HB 1749 2003
1	CHAMBER ACTION
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6	The Committee on Appropriations recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to probate and trusts; amending s.
12	731.103, F.S.; providing that fact that missing person was
13	subject to a specific peril of death is evidence for a
14	finding of a presumptive death; amending ss. 731.201 and
15	731.303, F.S.; revising the conflict of interest standard
16	in the definitions of “beneficiary,” “devisee,”
17	“interested person,” and in judicial orders binding the
18	trustee; amending s. 732.217, F.S.; eliminating
19	requirement that property be homestead property to be
20	excepted from the application of the Florida Uniform
21	Disposition of Community Property Rights at Death Act;
22	amending s. 732.502, F.S.; providing that military
23	testamentary instruments executed pursuant to federal law
24	are valid in this state; amending s. 732.603, F.S.;
25	revising language with respect to antilapse provisions;
26	amending s. 733.205, F.S.; revising language with respect
27	to the probate of notarial wills; amending s. 733.212,
28	F.S.; revising language with respect to the notice of
29	administration; amending s. 733.2121, F.S.; revising the
30	time in which notice to creditors must be served; amending
31	s. 733.608, F.S.; revising language with respect to the
32	general power of the personal representative; amending s.
33	733.609, F.S.; revising language with respect to awarding
34	taxable costs and attorney’s fees with respect to improper
35	exercise of power or the breech of fiduciary duty;
36	amending s. 734.1025, F.S., to conform to the amendment to
37	s. 732.502, F.S.; amending s. 735.2063, F.S.; revising
38	language with respect to notice to creditors; amending s.
39	737.106, F.S.; revising language with respect to revocable
40	trust prior to dissolution of marriage; amending s.
41	737.2035, F.S.; revising language with respect to costs
42	and attorney’s fees in trust proceedings; amending s.
43	737.204, F.S.; revising language with respect to
44	proceedings for review of employment of agents and review
45	of compensation of trustee and employees of trust;
46	amending s. 737.404, F.S.; revising language with respect
47	to powers exercisable by joint trustees; creating s.
48	737.6035, F.S.; providing antilapse provision with respect
49	to inter vivos trusts under certain circumstances;
50	amending s. 737.627, F.S.; revising language with respect
51	to costs and attorney’s fees; reenacting ss. 709.08 and
52	717.1243, F.S., to incorporate by reference the amendment
53	of s. 731.201, F.S.; reenacting ss. 660.46, 731.302,
54	737.303, and 737.307, F.S., to incorporate by reference
55	the amendment to s. 731.303, F.S.; reenacting s. 382.025,
56	F.S., to incorporate by reference the amendment to s.
57	732.502, F.S.; reenacting ss. 732.604 and 732.801, F.S.,
58	to incorporate by reference the amendment to s. 732.603,
59	F.S.; reenacting s. 733.701, F.S., to incorporate by
60	reference the amendment to s. 733.2121, F.S.; reenacting
61	s. 63.182, F.S., to incorporate by reference the amendment
62	to s. 95.031, F.S.; providing an effective date.
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64	Be It Enacted by the Legislature of the State of Florida:
65
66	Section 1. Subsection (3) of section 731.103, Florida
67	Statutes, is amended to read:
68	731.103 Evidence as to death or status.--In proceedings
69	under this code, the rules of evidence in civil actions are
70	applicable unless specifically changed by the code. The
71	following additional rules relating to determination of death
72	and status are applicable:
73	(3) A person who is absent from the place of his or her
74	last known domicile for a continuous period of 5 years and whose
75	absence is not satisfactorily explained after diligent search
76	and inquiry is presumed to be dead. The person's death is
77	presumed to have occurred at the end of the period unless there
78	is evidence establishing that death occurred earlier. Evidence
79	showing that the absent person was exposed to a specific peril
80	of death may be a sufficient basis for the court determining at
81	any time after such exposure that he or she died less than 5
82	years after the date on which his or her absence commenced. A
83	petition for this determination shall be filed in the county in
84	Florida where the decedent maintained his or her domicile or in
85	any county of this state if the decedent was not a resident of
86	Florida at the time his or her absence commenced.
87	Section 2. Subsections (2), (9), and (21) of section
88	731.201, Florida Statutes, are amended to read:
89	731.201 General definitions.--Subject to additional
90	definitions in subsequent chapters that are applicable to
91	specific chapters or parts, and unless the context otherwise
92	requires, in this code, in s. 409.9101, and in chapters 737,
93	738, and 744:
94	(2) “Beneficiary" means heir at law in an intestate estate
95	and devisee in a testate estate. The term "beneficiary" does not
96	apply to an heir at law or a devisee after that person's
97	interest in the estate has been satisfied. In the case of a
98	devise to an existing trust or trustee, or to a trust or trustee
99	described by will, in the absence of a conflict of interest of
100	the trust, the trustee is a beneficiary of the estate. Except as
101	otherwise provided in this subsection, the beneficiary of the
102	trust is not a beneficiary of the estate of which that trust or
103	the trustee of that trust is a beneficiary. However, if each
104	trustee is also a personal representative of the estate, the
105	beneficiary or beneficiaries of the trust as defined in s.
