Senate Bill sb1170er

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  1                                 

  2         An act relating to the Florida Trust Code;

  3         creating parts I, II, III, IV, V, VI, VII,

  4         VIII, IX, X, XI, XII, and XIII of chapter 736,

  5         F.S.; providing a short title; providing

  6         general provisions and definitions; providing

  7         for judicial proceedings; providing for

  8         representations; providing for creation,

  9         validity, modification, and termination of

10         trusts; providing for creditors' claims;

11         providing for spendthrift, discretionary, and

12         revocable trusts; providing for the office of

13         trustee; providing for powers and duties of the

14         trustee; providing for trust investments;

15         providing for liability of trustee and rights

16         of persons dealing with trustee; providing for

17         rules of construction; providing for charitable

18         trusts; providing miscellaneous provisions;

19         creating s. 518.117, F.S.; authorizing

20         investment of certain fiduciary funds by

21         certain fiduciaries; amending s. 660.25, F.S.;

22         providing a definition of the term "investment

23         instrument"; amending s. 660.417, F.S.;

24         revising provisions relating to investment of

25         fiduciary funds in investment instruments by

26         certain banks or trust companies; creating s.

27         689.175, F.S.; abolishing the worthier title

28         doctrine; providing construction of certain

29         instrument language; amending s. 731.103, F.S.;

30         correcting a cross-reference; providing

31         construction relating to establishment of death


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 1         by certain evidence under certain

 2         circumstances; creating s. 731.1035, F.S.;

 3         providing for application of rules of evidence

 4         in civil actions to certain proceedings;

 5         amending s. 731.201, F.S.; revising

 6         definitions; conforming terms and correcting

 7         cross-references; amending s. 731.303, F.S.;

 8         specifying nonapplication of certain orders

 9         relating to powers of revocation and powers of

10         appointment; revising provisions relating to

11         representation by a holder of a power of

12         appointment; amending s. 732.513, F.S.;

13         deleting a ground protecting a devise's

14         validity; amending s. 732.603, F.S.; revising

15         provisions relating to antilapse, deceased

16         devisees, and class gifts; amending s. 744.331,

17         F.S.; revising provisions relating to orders

18         determining incapacity; amending s. 744.441,

19         F.S.; revising authority of certain guardians

20         to prosecute or defend claims or proceedings

21         for certain purposes; specifying duties of a

22         court; creating s. 744.462, F.S.; providing

23         requirements for judicial determinations

24         relating to alternatives to guardianship;

25         providing duties of a court; amending ss.

26         497.458, 607.0802, 617.0802, 660.46, 660.418,

27         689.071, 689.075, 709.08, 721.08, 721.53,

28         732.2075, 732.604, 732.611, 733.212, 733.602,

29         733.805, 733.817, 738.104, 738.1041, 738.202,

30         739.102, and 744.361, F.S., to conform terms

31         and correct cross-references; repealing ss.


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 1         737.101, 737.105, 737.106, 737.111, 737.115,

 2         and 737.116, constituting part I of ch. 737,

 3         F.S., relating to trust registration; repealing

 4         ss. 737.201, 737.202, 737.203, 737.2035,

 5         737.204, 737.2041, 737.205, 737.206, 737.2065,

 6         737.207, 737.208, and 737.209, constituting

 7         part II of ch. 737, F.S., relating to

 8         jurisdiction of courts; repealing ss. 737.301,

 9         737.302, 737.303, 737.3035, 737.304, 737.305,

10         737.3053, 737.3054, 737.3055, 737.306,

11         737.3061, 737.307, 737.308, and 737.309,

12         constituting part III of ch. 737, F.S.,

13         relating to duties and liabilities of trustees;

14         repealing ss. 737.401, 737.402, 737.4025,

15         737.403, 737.4031, 737.4032, 737.4033, 737.404,

16         737.405, and 737.406, constituting part IV of

17         ch. 737, F.S., relating to powers of trustees;

18         repealing ss. 737.501, 737.502, 737.503,

19         737.504, 737.505, 737.506, 737.507, 737.508,

20         737.509, 737.510, 737.511, and 737.512,

21         constituting part V of ch. 737, F.S., relating

22         to charitable trusts; repealing ss. 737.6035,

23         737.621, 737.622, 737.623, 737.624, 737.625,

24         737.626, and 737.627, consisting of part VI of

25         ch. 737, F.S., relating to rules of

26         construction of trust administration; providing

27         an effective date.

