Senate Bill sb1688c1

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    Florida Senate - 2005                           CS for SB 1688

    By the Committee on Judiciary; and Senator Atwater





    590-2334-05

  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; creating s. 737.309, F.S.;

31         providing procedures for the resignation of a

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 1         trustee; providing that such resignation does

 2         not discharge or affect any liability of the

 3         resigning trustee; providing for notice of

 4         resignation; providing an effective date.

 5  

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

 7  

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

 9  Statutes, is amended to read:

10         711.501  Definitions.--In ss. 711.50-711.512, unless

11  the context otherwise requires, the term:

12         (10)  "Security account" means:

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

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

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

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

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

18  the account before the owner's death; or

19         (b)  An investment management, investment advisory,

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

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

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

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

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

25  owner's death; or

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

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

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

29  before the owner's death.

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

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

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 1         737.402  Powers of trustees conferred by this part.--

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

 3  a trustee has the power:

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

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

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

 7  trustee in the performance of his or her administrative duties

 8  and to pay compensation and costs incurred in connection with

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

10  independent investigation upon their recommendations; and,

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

12  perform any act of administration, whether or not

13  discretionary.

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

15  proceedings, including appeals, for the protection of trust

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

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

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

19  compensation and costs incurred in connection with such

20  employment from the assets of the trust.

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

22  Statutes, is amended to read:

23         737.403  Power of court to permit deviation or to

24  approve transactions involving conflict of interest.--

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

26  individual interest or his or her interest as trustee of

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

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

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

30  section, personal profit or advantage to an affiliated or

31  subsidiary company or association is personal profit to any

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 1  corporate trustee. Court authorization is not required for any

 2  of the following:

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

 4  737.402(2)(a), (e), (g), (s), or (y);

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

 6  instrument acknowledges the trustee's conflict of interest and

 7  expressly authorizes the exercise of that power

 8  notwithstanding conflict;

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

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

11  revocation of the trust;

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

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

14  to provide any annual or periodic accounting. Consent under

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

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

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

18  by the natural guardian of the beneficiary; or

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

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

21  action has been filed or defense asserted against the trustee

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

23  required if the action or defense is later withdrawn or

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

25  resolved without a determination by the court that the trustee

26  has committed a breach of trust.

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

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

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

30  read:

31         738.104  Trustee's power to adjust.--

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

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

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

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

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

 6  trustee did not have the power to adjust;

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

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

 9  the intent to qualify for a gift tax exclusion;

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

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

12  value of the trust assets;

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

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

15  unless both income and principal are so set aside;

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

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

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

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

20  power to adjust;

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

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

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

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

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

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

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

28  or

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

30  trust but the adjustment would benefit the trustee directly or

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

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

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

 3  assets shall not be deemed to benefit the trustee.

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

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

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

 7  whom the provision does not apply may make the adjustment

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

 9  not permitted by the terms of the trust.

10         (5)

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

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

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

14  principal to income if the trustee is uncertain about whether

15  possessing or exercising the power will cause a result

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

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

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

19  benefit or impose a tax burden not described in subsection

20  (3).

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

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

23  that is administered either in this state or under Florida

24  law.

25         Section 5.  Section 738.1041, Florida Statutes, is

26  amended to read:

27         738.1041  Total return unitrust.--

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

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

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

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

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

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

 3  and any interested trustee.

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

 5  assets held by the trust as otherwise determined under this

 6  chapter, reduced by all known noncontingent liabilities.

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

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

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

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

11  amounts or proportions determined by the trustee and

12  regardless of whether the trust directs or permits the trustee

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

14  persons. Notwithstanding the foregoing, no trust that

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

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

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

18  for filing the return therefor, including extensions.

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

20  distributions of income or principal can currently be made who

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

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

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

24  672(c), with respect to such distributee.