106	737.303(4)(b) shall be regarded as a beneficiary of the estate
107	An owner of a beneficial interest in the trust is a beneficiary
108	of the trust and is, in the absence of a conflict of interest of
109	the trust, not a beneficiary of the estate.
110	(9) “Devisee" means a person designated in a will or trust
111	to receive a devise. Except as otherwise provided in this
112	subsection,in the case of a devise to an existing trust or
113	trustee, or to a trust ortrustee of a trust described by will,
114	the trust or trustee, rather than the beneficiaries of the
115	trust, is the devisee. However, if each trustee is also a
116	personal representative of the estate, the beneficiary or
117	beneficiaries of the trust as defined in s. 737.303(4)(b) shall
118	be regarded as a deviseeThe beneficiaries of the trust are not
119	devisees.
120	(21) “Interested person" means any person who may
121	reasonably be expected to be affected by the outcome of the
122	particular proceeding involved. In any proceeding affecting the
123	estate or the rights of a beneficiary in the estate, the
124	personal representative of the estate shall be deemed to be an
125	interested person. In any proceeding affecting the expenses of
126	the administration and obligations of a decedent's estate, or
127	anyclaims described in s. 733.702(1),the trustee of a trust
128	described in s. 733.707(3) is an interested person in the
129	administration of the grantor's estate. The term does not
130	include a beneficiary who has received complete distribution.
131	The meaning, as it relates to particular persons, may vary from
132	time to time and must be determined according to the particular
133	purpose of, and matter involved in, any proceedings.
134	Section 3. Section 731.303, Florida Statutes, is amended
135	to read:
136	731.303 Representation.--In the administration of or in
137	judicialproceedings involving estates of decedents or trusts,
138	the following apply:
139	(1) Persons are bound by orders binding others in the
140	following cases:
141	(a) Orders binding the sole holder or all coholders of a
142	power of revocation or a general, special, or limited power of
143	appointment, including one in the form of a power of amendment
144	or revocation to the extent that the power has not become
145	unexercisable in fact, bind all persons to the extent that their
146	interests, as persons who may take by virtue of the exercise or
147	nonexercise of the power, are subject to the power.
148	(b) To the extent there is no conflict of interest between
149	them or among the persons represented:
150	1. Orders binding a guardian of the property bind the
151	ward.
152	2. Orders binding a trustee bind beneficiaries of the
153	trust in proceedings to probate a will, in establishing or
154	adding to a trust, in reviewing the acts or accounts of a prior
155	fiduciary, and in proceedings involving creditors or other third
156	parties. However, for purposes of this section, a conflict of
157	interest shall be deemed to exist when each trustee of a trust
158	that is a beneficiary of the estate is also a personal
159	representative of the estate.
160	3. Orders binding a personal representative bind persons
161	interested in the undistributed assets of a decedent's estate,
162	in actions or proceedings by or against the estate.
163	(c) An unborn or unascertained person, or a minor or any
164	other person under a legal disability, who is not otherwise
165	represented is bound by an order to the extent that person's
166	interest is represented by another party having the same or
167	greater quality of interest in the proceeding.
168	(2) Orders binding a guardian of the person shall not bind
169	the ward.
170	(3) In judicialproceedings involving the administration
171	of estates or trusts, notice is required as follows:
172	(a) Notice as prescribed by lawthe Florida Probate Rules
173	shall be given to every interested person, or to one who can
174	bind the interested person as described in paragraph (1)(a) or
175	paragraph (1)(b). Notice may be given both to the interested
176	person and to another who can bind him or her.
177	(b) Notice is given to unborn or unascertained persons who
178	are not represented pursuant to paragraph (1)(a) or paragraph
179	(1)(b) by giving notice to all known persons whose interests in
180	the proceedings are the same as, or of a greater quality than,
181	those of the unborn or unascertained persons.
182	(4) If the court determines that representation of the
183	interest would otherwise be inadequate, the court may, at any
184	time, appoint a guardian ad litem to represent the interests of
185	an incapacitated person, an unborn or unascertained person, a
186	minor or any other person otherwise under a legal disability, or
187	a person whose identity or address is unknown. If not precluded
188	by conflict of interest, a guardian ad litem may be appointed to
189	represent several persons or interests.
190	(5) When a sole holder or coholder of a general, special,
191	or limited power of appointment, including an exercisable power
192	of amendment or revocation over property in an estate or trust,
193	is bound by:
194	(a) Agreements, waivers, consents, or approvals; or
195	(b) Accounts, trust accountings, or other written reports
196	that adequately disclose matters set forth therein,
197
198	then all persons who may take by virtue of, and whose interests
199	are subject to, the exercise or nonexercise of the power are
200	also bound, but only to the extent of their interests which
201	could otherwise be affected by the exercise or nonexercise of
202	the power.
203	Section 4. Subsection (2) of section 732.217, Florida
204	Statutes, is amended to read:
205	732.217 Application.--Sections 732.216-732.228 apply to
206	the disposition at death of the following property acquired by a
207	married person:
208	(2) Real property, except homestead andreal property held
209	as tenants by the entirety, which is located in this state, and
210	which:
211	(a) Was acquired with the rents, issues, or income of, the
212	proceeds from, or in exchange for, property acquired as, or
213	which became and remained, community property under the laws of
214	another jurisdiction; or
215	(b) Is traceable to that community property.
