice of its intent to do so unless, in vesting the trustee

18  with the power to adjust, the court determines that unusual

19  circumstances require otherwise.

20         (e)1.  If a trustee makes a good faith effort to comply

21  with the notice provisions of subsection (9), but fails to

22  deliver notice to one or more beneficiaries entitled to such

23  notice, neither the validity of the notice required under this

24  subsection nor the trustee's power to adjust under this

25  section shall be affected until the trustee has actual notice

26  that one or more beneficiaries entitled to notice were not

27  notified. Until the trustee has actual notice of the notice

28  deficiency, the trustee shall have all of the powers and

29  protections granted a trustee with the power to adjust under

30  this chapter.

31         2.  When the trustee has actual notice that one or more

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  beneficiaries entitled to notice under subsection (9) were not

  2  notified, the trustee's power to adjust under this section

  3  shall cease until all beneficiaries who are entitled to such

  4  notice, including those who were previously provided with such

  5  notice, are notified and given the opportunity to object as

  6  provided for under this subsection.

  7         (f)  The objection of a super majority of beneficiaries

  8  under this subsection shall be valid for a period of 1 year

  9  after the date of the notice set forth in subsection (9). Upon

10  expiration of the objection, the trustee may thereafter give a

11  new notice under subsection (9).

12         (g)  Nothing in this section is intended to create or

13  imply a duty of the trustee of a trust existing on January 1,

14  2003, to seek a power to adjust pursuant to this subsection or

15  to give the notice described in subsection (9) if the trustee

16  does not desire to have a power to adjust under this section,

17  and no inference of impropriety shall be made as the result of

18  a trustee not seeking a power to adjust pursuant to this

19  subsection.

20         (9)(a)  A trustee of a trust in existence on January 1,

21  2003, that is not prohibited under subsection (3) from

22  exercising the power to adjust shall, any time prior to

23  initially exercising the power, provide to all reasonably

24  ascertainable current beneficiaries described in s.

25  737.303(4)(b)1. and all reasonably ascertainable remainder

26  beneficiaries described in s. 737.303(4)(b)2. a statement

27  containing the following:

28         1.  The name, telephone number, street address, and

29  mailing address of the trustee and of any individuals who may

30  be contacted for further information;

31         2.  A statement that unless a super majority of the

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  beneficiaries objects to the application of this section to

  2  the trust within 60 days after the date the statement pursuant

  3  to this subsection was served, s. 738.104, shall apply to the

  4  trust; and

  5         3.  A statement that, if s. 738.104, applies to the

  6  trust, the trustee will have the power to adjust between

  7  income and principal and that such a power may have an effect

  8  on the distributions to such beneficiary from the trust.

  9         (b)  The statement may contain information regarding a

10  trustee's fiduciary obligations with respect to the power to

11  adjust between income and principal under this section.

12         (c)  The statement referred to in this subsection shall

13  be served informally, in the manner provided in the Florida

14  Rules of Civil Procedure relating to service of pleadings

15  subsequent to the initial pleading.

16         (d)  For purposes of subsection (8) and this

17  subsection, a "super majority of the trust beneficiaries"

18  means at least two-thirds in interest of the reasonably

19  ascertainable current beneficiaries described in s.

20  737.303(4)(b)1. or two-thirds in interest of the reasonably

21  ascertainable remainder beneficiaries described in s.

22  737.303(4)(b)2., if the interests of the beneficiaries are

23  reasonably ascertainable; otherwise, it means two-thirds in

24  number of either such class.

25         (10)  A trust exists on January 1, 2003, if it is not

26  revocable on January 1, 2003. A trust is revocable if

27  revocable by the grantor alone or in conjunction with any

28  other person. A trust is not revocable for purposes of this

29  section if revocable by the grantor only with the consent of

30  all persons having a beneficial interest in the property.

31         738.1041  Total return unitrust.--

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (1)  For purposes of this section, the term:

  2         (a)  "Disinterested person" means a person who is not a

  3  "related or subordinate party" as defined in s. 672(c) of the

  4  United States Internal Revenue Code, 26 U.S.C. s. 1 et seq.,

  5  or any successor provision thereof, with respect to the person

  6  then acting as trustee of the trust and excludes the grantor

  7  and any interested trustee.

  8         (b)  "Income trust" means a trust, created by either an

  9  inter vivos or a testamentary instrument, which directs or

10  permits the trustee to distribute the net income of the trust

11  to one or more persons, either in fixed proportions or in

12  amounts or proportions determined by the trustee.

13  Notwithstanding the foregoing, no trust that otherwise is an

14  "income trust" shall qualify hereunder, if it may be subject

15  to taxation under the Internal Revenue Code, 26 U.S.C. s. 2001

16  or s. 2501, until the expiration of the period for filing the

17  return therefor, including extensions.

18         (c)  "Interested distributee" means a person to whom

19  distributions of income or principal can currently be made who

20  has the power to remove the existing trustee and designate as

21  successor a person who may be a "related or subordinate

22  party," as defined in the Internal Revenue Code, 26 U.S.C. s.

23  672(c), with respect to such distributee.

24         (d)  "Interested trustee" means an individual trustee

25  to whom the net income or principal of the trust can currently

26  be distributed or would be distributed if the trust were then

27  to terminate and be distributed, any trustee who may be

28  removed and replaced by an interested distributee, or an

29  individual trustee whose legal obligation to support a

30  beneficiary may be satisfied by distributions of income and

31  principal of the trust.

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (2)  A trustee may, without court approval, convert an

  2  income trust to a total return unitrust, reconvert a total

  3  return unitrust to an income trust, or change the percentage

  4  used to calculate the unitrust amount or the method used to

  5  determine the fair market value of the trust if:

  6         (a)  The trustee adopts a written statement regarding

  7  trust distributions that provides:

  8         1.  In the case of a trust being administered as an

  9  income trust, that future distributions from the trust will be

10  unitrust amounts rather than net income, and indicates the

11  manner in which the unitrust amount will be calculated and the

12  method in which the fair market value of the trust will be

13  determined.

14         2.  In the case of a trust being administered as a

15  total return unitrust, that:

16         a.  Future distributions from the trust will be net

17  income rather than unitrust amounts; or

18         b.  The percentage used to calculate the unitrust

19  amount or the method used to determine the fair market value

20  of the trust will be changed, and indicates the manner in

21  which the new unitrust amount will be calculated and the

22  method in which the new fair market value of the trust will be

23  determined;

24         (b)1.  The trustee determines, or if there is no

25  trustee other than an interested trustee, the trustee appoints

26  a disinterested person who, in its sole discretion but acting

27  in a fiduciary capacity, determines for the trustee:

28         a.  The percentage to be used to calculate the unitrust

29  amount, provided the percentage used is not greater than 5

30  percent nor less than 3 percent;

31         b.  The method to be used in determining the fair

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  market value of the trust; and

  2         c.  Which assets, if any, are to be excluded in

  3  determining the unitrust amount; or

  4         2.  The trustee administers the trust such that:

  5         a.  The percentage used to calculate the unitrust

  6  amount is 50 percent of the applicable federal rate as defined

  7  in the Internal Revenue Code, 26 U.S.C. s. 7520, in effect for

  8  the month the conversion under this section becomes effective

  9  and for each January thereafter; however, the percentage shall

10  never be greater than 5 percent nor less than 3 percent; and

11         b.  The fair market value of the trust shall be

12  determined at least annually on an asset-by-asset basis,

13  reasonably and in good faith, in accordance with the

14  provisions of s. 738.202(5), except the following property

15  shall not be included in determining the value of the trust:

16         (I)  Any residential property or any tangible personal

17  property that, as of the first business day of the current

18  valuation year, one or more current beneficiaries of the trust

19  have or have had the right to occupy, or have or have had the

20  right to possess or control (other than in his or her capacity

21  as trustee of the trust), and instead the right of occupancy

22  or the right to possession and control shall be deemed to be

23  the unitrust amount with respect to such property; however,

24  the unitrust amount shall be adjusted to take into account

25  partial distributions from or receipt into the trust of such

26  property during the valuation year.

