| 1 | A bill to be entitled |
| 2 | An act relating to conveyances of land; creating s. |
| 3 | 689.072, F.S.; providing for the transfer and creation of |
| 4 | custodial property in an individual retirement account or |
| 5 | certain qualified plans; incorporating statutory |
| 6 | provisions into such transfer; providing powers to the |
| 7 | custodian or trustee of such custodial property; providing |
| 8 | protections for persons dealing with the custodian or |
| 9 | trustee; exempting certain transfers from specific claims; |
| 10 | providing for the disposition of custodial property held |
| 11 | in an account, plan or custodianship that is terminated; |
| 12 | providing a standard of care for the custodian or trustee; |
| 13 | providing for certain declarations to control in specific |
| 14 | legal proceedings; providing that provisions relating to |
| 15 | deeds under statute of uses are not applicable to a |
| 16 | transfer by a custodian or trustee under the act; |
| 17 | providing for liberal construction; providing an effective |
| 18 | date. |
| 19 |
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| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
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| 22 | Section 1. Section 689.072, Florida Statutes, is created |
| 23 | to read: |
| 24 | 689.072 Real estate interests transferred to or by a |
| 25 | custodian or trustee of an individual retirement account or |
| 26 | qualified plan.-- |
| 27 | (1)(a) A conveyance, deed, mortgage, lease assignment, or |
| 28 | other recorded instrument that transfers an interest in real |
| 29 | property in this state, including a leasehold or mortgagee |
| 30 | interest, to a person who is qualified to act as a custodian or |
| 31 | trustee for an individual retirement account under 26 U.S.C. s. |
| 32 | 408(a)(2), as amended, in which instrument the transferee is |
| 33 | designated "custodian," "as custodian," "trustee," or "as |
| 34 | trustee" and the account owner or beneficiary of the |
| 35 | custodianship in the individual retirement account is named, |
| 36 | creates custodial property and transfers title to the custodian |
| 37 | or trustee when an interest in real property is recorded in the |
| 38 | name of the custodian or trustee, followed by the words "as |
| 39 | custodian or trustee for the benefit of (name of individual |
| 40 | retirement account owner or beneficiary) individual retirement |
| 41 | account." |
| 42 | (b) This section also applies to a qualified stock bonus, |
| 43 | pension, or profit-sharing plan created under 26 U.S.C. s. |
| 44 | 401(a), as amended, in which instrument a person is designated |
| 45 | "custodian," "as custodian," "trustee," or "as trustee" and the |
| 46 | plan, plan participant, or plan beneficiary of the custodianship |
| 47 | in the plan also creates custodial property and transfers title |
| 48 | to the custodian or trustee when an interest in real property is |
| 49 | recorded in the name of the custodian or trustee, followed by |
| 50 | the words "as custodian, or trustee of the (name of plan) for |
| 51 | the benefit of (name of plan participant or beneficiary)." |
| 52 | (2) A transfer to a custodian or trustee of an individual |
| 53 | retirement account or qualified plan pursuant to this section |
| 54 | the incorporates the provisions of this section into the |
| 55 | disposition and grants to the custodian or trustee the power to |
| 56 | protect, conserve, sell, lease, encumber, or otherwise manage |
| 57 | and dispose of the real property described in the recorded |
| 58 | instrument without joinder of the named individual retirement |
| 59 | account owner, plan participant, or beneficiary, except as |
| 60 | provided in subsection (5). |
| 61 | (3) A person dealing with the custodian or trustee does |
| 62 | not have a duty to inquire as to the qualifications of the |
| 63 | custodian or trustee and may rely on the powers of the custodian |
| 64 | or trustee for the custodial property created under this section |
| 65 | regardless of whether such powers are specified in the recorded |
| 66 | instrument. A grantee, mortgagee, lessee, transferee, assignee, |
| 67 | or person obtaining a satisfaction or release or otherwise |
| 68 | dealing with the custodian or trustee regarding such custodial |
| 69 | property is not required to inquire into: |
| 70 | (a) The identification or status of any named individual |
| 71 | retirement account owner, plan participant, or beneficiary of |
| 72 | the individual retirement account or qualified plan or his or |
| 73 | her heirs or assigns to whom a custodian or trustee may be |
| 74 | accountable under the terms of the individual retirement account |
| 75 | agreement or qualified plan document; |
| 76 | (b) The authority of the custodian or trustee to act |
| 77 | within and exercise the powers granted under the individual |
| 78 | retirement account agreement or qualified plan document; |
| 79 | (c) The adequacy or disposition or any consideration |
| 80 | provided to the custodian or trustee in connection with any |
| 81 | interest acquired from such custodian or trustee; or |
| 82 | (d) Any provision of an individual retirement account |
| 83 | agreement or qualified plan document. |
| 84 | (4) A person dealing with the custodian or trustee under |
| 85 | the recorded instrument takes any interest transferred by such |
| 86 | custodian or trustee, within the authority provided under this |
| 87 | section, free of claims of the named owner, plan participant, or |
| 88 | beneficiary of the individual retirement account or qualified |
| 89 | plan or of anyone claiming by, through, or under such owner, |
| 90 | plan participant, or beneficiary. |
| 91 | (5) If notice of the revocation or termination of the |
| 92 | individual retirement account agreement, qualified plan, or |
| 93 | custodianship established under such individual retirement |
| 94 | account agreement or qualified plan is recorded, any disposition |
| 95 | or encumbrance of the custodial property must be by an |
| 96 | instrument executed by the custodian or trustee or the successor |
| 97 | and the respective owner, plan participant, or beneficiary of |
| 98 | the individual retirement account or qualified plan. |
| 99 | (6) In dealing with custodial property created under this |
| 100 | section, a custodian or trustee shall observe the standard of |
| 101 | care of a prudent person dealing with property of another |
| 102 | person. This section does not relieve the custodian or trustee |
| 103 | from liability for breach of the individual retirement account |
| 104 | agreement, custodial agreement, or qualified plan document. |
| 105 | (7) A provision of the recorded instrument that defines |
| 106 | and declares the interest of the owner, plan participant, or |
| 107 | beneficiary of the individual retirement account or qualified |
| 108 | plan to be personal property controls only if a determination |
| 109 | becomes an issue in any legal proceeding. |
| 110 | (8) As used in this section, the term "beneficiary" |
| 111 | applies only when the individual retirement account owner or |
| 112 | qualified plan participant is deceased. |
| 113 | (9)(a) This section does not apply to any deed, mortgage, |
| 114 | or instrument to which s. 689.071 applies. |
| 115 | (b) Section 689.09 does not apply to transfers of real |
| 116 | property interests to a custodian or trustee under this section. |
| 117 | (10) This section is remedial and shall be liberally |
| 118 | construed to effectively carry out its purposes. |
| 119 | Section 2. This act shall take effect July 1, 2006. |