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

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

27  currently be distributed or would be distributed if the trust

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

29  interested distributee has the power to remove and replace

30  with a related or subordinate party as defined in paragraph

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

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 1  support a beneficiary may be satisfied by distributions of

 2  income and principal of the trust.

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

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

 5  paragraph (b) by the percentage calculated under paragraph

 6  (2)(b).

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

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

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

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

11  determine the fair market value of the trust if:

12         (a)  The trustee adopts a written statement regarding

13  trust distributions that provides:

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

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

16  unitrust amounts rather than net income, and indicates the

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

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

19  determined.

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

21  total return unitrust, that:

22         a.  Future distributions from the trust will be net

23  income rather than unitrust amounts; or

24         b.  The percentage used to calculate the unitrust

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

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

27  which the new unitrust amount will be calculated and the

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

29  determined;

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

31  under one of the following methods:

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 1         1.  A trustee who is a disinterested trustee

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

 3  trustee, the interested trustee appoints a disinterested

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

 5  capacity, determines for the interested trustee:

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

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

 8  percent nor less than 3 percent;

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

10  market value of the trust; and

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

12  determining the unitrust amount; or

13         2.  The interested trustee or disinterested trustee

14  administers the trust such that:

15         a.  The percentage used to calculate the unitrust

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

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

18  the month the conversion under this section becomes effective

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

20  calculated exceeds 5 percent, the unitrust percentage shall be

21  5 percent and if the percentage calculated is less than 3

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

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

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

25  reasonably and in good faith, in accordance with the

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

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

28         (I)  Any residential property or any tangible personal

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

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

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

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

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

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

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

 5  the unitrust amount shall be adjusted to take into account

 6  partial distributions from or receipt into the trust of such

 7  property during the valuation year.

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

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

10  investment shall be distributable to such beneficiary.

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

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

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

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

15  determinations of either the trustee or the disinterested

16  person to:

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

18         2.  All living persons who are currently receiving or

19  eligible to receive distributions of income of the trust.

20         3.  All living persons who would receive distributions

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

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

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

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

25  receive or be eligible to receive distributions of income or

26  principal of the trust if the persons identified in

27  subparagraph 2. were deceased.

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

29  trust.

30  

31  

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

 2  manner provided in the Florida Rules of Civil Procedure

 3  relating to service of pleadings subsequent to the initial

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

 5  natural guardian of a person without the filing of any

 6  proceeding or approval of any court;

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

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

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

10  written instrument delivered to the trustee, to the proposed

11  action of the trustee or the determinations of the

12  disinterested person within 60 days after service receipt of

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

14  by a legal representative or natural guardian of a person

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

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

17  a total return unitrust, reconvert a total return unitrust to

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

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

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

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

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

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

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

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

26  disinterested person who, acting in a fiduciary capacity,

27  shall present such information to the court as shall be

28  necessary for the court to make a determination hereunder.

29         (4)  All determinations made pursuant to

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

31  and made in good faith.  Such determination shall be

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 1  conclusively presumed to have been made reasonably and in good

 2  faith unless proven otherwise in a proceeding commenced by or

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

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

 5  interested party to prove that the determinations were not

 6  made reasonably and in good faith.

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

 8  income of the trust, determined without regard to the

 9  provisions of subsection (6), for:

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

11  taken for federal tax purposes under the Internal Revenue

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

13  spouse for whom the trust was created; or

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

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

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

17  rule.

18  

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

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

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

22  2056 or s. 2523.  Paragraph (b) will not apply to any trust to

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

24  recognized for federal tax purposes under the Internal Revenue

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

26         (5)(6)  Following the conversion of an income trust to

27  a total return unitrust, the trustee:

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

29  income of the trust for purposes of determining the amount

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

31  

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

 2  of the trust, or portion thereof:

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

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

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

 6  allocated together with all other amounts allocated to trust

 7  income, as determined under the provisions of this chapter

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

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

10  such year, or portion thereof.

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

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

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

14  allocated together with all other amounts, including amounts

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

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

17  amount for such year, or portion thereof.