28  

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

30  

31  


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 1         Section 1.  Part I of chapter 736, Florida Statutes,

 2  consisting of sections 736.0101, 736.0102, 736.0103, 736.0104,

 3  736.0105, 736.0106, 736.0107, 736.0108, 736.0109, 736.0110,

 4  736.0111, and 736.0112, is created to read:

 5                              PART I

 6                GENERAL PROVISIONS AND DEFINITIONS

 7  

 8         736.0101  Short title.--This chapter may be cited as

 9  the "Florida Trust Code" and for purposes of this chapter is

10  referred to as the "code."

11         736.0102  Scope.--This code applies to express trusts,

12  charitable or noncharitable, and trusts created pursuant to a

13  law, judgment, or decree that requires the trust to be

14  administered in the manner of an express trust. This code does

15  not apply to constructive or resulting trusts;

16  conservatorships; custodial arrangements pursuant to the

17  Florida Uniform Transfers to Minors Act; business trusts

18  providing for certificates to be issued to beneficiaries;

19  common trust funds; land trusts under s. 689.05; trusts

20  created by the form of the account or by the deposit agreement

21  at a financial institution; voting trusts; security

22  arrangements; liquidation trusts; trusts for the primary

23  purpose of paying debts, dividends, interest, salaries, wages,

24  profits, pensions, or employee benefits of any kind; and any

25  arrangement under which a person is nominee or escrowee for

26  another.

27         736.0103  Definitions.--Unless the context otherwise

28  requires, in this code:

29         (1)  "Action," with respect to an act of a trustee,

30  includes a failure to act.

31  


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 1         (2)  "Affiliate" means any person or entity that

 2  directly or indirectly through one or more intermediaries owns

 3  or controls, is owned or controlled by, or is under common

 4  control or ownership with, the fiduciary. An affiliate may

 5  include, but is not limited to, an investment adviser,

 6  administrator, broker, transfer agent, placement agent,

 7  servicing agent, registrar, custodian, underwriter, sponsor,

 8  distributor, or manager.

 9         (3)  "Ascertainable standard" means a standard relating

10  to an individual's health, education, support, or maintenance

11  within the meaning of s. 2041(b)(1)(A) or s. 2514(c)(1) of the

12  Internal Revenue Code of 1986, as amended.

13         (4)  "Beneficiary" means a person who:

14         (a)  Has a present or future beneficial interest in a

15  trust, vested or contingent; or

16         (b)  Holds a power of appointment over trust property

17  in a capacity other than that of trustee.

18         (5)  "Charitable trust" means a trust, or portion of a

19  trust, created for a charitable purpose as described in s.

20  736.0405(1).

21         (6)  "Environmental law" means a federal, state, or

22  local law, rule, regulation, or ordinance that relates to

23  protection of the environment or human health.

24         (7)  "General power of appointment" means a power of

25  appointment exercisable in favor of the holder of the power,

26  the power holder's creditors, the power holder's estate, or

27  the creditors of the power holder's estate.

28         (8)  "Guardian of the person" means a person appointed

29  by the court to make decisions regarding the support, care,

30  education, health, and welfare of a minor or an incapacitated

31  adult. The term does not include a guardian ad litem.


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 1         (9)  "Guardian of the property" means a person

 2  appointed by the court to administer the estate of a minor or

 3  incapacitated adult.