27         (II)  Any asset specifically given to a beneficiary and

28  the return on investment on such property, which return on

29  investment shall be distributable to such beneficiary.

30         (III)  Any asset while held in a testator's estate;

31         (c)  The trustee sends written notice of its intention

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  to take such action, along with copies of such written

  2  statement and this section, and, if applicable, the

  3  determinations of either the trustee or the disinterested

  4  person to:

  5         1.  The grantor of the trust, if living.

  6         2.  All living persons who are currently receiving or

  7  eligible to receive distributions of income of the trust.

  8         3.  All living persons who would receive distributions

  9  of principal of the trust if the trust were to terminate at

10  the time of the giving of such notice (without regard to the

11  exercise of any power of appointment) or, if the trust does

12  not provide for its termination, all living persons who would

13  receive or be eligible to receive distributions of income or

14  principal of the trust if the persons identified in

15  subparagraph 2. were deceased.

16         4.  All persons acting as advisers or protectors of the

17  trust.

18

19  Notice under this paragraph shall be served informally, in the

20  manner provided in the Florida Rules of Civil Procedure

21  relating to service of pleadings subsequent to the initial

22  pleading;

23         (d)  At least one person receiving notice under each of

24  subparagraphs (c)2. and 3. is legally competent; and

25         (e)  No person receiving such notice objects, by

26  written instrument delivered to the trustee, to the proposed

27  action of the trustee or the determinations of the

28  disinterested person within 60 days after receipt of such

29  notice.

30         (3)  If a trustee desires to convert an income trust to

31  a total return unitrust, reconvert a total return unitrust to

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  an income trust, or change the percentage used to calculate

  2  the unitrust amount or the method used to determine a fair

  3  market value of the trust but does not have the ability to or

  4  elects not to do it under subsection (2), the trustee may

  5  petition the circuit court for such order as the trustee deems

  6  appropriate.  In that event, the court, in its own discretion

  7  or on the petition of such trustee or any person having an

  8  income or remainder interest in the trust, may appoint a

  9  disinterested person who, acting in a fiduciary capacity,

10  shall present such information to the court as shall be

11  necessary for the court to make a determination hereunder.

12         (4)  All determinations made pursuant to

13  sub-subparagraph (2)(b)2.b. shall be conclusive if reasonable

14  and made in good faith.  Such determination shall be

15  conclusively presumed to have been made reasonably and in good

16  faith unless proven otherwise in a proceeding commenced by or

17  on behalf of a person interested in the trust within the time

18  provided in s. 737.307. The burden will be on the objecting

19  interested party to prove that the determinations were not

20  made reasonably and in good faith.

21         (5)  The unitrust amount shall not be less than the net

22  income of the trust, determined without regard to the

23  provisions of subsection (6), for:

24         (a)  A trust for which a marital deduction has been

25  taken for federal tax purposes under the Internal Revenue

26  Code, 26 U.S.C. s. 2056 or s. 2523, during the lifetime of the

27  spouse for whom the trust was created; or

28         (b)  A trust to which the generation-skipping transfer

29  tax due under the Internal Revenue Code, 26 U.S.C. s. 2601

30  does not apply by reason of any effective date or transition

31  rule.

                                  15

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1

  2  Paragraph (a) will not apply to any trust to the extent that

  3  the use of a total return unitrust is recognized for federal

  4  tax purposes under the Internal Revenue Code, 26 U.S.C. s.

  5  2056 or s. 2523.  Paragraph (b) will not apply to any trust to

  6  the extent that the use of a total return unitrust is

  7  recognized for federal tax purposes under the Internal Revenue

  8  Code, 26 U.S.C. s. 2601.

  9         (6)  Following the conversion of an income trust to a

10  total return unitrust, the trustee:

11         (a)  Shall treat the unitrust amount as if it were net

12  income of the trust for purposes of determining the amount

13  available, from time to time, for distribution from the trust.

14         (b)  May allocate to trust income for each taxable year

15  of the trust, or portion thereof:

16         1.  Net short-term capital gain described in the

17  Internal Revenue Code, 26 U.S.C. s. 1222(5), for such year, or

18  portion thereof, but only to the extent that the amount so

19  allocated together with all other amounts allocated to trust

20  income, as determined under the provisions of this chapter

21  without regard to this section and s. 738.104, for such year,

22  or portion thereof, does not exceed the unitrust amount for

23  such year, or portion thereof.

24         2.  Net long-term capital gain described in the

25  Internal Revenue Code, 26 U.S.C. s. 1222(7), for such year, or

26  portion thereof, but only to the extent that the amount so

27  allocated together with all other amounts, including amounts

28  described in subparagraph 1., allocated to trust income for

29  such year, or portion thereof, does not exceed the unitrust

30  amount for such year, or portion thereof.

31         (7)  In administering a total return unitrust, the

                                  16

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  trustee may, in its sole discretion but subject to the

  2  provisions of the governing instrument, determine:

  3         (a)  The effective date of the conversion.

  4         (b)  The timing of distributions, including provisions

  5  for prorating a distribution for a short year in which a

  6  beneficiary's right to payments commences or ceases.

  7         (c)  Whether distributions are to be made in cash or in

  8  kind or partly in cash and partly in kind.

  9         (d)  If the trust is reconverted to an income trust,

10  the effective date of such reconversion.

11         (e)  Such other administrative issues as may be

12  necessary or appropriate to carry out the purposes of this

13  section.

14         (8)  Conversion to a total return unitrust under the

15  provisions of this section shall not affect any other

16  provision of the governing instrument, if any, regarding

17  distributions of principal.

18         (9)  In the case of a trust for which a marital

19  deduction has been taken for federal tax purposes under the

20  Internal Revenue Code, 26 U.S.C. s. 2056 or s. 2523, the

21  spouse otherwise entitled to receive the net income of the

22  trust shall have the right, by written instrument delivered to

23  the trustee, to compel the reconversion during his or her

24  lifetime of the trust from a total return unitrust to an

25  income trust, notwithstanding anything in this section to the

26  contrary, unless the use of a total return unitrust is

27  recognized for federal tax purposes under the Internal Revenue

28  Code, 26 U.S.C. s. 2056 or s. 2523.

29         (10)  Any trustee or disinterested person who in good

30  faith takes or fails to take any action under this section

31  shall not be liable to any person affected by such action or

                                  17

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  inaction, regardless of whether such person received written

  2  notice as provided in this section and regardless of whether

  3  such person was under a legal disability at the time of the

  4  delivery of such notice. Such person's exclusive remedy shall

  5  be to obtain, under subsection (11), an order of the court

  6  directing the trustee to convert an income trust to a total

  7  return unitrust, to reconvert from a total return unitrust to

  8  an income trust, or to change the percentage used to calculate

  9  the unitrust amount.

10         (11)  If a majority in interest of either the income or

11  remainder beneficiaries of an income trust has delivered to

12  the trustee a written objection to the amount of the income

13  distributions of the trust, and, if the trustee has failed to

14  resolve the objection to the satisfaction of the objecting

15  beneficiaries within 6 months from the receipt of such written

16  objection, then the objecting beneficiaries may petition the

17  court in accordance with subsection (3).

