Senate Bill sb2700

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 2700

    By Senator Campbell





    32-1038-03                                         See HB 1749

  1                      A bill to be entitled

  2         An act relating to probate and trusts and

  3         statutes of limitation; amending s. 731.103,

  4         F.S.; providing that the fact that a missing

  5         person was subject to a specific peril of death

  6         is evidence for a finding of a presumptive

  7         death; amending ss. 731.201 and 731.303, F.S.;

  8         revising the conflict of interest standard in

  9         the definitions of "beneficiary," "devisee,"

10         "interested person," and in judicial orders

11         binding the trustee; amending s. 732.217, F.S.;

12         eliminating the requirement that property be

13         homestead property to be excepted from the

14         application of the Florida Uniform Disposition

15         of Community Property Rights at Death Act;

16         amending s. 732.502, F.S.; providing that

17         military testamentary instruments executed

18         pursuant to federal law are valid in this

19         state; amending s. 732.603, F.S.; revising

20         provisions with respect to antilapse

21         provisions; amending s. 733.205, F.S.; revising

22         provisions with respect to the probate of

23         notarial wills; amending s. 733.212, F.S.;

24         revising provisions with respect to the notice

25         of administration; amending s. 733.2121, F.S.;

26         revising the time in which notice to creditors

27         must be served; amending s. 733.608, F.S.;

28         revising provisions with respect to the general

29         power of the personal representative; amending

30         s. 733.609, F.S.; revising provisions with

31         respect to awarding taxable costs and

                                  1

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         attorney's fees with respect to improper

 2         exercise of power or the breech of fiduciary

 3         duty; amending s. 734.1025, F.S., to conform to

 4         the amendment to s. 732.502, F.S.; amending s.

 5         735.2063, F.S.; revising provisions with

 6         respect to notice to creditors; amending s.

 7         737.106, F.S.; revising provisions with respect

 8         to revocable trust prior to dissolution of

 9         marriage; amending s. 737.2035, F.S.; revising

10         provisions with respect to costs and attorney's

11         fees in trust proceedings; amending s. 737.204,

12         F.S.; revising provisions with respect to

13         proceedings for review of employment of agents

14         and review of compensation of trustee and

15         employees of trust; amending s. 737.404, F.S.;

16         revising provisions with respect to powers

17         exercisable by joint trustees; creating s.

18         737.6035, F.S.; providing antilapse provisions

19         with respect to inter vivos trusts under

20         certain circumstances; amending s. 737.627,

21         F.S.; revising provisions with respect to costs

22         and attorney's fees; amending s. 95.031, F.S.;

23         including constructive fraud in actions based

24         upon fraud for statute-of-limitations

25         computation; providing such amendments are

26         remedial in nature and have retrospective

27         effect; reenacting ss. 709.08 and 717.1243,

28         F.S., to incorporate by reference the amendment

29         of s. 731.201, F.S.; reenacting ss. 660.46,

30         731.302, 737.303, and 737.307, F.S., to

31         incorporate by reference the amendment to s.

                                  2

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         731.303, F.S.; reenacting s. 382.025, F.S., to

 2         incorporate by reference the amendment to s.

 3         732.502, F.S.; reenacting ss. 732.604 and

 4         732.801, F.S., to incorporate by reference the

 5         amendment to s. 732.603, F.S.; reenacting s.

 6         733.701, F.S., to incorporate by reference the

 7         amendment to s. 733.2121, F.S.; reenacting s.

 8         63.182, F.S., to incorporate by reference the

 9         amendment to s. 95.031, F.S.; providing an

10         effective date.

11  

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

13  

14         Section 1.  Subsection (3) of section 731.103, Florida

15  Statutes, is amended to read:

16         731.103  Evidence as to death or status.--In

17  proceedings under this code, the rules of evidence in civil

18  actions are applicable unless specifically changed by the

19  code. The following additional rules relating to determination

20  of death and status are applicable:

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

22  her last known domicile for a continuous period of 5 years and

23  whose absence is not satisfactorily explained after diligent

24  search and inquiry is presumed to be dead. The person's death

25  is presumed to have occurred at the end of the period unless

26  there is evidence establishing that death occurred earlier.

27  Evidence showing that the absent person was exposed to a

28  specific peril of death may be a sufficient basis for the

29  court determining at any time after such exposure that he or

30  she died less than 5 years after the date on which his or her

31  absence commenced. A petition for this determination shall be

                                  3

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  filed in the county in Florida where the decedent maintained

 2  his or her domicile or in any county of this state if the

 3  decedent was not a resident of Florida at the time his or her

 4  absence commenced.

