Amendment
Bill No. 1755
Amendment No. 711979
CHAMBER ACTION
Senate House
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1Representative Kottkamp offered the following:
2
3     Amendment (with title amendment)
4     Remove everything after the enacting clause, and insert:
5     Section 1.  Subsection (10) of section 711.501, Florida
6Statutes, is amended to read:
7     711.501  Definitions.--In ss. 711.50-711.512, unless the
8context otherwise requires, the term:
9     (10)  "Security account" means:
10     (a)  A reinvestment account associated with a security, a
11securities account with a broker, a cash balance in a brokerage
12account, cash, interest, earnings, or dividends earned or
13declared on a security in an account, a reinvestment account, or
14a brokerage account, whether or not credited to the account
15before the owner's death; or
16     (b)  An investment management account, investment advisory
17account, investment agency account, custody account, or any
18other type of account with a bank or trust company, and includes
19the securities in the account, the cash balance in the account,
20and cash equivalents, and any interest, earnings, or dividends
21earned or declared on a security in the account, whether or not
22credited to the account before the owner's death; or
23     (c)(b)  A cash balance or other property held for or due to
24the owner of a security as a replacement for or product of an
25account security, whether or not credited to the account before
26the owner's death.
27     Section 2.  Paragraphs (y) and (z) of subsection (2) of
28section 737.402, Florida Statutes, are amended to read:
29     737.402  Powers of trustees conferred by this part.--
30     (2)  Unless otherwise provided in the trust instrument, a
31trustee has the power:
32     (y)  To employ persons, including attorneys, auditors,
33investment advisers, or agents, even if they are the trustee or
34associated with the trustee, to advise or assist the trustee in
35the performance of his or her administrative duties and to pay
36compensation and costs incurred in connection with such
37employment from the assets of the trust; to act without
38independent investigation upon their recommendations; and,
39instead of acting personally, to employ one or more agents to
40perform any act of administration, whether or not discretionary.
41     (z)1.  To prosecute or defend actions, claims, or
42proceedings, including appeals, for the protection of trust
43assets and of the trustee in the performance of his or her
44duties.
45     2.  To employ attorneys and other agents to advise and
46assist the trustee in the exercise of any of the trustee's
47powers and to pay compensation and costs incurred in connection
48with such employment from the assets of the trust.
49     Section 3.  Subsection (2) of section 737.403, Florida
50Statutes, is amended to read:
51     737.403  Power of court to permit deviation or to approve
52transactions involving conflict of interest.--
53     (2)  If the duty of the trustee and the trustee's
54individual interest or his or her interest as trustee of another
55trust conflict in the exercise of a trust power, the power may
56be exercised only by court authorization, except as provided in
57s. 737.402(2)(a), (e), (g), (s) and (y). Under this section,
58personal profit or advantage to an affiliated or subsidiary
59company or association is personal profit to any corporate
60trustee. Court authorization is not required for any of the
61following:
62     (a)  The exercise of any power described in s.
63737.402(2)(a), (e), (g), (s), or (y);
64     (b)  The exercise of any power for which the trust
65instrument acknowledges the trustee's conflict of interest and
66expressly authorizes the exercise of that power notwithstanding
67the conflict;
68     (c)  The exercise of any power consented to in writing by a
69settlor of the trust while the settlor holds the right of
70revocation of the trust;
71     (d)  The exercise of any power consented to in writing by
72each of the beneficiaries to whom the trustee is required to
73provide any annual or periodic accounting. Consent under this
74paragraph may be given by a person who represents the interest
75of the beneficiary under s. 731.303 or by the legal guardian of
76the beneficiary or, if there is no legal guardian, by the
77natural guardian of the beneficiary; or
78     (e)  Payment of costs or attorney's fees incurred in any
79trust proceeding from the assets of the trust unless an action
80has been filed or defense asserted against the trustee based
81upon a breach of trust. Court authorization is not required if
82the action or defense is later withdrawn or dismissed by the
83party that is alleging a breach of trust, or resolved without a
84determination by the court that the trustee has committed a
85breach of trust.
86     Section 4.  Paragraph (h) of subsection (3) of section
87738.104, Florida Statutes, is amended, and subsection (11) is
88added to said section, to read:
89     738.104  Trustee's power to adjust.--
90     (3)  A trustee may not make an adjustment:
91     (h)  If the trustee is not a beneficiary of the trust but
92the adjustment would benefit the trustee directly or indirectly,
93except that in the case of a trustee whose compensation for
94acting as trustee is based upon the value of trust assets, an
95adjustment that affects the value of trust assets shall not be
96not deemed to benefit the trustee.
