Senate Bill sb1688

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    Florida Senate - 2005                                  SB 1688

    By Senator Atwater





    25-440A-05

  1                      A bill to be entitled

  2         An act relating to trusts and other agency

  3         relationships; amending s. 711.501, F.S.;

  4         including additional investment instruments

  5         within the definition of the term "security

  6         account"; amending s. 737.402, F.S.; revising

  7         the powers conferred upon a trustee; amending

  8         s. 737.403, F.S.; specifying circumstances in

  9         which court authorization is not required for a

10         trustee to exercise his or her power when a

11         conflict of interest exists; amending s.

12         738.104, F.S.; revising the circumstances in

13         which a trustee is prohibited from making an

14         adjustment when such adjustment would benefit

15         the trustee; clarifying the application of law

16         pertaining to the trustee's power to adjust;

17         amending s. 738.1041, F.S.; providing

18         definitions governing certain trust

19         conversions; revising method of determining

20         fair market value; specifying consequences when

21         a court determines that a fiduciary has not

22         acted in good faith; providing for creating an

23         express total return unitrust; amending s.

24         738.303, F.S.; defining the term "undistributed

25         income" for purposes of a trust that is

26         administered as a unitrust; amending s.

27         738.401, F.S.; providing guidelines for

28         allocation of certain moneys received from

29         targeted entities and investment entities;

30         defining terms; providing an effective date.

31  

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

 2  

 3         Section 1.  Subsection (10) of section 711.501, Florida

 4  Statutes, is amended to read:

 5         711.501  Definitions.--In ss. 711.50-711.512, unless

 6  the context otherwise requires, the term:

 7         (10)  "Security account" means:

 8         (a)  A reinvestment account associated with a security,

 9  a securities account with a broker, a cash balance in a

10  brokerage account, cash, interest, earnings, or dividends

11  earned or declared on a security in an account, a reinvestment

12  account, or a brokerage account, whether or not credited to

13  the account before the owner's death; or

14         (b)  An investment management, investment advisory,

15  investment agency, custody, or other account with a bank or

16  trust company, including the securities in the account, the

17  cash balance in the account, cash equivalents, and interest,

18  earnings, or dividends earned or declared on a security in the

19  account, whether or not credited to the account before the

20  owner's death; or

21         (c)(b)  A cash balance or other property held for or

22  due to the owner of a security as a replacement for or product

23  of an account security, whether or not credited to the account

24  before the owner's death.

25         Section 2.  Paragraphs (y) and (z) of subsection (2) of

26  section 737.402, Florida Statutes, are amended to read:

27         737.402  Powers of trustees conferred by this part.--

28         (2)  Unless otherwise provided in the trust instrument,

29  a trustee has the power:

30         (y)  To employ persons, including attorneys, auditors,

31  investment advisers, or agents, even if they are the trustee

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 1  or associated with the trustee, to advise or assist the

 2  trustee in the performance of his or her administrative duties

 3  and to pay compensation and costs incurred in connection with

 4  such employment from the assets of the trust; to act without

 5  independent investigation upon their recommendations; and,

 6  instead of acting personally, to employ one or more agents to

 7  perform any act of administration, whether or not

 8  discretionary.

 9         (z)  To prosecute or defend actions, claims, or

10  proceedings, including appeals, for the protection of trust

11  assets and of the trustee in the performance of his or her

12  duties; to employ attorneys and other agents to advise and

13  assist the trustee in the exercise of those powers; and to pay

14  compensation and costs incurred in connection with such

15  employment from the assets of the trust.

16         Section 3.  Subsection (2) of section 737.403, Florida

17  Statutes, is amended to read:

18         737.403  Power of court to permit deviation or to

19  approve transactions involving conflict of interest.--

20         (2)  If the duty of the trustee and the trustee's

21  individual interest or his or her interest as trustee of

22  another trust conflict in the exercise of a trust power, the

23  power may be exercised only by court authorization, except as

24  provided in s. 737.402(2)(a), (e), (g), (s) or (y). Under this

25  section, personal profit or advantage to an affiliated or

26  subsidiary company or association is personal profit to any

27  corporate trustee. Court authorization is not required for any

28  of the following:

29         (a)  The exercise of any power described in s.