 5         Section 2.  Subsections (2), (9), and (21) of section

 6  731.201, Florida Statutes, are amended to read:

 7         731.201  General definitions.--Subject to additional

 8  definitions in subsequent chapters that are applicable to

 9  specific chapters or parts, and unless the context otherwise

10  requires, in this code, in s. 409.9101, and in chapters 737,

11  738, and 744:

12         (2)  "Beneficiary" means heir at law in an intestate

13  estate and devisee in a testate estate. The term "beneficiary"

14  does not apply to an heir at law or a devisee after that

15  person's interest in the estate has been satisfied. In the

16  case of a devise to an existing trust or trustee, or to a

17  trust or trustee described by will, in the absence of a

18  conflict of interest of the trust, the trustee is a

19  beneficiary of the estate. Except as otherwise provided in

20  this subsection, the beneficiary of the trust is not a

21  beneficiary of the estate of which that trust or the trustee

22  of that trust is a beneficiary. However, if each trustee is

23  also a personal representative of the estate, the beneficiary

24  or beneficiaries of the trust as defined in s. 737.303(4)(b)

25  shall be regarded as a beneficiary of the estate An owner of a

26  beneficial interest in the trust is a beneficiary of the trust

27  and is, in the absence of a conflict of interest of the trust,

28  not a beneficiary of the estate.

29         (9)  "Devisee" means a person designated in a will or

30  trust to receive a devise. Except as otherwise provided in

31  this subsection, in the case of a devise to an existing trust

                                  4

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  or trustee, or to a trust or trustee of a trust described by

 2  will, the trust or trustee, rather than the beneficiaries of

 3  the trust, is the devisee. However, if each trustee is also a

 4  personal representative of the estate, the beneficiary or

 5  beneficiaries of the trust as defined in s. 737.303(4)(b)

 6  shall be regarded as a devisee The beneficiaries of the trust

 7  are not devisees.

 8         (21)  "Interested person" means any person who may

 9  reasonably be expected to be affected by the outcome of the

10  particular proceeding involved. In any proceeding affecting

11  the estate or the rights of a beneficiary in the estate, the

12  personal representative of the estate shall be deemed to be an

13  interested person. In any proceeding affecting the expenses of

14  the administration and obligations of a decedent's estate, or

15  any claims described in s. 733.702(1), the trustee of a trust

16  described in s. 733.707(3) is an interested person in the

17  administration of the grantor's estate. The term does not

18  include a beneficiary who has received complete distribution.

19  The meaning, as it relates to particular persons, may vary

20  from time to time and must be determined according to the

21  particular purpose of, and matter involved in, any

22  proceedings.

23         Section 3.  Section 731.303, Florida Statutes, is

24  amended to read:

25         731.303  Representation.--In the administration of or

26  in judicial proceedings involving estates of decedents or

27  trusts, the following apply:

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

29  following cases:

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

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

                                  5

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




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

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

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

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

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

 6  power.

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

 8  between them or among the persons represented:

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

10  ward.

11         2.  Orders binding a trustee bind beneficiaries of the

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

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

14  prior fiduciary, and in proceedings involving creditors or

15  other third parties. However, for purposes of this section, a

16  conflict of interest shall be deemed to exist when each

17  trustee of a trust that is a beneficiary of the estate is also

18  a personal representative of the estate.

19         3.  Orders binding a personal representative bind

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

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

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

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

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

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

26  same or greater quality of interest in the proceeding.

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

28  bind the ward.

29         (3)  In judicial proceedings involving the

30  administration of estates or trusts, notice is required as

31  follows:

                                  6

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (a)  Notice as prescribed by law the Florida Probate

 2  Rules shall be given to every interested person, or to one who

 3  can bind the interested person as described in paragraph

 4  (1)(a) or paragraph (1)(b). Notice may be given both to the

 5  interested person and to another who can bind him or her.

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

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

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

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

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

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

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

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

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

15  a minor or any other person otherwise under a legal

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

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

18  may be appointed to represent several persons or interests.

19         (5)  When a sole holder or coholder of a general,

20  special, or limited power of appointment, including an

21  exercisable power of amendment or revocation over property in

22  an estate or trust, is bound by:

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

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

25  reports that adequately disclose matters set forth therein,

26  

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

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

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

30  interests which could otherwise be affected by the exercise or

31  nonexercise of the power.

                                  7

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         Section 4.  Subsection (2) of section 732.217, Florida

 2  Statutes, is amended to read:

 3         732.217  Application.--Sections 732.216-732.228 apply

 4  to the disposition at death of the following property acquired

 5  by a married person:

 6         (2)  Real property, except homestead and real property

 7  held as tenants by the entirety, which is located in this

 8  state, and which:

 9         (a)  Was acquired with the rents, issues, or income of,

10  the proceeds from, or in exchange for, property acquired as,

11  or which became and remained, community property under the

12  laws of another jurisdiction; or

13         (b)  Is traceable to that community property.

14         Section 5.  Subsections (3) and (4) of section 732.502,

15  Florida Statutes, are renumbered as subsections (4) and (5),

16  respectively, and a new subsection (3) is added to that

17  section, to read:

18         732.502  Execution of wills.--Every will must be in

19  writing and executed as follows:

20         (3)  Any will executed as a military testamentary

21  instrument in accordance with Section 1044d of Title 10 United

22  States Code, Chapter 53, by a person who is eligible for

23  military legal assistance is valid as a will in this state.