18         (12)  This section shall be construed as pertaining to

19  the administration of a trust and shall be available to any

20  trust that is administered in this state under Florida law

21  unless:

22         (a)  The governing instrument reflects an intention

23  that the current beneficiary or beneficiaries are to receive

24  an amount other than a reasonable current return from the

25  trust;

26         (b)  The trust is a trust described in the Internal

27  Revenue Code, 26 U.S.C. s. 170(f)(2)(B), s. 642(c)(5), s.

28  664(d), s. 1361(d), s. 2702(a)(3), or s. 2702(b);

29         (c)  One or more persons to whom the trustee could

30  distribute income have a power of withdrawal over the trust

31  that is not subject to an ascertainable standard under the

                                  18

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  Internal Revenue Code, 26 U.S.C. s. 2041 or s. 2514, or that

  2  can be exercised to discharge a duty of support he or she

  3  possesses;

  4         (d)  The governing instrument expressly prohibits use

  5  of this section by specific reference to the section.  A

  6  provision in the governing instrument that, "The provisions of

  7  section 738.1041, Florida Statutes, as amended, or any

  8  corresponding provision of future law, shall not be used in

  9  the administration of this trust," or similar words reflecting

10  such intent shall be sufficient to preclude the use of this

11  section; or

12         (e)  The trust is a trust with respect to which a

13  trustee currently possesses the power to adjust under s.

14  738.104.

15         738.105  Judicial control of discretionary powers.--

16         (1)  A court shall not change a fiduciary's decision to

17  exercise or not to exercise a discretionary power conferred by

18  this chapter unless the court determines that the decision was

19  an abuse of the fiduciary's discretion.  A court shall not

20  determine that a fiduciary abused its discretion merely

21  because the court would have exercised the discretion in a

22  different manner or would not have exercised the discretion.

23         (2)  The decisions to which subsection (1) applies

24  include:

25         (a)  A determination under s. 738.104(1) of whether and

26  to what extent an amount should be transferred from principal

27  to income or from income to principal.

28         (b)  A determination of the factors that are relevant

29  to the trust and trust beneficiaries, the extent to which such

30  factors are relevant, and the weight, if any, to be given to

31  the relevant factors, in deciding whether and to what extent

                                  19

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  to exercise the power conferred by s. 738.104(1).

  2         (3)  If a court determines that a fiduciary has abused

  3  its discretion, the remedy shall be to restore the income and

  4  remainder beneficiaries to the positions they would have

  5  occupied if the fiduciary had not abused its discretion,

  6  according to the following rules:

  7         (a)  To the extent the abuse of discretion has resulted

  8  in no distribution to a beneficiary or a distribution that is

  9  too small, the court shall require the fiduciary to distribute

10  from the trust to the beneficiary an amount the court

11  determines will restore the beneficiary, in whole or in part,

12  to his or her appropriate position.

13         (b)  To the extent the abuse of discretion has resulted

14  in a distribution to a beneficiary that is too large, the

15  court shall restore the beneficiaries, the trust, or both, in

16  whole or in part, to their appropriate positions by requiring

17  the fiduciary to withhold an amount from one or more future

18  distributions to the beneficiary who received the distribution

19  that was too large or requiring that beneficiary to return

20  some or all of the distribution to the trust.

21         (c)  To the extent the court is unable, after applying

22  paragraphs (a) and (b), to restore the beneficiaries, the

23  trust, or both, to the positions they would have occupied if

24  the fiduciary had not abused its discretion, the court may

25  require the fiduciary to pay an appropriate amount from its

26  own funds to one or more of the beneficiaries or the trust or

27  both.

28         (4)  Upon the filing of a petition by the fiduciary,

29  the court having jurisdiction over the trust or estate shall

30  determine whether a proposed exercise or nonexercise by the

31  fiduciary of a discretionary power conferred by this chapter

                                  20

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  will result in an abuse of the fiduciary's discretion.  If the

  2  petition describes the proposed exercise or nonexercise of the

  3  power and contains sufficient information to inform the

  4  beneficiaries of the reasons for the proposal, the facts upon

  5  which the fiduciary relies, and an explanation of how the

  6  income and remainder beneficiaries will be affected by the

  7  proposed exercise or nonexercise of the power, a beneficiary

  8  who challenges the proposed exercise or nonexercise has the

  9  burden of establishing that such exercise or nonexercise will

10  result in an abuse of discretion.

11         (5)  If an action is instituted alleging an abuse of

12  discretion in the exercise or nonexercise of the power of

13  adjustment conferred by s. 738.104(1) and the court determines

14  that no abuse of discretion has occurred, the trustee's costs

15  and attorney's fees incurred in defending the action shall be

16  paid from the trust assets.

17         738.201  Determination and distribution of net

18  income.--After a decedent dies, in the case of an estate, or

19  after an income interest in a trust ends, the following rules

20  apply:

21         (1)  A fiduciary of an estate or of a terminating

22  income interest shall determine the amount of net income and

23  net principal receipts received from property specifically

24  given to a beneficiary under the rules in ss. 738.301-738.706

25  which apply to trustees and the rules in subsection (5).  The

26  fiduciary shall distribute the net income and net principal

27  receipts to the beneficiary who is to receive the specific

28  property.

29         (2)  A fiduciary shall determine the remaining net

30  income of a decedent's estate or a terminating income interest

31  under the rules in ss. 738.301-738.706 which apply to trustees

                                  21

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  and by:

  2         (a)  Including in net income all income from property

  3  used to discharge liabilities.

  4         (b)  Paying from income or principal, in the

  5  fiduciary's discretion, fees of attorneys, accountants, and

  6  fiduciaries; court costs and other expenses of administration;

  7  and interest on death taxes, but the fiduciary may pay those

  8  expenses from income of property passing to a trust for which

  9  the fiduciary claims an estate tax marital or charitable

10  deduction only to the extent the payment of those expenses

11  from income will not cause the reduction or loss of the

12  deduction.

13         (c)  Paying from principal all other disbursements made

14  or incurred in connection with the settlement of a decedent's

15  estate or the winding up of a terminating income interest,

16  including debts, funeral expenses, disposition of remains,

17  family allowances, and death taxes and related penalties that

18  are apportioned to the estate or terminating income interest

19  by the will, the terms of the trust, or applicable law.

20         (3)  A fiduciary shall distribute to a beneficiary who

21  receives a pecuniary amount outright the interest or any other

22  amount provided by the will, the terms of the trust, or

23  applicable law from net income determined under subsection (2)

24  or from principal to the extent net income is insufficient.

25  If a beneficiary is to receive a pecuniary amount outright

26  from a trust after an income interest ends and no interest or

27  other amount is provided for by the terms of the trust or

28  applicable law, the fiduciary shall distribute the interest or

29  other amount to which the beneficiary would be entitled under

30  applicable law if the pecuniary amount were required to be

31  paid under a will.

                                  22

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (4)  A fiduciary shall distribute the net income

  2  remaining after distributions required by subsection (3) in

  3  the manner described in s. 738.202 to all other beneficiaries,

  4  including a beneficiary who receives a pecuniary amount in

  5  trust, even if the beneficiary holds an unqualified power to

  6  withdraw assets from the trust or other presently exercisable

  7  general power of appointment over the trust.

  8         (5)  A fiduciary may not reduce principal or income

  9  receipts from property described in subsection (1) because of

10  a payment described in s. 738.701 or s. 738.702 to the extent

11  the will, the terms of the trust, or applicable law requires

12  the fiduciary to make the payment from assets other than the

13  property or to the extent the fiduciary recovers or expects to

14  recover the payment from a third party.  The net income and

15  principal receipts from the property are determined by

16  including all of the amounts the fiduciary receives or pays

17  with respect to the property, whether those amounts accrued or

18  became due before, on, or after the date of a decedent's death

19  or an income interest's terminating event, and by making a

20  reasonable provision for amounts the fiduciary believes the

21  estate or terminating income interest may become obligated to

22  pay after the property is distributed.