216	Section 5. Subsections (3) and (4) of section 732.502,
217	Florida Statutes, are renumbered as subsections (4) and (5),
218	respectively, and a new subsection (3) is added to said section,
219	to read:
220	732.502 Execution of wills.--Every will must be in writing
221	and executed as follows:
222	(3) Any will executed as a military testamentary
223	instrument in accordance with Section 1044d of Title 10 United
224	States Code, Chapter 53, by a person who is eligible for
225	military legal assistance is valid as a will in this state.
226	Section 6. Paragraph (c) of subsection (1) and paragraph
227	(c) of subsection (2) of section 732.603, Florida Statutes, are
228	amended to read:
229	732.603 Antilapse; deceased devisee; class gifts.--Unless
230	a contrary intention appears in the will:
231	(1) If a devisee or a beneficiary of a trust created by a
232	will who is a grandparent, or a lineal descendant of a
233	grandparent, of the testator:
234	(c) Is required by the will or by operation of lawto be
235	treated as having predeceased the testator,
236
237	then the descendants of the devisee or beneficiary take per
238	stirpes in place of the deceased devisee or beneficiary. A
239	person who would have been a devisee under a class gift if that
240	person had survived the testator shall be a devisee for purposes
241	of this section whether that person died before or after the
242	execution of the will.
243	(2) If a devisee or a beneficiary of a trust created by a
244	will who is not a grandparent, or a descendant of a grandparent,
245	of the testator:
246	(c) Is required by the will or by operation of lawto be
247	treated as having predeceased the testator,
248
249	then the testamentary disposition to the devisee or beneficiary
250	shall lapse unless an intention to substitute another appears in
251	the will.
252	Section 7. Subsection (1) of section 733.205, Florida
253	Statutes, is amended to read:
254	733.205 Probate of notarial will.--
255	(1) When a copy of a notarial will in the possession of a
256	notary entitled to its custody in a foreign state or country,
257	the laws of which state or country require that the will remain
258	in the custody of the notary, duly authenticated by the notary,
259	whose official position, signature, and seal of office are
260	further authenticated by an American consul, vice consul, or
261	other American consular officer within whose jurisdiction the
262	notary is a resident, or whose official position, signature, and
263	seal of office have been authenticated according to the
264	requirements of the Hague Convention of 1961,is presented to
265	the court, it may be admitted to probate if the original could
266	have been admitted to probate in this state.
267	Section 8. Paragraph (c) of subsection (1) of section
268	733.212, Florida Statutes, is amended to read:
269	733.212 Notice of administration; filing of objections.--
270	(1) The personal representative shall promptly serve a
271	copy of the notice of administration on the following persons
272	who are known to the personal representative:
273	(c) The trustee of any trust described in s. 733.707(3)
274	and each beneficiary of the trust as defined in s.
275	737.303(4)(b), if each trustee is also a personal representative
276	of the estate; and
277
278	in the manner provided for service of formal notice, unless
279	served under s. 733.2123. The personal representative may
280	similarly serve a copy of the notice on any devisees under a
281	known prior will or heirs or others who claim or may claim an
282	interest in the estate.
283	Section 9. Subsection (1) of section 733.2121, Florida
284	Statutes, is amended to read:
285	733.2121 Notice to creditors; filing of claims.--
286	(1) Unless creditors' claims are otherwise barred by s.
287	733.710, the personal representative shall promptly publish a
288	notice to creditors. The notice shall contain the name of the
289	decedent, the file number of the estate, the designation and
290	address of the court in which the proceedings are pending, the
291	name and address of the personal representative, the name and
292	address of the personal representative's attorney, and the date
293	of first publication. The notice shall state that creditors must
294	file claims against the estate with the court duringwithinthe
295	time periods set forth in s.ss. 733.702 and 733.710, or be
296	forever barred.
297	Section 10. Subsection (2) of section 733.608, Florida
298	Statutes, is amended, and subsections (3)-(13) are added to said
299	section, to read:
300	733.608 General power of the personal representative.--
301	(2) If property that reasonably appears to the personal
302	representative to be protected homestead is not occupied byin
303	the possession ofa person who appears to have an interest in
304	the property, the personal representative is authorized, but not
305	required, to take possession of that property for the limited
306	purpose of preserving, insuring, and protecting it for the
307	person having an interest in the propertyheir or devisee,
308	pending a determination of its homestead status. If the personal
309	representative takes possession of that property, any rents and
310	revenues may be collected by the personal representative for the
311	account of the heir or devisee, but the personal representative
312	shall have no duty to rent or otherwise make the property
313	productive.
314	(3) If the personal representative expends funds or incurs
315	obligations to preserve, maintain, insure, or protect the
316	property referenced in subsection (2), the personal
317	representative shall be entitled to a lien on that property and
318	its revenues to secure repayment of those expenditures and
319	obligations incurred. These expenditures and obligations
320	incurred, including, but not limited to, fees and costs, shall
321	constitute a debt owed to the personal representative that is
322	charged against and which may be secured by a lien on the
323	protected homestead, as provided in this section. The debt shall
324	include any amounts paid for these purposes after the decedent’s
325	death and prior to the personal representative’s appointment to
326	the extent later ratified by the personal representative in the
327	court proceeding provided for in this section.