 4         (10)  "Interests of the beneficiaries" means the

 5  beneficial interests provided in the terms of the trust.

 6         (11)  "Jurisdiction" with respect to a geographic area,

 7  includes a state or country.

 8         (12)  "Power of withdrawal" means a presently

 9  exercisable general power of appointment other than a power:

10         (a)  Exercisable by a trustee and limited by an

11  ascertainable standard; or

12         (b)  Exercisable by another person only upon consent of

13  the trustee or a person holding an adverse interest.

14         (13)  "Property" means anything that may be the subject

15  of ownership, real or personal, legal or equitable, or any

16  interest therein.

17         (14)  "Qualified beneficiary" means a living

18  beneficiary who, on the date the beneficiary's qualification

19  is determined:

20         (a)  Is a distributee or permissible distributee of

21  trust income or principal;

22         (b)  Would be a distributee or permissible distributee

23  of trust income or principal if the interests of the

24  distributees described in paragraph (a) terminated on that

25  date without causing the trust to terminate; or

26         (c)  Would be a distributee or permissible distributee

27  of trust income or principal if the trust terminated in

28  accordance with its terms on that date.

29         (15)  "Revocable," as applied to a trust, means

30  revocable by the settlor without the consent of the trustee or

31  a person holding an adverse interest.


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 1         (16)  "Settlor" means a person, including a testator,

 2  who creates or contributes property to a trust. If more than

 3  one person creates or contributes property to a trust, each

 4  person is a settlor of the portion of the trust property

 5  attributable to that person's contribution except to the

 6  extent another person has the power to revoke or withdraw that

 7  portion.

 8         (17)  "Spendthrift provision" means a term of a trust

 9  that restrains both voluntary and involuntary transfer of a

10  beneficiary's interest.

11         (18)  "State" means any state of the United States and

12  includes the District of Columbia, the Commonwealth of Puerto

13  Rico, and any territory or possession subject to the

14  legislative authority of the United States.

15         (19)  "Terms of a trust" means the manifestation of the

16  settlor's intent regarding a trust's provisions as expressed

17  in the trust instrument or as may be established by other

18  evidence that would be admissible in a judicial proceeding.

19         (20)  "Trust instrument" means an instrument executed

20  by a settlor that contains terms of the trust, including any

21  amendments to the trust.

22         (21)  "Trustee" means the original trustee and includes

23  any additional trustee, any successor trustee, and any

24  cotrustee.

25         736.0104  Knowledge.--

26         (1)  Subject to subsection (2), a person has knowledge

27  of a fact if the person:

28         (a)  Has actual knowledge of the fact;

29         (b)  Has received a notice or notification of the fact;

30  or

31  


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 1         (c)  Has reason to know the fact from all the other

 2  facts and circumstances known to the person at the time in

 3  question.

 4         (2)  An organization that conducts activities through

 5  employees has notice or knowledge of a fact involving a trust

 6  only from the time the information was received by an employee

 7  having responsibility to act on matters involving the trust,

 8  or would have been brought to the employee's attention if the

 9  organization had exercised reasonable diligence. An

10  organization exercises reasonable diligence if the

11  organization maintains reasonable routines for communicating

12  significant information to the employee having responsibility

13  to act on matters involving the trust and there is reasonable

14  compliance with the routines. Reasonable diligence does not

15  require an employee of the organization to communicate

16  information unless the communication is part of the

17  individual's regular duties or the individual knows a matter

18  involving the trust would be materially affected by the

19  information.

20         736.0105  Default and mandatory rules.--

21         (1)  Except as otherwise provided in the terms of the

22  trust, this code governs the duties and powers of a trustee,

23  relations among trustees, and the rights and interests of a

24  beneficiary.

25         (2)  The terms of a trust prevail over any provision of

26  this code except:

27         (a)  The requirements for creating a trust.

28         (b)  The duty of the trustee to act in good faith and

29  in accordance with the terms and purposes of the trust and the

30  interests of the beneficiaries.