23         738.202  Distribution to residuary and remainder

24  beneficiaries.--

25         (1)  Each beneficiary described in s. 738.201(4) is

26  entitled to receive a portion of the net income equal to the

27  beneficiary's fractional interest in undistributed principal

28  assets, using values as of the distribution date.  If a

29  fiduciary makes more than one distribution of assets to

30  beneficiaries to whom this section applies, each beneficiary,

31  including one who does not receive part of the distribution,

                                  23

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  is entitled, as of each distribution date, to the net income

  2  the fiduciary has received after the date of death or

  3  terminating event or earlier distribution date but has not

  4  distributed as of the current distribution date.

  5         (2)  In determining a beneficiary's share of net

  6  income, the following rules apply:

  7         (a)  The beneficiary is entitled to receive a portion

  8  of the net income equal to the beneficiary's fractional

  9  interest in the undistributed principal assets immediately

10  before the distribution date, including assets that later may

11  be sold to meet principal obligations.

12         (b)  The beneficiary's fractional interest in the

13  undistributed principal assets shall be calculated without

14  regard to property specifically given to a beneficiary and

15  property required to pay pecuniary amounts not in trust.

16         (c)  The beneficiary's fractional interest in the

17  undistributed principal assets shall be calculated on the

18  basis of the aggregate value of those assets as of the

19  distribution date without reducing the value by any unpaid

20  principal obligation.

21         (d)  The distribution date for purposes of this section

22  may be the date as of which the fiduciary calculates the value

23  of the assets if that date is reasonably near the date on

24  which assets are actually distributed.

25         (3)  If a fiduciary does not distribute all of the

26  collected but undistributed net income to each person as of a

27  distribution date, the fiduciary shall maintain appropriate

28  records showing the interest of each beneficiary in that net

29  income.

30         (4)  A fiduciary may apply the rules in this section,

31  to the extent the fiduciary considers appropriate, to net gain

                                  24

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  or loss realized after the date of death or terminating event

  2  or earlier distribution date from the disposition of a

  3  principal asset if this section applies to the income from the

  4  asset.

  5         (5)  The value of trust assets shall be determined on

  6  an asset-by-asset basis and shall be conclusive if reasonable

  7  and determined in good faith. Determinations based on

  8  appraisals performed within 2 years after the valuation date

  9  shall be presumed reasonable. The value of trust assets shall

10  be conclusively presumed to be reasonable and determined in

11  good faith unless proven otherwise in a proceeding commenced

12  by or on behalf of a person interested in the trust within the

13  time provided in s. 737.307.

14         738.301  When right to income begins and ends.--An

15  income beneficiary is entitled to net income from the date on

16  which the income interest begins.

17         (1)  An income interest begins on the date specified in

18  the terms of the trust or, if no date is specified, on the

19  date an asset becomes subject to a trust or successive income

20  interest.

21         (2)  An asset becomes subject to a trust:

22         (a)  On the date the asset is transferred to the trust

23  in the case of an asset that is transferred to a trust during

24  the transferor's life;

25         (b)  On the date of a testator's death in the case of

26  an asset that becomes subject to a trust by reason of a will,

27  even if there is an intervening period of administration of

28  the testator's estate; or

29         (c)  On the date of an individual's death in the case

30  of an asset that is transferred to a fiduciary by a third

31  party because of the individual's death.

                                  25

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (3)  An asset becomes subject to a successive income

  2  interest on the day after the preceding income interest ends,

  3  as determined under subsection (4), even if there is an

  4  intervening period of administration to wind up the preceding

  5  income interest.

  6         (4)  An income interest ends on the day before an

  7  income beneficiary dies or another terminating event occurs,

  8  or on the last day of a period during which there is no

  9  beneficiary to whom a trustee may distribute income.

10         738.302  Apportionment of receipts and disbursements

11  when decedent dies or income interest begins.--

12         (1)  A trustee shall allocate an income receipt or

13  disbursement other than one to which s. 738.201(1) applies to

14  principal if the due date of the receipt or disbursement

15  occurs before a decedent dies in the case of an estate or

16  before an income interest begins in the case of a trust or

17  successive income interest.

18         (2)  A trustee shall allocate an income receipt or

19  disbursement to income if the due date of the receipt or

20  disbursement occurs on or after the date on which a decedent

21  dies or an income interest begins and the due date is a

22  periodic due date.  An income receipt or disbursement shall be

23  treated as accruing from day to day if the due date of the

24  receipt or disbursement is not periodic or the receipt or

25  disbursement has no due date.  The portion of the receipt or

26  disbursement accruing before the date on which a decedent dies

27  or an income interest begins shall be allocated to principal

28  and the balance shall be allocated to income.

29         (3)  An item of income or an obligation is due on the

30  date the payor is required to make a payment.  If a payment

31  date is not stated, there is no due date for the purposes of

                                  26

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  this chapter.  Distributions to shareholders or other owners

  2  from an entity to which s. 738.401 applies are deemed to be

  3  due on the date fixed by the entity for determining who is

  4  entitled to receive the distribution or, if no date is fixed,

  5  on the declaration date for the distribution.  A due date is

  6  periodic for receipts or disbursements that shall be paid at

  7  regular intervals under a lease or an obligation to pay

  8  interest or if an entity customarily makes distributions at

  9  regular intervals.

10         (4)  Nothing in this section shall prevent the

11  application of s. 733.817 to apportion tax to the income

12  recipient under this section.

13         738.303  Apportionment when income interest ends.--

14         (1)  For purposes of this section, "undistributed

15  income" means net income received before the date on which an

16  income interest ends.  The term does not include an item of

17  income or expense that is due or accrued or net income that

18  has been added or is required to be added to principal under

19  the terms of the trust.

20         (2)  When a mandatory income interest ends, the trustee

21  shall pay to a mandatory income beneficiary who survives that

22  date, or the estate of a deceased mandatory income beneficiary

23  whose death causes the interest to end, the beneficiary's

24  share of the undistributed income that is not disposed of

25  under the terms of the trust unless the beneficiary has an

26  unqualified power to revoke more than 5 percent of the trust

27  immediately before the income interest ends.  In the latter

28  case, the undistributed income from the portion of the trust

29  that may be revoked shall be added to principal.

30         (3)  When a trustee's obligation to pay a fixed annuity

31  or a fixed fraction of the value of the trust's assets ends,

                                  27

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  the trustee shall prorate the final payment if and to the

  2  extent required by applicable law to accomplish a purpose of

  3  the trust or its grantor relating to income, gift, estate, or

  4  other tax requirements.

  5         738.401  Character of receipts.--

  6         (1)  For purposes of this section, "entity" means a

  7  corporation, partnership, limited liability company, regulated

  8  investment company, real estate investment trust, common trust

  9  fund, or any other organization in which a trustee has an

10  interest other than a trust or estate to which s. 738.402

11  applies, a business or activity to which s. 738.403 applies,

12  or an asset-backed security to which s. 738.608 applies.

13         (2)  Except as otherwise provided in this section, a

14  trustee shall allocate to income money received from an

15  entity.

16         (3)  A trustee shall allocate the following receipts

17  from an entity to principal:

18         (a)  Property other than money.

19         (b)  Money received in one distribution or a series of

20  related distributions in exchange for part or all of a trust's

21  interest in the entity.

22         (c)  Money received in total or partial liquidation of

23  the entity.

24         (d)  Money received from an entity that is a regulated

25  investment company or a real estate investment trust if the

26  money distributed represents a distribution of short-term or

27  long-term capital gain for federal income tax purposes.