18         (6)(7)  In administering a total return unitrust, the

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

20  provisions of the governing instrument, determine:

21         (a)  The effective date of the conversion.

22         (b)  The timing of distributions, including provisions

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

24  beneficiary's right to payments commences or ceases.

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

26  kind or partly in cash and partly in kind.

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

28  the effective date of such reconversion.

29         (e)  Such other administrative issues as may be

30  necessary or appropriate to carry out the purposes of this

31  section.

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 1         (7)(8)  Conversion to a total return unitrust under the

 2  provisions of this section shall not affect any other

 3  provision of the governing instrument, if any, regarding

 4  distributions of principal.

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

 6  deduction has been taken for federal tax purposes under the

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

 8  spouse otherwise entitled to receive the net income of the

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

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

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

12  income trust, notwithstanding anything in this section to the

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

14  recognized for federal tax purposes under the Internal Revenue

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

16         (8)(10)  Any trustee or disinterested person who in

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

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

19  action or inaction, regardless of whether such person received

20  written notice as provided in this section and regardless of

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

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

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

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

25  total return unitrust, to reconvert from a total return

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

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

28  the trustee or disinterested person has not acted in good

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

30  section, s. 738.105(3) applies.

31  

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 1         (9)(11)  If a majority in interest of either the income

 2  or remainder beneficiaries of an income trust has delivered to

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

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

 5  resolve the objection to the satisfaction of the objecting

 6  beneficiaries within 6 months from the receipt of such written

 7  objection, then the objecting beneficiaries may petition the

 8  court in accordance with subsection (3).

 9         (10)(12)  This section shall be construed as pertaining

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

11  trust that is administered either in this state or under

12  Florida law unless:

13         (a)  The governing instrument reflects an intention

14  that the current beneficiary or beneficiaries are to receive

15  an amount other than a reasonable current return from the

16  trust;

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

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

19  664(d), s. 1361(d), s. 2702(a)(3), or s. 2702(b);

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

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

22         1.  That is not subject to an ascertainable standard

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

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

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

26  or

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

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

29         (d)  The governing instrument expressly prohibits use

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

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

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

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

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

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

 5  section; or

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

 7  trustee currently possesses the power to adjust under s.

 8  738.104.

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

10  total return unitrust that will become effective as provided

11  in the trust document without requiring a conversion under

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

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

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

15  the following provisions:

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

17  amounts and the trust documents indicate the manner in which

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

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

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

21  unitrust amount, provided the percentage used is not greater

22  than 5 percent or less than 3 percent;

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

24  market value of the trust; and

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

26  determining the unitrust amount.

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

28  Statutes, is amended to read:

29         738.303  Apportionment when income interest ends.--

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

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

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

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

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

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

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

 6  "undistributed income" means the prorated unitrust amount

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

 8  interest ends.

 9         Section 7.  Section 738.401, Florida Statutes, is

10  amended to read:

11         738.401  Character of receipts.--

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

13  corporation, partnership, limited liability company, regulated

14  investment company, real estate investment trust, common trust

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

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

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

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

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

20  trustee shall allocate to income money received from an

21  entity.

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

23  trustee shall allocate the following receipts from an entity

24  to principal:

25         (a)  Property other than money.

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

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

28  interest in the entity.

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

30  the entity.

31  

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

 2  investment company or a real estate investment trust if the

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

 4  gain realized within the entity.

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

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

 7  of a distributing corporation or fund, whether evidenced by

 8  new certificates or entries on the books of the distributing

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

10         (5)  Money is received in partial liquidation:

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

12  distribution, indicates that such money is a distribution in

13  partial liquidation; or

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

15  in a distribution or series of related distributions is

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

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

18  preceding the initial receipt.

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

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

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

22  trustee or beneficiary must pay on taxable income of the

23  entity that distributes the money.