31  


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 1         (c)  The requirement that a trust and its terms be for

 2  the benefit of the trust's beneficiaries, and that the trust

 3  have a purpose that is lawful, not contrary to public policy,

 4  and possible to achieve.

 5         (d)  The periods of limitation for commencing a

 6  judicial proceeding.

 7         (e)  The power of the court to take such action and

 8  exercise such jurisdiction as may be necessary in the

 9  interests of justice.

10         (f)  The requirements under s. 736.0108(1) for the

11  designation of a principal place of administration of the

12  trust.

13         (g)  The jurisdiction and venue provisions in ss.

14  736.0202, 736.0203, and 736.0204.

15         (h)  The restrictions on the designation of

16  representative under s. 736.0306.

17         (i)  The formalities required under s. 736.0403(2) for

18  the execution of a trust.

19         (j)  The power of the court to modify or terminate a

20  trust under ss. 736.0410-736.04115, except as provided in s.

21  736.04115(3)(b), and under ss. 736.0413, 736.0415, and

22  736.0416.

23         (k)  The ability to modify a trust under s. 736.0412,

24  except as provided in s. 736.0412(4)(b).

25         (l)  The effect of a spendthrift provision and the

26  rights of certain creditors and assignees to reach a trust as

27  provided in part V.

28         (m)  The trustee's duty under s. 736.05053 to pay

29  expenses and obligations of the settlor's estate.

30         (n)  The trustee's duty under s. 736.05055 to file a

31  notice of trust at the settlor's death.


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 1         (o)  The right of a trustee under s. 736.0701 to

 2  decline a trusteeship and the right of a trustee under s.

 3  736.0705 to resign a trusteeship.

 4         (p)  The power of the court under s. 736.0702 to

 5  require, dispense with, modify, or terminate a bond.

 6         (q)  The power of the court under s. 736.0708(2) to

 7  adjust a trustee's compensation specified in the terms of the

 8  trust that is unreasonably low or high.

 9         (r)  The duty under s. 736.0813(1)(a) and (b) to notify

10  qualified beneficiaries of an irrevocable trust of the

11  existence of the trust, of the identity of the trustee, and of

12  their rights to trust accountings.

13         (s)  The duty under s. 736.0813(1)(c) and (d) to

14  provide a complete copy of the trust instrument and to account

15  to qualified beneficiaries.

16         (t)  The duty under s. 736.0813(1)(e) to respond to the

17  request of a qualified beneficiary of an irrevocable trust for

18  relevant information about the assets and liabilities of the

19  trust and the particulars relating to trust administration.

20         (u)  The effect of an exculpatory term under s.

21  736.1011.

22         (v)  The rights under ss. 736.1013-736.1017 of a person

23  other than a trustee or beneficiary.

24         (w)  The effect of a penalty clause for contesting a

25  trust under s. 736.1108.

26         736.0106  Common law of trusts; principles of

27  equity.--The common law of trusts and principles of equity

28  supplement this code, except to the extent modified by this

29  code or another law of this state.

30         736.0107  Governing law.--The meaning and effect of the

31  terms of a trust are determined by:


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 1         (1)  The law of the jurisdiction designated in the

 2  terms of the trust, provided there is a sufficient nexus to

 3  the designated jurisdiction at the time of the creation of the

 4  trust or during the trust administration, including, but not

 5  limited to, the location of real property held by the trust or

 6  the residence or location of an office of the settlor,

 7  trustee, or any beneficiary; or

 8         (2)  In the absence of a controlling designation in the

 9  terms of the trust, the law of the jurisdiction where the

10  settlor resides at the time the trust is first created.

11  

12  Notwithstanding subsection (1) or subsection (2), a

13  designation in the terms of a trust is not controlling as to

14  any matter for which the designation would be contrary to a

15  strong public policy of this state.