328	(a) On the petition of the personal representative or any
329	interested person, the court having jurisdiction of the
330	administration of the decedent’s estate shall adjudicate the
331	amount of the debt after formal notice to the persons appearing
332	to have an interest in the property.
333	(b) The persons having an interest in the protected
334	homestead shall have no personal liability for the repayment of
335	the above noted debt. The personal representative may enforce
336	payment of the debt through any of the following methods:
337	1. By foreclosure of the lien as provided in this section;
338	2. By offset of the debt against any other property in the
339	personal representative’s possession that otherwise would be
340	distributable to any person having an interest in the protected
341	homestead, but only to the extent of the fraction of the total
342	debt owed to the personal representative the numerator of which
343	is the value of that person’s interest in the protected
344	homestead and the denominator of which is the total value of the
345	protected homestead; or
346	3. By offset of the debt against the revenues from the
347	protected homestead received by the personal representative.
348	(4) The personal representative’s lien shall attach to the
349	property and take priority as of the date and time a notice of
350	that lien is recorded in the official records of the county
351	where that property is located and the lien may secure
352	expenditures and obligations incurred, including, but not
353	limited to, fees and costs made before or after recording the
354	notice. The notice of lien may be recorded prior to the
355	adjudication of the amount of the debt. The notice of lien also
356	shall be filed in the probate proceeding but failure to do so
357	shall not affect the validity of the lien. A copy of the notice
358	of lien shall be served by formal notice upon each person
359	appearing to have an interest in the property. The notice of
360	lien shall state:
361	(a) The name and address of the personal representative
362	and the personal representative’s attorney;
363	(b) The legal description of the property;
364	(c) The name of the decedent and also, to the extent known
365	to the personal representative, the name and address of each
366	person appearing to have an interest in the property; and
367	(d) That the personal representative has expended or is
368	obligated to expend funds to preserve, maintain, insure, and
369	protect the property and that the lien stands as security for
370	recovery of those expenditures and obligations incurred,
371	including, but not limited to, fees and costs.
372
373	Substantial compliance with the foregoing provisions shall
374	render the notice in comportment with this section.
375	(5) The lien shall terminate upon the earliest of:
376	(a) Recording a satisfaction or release signed by the
377	personal representative in the official records of the county
378	where the property is located;
379	(b) The discharge of the personal representative when the
380	estate administration is complete;
381	(c) One year from the recording of the lien in the
382	official records unless a proceeding to determine the debt or
383	enforce the lien has been filed; or
384	(d) The entry of an order releasing the lien.
385	(6) Within 14 days after receipt of the written request of
386	any interested person, the personal representative shall deliver
387	to the requesting person at a place designated in the written
388	request an estoppel letter setting forth the unpaid balance of
389	the debt secured by the lien referred to in this section. After
390	complete satisfaction of the debt secured by the lien, the
391	personal representative shall record within 30 days after
392	complete payment, a satisfaction of the lien in the official
393	records of the county where the property is located. If a
394	judicial proceeding is necessary to compel compliance with the
395	provisions of this subsection, the prevailing party shall be
396	entitled to an award of attorney’s fees and costs.
397	(7) The lien created by this section may be foreclosed in
398	the manner of foreclosing a mortgage under the provisions of
399	chapter 702.
400	(8) In any action for enforcement of the debt described in
401	this section, the court shall award taxable costs as in chancery
402	actions, including reasonable attorney’s fees.
403	(9) A personal representative entitled to recover a debt
404	for expenditures and obligations incurred, including, but not
405	limited to, fees and costs, under this section may be relieved
406	of the duty to enforce collection by an order of the court
407	finding:
408	(a) That the estimated court costs and attorney’s fees in
409	collecting the debt will approximate or exceed the amount of the
410	recovery; or
411	(b) That it is impracticable to enforce collection in view
412	of the improbability of collection.
413	(10) A personal representative shall not be liable for
414	failure to attempt to enforce collection of the debt if the
415	personal representative reasonably believes it would have been
416	economically impracticable.
417	(11) The personal representative shall not be liable for
418	failure to take possession of the protected homestead or to
419	expend funds on its behalf. In the event that the property is
420	determined by the court not to be protected homestead,
421	subsections (2)-(10) shall not apply and any liens previously
422	filed shall be deemed released upon recording of the order in
423	the official records of the county where the property is
424	located.
425	(12) Upon the petition of an interested party to
426	accommodate a sale or the encumbrance of the protected
427	homestead, the court may transfer the lien provided for in this
428	section from the property to the proceeds of the sale or
429	encumbrance by requiring the deposit of the proceeds into a
430	restricted account subject to the lien. The court shall have
431	continuing jurisdiction over the funds deposited. The
432	transferred lien shall attach only to the amount asserted by the
433	personal representative and any proceeds in excess of that
434	amount shall not be subject to the lien or otherwise restricted
435	under this section. Alternatively, the personal representative
436	and the apparent owners of the protected homestead may agree to
437	retain in escrow the amount demanded as reimbursement by the
438	personal representative, to be held there under the continuing
439	jurisdiction of the court pending a final determination of the
440	amount properly reimbursable to the personal representative
441	under this section.