30  737.402(2)(a), (e), (g), (s), or (y);

31  

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 1         (b)  The exercise of any power for which the trust

 2  instrument acknowledges the trustee's conflict of interest and

 3  expressly authorizes the exercise of that power

 4  notwithstanding conflict;

 5         (c)  The exercise of any power consented to in writing

 6  by a settlor of the trust while the settlor holds the right of

 7  revocation of the trust;

 8         (d)  The exercise of any power consented to in writing

 9  by each of the beneficiaries to whom the trustee is required

10  to provide any annual or periodic accounting. Consent under

11  this paragraph may be given by a person who represents the

12  interest of the beneficiary under s. 731.303, or by the legal

13  guardian of the beneficiary or, if there is no legal guardian,

14  by the natural guardian of the beneficiary; or

15         (e)  Payment of costs or attorney's fees incurred in

16  any trust proceeding from the assets of the trust unless an

17  action has been filed or defense asserted against the trustee

18  based upon a breach of trust. Court authorization is not

19  required if the action or defense is later withdrawn or

20  dismissed by the party that is alleging a breach of trust, or

21  resolved without a determination by the court that the trustee

22  has committed a breach of trust.

23         Section 4.  Subsections (3) and (4) and paragraph (b)

24  of subsection (5) of section 738.104, Florida Statutes, are

25  amended, and subsection (11) is added to that section, to

26  read:

27         738.104  Trustee's power to adjust.--

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

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

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

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

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

 2  trustee did not have the power to adjust;

 3         (a)(b)  That reduces the actuarial value of the income

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

 5  the intent to qualify for a gift tax exclusion;

 6         (b)(c)  That changes the amount payable to a

 7  beneficiary as a fixed annuity or a fixed fraction of the

 8  value of the trust assets;

 9         (c)(d)  From any amount that is permanently set aside

10  for charitable purposes under a will or the terms of a trust

11  unless both income and principal are so set aside;

12         (d)(e)  If possessing or exercising the power to adjust

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

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

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

16  power to adjust;

17         (e)(f)  If possessing or exercising the power to adjust

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

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

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

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

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

23         (f)(g)  If the trustee is a beneficiary of the trust;

24  or

25         (g)(h)  If the trustee is not a beneficiary of the

26  trust but the adjustment would benefit the trustee directly or

27  indirectly, except that, in the case of a trustee whose

28  compensation for acting as trustee is based upon the value of

29  trust assets, an adjustment that affects the value of trust

30  assets shall not be deemed to benefit the trustee.

31  

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 1         (4)  If paragraph (3)(d), paragraph (3)(e), paragraph

 2  (3)(f), or paragraph (3)(g), or paragraph (3)(h) applies to a

 3  trustee and there is more than one trustee, a cotrustee to

 4  whom the provision does not apply may make the adjustment

 5  unless the exercise of the power by the remaining trustee is

 6  not permitted by the terms of the trust.

 7         (5)

 8         (b)  A trustee may release the entire power to adjust

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

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

11  principal to income if the trustee is uncertain about whether

12  possessing or exercising the power will cause a result

13  described in paragraphs (3)(a)-(e) (3)(a)-(f) or paragraph

14  (3)(g) (3)(h) or if the trustee determines that possessing or

15  exercising the power will or may deprive the trust of a tax

16  benefit or impose a tax burden not described in subsection

17  (3).

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

19  the administration of a trust and is applicable to any trust

20  that is administered either in this state or under Florida

21  law.

22         Section 5.  Section 738.1041, Florida Statutes, is

23  amended to read:

24         738.1041  Total return unitrust.--

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

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

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

28  United States Internal Revenue Code, 26 U.S.C. ss. 1 et seq.,

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

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

31  and any interested trustee.

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 1         (b)  "Fair market value" means the fair market value of

 2  assets held by the trust as otherwise determined under this

 3  chapter, reduced by all known noncontingent liabilities.

 4         (c)(b)  "Income trust" means a trust, created by either

 5  an inter vivos or a testamentary instrument, which directs or

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

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

 8  amounts or proportions determined by the trustee and

 9  regardless of whether the trust directs or permits the trustee

10  to distribute the principal of the trust to one or more such

11  persons. Notwithstanding the foregoing, no trust that

12  otherwise is an "income trust" shall qualify hereunder, if it

13  may be subject to taxation under the Internal Revenue Code, 26

14  U.S.C. s. 2001 or s. 2501, until the expiration of the period

15  for filing the return therefor, including extensions.

16         (d)(c)  "Interested distributee" means a person to whom

17  distributions of income or principal can currently be made who

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

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

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

21  672(c), with respect to such distributee.

22         (e)(d)  "Interested trustee" means an individual

23  trustee to whom the net income or principal of the trust can

24  currently be distributed or would be distributed if the trust

25  were then to terminate and be distributed, any trustee whom an

26  interested distributee has the power to remove and replace

27  with a related or subordinate party as defined in paragraph

28  (c), or an individual trustee whose legal obligation to

29  support a beneficiary may be satisfied by distributions of

30  income and principal of the trust.