28         (4)  If a trustee elects, or continues an election made

29  by its predecessor, to reinvest dividends in shares of stock

30  of a distributing corporation or fund, whether evidenced by

31  new certificates or entries on the books of the distributing

                                  28

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  entity, the new shares shall retain their character as income.

  2         (5)  Money is received in partial liquidation:

  3         (a)  To the extent the entity, at or near the time of a

  4  distribution, indicates that such money is a distribution in

  5  partial liquidation; or

  6         (b)  If the total amount of money and property received

  7  in a distribution or series of related distributions is

  8  greater than 20 percent of the entity's gross assets, as shown

  9  by the entity's year-end financial statements immediately

10  preceding the initial receipt.

11         (6)  Money is not received in partial liquidation, nor

12  may money be taken into account under paragraph (5)(b), to the

13  extent such money does not exceed the amount of income tax a

14  trustee or beneficiary must pay on taxable income of the

15  entity that distributes the money.

16         (7)  A trustee may rely upon a statement made by an

17  entity about the source or character of a distribution if the

18  statement is made at or near the time of distribution by the

19  entity's board of directors or other person or group of

20  persons authorized to exercise powers to pay money or transfer

21  property comparable to those of a corporation's board of

22  directors.

23         738.402  Distribution from trust or estate.--A trustee

24  shall allocate to income an amount received as a distribution

25  of income from a trust or an estate in which the trust has an

26  interest other than a purchased interest and shall allocate to

27  principal an amount received as a distribution of principal

28  from such a trust or estate.  If a trustee purchases an

29  interest in a trust that is an investment entity, or a

30  decedent or donor transfers an interest in such a trust to a

31  trustee, s. 738.401 or s. 738.608 applies to a receipt from

                                  29

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  the trust.

  2         738.403  Business and other activities conducted by

  3  trustee.--

  4         (1)  If a trustee who conducts a business or other

  5  activity determines that it is in the best interest of all the

  6  beneficiaries to account separately for the business or

  7  activity instead of accounting for the business or activity as

  8  part of the trust's general accounting records, the trustee

  9  may maintain separate accounting records for the transactions

10  of such business or other activity, whether or not the assets

11  of such business or activity are segregated from other trust

12  assets.

13         (2)  A trustee who accounts separately for a business

14  or other activity may determine the extent to which the net

15  cash receipts of such business or activity must be retained

16  for working capital, the acquisition or replacement of fixed

17  assets, and other reasonably foreseeable needs of the business

18  or activity, and the extent to which the remaining net cash

19  receipts are accounted for as principal or income in the

20  trust's general accounting records.  If a trustee sells assets

21  of the business or other activity, other than in the ordinary

22  course of the business or activity, the trustee shall account

23  for the net amount received as principal in the trust's

24  general accounting records to the extent the trustee

25  determines that the amount received is no longer required in

26  the conduct of the business.

27         (3)  Activities for which a trustee may maintain

28  separate accounting records include:

29         (a)  Retail, manufacturing, service, and other

30  traditional business activities.

31         (b)  Farming.

                                  30

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (c)  Raising and selling livestock and other animals.

  2         (d)  Management of rental properties.

  3         (e)  Extraction of minerals and other natural

  4  resources.

  5         (f)  Timber operations.

  6         (g)  Activities to which s. 738.608 applies.

  7         738.501  Principal receipts.--A trustee shall allocate

  8  to principal:

  9         (1)  To the extent not allocated to income under this

10  chapter, assets received from a transferor during the

11  transferor's lifetime, a decedent's estate, a trust with a

12  terminating income interest, or a payor under a contract

13  naming the trust or its trustee as beneficiary.

14         (2)  Money or other property received from the sale,

15  exchange, liquidation, or change in form of a principal asset,

16  including realized profit, subject to this section.

17         (3)  Amounts recovered from third parties to reimburse

18  the trust because of disbursements described in s.

19  738.702(1)(g) or for other reasons to the extent not based on

20  the loss of income.

21         (4)  Proceeds of property taken by eminent domain but a

22  separate award made for the loss of income with respect to an

23  accounting period during which a current income beneficiary

24  had a mandatory income interest is income.

25         (5)  Net income received in an accounting period during

26  which there is no beneficiary to whom a trustee may or shall

27  distribute income.

28         (6)  Other receipts as provided in ss. 738.601-738.608.

29         738.502  Rental property.--To the extent a trustee

30  accounts for receipts from rental property pursuant to this

31  section, the trustee shall allocate to income an amount

                                  31

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  received as rent of real or personal property, including an

  2  amount received for cancellation or renewal of a lease.  An

  3  amount received as a refundable deposit, including a security

  4  deposit or a deposit that is to be applied as rent for future

  5  periods, shall be added to principal and held subject to the

  6  terms of the lease and is not available for distribution to a

  7  beneficiary until the trustee's contractual obligations have

  8  been satisfied with respect to that amount.

  9         738.503  Obligation to pay money.--

10         (1)  An amount received as interest, whether determined

11  at a fixed, variable, or floating rate, on an obligation to

12  pay money to the trustee, including an amount received as

13  consideration for prepaying principal, shall be allocated to

14  income without any provision for amortization of premium.

15         (2)  Except as otherwise provided herein, a trustee

16  shall allocate to principal an amount received from the sale,

17  redemption, or other disposition of an obligation to pay money

18  to the trustee.

19         (3)  The increment in value of a bond or other

20  obligation for the payment of money bearing no stated interest

21  but payable at a future time in excess of the price at which

22  it was issued or purchased, if purchased after issuance, is

23  distributable as income.  If the increment in value accrues

24  and becomes payable pursuant to a fixed schedule of

25  appreciation, it may be distributed to the beneficiary who was

26  the income beneficiary at this time of increment from the

27  first principal cash available or, if none is available, when

28  the increment is realized by sale, redemption, or other

29  disposition.  When unrealized increment is distributed as

30  income but out of principal, the principal shall be reimbursed

31  for the increment when realized. If, in the reasonable

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  judgment of the trustee, exercised in good faith, the ultimate

  2  payment of the bond principal is in doubt, the trustee may

  3  withhold the payment of incremental interest to the income

  4  beneficiary.

  5         (4)  This section does not apply to an obligation to

  6  which s. 738.602, s. 738.603, s. 738.604, s. 738.605, s.

  7  738.607, or s. 738.608 applies.

  8         738.504  Insurance policies and similar contracts.--

  9         (1)  Except as otherwise provided in subsection (2), a

10  trustee shall allocate to principal the proceeds of a life

11  insurance policy or other contract in which the trust or its

12  trustee is named as beneficiary, including a contract that

13  insures the trust or its trustee against loss for damage to,

14  destruction of, or loss of title to a trust asset.  The

15  trustee shall allocate dividends on an insurance policy to

16  income if the premiums on the policy are paid from income and

17  to principal if the premiums are paid from principal.

18         (2)  A trustee shall allocate to income proceeds of a

19  contract that insures the trustee against loss of occupancy or

20  other use by an income beneficiary, loss of income, or,

21  subject to s. 738.403, loss of profits from a business.

22         (3)  This section does not apply to a contract to which

23  s. 738.602 applies.

24         738.601  Insubstantial allocations not required.--If a

25  trustee determines that an allocation between principal and

26  income required by s. 738.602, s. 738.603, s. 738.604, s.

27  738.605, or s. 738.608 is insubstantial, the trustee may

28  allocate the entire amount to principal unless one of the

29  circumstances described in s. 738.104(3) applies to the

30  allocation.  This power may be exercised by a cotrustee in the

31  circumstances described in s. 738.104(4) and may be released

                                  33

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  for the reasons and in the manner described in s. 738.104(5).