442	(13) This act shall apply to estates of decedents dying
443	after the date on which this act becomes law.
444	Section 11. Section 733.609, Florida Statutes, is amended
445	to read:
446	733.609 Improper exercise of power; breach of fiduciary
447	duty.—-
448	(1)A personal representative's fiduciary duty is the same
449	as the fiduciary duty of a trustee of an express trust, and a
450	personal representative is liable to interested persons for
451	damage or loss resulting from the breach of this duty. In all
452	actions for breach of fiduciary duty or challenging the exercise
453	of or failure to exercise a personal representative's powers,
454	the court shall award taxable costs as in chancery actions,
455	including attorney's fees.
456	(2) When awarding taxable costs, including attorney’s
457	fees, under this section, the court in its discretion may direct
458	payment from a party’s interest, if any, in the estate or enter
459	a judgment which may be satisfied from other property of the
460	party, or both.
461	(3) This section shall apply to all proceedings commenced
462	hereunder after the effective date, without regard to the date
463	of the decedent’s death.
464	Section 12. Subsection (1) of section 734.1025, Florida
465	Statutes, is amended to read:
466	734.1025 Nonresident decedent's testate estate with
467	property not exceeding $50,000 in this state; determination of
468	claims.--
469	(1) When a nonresident decedent dies testate and leaves
470	property subject to administration in this state the gross value
471	of which does not exceed $50,000 at the date of death, the
472	foreign personal representative of the estate before the
473	expiration of 2 years after the decedent's death may file in the
474	circuit court of the county where any property is located an
475	authenticated transcript of so much of the foreign proceedings
476	as will show the will and beneficiaries of the estate, as
477	provided in the Florida Probate Rules. The court shall admit the
478	will and any codicils to probate if they comply with s.
479	732.502(1),or (2), or (3).
480	Section 13. Section 735.2063, Florida Statutes, is amended
481	to read:
482	735.2063 Notice to creditors.--
483	(1) Any person who has obtained an order of summary
484	administration may publish a notice to creditors according to
485	the relevant requirements of s. 733.2121, notifying all persons
486	having claims or demands against the estate of the decedent that
487	an order of summary administration has been entered by the
488	court. The notice shall specify the total value of the estate
489	and the names and addresses of those to whom it has been
490	assigned by the order.
491	(2) If proof of publication of the notice is filed with
492	the court, all claims and demands of creditors against the
493	estate of the decedent who are not known or are notreasonably
494	ascertainable shall be forever barred unless the claims and
495	demands are filed with the court within 3 months after the first
496	publication of the notice.
497	Section 14. Section 737.106, Florida Statutes, is amended
498	to read:
499	737.106 Revocable trust prior to dissolution of
500	marriage.--Unless the trust instrument or the judgment for
501	dissolution of marriage or divorce expressly provides otherwise,
502	if a revocable trust is executed by a husband or wife as settlor
503	prior to annulment of the marriageor entry of a judgment for
504	dissolution of marriage or divorce of settlor from settlor's
505	spouse, then any provision of the trust which affects the
506	settlor's divorced spouse will become void upon annulment of the
507	marriage orentry of the judgment of dissolution of marriage or
508	divorce, and any such trust will be administered and construed
509	as if the settlor's divorced spouse had died on the date of the
510	annulment orupon entry of the judgment for dissolution of
511	marriage or divorce.
512	Section 15. Subsection (2) of section 737.2035, Florida
513	Statutes, is amended to read:
514	737.2035 Costs and attorney's fees in trust proceedings.--
515	(2) Any attorney who has rendered services to a trust may
516	be awarded reasonable compensation from the trust. The attorney
517	mayapply to the court for an order awarding attorney's fees,
518	and, after notice and service upon the trustee and all
519	beneficiaries entitled to an accounting under s. 737.303, the
520	court shall enter its order on the fee application.
521	Section 16. Section 737.204, Florida Statutes, is amended
522	to read:
523	737.204 Proceedings for review of employment of agents and
524	review of compensation of trustee and employees of trust.--
525	(1) After notice to all interested persons, the court may
526	review the propriety of theemployment by a trustee of any
527	person, including any attorney, auditor, investment adviser, or
528	other specialized agent or assistant, and the reasonableness of
529	anythe compensation paid to thatof any person or toso
530	employed and of the compensation determined by the trustee for
531	his or her own services. A person who has received excessive
532	compensation from a trust may be ordered to make a refund of the
533	excess.
534	(2) If the settlor's estate is being probated, and the
535	settlor’s trust or the trustee of the settlor’s trust is a
536	beneficiary under the settlor’s will, the trustee, any person
537	employed by the trusteethe attorney, or any interested person
538	may have the propriety of employment and the reasonableness of
539	the compensation of the trustee or any person employed by the
540	trustee determined in the probate proceeding.