31  

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 1         (f)  "Unitrust amount" means the amount determined by

 2  multiplying the fair market value of the assets as defined in

 3  paragraph (b) by the percentage calculated under paragraph

 4  (2)(b).

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

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

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

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

 9  determine the fair market value of the trust if:

10         (a)  The trustee adopts a written statement regarding

11  trust distributions that provides:

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

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

14  unitrust amounts rather than net income, and indicates the

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

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

17  determined.

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

19  total return unitrust, that:

20         a.  Future distributions from the trust will be net

21  income rather than unitrust amounts; or

22         b.  The percentage used to calculate the unitrust

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

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

25  which the new unitrust amount will be calculated and the

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

27  determined;

28         (b)1.  The trustee determines the terms of the unitrust

29  under one of the following methods:

30         1.  A trustee who is a disinterested trustee

31  determines, or if there is no trustee other than an interested

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 1  trustee, the interested trustee appoints a disinterested

 2  person who, in its sole discretion but acting in a fiduciary

 3  capacity, determines for the interested trustee:

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

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

 6  percent nor less than 3 percent;

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

 8  market value of the trust; and

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

10  determining the unitrust amount; or

11         2.  The interested trustee or disinterested trustee

12  administers the trust such that:

13         a.  The percentage used to calculate the unitrust

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

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

16  the month the conversion under this section becomes effective

17  and for each January thereafter; however, if the percentage

18  calculated exceeds 5 percent, the unitrust percentage shall be

19  5 percent and if the percentage calculated is less than 3

20  percent, the unitrust percentage shall be 3 percent; and

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

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

23  reasonably and in good faith, in accordance with the

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

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

26         (I)  Any residential property or any tangible personal

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

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

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

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

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

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

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

 3  the unitrust amount shall be adjusted to take into account

 4  partial distributions from or receipt into the trust of such

 5  property during the valuation year.

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

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

 8  investment shall be distributable to such beneficiary.

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

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

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

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

13  determinations of either the trustee or the disinterested

14  person to:

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

16         2.  All living persons who are currently receiving or

17  eligible to receive distributions of income of the trust.

18         3.  All living persons who would receive distributions

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

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

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

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

23  receive or be eligible to receive distributions of income or

24  principal of the trust if the persons identified in

25  subparagraph 2. were deceased.

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

27  trust.

28  

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

30  manner provided in the Florida Rules of Civil Procedure

31  relating to service of pleadings subsequent to the initial

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 1  pleading. Notice may be served on a legal representative or

 2  natural guardian of a person without the filing of any

 3  proceeding or approval of any court;

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

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

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

 7  written instrument delivered to the trustee, to the proposed

 8  action of the trustee or the determinations of the

 9  disinterested person within 60 days after service receipt of

10  such notice. An objection under this section may be executed

11  by a legal representative or natural guardian of a person

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

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

14  a total return unitrust, reconvert a total return unitrust to

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

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

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

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

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

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

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

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

23  disinterested person who, acting in a fiduciary capacity,

24  shall present such information to the court as shall be

25  necessary for the court to make a determination hereunder.

26         (4)  All determinations made pursuant to

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

28  and made in good faith.  Such determination shall be

29  conclusively presumed to have been made reasonably and in good

30  faith unless proven otherwise in a proceeding commenced by or

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

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

 2  interested party to prove that the determinations were not

 3  made reasonably and in good faith.

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

 5  income of the trust, determined without regard to the

 6  provisions of subsection (6), for:

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

 8  taken for federal tax purposes under the Internal Revenue

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

10  spouse for whom the trust was created; or

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

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

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

14  rule.

15  

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

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

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

19  2056 or s. 2523.  Paragraph (b) will not apply to any trust to

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

21  recognized for federal tax purposes under the Internal Revenue

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

23         (5)(6)  Following the conversion of an income trust to

24  a total return unitrust, the trustee:

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

26  income of the trust for purposes of determining the amount

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

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

29  of the trust, or portion thereof:

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

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

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

 2  allocated together with all other amounts allocated to trust

 3  income, as determined under the provisions of this chapter

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

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

 6  such year, or portion thereof.

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

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

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

10  allocated together with all other amounts, including amounts

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

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

13  amount for such year, or portion thereof.

14         (6)(7)  In administering a total return unitrust, the

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

16  provisions of the governing instrument, determine:

17         (a)  The effective date of the conversion.

18         (b)  The timing of distributions, including provisions

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

20  beneficiary's right to payments commences or ceases.

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

22  kind or partly in cash and partly in kind.