16         736.0108  Principal place of administration.--

17         (1)  Terms of a trust designating the principal place

18  of administration of the trust are valid only if there is a

19  sufficient connection with the designated jurisdiction.

20  Without precluding other means for establishing a sufficient

21  connection, terms of a trust designating the principal place

22  of administration are valid and controlling if:

23         (a)  A trustee's principal place of business is located

24  in or a trustee is a resident of the designated jurisdiction;

25  or

26         (b)  All or part of the administration occurs in the

27  designated jurisdiction.

28         (2)  Unless otherwise validly designated in the trust

29  instrument, the principal place of administration of a trust

30  is the trustee's usual place of business where the records

31  pertaining to the trust are kept or, if the trustee has no


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 1  place of business, the trustee's residence. In the case of

 2  cotrustees, the principal place of administration is:

 3         (a)  The usual place of business of the corporate

 4  trustee, if there is only one corporate cotrustee;

 5         (b)  The usual place of business or residence of the

 6  individual trustee who is a professional fiduciary, if there

 7  is only one such person and no corporate cotrustee; or

 8  otherwise

 9         (c)  The usual place of business or residence of any of

10  the cotrustees as agreed on by the cotrustees.

11         (3)  Notwithstanding any other provision of this

12  section, the principal place of administration of a trust, for

13  which a bank, association, or trust company organized under

14  the laws of this state or bank or savings association

15  organized under the laws of the United States with its main

16  office in this state has been appointed trustee, shall not be

17  moved or otherwise affected solely because the trustee engaged

18  in an interstate merger transaction with an out-of-state bank

19  pursuant to s. 658.2953 in which the out-of-state bank is the

20  resulting bank.

21         (4)  A trustee is under a continuing duty to administer

22  the trust at a place appropriate to its purposes and its

23  administration.

24         (5)  Without precluding the right of the court to

25  order, approve, or disapprove a transfer, the trustee, in

26  furtherance of the duty prescribed by subsection (4), may

27  transfer the trust's principal place of administration to

28  another state or to a jurisdiction outside of the United

29  States.

30         (6)  The trustee shall notify the qualified

31  beneficiaries of a proposed transfer of a trust's principal


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 1  place of administration not less than 60 days before

 2  initiating the transfer. The notice of proposed transfer must

 3  include:

 4         (a)  The name of the jurisdiction to which the

 5  principal place of administration is to be transferred.

 6         (b)  The address and telephone number at the new

 7  location at which the trustee can be contacted.

 8         (c)  An explanation of the reasons for the proposed

 9  transfer.

10         (d)  The date on which the proposed transfer is

11  anticipated to occur.

12         (e)  The date, not less than 60 days after the notice

13  is provided, by which the qualified beneficiary must notify

14  the trustee of an objection to the proposed transfer.

15         (7)  The authority of a trustee to act under this

16  section without court approval to transfer a trust's principal

17  place of administration is suspended if a qualified

18  beneficiary files a lawsuit objecting to the proposed transfer

19  on or before the date specified in the notice. The suspension

20  is effective until the lawsuit is dismissed or withdrawn.

21         (8)  In connection with a transfer of the trust's

22  principal place of administration, the trustee may transfer

23  any of the trust property to a successor trustee designated in

24  the terms of the trust or appointed pursuant to s. 736.0704.

25         736.0109  Methods and waiver of notice.--

26         (1)  Notice to a person under this code or the sending

27  of a document to a person under this code must be accomplished

28  in a manner reasonably suitable under the circumstances and

29  likely to result in receipt of the notice or document.

30  Permissible methods of notice or for sending a document

31  include first-class mail, personal delivery, delivery to the


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 1  person's last known place of residence or place of business,

 2  or a properly directed facsimile or other electronic message.

 3         (2)  Notice otherwise required under this code or a

 4  document otherwise required to be sent under this code need

 5  not be provided to a person whose identity or location is

 6  unknown to and not reasonably ascertainable by the trustee.