541	(3) The burden of proof of propriety of the employment and
542	the reasonableness of the compensation shall be upon the trustee
543	and the person employed by the trustee. Any person who is
544	determined to have received excessive compensation from a trust
545	for services rendered may be ordered to make appropriate refunds
546	In any proceeding under this section the petitioner shall
547	either:
548	(a) Serve notice on all interested persons in the manner
549	provided for service of formal notice under s. 731.301, together
550	with a notice advising the interested person that an answer to
551	the petition must be filed and served on petitioner within 20
552	days from the service of the petition or the petition may be
553	considered ex parte, and such notice shall be sufficient for the
554	court to acquire jurisdiction for this proceeding over the
555	person receiving formal notice to the extent of the person's
556	interest in the trust; or
557	(b) Obtain jurisdiction over interested persons in any
558	other manner permitted by law.
559	(4) Court proceedings to determine reasonable compensation
560	of a trustee or any person employed by a trustee, if required,
561	are a part of the trust administration process. The costs,
562	including attorney’s fees, of the person assuming the burden of
563	proof of propriety of the employment and reasonableness of the
564	compensation shall be determined by the court and paid from the
565	assets of the trust unless the court finds the compensation paid
566	or requested to be substantially unreasonable. The court shall
567	direct from which part of the trust assets the compensation
568	shall be paidPersons given notice as provided in this section
569	shall be bound by all orders entered on the petition.
570	(5) The court may determine reasonable compensation for a
571	trustee or any person employed by a trustee without receiving
572	expert testimony. Any party may offer expert testimony after
573	notice to interested persons. If expert testimony is offered, a
574	reasonable expert witness fee shall be awarded by the court and
575	paid from the assets of the trust. The court shall direct from
576	which part of the trust assets the fee shall be paid.
577	(6) Persons given notice as provided in this section shall
578	be bound by all orders entered on the petition.
579	(7) In a proceeding pursuant to subsection (2), the
580	petitioner may serve formal notice as provided in the Florida
581	Probate Rules, and such notice shall be sufficient for the court
582	to acquire jurisdiction over the person receiving it to the
583	extent of the person’s interest in the trust.
584	Section 17. Subsection (1) of section 737.404, Florida
585	Statutes, is amended to read:
586	737.404 Powers exercisable by joint trustees; liability.--
587	(1) Any power vested in three or more trustees may be
588	exercised by a majority, but a trustee who has not joined in
589	exercising a power is not liable to the beneficiaries or to
590	others for the consequences of the exercise, and a dissenting
591	trustee is not liable for the consequences of an actionactin
592	which the dissenting trusteehe or shejoins at the direction of
593	the majority of the trustees if the dissent isdissenting
594	trustee expressed his or her dissent in writing to the otherany
595	of his or her cotrustees at or before the time of the action
596	joinder.
597	Section 18. Section 737.6035, Florida Statutes, is created
598	to read:
599	737.6035 Antilapse; deceased trust beneficiary; class
600	gifts.--Unless a contrary intention appears in the inter vivos
601	trust:
602	(1) If a beneficiary of an inter vivos trust who is a
603	grandparent, or a lineal descendant of a grandparent, of the
604	grantor:
605	(a) Is dead at the time of the execution of the inter
606	vivos trust or at the termination of a trust interest created by
607	an inter vivos trust;
608	(b) Fails to survive the grantor; or
609	(c) Is required by the inter vivos trust or by operation
610	of law to be treated as having predeceased the grantor;
611
612	then the descendants of the trust beneficiary take per stirpes
613	in place of the deceased beneficiary. A person who would have
614	been a trust beneficiary under a class gift if that person had
615	survived the grantor shall be a trust beneficiary for purposes
616	of this section regardless of whether that person died before or
617	after the execution of the inter vivos trust.
618	(2) If a trust beneficiary of an inter vivos trust who is
619	not a grandparent, or a descendant of a grandparent, of the
620	grantor:
621	(a) Is dead at the time of the execution of the inter
622	vivos trust or at the termination of a trust interest created in
623	an inter vivos trust;
624	(b) Fails to survive the grantor; or
625	(c) Is required by the inter vivos trust or by operation
626	of law to be treated as having predeceased the grantor;
627
628	then the trust disposition to the trust beneficiary shall lapse
629	unless an intention to substitute another appears in the inter
630	vivos trust.
631	(3) This section shall apply to all inter vivos trusts and
632	amendments to those trusts executed on or after the effective
633	date of this section.
634	Section 19. Section 737.627, Florida Statutes, is amended
635	to read:
636	737.627 Costs and attorney's fees.—-
637	(1) In all actions for breach of fiduciary duty or
638	challenging the proper exercise of, or failure to exercise,a
639	trustee's powers, the court shall award taxable costs as in
640	chancery actions, including attorney's fees.
641	(2) When awarding taxable costs, including attorney’s
642	fees, under this section, the court, in its discretion, may
643	direct payment from a party’s interest, if any, in the trust or
644	enter a judgment which may be satisfied from other property of
645	the party, or both.
646	(3) This section shall apply to all proceedings described
647	in subsection (1) commenced after the effective date of this
648	act, without regard to the date the trust was created or the
649	date of the settlor’s death.