  2  An allocation is presumed to be insubstantial if:

  3         (1)  The amount of the allocation would increase or

  4  decrease net income in an accounting period, as determined

  5  before the allocation, by less than 10 percent; or

  6         (2)  The value of the asset producing the receipt for

  7  which the allocation would be made is less than 10 percent of

  8  the total value of the trust's assets at the beginning of the

  9  accounting period.

10         738.602  Deferred compensation, annuities, and similar

11  payments.--

12         (1)  For purposes of this section, "payment" means a

13  payment that a trustee may receive over a fixed number of

14  years or during the life of one or more individuals because of

15  services rendered or property transferred to the payor in

16  exchange for future payments.  The term includes a payment

17  made in money or property from the payor's general assets or

18  from a separate fund created by the payor, including a private

19  or commercial annuity, an individual retirement account, and a

20  pension, profit-sharing, stock-bonus, or stock-ownership plan.

21         (2)  With respect to payments that may be characterized

22  as interest, dividends, or their equivalent:

23         (a)  A trustee shall allocate to income in the

24  following order:

25         1.  First, payments characterized by the payor as

26  interest or dividends or as a payment made in lieu of interest

27  or dividends.

28         2.  Second, all other payments to the extent that the

29  trustee, reasonably and in good faith, determines that such

30  payments represent interest, dividends, or their equivalent.

31         (b)  A trustee shall allocate to principal the balance

                                  34

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  of any payment not characterized as, or otherwise determined

  2  to be, interest, dividends, or their equivalent.

  3         (3)  If no part of a payment is characterized as, or

  4  otherwise determined to be, interest, a dividend, or an

  5  equivalent payment and all or part of the payment is required

  6  to be made, a trustee shall allocate to income 10 percent of

  7  the part that is required to be made during the accounting

  8  period and the balance to principal.  If no part of a payment

  9  is required to be made or the payment received is the entire

10  amount to which the trustee is entitled, the trustee shall

11  allocate the entire payment to principal.  For purposes of

12  this subsection, a payment is not "required to be made" to the

13  extent the payment is made because the trustee exercises a

14  right of withdrawal.

15         (4)  If, to obtain an estate tax marital deduction for

16  a trust, a trustee must allocate more of a payment to income

17  than provided for by this section, the trustee shall allocate

18  to income the additional amount necessary to obtain the

19  marital deduction.

20         (5)  This section does not apply to payments to which

21  s. 738.603 applies.

22         738.603  Liquidating asset.--

23         (1)  For purposes of this section, "liquidating asset"

24  means an asset the value of which will diminish or terminate

25  because the asset is expected to produce receipts for a period

26  of limited duration.  The term includes a leasehold, patent,

27  copyright, royalty right, and right to receive payments during

28  a period of more than 1 year under an arrangement that does

29  not provide for the payment of interest on the unpaid balance.

30  The term does not include a payment subject to s. 738.602,

31  resources subject to s. 738.604, timber subject to s. 738.605,

                                  35

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  an activity subject to s. 738.607, an asset subject to s.

  2  738.608, or any asset for which the trustee establishes a

  3  reserve for depreciation under s. 738.703.

  4         (2)  A trustee shall allocate to income 10 percent of

  5  the receipts from a liquidating asset and the balance to

  6  principal.

  7         738.604  Minerals, water, and other natural

  8  resources.--

  9         (1)  To the extent a trustee accounts for receipts from

10  an interest in minerals or other natural resources pursuant to

11  this section, the trustee shall allocate such receipts as

12  follows:

13         (a)  If received as nominal delay rental or nominal

14  annual rent on a lease, a receipt shall be allocated to

15  income.

16         (b)  If received from a production payment, a receipt

17  shall be allocated to income if and to the extent the

18  agreement creating the production payment provides a factor

19  for interest or its equivalent.  The balance shall be

20  allocated to principal.

21         (c)  If an amount received as a royalty, shut-in-well

22  payment, take-or-pay payment, bonus, or delay rental is more

23  than nominal, 90 percent shall be allocated to principal and

24  the balance to income.

25         (d)  If an amount is received from a working interest

26  or any other interest not provided for in paragraph (a),

27  paragraph (b), or paragraph (c), 90 percent of the net amount

28  received shall be allocated to principal and the balance to

29  income.

30         (2)  An amount received on account of an interest in

31  water that is renewable shall be allocated to income.  If the

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  water is not renewable, 90 percent of the amount shall be

  2  allocated to principal and the balance to income.

  3         (3)  This chapter applies whether or not a decedent or

  4  donor was extracting minerals, water, or other natural

  5  resources before the interest became subject to the trust.

  6         (4)  If a trust owns an interest in minerals, water, or

  7  other natural resources on January 1, 2003, the trustee may

  8  allocate receipts from the interest as provided in this

  9  chapter or in the manner used by the trustee before January 1,

10  2003.  If the trust acquires an interest in minerals, water,

11  or other natural resources after January 1, 2003, the trustee

12  shall allocate receipts from the interest as provided in this

13  chapter.

14         738.605  Timber.--

15         (1)  To the extent a trustee accounts for receipts from

16  the sale of timber and related products pursuant to this

17  section, the trustee shall allocate the net receipts:

18         (a)  To income to the extent the amount of timber

19  removed from the land does not exceed the rate of growth of

20  the timber during the accounting periods in which a

21  beneficiary has a mandatory income interest;

22         (b)  To principal to the extent the amount of timber

23  removed from the land exceeds the rate of growth of the timber

24  or the net receipts are from the sale of standing timber;

25         (c)  To or between income and principal if the net

26  receipts are from the lease of timberland or from a contract

27  to cut timber from land owned by a trust by determining the

28  amount of timber removed from the land under the lease or

29  contract and applying the rules in paragraphs (a) and (b); or

30         (d)  To principal to the extent advance payments,

31  bonuses, and other payments are not allocated pursuant to

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  paragraph (a), paragraph (b), or paragraph (c).

  2         (2)  In determining net receipts to be allocated

  3  pursuant to subsection (1), a trustee shall deduct and

  4  transfer to principal a reasonable amount for depletion.

  5         (3)  This chapter applies whether or not a decedent or

  6  transferor was harvesting timber from the property before the

  7  property became subject to the trust.

  8         (4)  If a trust owns an interest in timberland on

  9  January 1, 2003, the trustee may allocate net receipts from

10  the sale of timber and related products as provided in this

11  chapter or in the manner used by the trustee before January 1,

12  2003.  If the trust acquires an interest in timberland after

13  January 1, 2003, the trustee shall allocate net receipts from

14  the sale of timber and related products as provided in this

15  chapter.

16         738.606  Property not productive of income.--

17         (1)  If a marital deduction is allowed for all or part

18  of a trust the income of which is required to be distributed

19  to the grantor's spouse and the assets of which consist

20  substantially of property that does not provide the spouse

21  with sufficient income from or use of the trust assets, and if

22  the amounts the trustee transfers from principal to income

23  under s. 738.104 and distributes to the spouse from principal

24  pursuant to the terms of the trust are insufficient to provide

25  the spouse with the beneficial enjoyment required to obtain

26  the marital deduction, the spouse may require the trustee to

27  make property productive of income, convert property within a

28  reasonable time, or exercise the power conferred by ss.

29  738.104 and 738.1041. The trustee may decide which action or

30  combination of actions to take.

31         (2)  In cases not governed by subsection (1), proceeds

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  from the sale or other disposition of an asset are principal

  2  without regard to the amount of income the asset produces

  3  during any accounting period.

  4         738.607  Derivatives and options.--

  5         (1)  For purposes of this section, "derivative" means a

  6  contract or financial instrument or a combination of contracts

  7  and financial instruments which gives a trust the right or

  8  obligation to participate in some or all changes in the price

  9  of a tangible or intangible asset or group of assets, or

10  changes in a rate, an index of prices or rates, or other

11  market indicator for an asset or a group of assets.