 7         (3)  Notice under this code or the sending of a

 8  document under this code may be waived by the person to be

 9  notified or to whom the document is to be sent.

10         (4)  Notice of a judicial proceeding must be given as

11  provided in the Florida Rules of Civil Procedure.

12         736.0110  Others treated as qualified beneficiaries.--

13         (1)  A charitable organization expressly designated to

14  receive distributions under the terms of a charitable trust

15  has the rights of a qualified beneficiary under this code if

16  the charitable organization, on the date the charitable

17  organization's qualification is being determined:

18         (a)  Is a distributee or permissible distributee of

19  trust income or principal;

20         (b)  Would be a distributee or permissible distributee

21  of trust income or principal on termination of the interests

22  of other distributees or permissible distributees then

23  receiving or eligible to receive distributions; or

24         (c)  Would be a distributee or permissible distributee

25  of trust income or principal if the trust terminated on that

26  date.

27         (2)  A person appointed to enforce a trust created for

28  the care of an animal or another noncharitable purpose as

29  provided in s. 736.0408 or s. 736.0409 has the rights of a

30  qualified beneficiary under this code.

31  


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 1         (3)  The Attorney General may assert the rights of a

 2  qualified beneficiary with respect to a charitable trust

 3  having its principal place of administration in this state.

 4         736.0111  Nonjudicial settlement agreements.--

 5         (1)  For purposes of this section, the term "interested

 6  persons" means persons whose interest would be affected by a

 7  settlement agreement.

 8         (2)  Except as otherwise provided in subsection (3),

 9  interested persons may enter into a binding nonjudicial

10  settlement agreement with respect to any matter involving a

11  trust.

12         (3)  A nonjudicial settlement agreement among the

13  trustee and trust beneficiaries is valid only to the extent

14  the terms and conditions could be properly approved by the

15  court. A nonjudicial settlement may not be used to produce a

16  result not authorized by other provisions of this code,

17  including, but not limited to, terminating or modifying a

18  trust in an impermissible manner.

19         (4)  Matters that may be resolved by a nonjudicial

20  settlement agreement include:

21         (a)  The interpretation or construction of the terms of

22  the trust.

23         (b)  The approval of a trustee's report or accounting.

24         (c)  The direction to a trustee to refrain from

25  performing a particular act or the grant to a trustee of any

26  necessary or desirable power.

27         (d)  The resignation or appointment of a trustee and

28  the determination of a trustee's compensation.

29         (e)  The transfer of a trust's principal place of

30  administration.

31  


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 1         (f)  The liability of a trustee for an action relating

 2  to the trust.

 3         (5)  Any interested person may request the court to

 4  approve or disapprove a nonjudicial settlement agreement.

 5         736.0112  Qualification of foreign trustee.--Unless

 6  otherwise doing business in this state, local qualification by

 7  a foreign trustee is not required for the trustee to receive

 8  distribution from a local estate. Nothing in this chapter

 9  shall affect the provisions of s. 660.41.

10         Section 2.  Part II of chapter 736, Florida Statutes,

11  consisting of sections 736.0201, 736.0202, 736.0203, 736.0204,

12  736.0205, 736.0206, and 736.0207, is created to read:

13                             PART II

14                       JUDICIAL PROCEEDINGS

15  

16         736.0201  Role of court in trust proceedings.--

17         (1)  Except as provided in subsection (5) and s.

18  736.0206, proceedings concerning trusts shall be commenced by

19  filing a complaint and shall be governed by the Florida Rules

20  of Civil Procedure.

21         (2)  The court may intervene in the administration of a

22  trust to the extent the court's jurisdiction is invoked by an

23  interested person or as provided by law.

24         (3)  A trust is not subject to continuing judicial

25  supervision unless ordered by the court.