650	Section 20. For the purpose of incorporating the amendment
651	to section 731.201, Florida Statutes, in references thereto,
652	subsection (8) of section 709.08, Florida Statutes, is reenacted
653	to read:
654	709.08 Durable power of attorney.--
655	(8) STANDARD OF CARE.--Except as otherwise provided in
656	paragraph (4)(e), an attorney in fact is a fiduciary who must
657	observe the standards of care applicable to trustees as
658	described in s. 737.302. The attorney in fact is not liable to
659	third parties for any act pursuant to the durable power of
660	attorney if the act was authorized at the time. If the exercise
661	of the power is improper, the attorney in fact is liable to
662	interested persons as described in s. 731.201 for damage or loss
663	resulting from a breach of fiduciary duty by the attorney in
664	fact to the same extent as the trustee of an express trust.
665	Section 21. For the purpose of incorporating the amendment
666	to section 731.201, Florida Statutes, in references thereto,
667	subsection (1) of section 717.1243, Florida Statutes, is
668	reenacted to read:
669	717.1243 Small estate accounts.--
670	(1) A claim for unclaimed property made by a beneficiary,
671	as defined in s. 731.201, of a deceased owner need not be
672	accompanied by an order of a probate court if the claimant files
673	with the department an affidavit, signed by all beneficiaries,
674	stating that all the beneficiaries have amicably agreed among
675	themselves upon a division of the estate and that all funeral
676	expenses, expenses of the last illness, and any other lawful
677	claims have been paid. If the owner died testate, the claim
678	shall be accompanied by a copy of the will.
679	Section 22. For the purpose of incorporating the amendment
680	to section 731.303, Florida Statutes, in references thereto,
681	subsections (3) and (10) of section 660.46, Florida Statutes,
682	are reenacted to read:
683	660.46 Substitution of fiduciaries.--
684	(3) Unless a waiver or consent shall be filed in the
685	proceedings as provided in subsection (4), the provisions of s.
686	731.301(1) and (2) shall apply with respect to notice of the
687	proceedings to all persons who are then cofiduciaries with the
688	original fiduciary, other than a person joining as a petitioner
689	in the proceedings; to all persons named in the governing
690	instrument as substitutes or successors to the fiduciary
691	capacity of the original fiduciary; to the persons then living
692	who are entitled under the governing instrument to appoint a
693	substitute or successor to act in the fiduciary capacity of the
694	original fiduciary; to all vested beneficiaries of the fiduciary
695	account; and to all then-living originators of the governing
696	instrument. Unless a waiver or consent shall be filed in the
697	proceedings as provided in subsection (4), the provisions of s.
698	731.301 shall apply with respect to notice to all contingent
699	beneficiaries of the fiduciary account. Only the persons or
700	classes of persons described in the foregoing provisions of this
701	subsection shall be deemed to be interested persons for the
702	purposes of this section and the proceedings and notices
703	provided for in this section; and the provisions of ss.
704	731.301(3) and 731.303(3), (4), and (5), relating to notice
705	requirements, the effect of notice, and representation of
706	interests, shall apply to the proceedings provided for in this
707	section.
708	(10) A beneficiary has received a final trust disclosure
709	document or a limitation notice if, when the beneficiary is an
710	adult, it is received by him or her or if, when the beneficiary
711	is a minor or a disabled person, it is received by his or her
712	representative as defined in s. 731.303.
713	Section 23. For the purpose of incorporating the amendment
714	to section 731.303, Florida Statutes, in references thereto,
715	section 731.302, Florida Statutes, is reenacted to read:
716	731.302 Waiver and consent by interested
717	person.--Subsequent to the filing of a petition for
718	administration, an interested person, including a guardian ad
719	litem, administrator ad litem, guardian of the property,
720	personal representative, trustee, or other fiduciary, or a sole
721	holder or all coholders of a power of revocation or a power of
722	appointment, may waive, to the extent of that person's interest
723	or the interest which that person represents, subject to the
724	provisions of ss. 731.303 and 733.604, any right or notice or
725	the filing of any document, exhibit, or schedule required to be
726	filed and may consent to any action or proceeding which may be
727	required or permitted by this code.
728	Section 24. For the purpose of incorporating the amendment
729	to section 731.303, Florida Statutes, in references thereto,
730	paragraphs (d) and (e) of subsection (4) of section 737.303,
731	Florida Statutes, are reenacted to read:
732	737.303 Duty to inform and account to beneficiaries.--The
733	trustee shall keep the beneficiaries of the trust reasonably
734	informed of the trust and its administration. The trustee's duty
735	to inform and account includes, but is not limited to, the
736	following:
737	(4)
738	(d) A beneficiary or the beneficiary's representative, as
739	defined in s. 731.303, may waive, in writing, the trustee's duty
740	to account under paragraph (a).
741	(e) All rights provided a beneficiary under this section
742	may be asserted by a legal representative or natural guardian of
743	the beneficiary. Notice under subsection (1) and a trust
744	accounting under paragraph (a) provided to a representative of
745	the beneficiary as defined in s. 731.303 shall bind the
746	beneficiary, and the trustee shall not be required to provide
747	such notice or trust accounting to any beneficiary who would be
748	bound by an order binding on a representative of the beneficiary
749	under s. 731.303, if such notice or trust accounting,
750	respectively, is provided to that representative.