24         Section 6.  Paragraph (c) of subsection (1) and

25  paragraph (c) of subsection (2) of section 732.603, Florida

26  Statutes, are amended to read:

27         732.603  Antilapse; deceased devisee; class

28  gifts.--Unless a contrary intention appears in the will:

29         (1)  If a devisee or a beneficiary of a trust created

30  by a will who is a grandparent, or a lineal descendant of a

31  grandparent, of the testator:

                                  8

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (c)  Is required by the will or by operation of law to

 2  be treated as having predeceased the testator,

 3  

 4  then the descendants of the devisee or beneficiary take per

 5  stirpes in place of the deceased devisee or beneficiary. A

 6  person who would have been a devisee under a class gift if

 7  that person had survived the testator shall be a devisee for

 8  purposes of this section whether that person died before or

 9  after the execution of the will.

10         (2)  If a devisee or a beneficiary of a trust created

11  by a will who is not a grandparent, or a descendant of a

12  grandparent, of the testator:

13         (c)  Is required by the will or by operation of law to

14  be treated as having predeceased the testator,

15  

16  then the testamentary disposition to the devisee or

17  beneficiary shall lapse unless an intention to substitute

18  another appears in the will.

19         Section 7.  Subsection (1) of section 733.205, Florida

20  Statutes, is amended to read:

21         733.205  Probate of notarial will.--

22         (1)  When a copy of a notarial will in the possession

23  of a notary entitled to its custody in a foreign state or

24  country, the laws of which state or country require that the

25  will remain in the custody of the notary, duly authenticated

26  by the notary, whose official position, signature, and seal of

27  office are further authenticated by an American consul, vice

28  consul, or other American consular officer within whose

29  jurisdiction the notary is a resident, or whose official

30  position, signature, and seal of office have been

31  authenticated according to the requirements of the Hague

                                  9

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  Convention of 1961, is presented to the court, it may be

 2  admitted to probate if the original could have been admitted

 3  to probate in this state.

 4         Section 8.  Paragraph (c) of subsection (1) of section

 5  733.212, Florida Statutes, is amended to read:

 6         733.212  Notice of administration; filing of

 7  objections.--

 8         (1)  The personal representative shall promptly serve a

 9  copy of the notice of administration on the following persons

10  who are known to the personal representative:

11         (c)  The trustee of any trust described in s.

12  733.707(3) and each beneficiary of the trust as defined in s.

13  737.303(4)(b), if each trustee is also a personal

14  representative of the estate; and

15  

16  in the manner provided for service of formal notice, unless

17  served under s. 733.2123. The personal representative may

18  similarly serve a copy of the notice on any devisees under a

19  known prior will or heirs or others who claim or may claim an

20  interest in the estate.

21         Section 9.  Subsection (1) of section 733.2121, Florida

22  Statutes, is amended to read:

23         733.2121  Notice to creditors; filing of claims.--

24         (1)  Unless creditors' claims are otherwise barred by

25  s. 733.710, the personal representative shall promptly publish

26  a notice to creditors. The notice shall contain the name of

27  the decedent, the file number of the estate, the designation

28  and address of the court in which the proceedings are pending,

29  the name and address of the personal representative, the name

30  and address of the personal representative's attorney, and the

31  date of first publication. The notice shall state that

                                  10

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  creditors must file claims against the estate with the court

 2  during within the time periods set forth in s. ss. 733.702 and

 3  733.710, or be forever barred.

 4         Section 10.  Subsection (2) of section 733.608, Florida

 5  Statutes, is amended, and subsections (3)-(13) are added to

 6  that section, to read:

 7         733.608  General power of the personal

 8  representative.--

 9         (2)  If property that reasonably appears to the

10  personal representative to be protected homestead is not

11  occupied by in the possession of a person who appears to have

12  an interest in the property, the personal representative is

13  authorized, but not required, to take possession of that

14  property for the limited purpose of preserving, insuring, and

15  protecting it for the person having an interest in the

16  property heir or devisee, pending a determination of its

17  homestead status. If the personal representative takes

18  possession of that property, any rents and revenues may be

19  collected by the personal representative for the account of

20  the heir or devisee, but the personal representative shall

21  have no duty to rent or otherwise make the property

22  productive.

23         (3)  If the personal representative expends funds or

24  incurs obligations to preserve, maintain, insure, or protect

25  the property referenced in subsection (2), the personal

26  representative shall be entitled to a lien on that property

27  and its revenues to secure repayment of those expenditures and

28  obligations incurred. These expenditures and obligations

29  incurred, including, but not limited to, fees and costs, shall

30  constitute a debt owed to the personal representative that is

31  charged against and which may be secured by a lien on the

                                  11

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  protected homestead, as provided in this section. The debt

 2  shall include any amounts paid for these purposes after the

 3  decedent's death and prior to the personal representative's

 4  appointment to the extent later ratified by the personal

 5  representative in the court proceeding provided for in this

 6  section.

 7         (a)  On the petition of the personal representative or

 8  any interested person, the court having jurisdiction of the

 9  administration of the decedent's estate shall adjudicate the

10  amount of the debt after formal notice to the persons

11  appearing to have an interest in the property.

12         (b)  The persons having an interest in the protected

13  homestead shall have no personal liability for the repayment

14  of the above noted debt. The personal representative may

15  enforce payment of the debt through any of the following

16  methods:

17         1.  By foreclosure of the lien as provided in this

18  section;

19         2.  By offset of the debt against any other property in

20  the personal representative's possession that otherwise would

21  be distributable to any person having an interest in the

22  protected homestead, but only to the extent of the fraction of

23  the total debt owed to the personal representative the

24  numerator of which is the value of that person's interest in

25  the protected homestead and the denominator of which is the

26  total value of the protected homestead; or

27         3.  By offset of the debt against the revenues from the

28  protected homestead received by the personal representative.