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

25  property received by a private trustee from entities described

26  in this subsection:

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

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

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

30  income of the targeted entity during the time an ownership

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

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 1  allocated to income. The balance of moneys or property

 2  received from a targeted entity shall be allocated to

 3  principal.

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

 5  investment entity, the designated amount of money or property

 6  received from the investment entity shall be treated by the

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

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

 9  entity attributable to the distribution of such designated

10  amount. Thereafter, distributions shall be treated as

11  principal.

12         (c)  For purposes of this subsection and subsection

13  (8), the following definitions apply:

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

15  net income as determined using the method of accounting

16  regularly used by the targeted entity in preparing its

17  financial statements or, if no financial statements are

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

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

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

21  cumulative net income, multiplied by the percentage ownership

22  of the trust.

23         2.  "Undistributed cumulative net income" means the

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

25  distributions from the targeted entity to the trust which have

26  been allocated to income.

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

28  treated as a partnership, subchapter S corporation, or

29  disregarded entity pursuant to the Internal Revenue Code of

30  1986, as amended, other than an entity described in s.

31  738.403.

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

 2  normally derives 50 percent or more of its annual cumulative

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

 4  rental activity, or other passive investments, including

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

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

 7  received from an investment entity during any year shall be

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

 9  the greater of:

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

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

12  entity for federal income tax purposes; or

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

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

15  trustee by the investment entity for federal income tax

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

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

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

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

20  to adjust between income and principal with respect to

21  receipts from entities described in this subsection pursuant

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

23  trustee is not a private trustee.

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

25  provisions of ss. 738.705 and 738.706 relating to income

26  taxes.

27         (8)(7)  A trustee may rely upon a statement made by an

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

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

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

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

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

 2  persons authorized to exercise powers to pay money or transfer

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

 4  directors.

 5         Section 8.  Section 737.309, Florida Statutes, is

 6  created to read:

 7         737.309  Resignation of trustee.--

 8         (1)  A trustee may resign:

 9         (a)  Upon at least 30 days' written notice to the

10  settlor, if living, all cotrustees, and all persons entitled

11  to a trust accounting pursuant to s. 737.303, as qualified by

12  s. 731.303; or

13         (b)  With approval of the court. In approving a

14  resignation, the court may issue orders and impose conditions

15  reasonably necessary for the protection of the trust property.

16         (2)  Any liability of a resigning trustee or of any

17  sureties on the trustee's bond for acts or omissions of the

18  trustee is not discharged or affected by the trustee's

19  resignation.

20         (3)  If the resignation of a trustee would require the

21  vacancy to be filled by a successor trustee, a trustee that

22  resigns shall continue to serve until the successor assumes

23  the trusteeship. The resigning trustee shall deliver copies of

24  all notices and other records pertaining to the resignation to

25  the successor trustee or, if none, to a cotrustee.

26         (4)  Notice of resignation shall be served in the

27  manner provided in the Florida Rules of Civil Procedure

28  relating to service of pleadings subsequent to the initial

29  pleading. The notice may be served on a legal representative

30  or natural guardian of a beneficiary without the filing of any

31  proceeding or approval of any court.

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 1         Section 9.  This act shall take effect upon becoming a

 2  law.

 3  

 4          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 5                         Senate Bill 1688

 6                                 

 7  The committee substitute establishes the means by which a
    trustee may resign his or her post by creating s. 737.309,
 8  F.S. The trustee may resign upon giving at least 30-days
    written notice to the settler (if living), all co-trustees,
 9  and all persons entitled to a trust accounting
    (beneficiaries), or with approval of the court.
10  
    --   The resignation of a trustee does not affect or discharge
11       any liability the trustee or surety on the trustee's bond
         may have for acts or omissions. If the resignation
12       requires a successor trustee, the resigning trustee must
         continue to serve until the successor assumes the
13       trusteeship. Notice of the resignation must be provided
         to beneficiaries, and notice and all records pertaining
14       to the resignation must be provided to a co-trustee or
         the successor trustee.
15  

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