751	Section 25. For the purpose of incorporating the amendment
752	to section 731.303, Florida Statutes, in references thereto,
753	subsection (4) of section 737.307, Florida Statutes, is
754	reenacted to read:
755	737.307 Limitations on proceedings against trustees after
756	beneficiary receives trust disclosure documents.--
757	(4) A beneficiary has received a trust disclosure document
758	or a limitation notice if, being an adult, it is received by the
759	beneficiary or if, being a minor, disabled person, or person who
760	may take by virtue of the exercise or nonexercise of a power of
761	appointment, it is received by the beneficiary's representative
762	as defined in s. 731.303.
763	Section 26. For the purpose of incorporating the amendment
764	to section 732.502, Florida Statutes, in references thereto,
765	paragraph (a) of subsection (2) of section 382.025, Florida
766	Statutes, is reenacted to read:
767	382.025 Certified copies of vital records;
768	confidentiality; research.--
769	(2) OTHER RECORDS.--
770	(a) The department shall authorize the issuance of a
771	certified copy of all or part of any marriage, dissolution of
772	marriage, or death or fetal death certificate, excluding that
773	portion which is confidential and exempt from the provisions of
774	s. 119.07(1) as provided under s. 382.008, to any person
775	requesting it upon receipt of a request and payment of the fee
776	prescribed by this section. A certification of the death or
777	fetal death certificate which includes the confidential portions
778	shall be issued only:
779	1. To the registrant's spouse or parent, or to the
780	registrant's child, grandchild, or sibling, if of legal age, or
781	to any person who provides a will that has been executed
782	pursuant to s. 732.502, insurance policy, or other document that
783	demonstrates his or her interest in the estate of the
784	registrant, or to any person who provides documentation that he
785	or she is acting on behalf of any of them;
786	2. To any agency of the state or local government or the
787	United States for official purposes upon approval of the
788	department; or
789	3. Upon order of any court of competent jurisdiction.
790	Section 27. For the purpose of incorporating the amendment
791	to section 732.603, Florida Statutes, in references thereto,
792	section 732.604, Florida Statutes, is reenacted to read:
793	732.604 Failure of testamentary provision.--
794	(1) Except as provided in s. 732.603, if a devise other
795	than a residuary devise fails for any reason, it becomes a part
796	of the residue.
797	(2) Except as provided in s. 732.603, if the residue is
798	devised to two or more persons and the devise to one of the
799	residuary devisees fails for any reason, that devise passes to
800	the other residuary devisee, or to the other residuary devisees
801	in proportion to their interests in the residue.
802	Section 28. For the purpose of incorporating the amendment
803	to section 732.603, Florida Statutes, in references thereto,
804	paragraph (a) of subsection (3) of section 732.801, Florida
805	Statutes, is reenacted to read:
806	732.801 Disclaimer of interests in property passing by
807	will or intestate succession or under certain powers of
808	appointment.--
809	(3) DISPOSITION OF DISCLAIMED INTERESTS.--
810	(a) Unless the decedent or a donee of a power of
811	appointment has otherwise provided by will or other appropriate
812	instrument with reference to the possibility of a disclaimer by
813	the beneficiary, the interest disclaimed shall descend, be
814	distributed, or otherwise be disposed of in the same manner as
815	if the disclaimant had died immediately preceding the death or
816	other event that caused the disclaimant's interest to become
817	indefeasibly fixed both in quality and quantity. The disclaimer
818	shall relate to that date for all purposes, whether recorded
819	before or after the death or other event. An interest in
820	property disclaimed shall never vest in the disclaimant. If the
821	provisions of s. 732.603 would have been applicable had the
822	disclaimant in fact died immediately preceding the death or
823	other event, they shall be applicable to the disclaimed
824	interest.
825	Section 29. For the purpose of incorporating the amendment
826	to section 733.2121, Florida Statutes, in references thereto,
827	section 733.701, Florida Statutes, is reenacted to read:
828	733.701 Notifying creditors.--Unless creditors' claims are
829	otherwise barred by s. 733.710, every personal representative
830	shall cause notice to creditors to be published and served under
831	s. 733.2121.
832	Section 30. For the purpose of incorporating the amendment
833	to section 95.031, Florida Statutes, in references thereto,
834	section 63.182, Florida Statutes, is reenacted to read:
835	63.182 Statute of repose.--Notwithstanding s. 95.031 or s.
836	95.11 or any other statute:
837	(1) An action or proceeding of any kind to vacate, set
838	aside, or otherwise nullify a judgment of adoption or an
839	underlying judgment terminating parental rights on any ground,
840	including duress but excluding fraud, shall in no event be filed
841	more than 1 year after entry of the judgment terminating
842	parental rights.
843	(2) An action or proceeding of any kind to vacate, set
844	aside, or otherwise nullify a judgment of adoption or an
845	underlying judgment terminating parental rights on grounds of
846	fraud shall in no event be filed more than 2 years after entry
847	of the judgment terminating parental rights.
848	Section 31. This act shall take effect upon becoming a
849	law.
850