29         (4)  The personal representative's lien shall attach to

30  the property and take priority as of the date and time a

31  notice of that lien is recorded in the official records of the

                                  12

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  county where that property is located and the lien may secure

 2  expenditures and obligations incurred, including, but not

 3  limited to, fees and costs made before or after recording the

 4  notice. The notice of lien may be recorded prior to the

 5  adjudication of the amount of the debt. The notice of lien

 6  also shall be filed in the probate proceeding but failure to

 7  do so shall not affect the validity of the lien. A copy of the

 8  notice of lien shall be served by formal notice upon each

 9  person appearing to have an interest in the property. The

10  notice of lien shall state:

11         (a)  The name and address of the personal

12  representative and the personal representative's attorney;

13         (b)  The legal description of the property;

14         (c)  The name of the decedent and also, to the extent

15  known to the personal representative, the name and address of

16  each person appearing to have an interest in the property; and

17         (d)  That the personal representative has expended or

18  is obligated to expend funds to preserve, maintain, insure,

19  and protect the property and that the lien stands as security

20  for recovery of those expenditures and obligations incurred,

21  including, but not limited to, fees and costs.

22  

23  Substantial compliance with the foregoing provisions shall

24  render the notice in comportment with this section.

25         (5)  The lien shall terminate upon the earliest of:

26         (a)  Recording a satisfaction or release signed by the

27  personal representative in the official records of the county

28  where the property is located;

29         (b)  The discharge of the personal representative when

30  the estate administration is complete;

31  

                                  13

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (c)  One year from the recording of the lien in the

 2  official records unless a proceeding to determine the debt or

 3  enforce the lien has been filed; or

 4         (d)  The entry of an order releasing the lien.

 5         (6)  Within 14 days after receipt of the written

 6  request of any interested person, the personal representative

 7  shall deliver to the requesting person at a place designated

 8  in the written request an estoppel letter setting forth the

 9  unpaid balance of the debt secured by the lien referred to in

10  this section. After complete satisfaction of the debt secured

11  by the lien, the personal representative shall record within

12  30 days after complete payment, a satisfaction of the lien in

13  the official records of the county where the property is

14  located. If a judicial proceeding is necessary to compel

15  compliance with the provisions of this subsection, the

16  prevailing party shall be entitled to an award of attorney's

17  fees and costs.

18         (7)  The lien created by this section may be foreclosed

19  in the manner of foreclosing a mortgage under the provisions

20  of chapter 702.

21         (8)  In any action for enforcement of the debt

22  described in this section, the court shall award taxable costs

23  as in chancery actions, including reasonable attorney's fees.

24         (9)  A personal representative entitled to recover a

25  debt for expenditures and obligations incurred, including, but

26  not limited to, fees and costs, under this section may be

27  relieved of the duty to enforce collection by an order of the

28  court finding:

29         (a)  That the estimated court costs and attorney's fees

30  in collecting the debt will approximate or exceed the amount

31  of the recovery; or

                                  14

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (b)  That it is impracticable to enforce collection in

 2  view of the improbability of collection.

 3         (10)  A personal representative shall not be liable for

 4  failure to attempt to enforce collection of the debt if the

 5  personal representative reasonably believes it would have been

 6  economically impracticable.

 7         (11)  The personal representative shall not be liable

 8  for failure to take possession of the protected homestead or

 9  to expend funds on its behalf. In the event that the property

10  is determined by the court not to be protected homestead,

11  subsections (2)-(10) shall not apply and any liens previously

12  filed shall be deemed released upon recording of the order in

13  the official records of the county where the property is

14  located.

15         (12)  Upon the petition of an interested party to

16  accommodate a sale or the encumbrance of the protected

17  homestead, the court may transfer the lien provided for in

18  this section from the property to the proceeds of the sale or

19  encumbrance by requiring the deposit of the proceeds into a

20  restricted account subject to the lien. The court shall have

21  continuing jurisdiction over the funds deposited. The

22  transferred lien shall attach only to the amount asserted by

23  the personal representative and any proceeds in excess of that

24  amount shall not be subject to the lien or otherwise

25  restricted under this section. Alternatively, the personal

26  representative and the apparent owners of the protected

27  homestead may agree to retain in escrow the amount demanded as

28  reimbursement by the personal representative, to be held there

29  under the continuing jurisdiction of the court pending a final

30  determination of the amount properly reimbursable to the

31  personal representative under this section.

                                  15

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (13)  This act shall apply to estates of decedents

 2  dying after the date on which this act becomes a law.

 3         Section 11.  Section 733.609, Florida Statutes, is

 4  amended to read:

 5         733.609  Improper exercise of power; breach of

 6  fiduciary duty.--

 7         (1)  A personal representative's fiduciary duty is the

 8  same as the fiduciary duty of a trustee of an express trust,

 9  and a personal representative is liable to interested persons

10  for damage or loss resulting from the breach of this duty. In

11  all actions for breach of fiduciary duty or challenging the

12  exercise of or failure to exercise a personal representative's

13  powers, the court shall award taxable costs as in chancery

14  actions, including attorney's fees.