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

24  the effective date of such reconversion.

25         (e)  Such other administrative issues as may be

26  necessary or appropriate to carry out the purposes of this

27  section.

28         (7)(8)  Conversion to a total return unitrust under the

29  provisions of this section shall not affect any other

30  provision of the governing instrument, if any, regarding

31  distributions of principal.

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

 2  deduction has been taken for federal tax purposes under the

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

 4  spouse otherwise entitled to receive the net income of the

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

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

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

 8  income trust, notwithstanding anything in this section to the

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

10  recognized for federal tax purposes under the Internal Revenue

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

12         (8)(10)  Any trustee or disinterested person who in

13  good faith takes or fails to take any action under this

14  section shall not be liable to any person affected by such

15  action or inaction, regardless of whether such person received

16  written notice as provided in this section and regardless of

17  whether such person was under a legal disability at the time

18  of the delivery of such notice. Such person's exclusive remedy

19  shall be to obtain, under subsection (9) (11), an order of the

20  court directing the trustee to convert an income trust to a

21  total return unitrust, to reconvert from a total return

22  unitrust to an income trust, or to change the percentage used

23  to calculate the unitrust amount. If a court determines that

24  the trustee or disinterested person has not acted in good

25  faith in taking or failing to take any action under this

26  section, s. 738.105(3) applies.

27         (9)(11)  If a majority in interest of either the income

28  or remainder beneficiaries of an income trust has delivered to

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

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

31  resolve the objection to the satisfaction of the objecting

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 1  beneficiaries within 6 months from the receipt of such written

 2  objection, then the objecting beneficiaries may petition the

 3  court in accordance with subsection (3).

 4         (10)(12)  This section shall be construed as pertaining

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

 6  trust that is administered either in this state or under

 7  Florida law unless:

 8         (a)  The governing instrument reflects an intention

 9  that the current beneficiary or beneficiaries are to receive

10  an amount other than a reasonable current return from the

11  trust;

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

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

14  664(d), s. 1361(d), s. 2702(a)(3), or s. 2702(b);

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

16  distribute income have a power of withdrawal over the trust:

17         1.  That is not subject to an ascertainable standard

18  under the Internal Revenue Code, 26 U.S.C. s. 2041 or s. 2514,

19  and exceeds in any calendar year the amount set forth in the

20  Internal Revenue Code, 26 U.S.C. s. 2041(b)(2) or s. 2514(e);

21  or

22         2.  A power of withdrawal over the trust that can be

23  exercised to discharge a duty of support he or she possesses;

24         (d)  The governing instrument expressly prohibits use

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

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

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

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

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

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

31  section; or

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

 2  trustee currently possesses the power to adjust under s.

 3  738.104.

 4         (11)  The grantor of a trust may create an express

 5  total return unitrust that will become effective as provided

 6  in the trust document without requiring a conversion under

 7  this section. An express total return unitrust created by the

 8  grantor of the trust shall be treated as a unitrust under this

 9  section only if the terms of the trust document contain all of

10  the following provisions:

11         (a)  That distributions from the trust will be unitrust

12  amounts and the trust documents indicate the manner in which

13  the unitrust amount will be calculated and the method in which

14  the fair market value of the trust will be determined;

15         (b)  The percentage to be used to calculate the

16  unitrust amount, provided the percentage used is not greater

17  than 5 percent or less than 3 percent;

18         (c)  The method to be used in determining the fair

19  market value of the trust; and

20         (d)  Which assets, if any, are to be excluded in

21  determining the unitrust amount.

22         Section 6.  Subsection (1) of section 738.303, Florida

23  Statutes, is amended to read:

24         738.303  Apportionment when income interest ends.--

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

26  "undistributed income" means net income received on or before

27  the date on which an income interest ends. The term does not

28  include an item of income or expense that is due or accrued or

29  net income that has been added or is required to be added to

30  principal under the terms of the trust. In the case of a trust

31  being administered as a unitrust under s. 738.1041, the term

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 1  "undistributed income" means the prorated unitrust amount

 2  computed on a daily basis through the date on which the income

 3  interest ends.

 4         Section 7.  Section 738.401, Florida Statutes, is

 5  amended to read:

 6         738.401  Character of receipts.--

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

 8  corporation, partnership, limited liability company, regulated

 9  investment company, real estate investment trust, common trust

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

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

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

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

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

15  trustee shall allocate to income money received from an

16  entity.

17         (3)  Except as otherwise provided in this section, a

18  trustee shall allocate the following receipts from an entity

19  to principal:

20         (a)  Property other than money.

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

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

23  interest in the entity.

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

25  the entity.