12         (2)  To the extent a trustee does not account under s.

13  738.403 for transactions in derivatives, the trustee shall

14  allocate to principal receipts from and disbursements made in

15  connection with those transactions.

16         (3)  If a trustee grants an option to buy property from

17  the trust whether or not the trust owns the property when the

18  option is granted, grants an option that permits another

19  person to sell property to the trust, or acquires an option to

20  buy property for the trust or an option to sell an asset owned

21  by the trust, and the trustee or other owner of the asset is

22  required to deliver the asset if the option is exercised, an

23  amount received for granting the option shall be allocated to

24  principal.  An amount paid to acquire the option shall be paid

25  from principal.  A gain or loss realized upon the exercise of

26  an option, including an option granted to a grantor of the

27  trust for services rendered, shall be allocated to principal.

28         738.608  Asset-backed securities.--

29         (1)  For purposes of this section, "asset-backed

30  security" means an asset the value of which is based upon the

31  right given the owner to receive distributions from the

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  proceeds of financial assets that provide collateral for the

  2  security.  The term includes an asset that gives the owner the

  3  right to receive from the collateral financial assets only the

  4  interest or other current return or only the proceeds other

  5  than interest or current return.  The term does not include an

  6  asset to which s. 738.401 or s. 738.602 applies.

  7         (2)  If a trust receives a payment from interest or

  8  other current return and from other proceeds of the collateral

  9  financial assets, the trustee shall allocate to income the

10  portion of the payment which the payor identifies as being

11  from interest or other current return and shall allocate the

12  balance of the payment to principal.

13         (3)  If a trust receives one or more payments in

14  exchange for the trust's entire interest in an asset-backed

15  security during a single accounting period, the trustee shall

16  allocate the payments to principal.  If a payment is one of a

17  series of payments that will result in the liquidation of the

18  trust's interest in the security over more than a single

19  accounting period, the trustee shall allocate 10 percent of

20  the payment to income and the balance to principal.

21         738.701  Disbursements from income.--A trustee shall

22  make the following disbursements from income to the extent

23  they are not disbursements to which s. 738.201(2)(a) or (c)

24  applies:

25         (1)  One-half of the regular compensation of the

26  trustee and of any person providing investment advisory or

27  custodial services to the trustee.

28         (2)  One-half of all expenses for accountings, judicial

29  proceedings, or other matters that involve both the income and

30  remainder interests.

31         (3)  All of the other ordinary expenses incurred in

                                  40

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  connection with the administration, management, or

  2  preservation of trust property and the distribution of income,

  3  including interest, ordinary repairs, regularly recurring

  4  taxes assessed against principal, and expenses of a proceeding

  5  or other matter that concerns primarily the income interest.

  6         (4)  Recurring premiums on insurance covering the loss

  7  of a principal asset or the loss of income from or use of the

  8  asset.

  9         738.702  Disbursements from principal.--

10         (1)  A trustee shall make the following disbursements

11  from principal:

12         (a)  The remaining one-half of the disbursements

13  described in s. 738.701(1) and (2).

14         (b)  All of the trustee's compensation calculated on

15  principal as a fee for acceptance, distribution, or

16  termination and disbursements made to prepare property for

17  sale.

18         (c)  Payments on the principal of a trust debt.

19         (d)  Expenses of a proceeding that concerns primarily

20  principal, including a proceeding to construe the trust or to

21  protect the trust or its property.

22         (e)  Premiums paid on a policy of insurance not

23  described in s. 738.701(4) of which the trust is the owner and

24  beneficiary.

25         (f)  Estate, inheritance, and other transfer taxes,

26  including penalties, apportioned to the trust.

27         (g)  Disbursements related to environmental matters,

28  including reclamation, assessing environmental conditions,

29  remedying and removing environmental contamination, monitoring

30  remedial activities and the release of substances, preventing

31  future releases of substances, collecting amounts from persons

                                  41

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  liable or potentially liable for the costs of such activities,

  2  penalties imposed under environmental laws or regulations and

  3  other payments made to comply with those laws or regulations,

  4  statutory or common law claims by third parties, and defending

  5  claims based on environmental matters.

  6         (h)  Payments representing extraordinary repairs or

  7  expenses incurred in making a capital improvement to

  8  principal, including special assessments; however, a trustee

  9  may establish an allowance for depreciation out of income to

10  the extent permitted by s. 738.703.

11         (2)  If a principal asset is encumbered with an

12  obligation that requires income from that asset to be paid

13  directly to the creditor, the trustee shall transfer from

14  principal to income an amount equal to the income paid to the

15  creditor in reduction of the principal balance of the

16  obligation.

17         738.703  Transfers from income to principal for

18  depreciation.--

19         (1)  For purposes of this section, "depreciation" means

20  a reduction in value due to wear, tear, decay, corrosion, or

21  gradual obsolescence of a fixed asset having a useful life of

22  more than 1 year.

23         (2)  A trustee may transfer to principal a reasonable

24  amount of the net cash receipts from a principal asset that is

25  subject to depreciation but may not transfer any amount for

26  depreciation:

27         (a)  Of that portion of real property used or available

28  for use by a beneficiary as a residence or of tangible

29  personal property held or made available for the personal use

30  or enjoyment of a beneficiary;

31         (b)  During the administration of a decedent's estate;

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  or

  2         (c)  Under this section if the trustee is accounting

  3  under s. 738.403 for the business or activity in which the

  4  asset is used.

  5         (3)  The amount of depreciation taken for tax purposes

  6  with respect to an asset shall be presumed to be a reasonable

  7  amount of depreciation.  An amount taken for depreciation

  8  shall not be considered unreasonable solely because it is

  9  greater or less than the amount taken for tax purposes.

10         (4)  An amount transferred to principal need not be

11  held as a separate fund.

12         738.704  Transfers from income to reimburse

13  principal.--

14         (1)  If a trustee makes or expects to make a principal

15  disbursement described in this section, the trustee may

16  transfer an appropriate amount from income to principal in one

17  or more accounting periods to reimburse principal or to

18  provide a reserve for future principal disbursements.

19         (2)  Principal disbursements to which subsection (1)

20  applies include the following, but only to the extent the

21  trustee has not been and does not expect to be reimbursed by a

22  third party:

23         (a)  An amount chargeable to income but paid from

24  principal because the amount is unusually large.

25         (b)  Disbursements made to prepare property for rental,

26  including tenant allowances, leasehold improvements, and

27  broker's commissions.

28         (c)  Disbursements described in s. 738.702(1)(g).

29         (3)  If the asset the ownership of which gives rise to

30  the disbursements becomes subject to a successive income

31  interest after an income interest ends, a trustee may continue

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  to transfer amounts from income to principal as provided in

  2  subsection (1).

  3         (4)  To the extent principal cash is not sufficient to

  4  pay the principal balance of payments due on mortgaged

  5  property, income may be applied to such payment in order to

  6  avoid a default on any mortgage or security interest securing

  7  the property.  Income shall be reimbursed for such payments

  8  out of the first available principal cash.  If the asset the

  9  ownership of which gives rise to the disbursements described

10  in this subsection becomes subject to a successive income

11  interest after an income interest ends, all rights of the

12  initial income interest shall lapse, and amounts remaining due

13  from principal shall not be a lien on the assets of the trust.

14         738.705  Income taxes.--

15         (1)  A tax required to be paid by a trustee based on

16  receipts allocated to income shall be paid from income.

17         (2)  A tax required to be paid by a trustee based on

18  receipts allocated to principal shall be paid from principal,

19  even if the tax is called an income tax by the taxing

20  authority.