15         (2)  When awarding taxable costs, including attorney's

16  fees, under this section, the court in its discretion may

17  direct payment from a party's interest, if any, in the estate

18  or enter a judgment which may be satisfied from other property

19  of the party, or both.

20         (3)  This section shall apply to all proceedings

21  commenced hereunder after the effective date, without regard

22  to the date of the decedent's death.

23         Section 12.  Subsection (1) of section 734.1025,

24  Florida Statutes, is amended to read:

25         734.1025  Nonresident decedent's testate estate with

26  property not exceeding $50,000 in this state; determination of

27  claims.--

28         (1)  When a nonresident decedent dies testate and

29  leaves property subject to administration in this state the

30  gross value of which does not exceed $50,000 at the date of

31  death, the foreign personal representative of the estate

                                  16

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  before the expiration of 2 years after the decedent's death

 2  may file in the circuit court of the county where any property

 3  is located an authenticated transcript of so much of the

 4  foreign proceedings as will show the will and beneficiaries of

 5  the estate, as provided in the Florida Probate Rules. The

 6  court shall admit the will and any codicils to probate if they

 7  comply with s. 732.502(1), or (2), or (3).

 8         Section 13.  Section 735.2063, Florida Statutes, is

 9  amended to read:

10         735.2063  Notice to creditors.--

11         (1)  Any person who has obtained an order of summary

12  administration may publish a notice to creditors according to

13  the relevant requirements of s. 733.2121, notifying all

14  persons having claims or demands against the estate of the

15  decedent that an order of summary administration has been

16  entered by the court. The notice shall specify the total value

17  of the estate and the names and addresses of those to whom it

18  has been assigned by the order.

19         (2)  If proof of publication of the notice is filed

20  with the court, all claims and demands of creditors against

21  the estate of the decedent who are not known or are not

22  reasonably ascertainable shall be forever barred unless the

23  claims and demands are filed with the court within 3 months

24  after the first publication of the notice.

25         Section 14.  Section 737.106, Florida Statutes, is

26  amended to read:

27         737.106  Revocable trust prior to dissolution of

28  marriage.--Unless the trust instrument or the judgment for

29  dissolution of marriage or divorce expressly provides

30  otherwise, if a revocable trust is executed by a husband or

31  wife as settlor prior to annulment of the marriage or entry of

                                  17

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  a judgment for dissolution of marriage or divorce of settlor

 2  from settlor's spouse, then any provision of the trust which

 3  affects the settlor's divorced spouse will become void upon

 4  annulment of the marriage or entry of the judgment of

 5  dissolution of marriage or divorce, and any such trust will be

 6  administered and construed as if the settlor's divorced spouse

 7  had died on the date of the annulment or upon entry of the

 8  judgment for dissolution of marriage or divorce.

 9         Section 15.  Subsection (2) of section 737.2035,

10  Florida Statutes, is amended to read:

11         737.2035  Costs and attorney's fees in trust

12  proceedings.--

13         (2)  Any attorney who has rendered services to a trust

14  may be awarded reasonable compensation from the trust. The

15  attorney may apply to the court for an order awarding

16  attorney' s fees, and, after notice and service upon the

17  trustee and all beneficiaries entitled to an accounting under

18  s. 737.303, the court shall enter its order on the fee

19  application.

20         Section 16.  Section 737.204, Florida Statutes, is

21  amended to read:

22         737.204  Proceedings for review of employment of agents

23  and review of compensation of trustee and employees of

24  trust.--

25         (1)  After notice to all interested persons, the court

26  may review the propriety of the employment by a trustee of any

27  person, including any attorney, auditor, investment adviser,

28  or other specialized agent or assistant, and the

29  reasonableness of any the compensation paid to that of any

30  person or to so employed and of the compensation determined by

31  the trustee for his or her own services. A person who has

                                  18

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  received excessive compensation from a trust may be ordered to

 2  make a refund of the excess.

 3         (2)  If the settlor's estate is being probated, and the

 4  settlor's trust or the trustee of the settlor's trust is a

 5  beneficiary under the settlor's will, the trustee, any person

 6  employed by the trustee the attorney, or any interested person

 7  may have the propriety of employment and the reasonableness of

 8  the compensation of the trustee or any person employed by the

 9  trustee determined in the probate proceeding.

10         (3)  The burden of proof of propriety of the employment

11  and the reasonableness of the compensation shall be upon the

12  trustee and the person employed by the trustee. Any person who

13  is determined to have received excessive compensation from a

14  trust for services rendered may be ordered to make appropriate

15  refunds In any proceeding under this section the petitioner

16  shall either:

17         (a)  Serve notice on all interested persons in the

18  manner provided for service of formal notice under s. 731.301,

19  together with a notice advising the interested person that an

20  answer to the petition must be filed and served on petitioner

21  within 20 days from the service of the petition or the

22  petition may be considered ex parte, and such notice shall be

23  sufficient for the court to acquire jurisdiction for this

24  proceeding over the person receiving formal notice to the

25  extent of the person's interest in the trust; or

26         (b)  Obtain jurisdiction over interested persons in any

27  other manner permitted by law.