97     (11)  This section pertains to the administration of a
98trust and is applicable to any trust that is administered either
99in this state or under Florida law.
100     Section 5.  Paragraphs (e) and (f) are added to subsection
101(1) of section 738.1041, Florida Statutes, and subsections (10)
102and (12) of said section are amended, to read:
103     738.1041  Total return unitrust.--
104     (1)  For purposes of this section, the term:
105     (e)  "Fair market value" means the fair market value of
106assets held by the trust as otherwise determined under this
107chapter, reduced by all known noncontingent liabilities except
108for those liabilities that, upon payment, will represent
109expenses under s. 738.701 or s. 738.702.
110     (f)  "Unitrust amount" means the amount determined by
111multiplying the fair market value of the assets as defined in
112paragraph (e) by the percentage calculated under paragraph
113(2)(b).
114     (10)  Any trustee or disinterested person who in good faith
115takes or fails to take any action under this section shall not
116be liable to any person affected by such action or inaction,
117regardless of whether such person received written notice as
118provided in this section and regardless of whether such person
119was under a legal disability at the time of the delivery of such
120notice. Such person's exclusive remedy shall be to obtain, under
121subsection (11), an order of the court directing the trustee to
122convert an income trust to a total return unitrust, to reconvert
123from a total return unitrust to an income trust, or to change
124the percentage used to calculate the unitrust amount. If a court
125determines that the trustee or disinterested person has not
126acted in good faith in taking or failing to take any action
127under this section, the provisions of s. 738.105(3) apply.
128     (12)  This section shall be construed as pertaining to the
129administration of a trust and shall be available to any trust
130that is administered either in this state or under Florida law
131unless:
132     (a)  The governing instrument reflects an intention that
133the current beneficiary or beneficiaries are to receive an
134amount other than a reasonable current return from the trust;
135     (b)  The trust is a trust described in the Internal Revenue
136Code, 26 U.S.C. s. 170(f)(2)(B), s. 642(c)(5), s. 664(d), s.
1371361(d), s. 2702(a)(3), or s. 2702(b);
138     (c)  One or more persons to whom the trustee could
139distribute income have a power of withdrawal over the trust:
140     1.  That is not subject to an ascertainable standard under
141the Internal Revenue Code, 26 U.S.C. s. 2041 or s. 2514, and
142exceeds in any calendar year the amount set forth in the
143Internal Revenue Code, 26 U.S.C. s. 2041(b)(2) or s. 2514(e); or
144     2.  A power of withdrawal over the trust that can be
145exercised to discharge a duty of support he or she possesses;
146     (d)  The governing instrument expressly prohibits use of
147this section by specific reference to the section. A provision
148in the governing instrument that, "The provisions of section
149738.1041, Florida Statutes, as amended, or any corresponding
150provision of future law, shall not be used in the administration
151of this trust," or similar words reflecting such intent shall be
152sufficient to preclude the use of this section; or
153     (e)  The trust is a trust with respect to which a trustee
154currently possesses the power to adjust under s. 738.104.
155     Section 6.  Subsection (1) of section 738.303, Florida
156Statutes, is amended to read:
157     738.303  Apportionment when income interest ends.--
158     (1)  For purposes of this section, "undistributed income"
159means net income received on or before the date on which an
160income interest ends. The term does not include an item of
161income or expense that is due or accrued or net income that has
162been added or is required to be added to principal under the
163terms of the trust. In the case of a trust being administered as
164a unitrust under s. 738.1041, the term "undistributed income"
165means the prorated unitrust amount computed on a daily basis
166through the date on which the income interest ends.
167     Section 7.  This act shall take effect upon becoming a law.
168
169================ T I T L E  A M E N D M E N T =============
170     Remove lines 2-18 and insert:
171An act relating to fiduciary relationships; amending s.
172711.501, F.S.; including additional investment instruments
173within the definition of the term "security account";
174amending s. 737.402, F.S.; revising the powers conferred
175upon a trustee; amending s. 737.403, F.S.; specifying
176circumstances in which court authorization is not required
177for a trustee to exercise his or her power when a conflict
178of interest exists; amending s. 738.104, F.S.; providing
179that adjustments affecting the value of trust assets are
180not deemed to benefit a trustee under certain
181circumstances; providing for applicability of trustee
182adjustment power to certain trusts; amending s. 738.1041,
183F.S., relating to total return unitrust; defining the
184terms "fair market value" and "unitrust amount"; providing
185a remedy; providing that certain provisions shall apply to
186the administration of certain trusts; amending s. 738.303,
187F.S.; defining the term "undistributed income"; providing
188an effective date.


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