26         (4)  A judicial proceeding involving a trust may relate

27  to the validity, administration, or distribution of a trust,

28  including proceedings to:

29         (a)  Determine the validity of all or part of a trust;

30         (b)  Appoint or remove a trustee;

31         (c)  Review trustees' fees;


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 1         (d)  Review and settle interim or final accounts;

 2         (e)  Ascertain beneficiaries; determine any question

 3  arising in the administration or distribution of any trust,

 4  including questions of construction of trust instruments;

 5  instruct trustees; and determine the existence or nonexistence

 6  of any immunity, power, privilege, duty, or right;

 7         (f)  Obtain a declaration of rights; or

 8         (g)  Determine any other matters involving trustees and

 9  beneficiaries.

10         (5)  A proceeding for the construction of a

11  testamentary trust may be filed in the probate proceeding for

12  the testator's estate. The proceeding shall be governed by the

13  Florida Probate Rules.

14         736.0202  Jurisdiction over trustee and beneficiary.--

15         (1)  By accepting the trusteeship of a trust having its

16  principal place of administration in this state or by moving

17  the principal place of administration to this state, the

18  trustee submits personally to the jurisdiction of the courts

19  of this state regarding any matter involving the trust.

20         (2)  With respect to their interests in the trust, the

21  beneficiaries of a trust having its principal place of

22  administration in this state are subject to the jurisdiction

23  of the courts of this state regarding any matter involving the

24  trust. By accepting a distribution from such a trust, the

25  recipient submits personally to the jurisdiction of the courts

26  of this state regarding any matter involving the distribution.

27         (3)  This section does not preclude other methods of

28  obtaining jurisdiction over a trustee, beneficiary, or other

29  person receiving property from the trust.

30  

31  


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 1         736.0203  Subject-matter jurisdiction.--The circuit

 2  court has original jurisdiction in this state of all

 3  proceedings arising under this code.

 4         736.0204  Venue.--Venue for actions and proceedings

 5  concerning trusts, including those under s. 736.0201, may be

 6  laid in:

 7         (1)  Any county where the venue is proper under chapter

 8  47;

 9         (2)  Any county where the beneficiary suing or being

10  sued resides or has its principal place of business; or

11         (3)  The county where the trust has its principal place

12  of administration.

13         736.0205  Trust proceedings; dismissal of matters

14  relating to foreign trusts.--Over the objection of a party,

15  the court shall not entertain proceedings under s. 736.0201

16  for a trust registered, or having its principal place of

17  administration, in another state unless all interested parties

18  could not be bound by litigation in the courts of the state

19  where the trust is registered or has its principal place of

20  administration. The court may condition a stay or dismissal of

21  a proceeding under this section on the consent of any party to

22  jurisdiction of the state where the trust is registered or has

23  its principal place of business, or the court may grant a

24  continuance or enter any other appropriate order.

25         736.0206  Proceedings for review of employment of

26  agents and review of compensation of trustee and employees of

27  trust.--

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

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

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

31  or other specialized agent or assistant, and the


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 1  reasonableness of any compensation paid to that person or to

 2  the trustee.

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

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

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

 6  employed by the trustee, or any interested person may have the

 7  propriety of employment and the reasonableness of the

 8  compensation of the trustee or any person employed by the

 9  trustee determined in the probate proceeding.

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

11  employment and the reasonableness of the compensation shall be

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

13  person who is determined to have received excessive

14  compensation from a trust for services rendered may be ordered

15  to make appropriate refunds.

16         (4)  Court proceedings to determine reasonable

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

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

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

20  the burden of proof of propriety of the employment and

21  reasonableness of the compensation shall be determined by the

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

23  finds the compensation paid or requested to be substantially

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

25  trust assets the compensation shall be paid.

26         (5)  The court may determine reasonable compensation

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

28  receiving expert testimony. Any party may offer expert

29  testimony after notice to interested persons. If expert

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

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


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

 2  fee shall be paid.

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

 4  shall be bound by all orders entered on the complaint.