28         (4)  Court proceedings to determine reasonable

29  compensation of a trustee or any person employed by a trustee,

30  if required, are a part of the trust administration process.

31  The costs, including attorney's fees, of the person assuming

                                  19

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  the burden of proof of propriety of the employment and

 2  reasonableness of the compensation shall be determined by the

 3  court and paid from the assets of the trust unless the court

 4  finds the compensation paid or requested to be substantially

 5  unreasonable. The court shall direct from which part of the

 6  trust assets the compensation shall be paid Persons given

 7  notice as provided in this section shall be bound by all

 8  orders entered on the petition.

 9         (5)  The court may determine reasonable compensation

10  for a trustee or any person employed by a trustee without

11  receiving expert testimony. Any party may offer expert

12  testimony after notice to interested persons. If expert

13  testimony is offered, a reasonable expert witness fee shall be

14  awarded by the court and paid from the assets of the trust.

15  The court shall direct from which part of the trust assets the

16  fee shall be paid.

17         (6)  Persons given notice as provided in this section

18  shall be bound by all orders entered on the petition.

19         (7)  In a proceeding pursuant to subsection (2), the

20  petitioner may serve formal notice as provided in the Florida

21  Probate Rules, and such notice shall be sufficient for the

22  court to acquire jurisdiction over the person receiving it to

23  the extent of the person's interest in the trust.

24         Section 17.  Subsection (1) of section 737.404, Florida

25  Statutes, is amended to read:

26         737.404  Powers exercisable by joint trustees;

27  liability.--

28         (1)  Any power vested in three or more trustees may be

29  exercised by a majority, but a trustee who has not joined in

30  exercising a power is not liable to the beneficiaries or to

31  others for the consequences of the exercise, and a dissenting

                                  20

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  trustee is not liable for the consequences of an action act in

 2  which the dissenting trustee he or she joins at the direction

 3  of the majority of the trustees if the dissent is dissenting

 4  trustee expressed his or her dissent in writing to the other

 5  any of his or her cotrustees at or before the time of the

 6  action joinder.

 7         Section 18.  Section 737.6035, Florida Statutes, is

 8  created to read:

 9         737.6035  Antilapse; deceased trust beneficiary; class

10  gifts.--Unless a contrary intention appears in the inter vivos

11  trust:

12         (1)  If a beneficiary of an inter vivos trust who is a

13  grandparent, or a lineal descendant of a grandparent, of the

14  grantor:

15         (a)  Is dead at the time of the execution of the inter

16  vivos trust or at the termination of a trust interest created

17  by an inter vivos trust;

18         (b)  Fails to survive the grantor; or

19         (c)  Is required by the inter vivos trust or by

20  operation of law to be treated as having predeceased the

21  grantor;

22  

23  then the descendants of the trust beneficiary take per stirpes

24  in place of the deceased beneficiary. A person who would have

25  been a trust beneficiary under a class gift if that person had

26  survived the grantor shall be a trust beneficiary for purposes

27  of this section regardless of whether that person died before

28  or after the execution of the inter vivos trust.

29         (2)  If a trust beneficiary of an inter vivos trust who

30  is not a grandparent, or a descendant of a grandparent, of the

31  grantor:

                                  21

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (a)  Is dead at the time of the execution of the inter

 2  vivos trust or at the termination of a trust interest created

 3  in an inter vivos trust;

 4         (b)  Fails to survive the grantor; or

 5         (c)  Is required by the inter vivos trust or by

 6  operation of law to be treated as having predeceased the

 7  grantor;

 8  

 9  then the trust disposition to the trust beneficiary shall

10  lapse unless an intention to substitute another appears in the

11  inter vivos trust.

12         (3)  This section shall apply to all inter vivos trusts

13  and amendments to those trusts executed on or after the

14  effective date of this section.

15         Section 19.  Section 737.627, Florida Statutes, is

16  amended to read:

17         737.627  Costs and attorney's fees.--

18         (1)  In all actions for breach of fiduciary duty or

19  challenging the proper exercise of, or failure to exercise, a

20  trustee's powers, the court shall award taxable costs as in

21  chancery actions, including attorney's fees.

22         (2)  When awarding taxable costs, including attorney's

23  fees, under this section, the court, in its discretion, may

24  direct payment from a party's interest, if any, in the trust

25  or enter a judgment which may be satisfied from other property

26  of the party, or both.

27         (3)  This section shall apply to all proceedings

28  described in subsection (1) commenced after the effective date

29  of this act, without regard to the date the trust was created

30  or the date of the settlor's death.

31  

                                  22

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         Section 20.  Paragraph (a) of subsection (2) of section

 2  95.031, Florida Statutes, is amended to read:

 3         95.031  Computation of time.--Except as provided in

 4  subsection (2) and in s. 95.051 and elsewhere in these

 5  statutes, the time within which an action shall be begun under

 6  any statute of limitations runs from the time the cause of

 7  action accrues.

 8         (2)(a)  An action founded upon for fraud under s.