21         (3)  A tax required to be paid by a trustee on the

22  trust's share of an entity's taxable income shall be paid

23  proportionately:

24         (a)  From income to the extent receipts from the entity

25  are allocated to income; and

26         (b)  From principal to the extent:

27         1.  Receipts from the entity are allocated to

28  principal; and

29         2.  The trust's share of the entity's taxable income

30  exceeds the total receipts described in paragraph (a) and

31  subparagraph 1.

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         (4)  For purposes of this section, receipts allocated

  2  to principal or income shall be reduced by the amount

  3  distributed to a beneficiary from principal or income for

  4  which the trust receives a deduction in calculating the tax.

  5         738.706  Adjustments between principal and income

  6  because of taxes.--

  7         (1)  A fiduciary may make adjustments between principal

  8  and income to offset the shifting of economic interests or tax

  9  benefits between income beneficiaries and remainder

10  beneficiaries which arise from:

11         (a)  Elections and decisions, other than those

12  described in paragraph (b), that the fiduciary makes from time

13  to time regarding tax matters;

14         (b)  An income tax or any other tax that is imposed

15  upon the fiduciary or a beneficiary as a result of a

16  transaction involving or a distribution from the estate or

17  trust; or

18         (c)  The ownership by an estate or trust of an interest

19  in an entity whose taxable income, whether or not distributed,

20  is includable in the taxable income of the estate, trust, or a

21  beneficiary.

22         (2)  If the amount of an estate tax marital deduction

23  or charitable contribution deduction is reduced because a

24  fiduciary deducts an amount paid from principal for income tax

25  purposes instead of deducting such amount for estate tax

26  purposes, and as a result estate taxes paid from principal are

27  increased and income taxes paid by an estate, trust, or

28  beneficiary are decreased, each estate, trust, or beneficiary

29  that benefits from the decrease in income tax shall reimburse

30  the principal from which the increase in estate tax is paid.

31  The total reimbursement shall equal the increase in the estate

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  tax to the extent the principal used to pay the increase would

  2  have qualified for a marital deduction or charitable

  3  contribution deduction but for the payment. The proportionate

  4  share of the reimbursement for each estate, trust, or

  5  beneficiary whose income taxes are reduced shall be the same

  6  as such estate's, trust's, or beneficiary's proportionate

  7  share of the total decrease in income tax.  An estate or trust

  8  shall reimburse principal from income.

  9         738.801  Application with respect to apportionment of

10  expenses; improvements.--

11         (1)  The provisions of ss. 738.701-738.705, so far as

12  applicable and excepting those dealing with costs of, or

13  assessments for, improvements to property, shall govern the

14  apportionment of expenses between tenants and remaindermen

15  when no trust has been created, subject to any agreement of

16  the parties or specific direction of the taxing or other

17  statutes, but when either tenant or remainderman has incurred

18  an expense for the benefit of his or her own estate without

19  consent or agreement of the other, he or she shall pay such

20  expense in full.

21         (2)  Subject to the exceptions stated in subsection

22  (1), the cost of, or special taxes or assessments for, an

23  improvement representing an addition of value to property

24  forming part of the principal shall be paid by the tenant when

25  the improvement is not reasonably expected to outlast the

26  estate of the tenant. In all other cases a part only shall be

27  paid by the tenant, while the remainder shall be paid by the

28  remainderman. The part payable by the tenant shall be

29  ascertainable by taking that percentage of the total that is

30  found by dividing the present value of the tenant's estate by

31  the present value of an estate of the same form as that of the

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  tenant except that it is limited for a period corresponding to

  2  the reasonably expected duration of the improvement. The

  3  computation of present values of the estates shall be made on

  4  the expectancy basis set forth in the official mortality

  5  tables, and no other evidence of duration or expectancy shall

  6  be considered.

  7         738.802  Uniformity of application and

  8  construction.--In applying and construing this act,

  9  consideration shall be given to the need to promote uniformity

10  of the law with respect to the act's subject matter among

11  states that enact such act.

12         738.803  Severability.--If any provision of this

13  chapter or its application to any person or circumstance is

14  held invalid, the invalidity shall not affect other provisions

15  or applications of this chapter which can be given effect

16  without the invalid provision or application, and to this end

17  the provisions of this chapter are severable.

18         738.804  Application.--Except as provided in the trust

19  instrument, the will, or this chapter, this chapter shall

20  apply to any receipt or expense received or incurred and any

21  disbursement made after January 1, 2003, by any trust or

22  decedent's estate, whether established before or after January

23  1, 2003, and whether the asset involved was acquired by the

24  trustee or personal representative before or after January 1,

25  2003. Receipts or expenses received or incurred and

26  disbursements made before January 1, 2003, shall be governed

27  by the law of this state in effect at the time of the event,

28  except as otherwise expressly provided in the will or terms of

29  the trust or in this chapter.

30         Section 2.  Sections 738.01, 738.02, 738.03, 738.04,

31  738.05, 738.06, 738.07, 738.08, 738.09, 738.10, 738.11,

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1  738.12, 738.13, 738.14, and 738.15, Florida Statutes, are

  2  repealed.

  3         Section 3.  This act shall take effect January 1, 2003.

  4

  5

  6  ================ T I T L E   A M E N D M E N T ===============

  7  And the title is amended as follows:

  8  remove:  the entire title,

  9

10  and insert:

11                      A bill to be entitled

12         An act relating to the Florida Uniform

13         Principal and Income Act; creating ss. 738.101,

14         738.102, 738.103, 738.104, 738.1041, 738.105,

15         738.201, 738.202, 738.301, 738.302, 738.303,

16         738.401, 738.402, 738.403, 738.501, 738.502,

17         738.503, 738.504, 738.601, 738.602, 738.603,

18         738.604, 738.605, 738.606, 738.607, 738.608,

19         738.701, 738.702, 738.703, 738.704, 738.705,

20         738.706, 738.801, 738.802, 738.803, and

21         738.804, F.S.; providing a short title;

22         providing definitions; specifying a fiduciary's

23         duties; providing general principles; providing

24         a trustee's power to adjust between principal

25         and income; providing for a unitrust

26         alternative to certain trusts where the power

27         to adjust is unavailable or not exercised;

28         providing requirements, criteria, and

29         procedures; providing for judicial control of

30         certain discretionary powers; providing

31         limitations; providing for determinations and

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         distributions of net income; providing

  2         requirements; providing for distributions to

  3         residuary and remainder beneficiaries;

  4         providing for apportionment at beginning and

  5         end of an income interest; providing for

  6         entitlement to a right to income; providing for

  7         apportionment of receipts and disbursements

  8         under certain circumstances; providing for

  9         allocation of trust receipts during

10         administration; specifying character of

11         receipts; providing for distributions from

12         trust or estate; providing for separate

13         accounting by trustee of certain businesses or

14         activities; providing for allocation of certain

15         receipts not normally apportioned; providing

16         for allocation of certain normally apportioned

17         receipts; providing for allocation of

18         disbursements from income and principal during

19         administration of a trust; providing for

20         certain transfers from income under certain

21         circumstances; providing for payment of certain

22         taxes; providing for adjustments between

23         principal and income due to taxes; providing

24         for uniform application and construction;

25         providing severability; providing for

26         application with respect to apportionment of

27         expenses and improvements; providing for

28         application; repealing ss. 738.01, 738.02,

29         738.03, 738.04, 738.05, 738.06, 738.07, 738.08,

30         738.09, 738.10, 738.11, 738.12, 738.13, 738.14,

31         and 738.15, F.S., relating to principal and

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                                                   HOUSE AMENDMENT

    704-154AX-32                                   Bill No. HB 585

    Amendment No. ___ (for drafter's use only)





  1         income of trusts; providing an effective date.

  2

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11

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