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

27  investment company or a real estate investment trust if the

28  money distributed represents short-term or long-term capital

29  gain realized within the entity.

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

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

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 1  of a distributing corporation or fund, whether evidenced by

 2  new certificates or entries on the books of the distributing

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

 4         (5)  Money is received in partial liquidation:

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

 6  distribution, indicates that such money is a distribution in

 7  partial liquidation; or

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

 9  in a distribution or series of related distributions is

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

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

12  preceding the initial receipt.

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

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

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

16  trustee or beneficiary must pay on taxable income of the

17  entity that distributes the money.

18         (7)  The following special rules apply to moneys or

19  property received by a private trustee from entities described

20  in this subsection:

21         (a)  Moneys or property received from a targeted entity

22  that is not an investment entity which do not exceed the

23  trust's pro rata share of the undistributed cumulative net

24  income of the targeted entity during the time an ownership

25  interest in the targeted entity was held by the trust shall be

26  allocated to income. The balance of moneys or property

27  received from a targeted entity shall be allocated to

28  principal.

29         (b)  If trust assets include any interest in an

30  investment entity, the designated amount of money or property

31  received from the investment entity shall be treated by the

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 1  trustee in the same manner as if the trustee had directly held

 2  the trust's pro rata share of the assets of the investment

 3  entity attributable to the distribution of such designated

 4  amount. Thereafter, distributions shall be treated as

 5  principal.

 6         (c)  For purposes of this subsection and subsection

 7  (8), the following definitions apply:

 8         1.  "Cumulative net income" means the targeted entity's

 9  net income as determined using the method of accounting

10  regularly used by the targeted entity in preparing its

11  financial statements or, if no financial statements are

12  prepared, the net book income computed for federal income tax

13  purposes, for every year an ownership interest in the entity

14  is held by the trust. The trust's pro rata share shall be the

15  cumulative net income, multiplied by the percentage ownership

16  of the trust.

17         2.  "Undistributed cumulative net income" means the

18  trust's pro rata share of cumulative net income less all prior

19  distributions from the targeted entity to the trust which have

20  been allocated to income.

21         3.  A "targeted entity" includes any entity that is

22  treated as a partnership, subchapter S corporation, or

23  disregarded entity pursuant to the Internal Revenue Code of

24  1986, as amended, other than an entity described in s.

25  738.403.

26         4.  An "investment entity" is a targeted entity that

27  normally derives 50 percent or more of its annual cumulative

28  net income from interest, dividends, annuities, royalties,

29  rental activity, or other passive investments, including

30  income from the sale or exchange of such passive investments.

31  

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 1         5.  The "designated amount" of moneys or property

 2  received from an investment entity during any year shall be

 3  equal to the amount of the distribution which does not exceed

 4  the greater of:

 5         a.  The amount of income of the investment entity for

 6  the current year, as reported to the trustee by the investment

 7  entity for federal income tax purposes; or

 8         b.  The amount of income of the investment entity for

 9  the current year and the prior 2 years, as reported to the

10  trustee by the investment entity for federal income tax

11  purposes, less any distributions of money or property made by

12  the investment entity to the trustee during the prior 2 years.

13         6.  A "private trustee" is a trustee who is an

14  individual, but only if the trustee is unable to use the power

15  to adjust between income and principal with respect to

16  receipts from entities described in this subsection pursuant

17  to s. 738.104. A bank, trust company, or other commercial

18  trustee is not a private trustee.

19         (d)  This subsection does not modify or change any

20  provisions of ss. 738.705 and 738.706 relating to income

21  taxes.

22         (8)(7)  A trustee may rely upon a statement made by an

23  entity about the source or character of a distribution, about

24  the amount of profits of a targeted entity, or absent the

25  nature and value of assets of an investment entity if the

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

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

28  persons authorized to exercise powers to pay money or transfer

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

30  directors.

31  

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 1         Section 8.  This act shall take effect upon becoming a

 2  law.

 3  

 4            *****************************************

 5                          SENATE SUMMARY

 6    Revises various laws governing the administration of
      trusts and trust accounts. Revises the powers conferred
 7    upon a trustee. Specifies circumstances in which court
      authorization is not required for a trustee to exercise
 8    his or her power when a conflict of interest exists.
      Revises the circumstances in which a trustee may not make
 9    an adjustment when such adjustment would benefit him or
      her. Provides for consequences when a court determines
10    that a fiduciary has not acted in good faith. Revises the
      definition of the term "undistributed income" when a
11    trust is being administered as a unitrust. Prescribes
      rules for determining allocation of moneys or property
12    received from targeted entities and from investment
      entities. (See bill for details.)
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