 9  95.11(3), including constructive fraud, must be begun within

10  the period prescribed in this chapter, with the period running

11  from the time the facts giving rise to the cause of action

12  were discovered or should have been discovered with the

13  exercise of due diligence, instead of running from any date

14  prescribed elsewhere in s. 95.11(3), but in any event an

15  action for fraud under s. 95.11(3) must be begun within 12

16  years after the date of the commission of the alleged fraud,

17  regardless of the date the fraud was or should have been

18  discovered.

19         Section 21.  The amendments to section 95.031, Florida

20  Statutes, are remedial in nature and shall have retrospective

21  effect.

22         Section 22.  For the purpose of incorporating the

23  amendment to section 731.201, Florida Statutes, in references

24  thereto, subsection (8) of section 709.08, Florida Statutes,

25  is reenacted to read:

26         709.08  Durable power of attorney.--

27         (8)  STANDARD OF CARE.--Except as otherwise provided in

28  paragraph (4)(e), an attorney in fact is a fiduciary who must

29  observe the standards of care applicable to trustees as

30  described in s. 737.302. The attorney in fact is not liable to

31  third parties for any act pursuant to the durable power of

                                  23

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  attorney if the act was authorized at the time. If the

 2  exercise of the power is improper, the attorney in fact is

 3  liable to interested persons as described in s. 731.201 for

 4  damage or loss resulting from a breach of fiduciary duty by

 5  the attorney in fact to the same extent as the trustee of an

 6  express trust.

 7         Section 23.  For the purpose of incorporating the

 8  amendment to section 731.201, Florida Statutes, in references

 9  thereto, subsection (1) of section 717.1243, Florida Statutes,

10  is reenacted to read:

11         717.1243  Small estate accounts.--

12         (1)  A claim for unclaimed property made by a

13  beneficiary, as defined in s. 731.201, of a deceased owner

14  need not be accompanied by an order of a probate court if the

15  claimant files with the department an affidavit, signed by all

16  beneficiaries, stating that all the beneficiaries have

17  amicably agreed among themselves upon a division of the estate

18  and that all funeral expenses, expenses of the last illness,

19  and any other lawful claims have been paid. If the owner died

20  testate, the claim shall be accompanied by a copy of the will.

21         Section 24.  For the purpose of incorporating the

22  amendment to section 731.303, Florida Statutes, in references

23  thereto, subsections (3) and (10) of section 660.46, Florida

24  Statutes, are reenacted to read:

25         660.46  Substitution of fiduciaries.--

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

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

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

29  the proceedings to all persons who are then cofiduciaries with

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

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

                                  24

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1  governing instrument as substitutes or successors to the

 2  fiduciary capacity of the original fiduciary; to the persons

 3  then living who are entitled under the governing instrument to

 4  appoint a substitute or successor to act in the fiduciary

 5  capacity of the original fiduciary; to all vested

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

 7  originators of the governing instrument. Unless a waiver or

 8  consent shall be filed in the proceedings as provided in

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

10  respect to notice to all contingent beneficiaries of the

11  fiduciary account. Only the persons or classes of persons

12  described in the foregoing provisions of this subsection shall

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

14  section and the proceedings and notices provided for in this

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

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

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

18  proceedings provided for in this section.

19         (10)  A beneficiary has received a final trust

20  disclosure document or a limitation notice if, when the

21  beneficiary is an adult, it is received by him or her or if,

22  when the beneficiary is a minor or a disabled person, it is

23  received by his or her representative as defined in s.

24  731.303.

25         Section 25.  For the purpose of incorporating the

26  amendment to section 731.303, Florida Statutes, in references

27  thereto, section 731.302, Florida Statutes, is reenacted to

28  read:

29         731.302  Waiver and consent by interested

30  person.--Subsequent to the filing of a petition for

31  administration, an interested person, including a guardian ad

                                  25

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




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

 2  personal representative, trustee, or other fiduciary, or a

 3  sole holder or all coholders of a power of revocation or a

 4  power of appointment, may waive, to the extent of that

 5  person's interest or the interest which that person

 6  represents, subject to the provisions of ss. 731.303 and

 7  733.604, any right or notice or the filing of any document,

 8  exhibit, or schedule required to be filed and may consent to

 9  any action or proceeding which may be required or permitted by

10  this code.

11         Section 26.  For the purpose of incorporating the

12  amendment to section 731.303, Florida Statutes, in references

13  thereto, paragraphs (d) and (e) of subsection (4) of section

14  737.303, Florida Statutes, are reenacted to read:

15         737.303  Duty to inform and account to

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

17  the trust reasonably informed of the trust and its

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

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

20         (4)

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

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

23  duty to account under paragraph (a).

24         (e)  All rights provided a beneficiary under this

25  section may be asserted by a legal representative or natural

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

27  trust accounting under paragraph (a) provided to a

28  representative of the beneficiary as defined in s. 731.303

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

30  required to provide such notice or trust accounting to any

31  beneficiary who would be bound by an order binding on a

                                  26

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




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

 2  notice or trust accounting, respectively, is provided to that

 3  representative.

 4         Section 27.  For the purpose of incorporating the

 5  amendment to section 731.303, Florida Statutes, in references

 6  thereto, subsection (4) of section 737.307, Florida Statutes,

 7  is reenacted to read:

 8         737.307  Limitations on proceedings against trustees

 9  after beneficiary receives trust disclosure documents.--

10         (4)  A beneficiary has received a trust disclosure

11  document or a limitation notice if, being an adult, it is

12  received by the beneficiary or if, being a minor, disabled

13  person, or person who may take by virtue of the exercise or

14  nonexercise of a power of appointment, it is received by the

15  beneficiary's representative as defined in s. 731.303.

16         Section 28.  For the purpose of incorporating the

17  amendment to section 732.502, Florida Statutes, in references

18  thereto, paragraph (a) of subsection (2) of section 382.025,

19  Florida Statutes, is reenacted to read:

20         382.025  Certified copies of vital records;

21  confidentiality; research.--

22         (2)  OTHER RECORDS.--

23         (a)  The department shall authorize the issuance of a

24  certified copy of all or part of any marriage, dissolution of

25  marriage, or death or fetal death certificate, excluding that

26  portion which is confidential and exempt from the provisions

27  of s. 119.07(1) as provided under s. 382.008, to any person

28  requesting it upon receipt of a request and payment of the fee

29  prescribed by this section. A certification of the death or

30  fetal death certificate which includes the confidential

31  portions shall be issued only:

                                  27

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         1.  To the registrant's spouse or parent, or to the

 2  registrant's child, grandchild, or sibling, if of legal age,

 3  or to any person who provides a will that has been executed

 4  pursuant to s. 732.502, insurance policy, or other document

 5  that demonstrates his or her interest in the estate of the

 6  registrant, or to any person who provides documentation that

 7  he or she is acting on behalf of any of them;

 8         2.  To any agency of the state or local government or

 9  the United States for official purposes upon approval of the

10  department; or

11         3.  Upon order of any court of competent jurisdiction.

12         Section 29.  For the purpose of incorporating the

13  amendment to section 732.603, Florida Statutes, in references

14  thereto, section 732.604, Florida Statutes, is reenacted to

15  read:

16         732.604  Failure of testamentary provision.--

17         (1)  Except as provided in s. 732.603, if a devise

18  other than a residuary devise fails for any reason, it becomes

19  a part of the residue.

20         (2)  Except as provided in s. 732.603, if the residue

21  is devised to two or more persons and the devise to one of the

22  residuary devisees fails for any reason, that devise passes to

23  the other residuary devisee, or to the other residuary

24  devisees in proportion to their interests in the residue.

25         Section 30.  For the purpose of incorporating the

26  amendment to section 732.603, Florida Statutes, in references

27  thereto, paragraph (a) of subsection (3) of section 732.801,

28  Florida Statutes, is reenacted to read:

29         732.801  Disclaimer of interests in property passing by

30  will or intestate succession or under certain powers of

31  appointment.--

                                  28

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (3)  DISPOSITION OF DISCLAIMED INTERESTS.--

 2         (a)  Unless the decedent or a donee of a power of

 3  appointment has otherwise provided by will or other

 4  appropriate instrument with reference to the possibility of a

 5  disclaimer by the beneficiary, the interest disclaimed shall

 6  descend, be distributed, or otherwise be disposed of in the

 7  same manner as if the disclaimant had died immediately

 8  preceding the death or other event that caused the

 9  disclaimant's interest to become indefeasibly fixed both in

10  quality and quantity. The disclaimer shall relate to that date

11  for all purposes, whether recorded before or after the death

12  or other event. An interest in property disclaimed shall never

13  vest in the disclaimant. If the provisions of s. 732.603 would

14  have been applicable had the disclaimant in fact died

15  immediately preceding the death or other event, they shall be

16  applicable to the disclaimed interest.

17         Section 31.  For the purpose of incorporating the

18  amendment to section 733.2121, Florida Statutes, in references

19  thereto, section 733.701, Florida Statutes, is reenacted to

20  read:

21         733.701  Notifying creditors.--Unless creditors' claims

22  are otherwise barred by s. 733.710, every personal

23  representative shall cause notice to creditors to be published

24  and served under s. 733.2121.

25         Section 32.  For the purpose of incorporating the

26  amendment to section 95.031, Florida Statutes, in references

27  thereto, section 63.182, Florida Statutes, is reenacted to

28  read:

29         63.182  Statute of repose.--Notwithstanding s. 95.031

30  or s. 95.11 or any other statute:

31  

                                  29

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






    Florida Senate - 2003                                  SB 2700
    32-1038-03                                         See HB 1749




 1         (1)  An action or proceeding of any kind to vacate, set

 2  aside, or otherwise nullify a judgment of adoption or an

 3  underlying judgment terminating parental rights on any ground,

 4  including duress but excluding fraud, shall in no event be

 5  filed more than 1 year after entry of the judgment terminating

 6  parental rights.

 7         (2)  An action or proceeding of any kind to vacate, set

 8  aside, or otherwise nullify a judgment of adoption or an

 9  underlying judgment terminating parental rights on grounds of

10  fraud shall in no event be filed more than 2 years after entry

11  of the judgment terminating parental rights.

12         Section 33.  This act shall take effect upon becoming a

13  law.

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  30

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