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

 6  petitioner may serve formal notice as provided in the Florida

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

 8  court to acquire jurisdiction over the person receiving the

 9  notice to the extent of the person's interest in the trust.

10         736.0207  Trust contests.--An action to contest the

11  validity of all or part of a trust may not be commenced until

12  the trust becomes irrevocable, except this section does not

13  prohibit such action by the guardian of the property of an

14  incapacitated settlor.

15         Section 3.  Part III of chapter 736, Florida Statutes,

16  consisting of sections 736.0301, 736.0302, 736.0303, 736.0304,

17  736.0305, and 736.0306, is created to read:

18                             PART III

19                          REPRESENTATION

20  

21         736.0301  Representation; basic effect.--

22         (1)  Notice, information, accountings, or reports given

23  to a person who may represent and bind another person under

24  this part may serve as a substitute for and have the same

25  effect as notice, information, accountings, or reports given

26  directly to the other person.

27         (2)  Actions taken by a person who represents the

28  interests of another person under this part are binding on the

29  person whose interests are represented to the same extent as

30  if the actions had been taken by the person whose interests

31  are represented.


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 1         (3)  Except as otherwise provided in s. 736.0602, a

 2  person under this part who represents a settlor lacking

 3  capacity may receive notice and give a binding consent on the

 4  settlor's behalf.

 5         (4)  A trustee is not liable for giving notice,

 6  information, accountings, or reports to a beneficiary who is

 7  represented by another person under this part and nothing in

 8  this part prohibits the trustee from giving notice,

 9  information, accountings, or reports to the person

10  represented.

11         736.0302  Representation by holder of power of

12  appointment.--

13         (1)  The holder of a power of appointment may represent

14  and bind persons whose interests, as permissible appointees,

15  takers in default, or otherwise, are subject to the power.

16         (2)  Subsection (1) does not apply to:

17         (a)  Any matter determined by the court to involve

18  fraud or bad faith by the trustee;

19         (b)  A power of a trustee to distribute trust property;

20  or

21         (c)  A power of appointment held by a person while the

22  person is the sole trustee.

23         736.0303  Representation by fiduciaries and

24  parents.--To the extent there is no conflict of interest

25  between the representative and the person represented or among

26  those being represented with respect to a particular question

27  or dispute:

28         (1)  A guardian of the property may represent and bind

29  the estate that the guardian of the property controls.

30  

31  


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 1         (2)  An agent having authority to act with respect to

 2  the particular question or dispute may represent and bind the

 3  principal.

 4         (3)  A trustee may represent and bind the beneficiaries

 5  of the trust.

 6         (4)  A personal representative of a decedent's estate

 7  may represent and bind persons interested in the estate.

 8         (5)  A parent may represent and bind the parent's

 9  unborn child, or the parent's minor child if a guardian of the

10  property for the minor child has not been appointed.

11         736.0304  Representation by person having substantially

12  identical interest.--Unless otherwise represented, a minor,

13  incapacitated, or unborn individual, or a person whose

14  identity or location is unknown and not reasonably

15  ascertainable, may be represented by and bound by another

16  person having a substantially identical interest with respect

17  to the particular question or dispute, but only to the extent

18  there is no conflict of interest between the representative

19  and the person represented.

20         736.0305  Appointment of representative.--

21         (1)  If the court determines that an interest is not

22  represented under this part, or that the otherwise available

23  representation might be inadequate, the court may appoint a

24  representative to receive notice, give consent, and otherwise

25  represent, bind, and act on behalf of a minor, incapacitated,

26  or unborn individual, or a person whose identity or location

27  is unknown. If not precluded by a conflict of interest, a

28  representative may be appointed to represent several persons

29  or interests.

30         (2)  A representative may act on behalf of the

31  individual represented with respect to any matter arising


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 1  under this code, whether or not a judicial proceeding

 2  concerning the trust is pending.

 3         (3)  In making decisions, a representative may consider

 4  general benefits accruing to the living members of the

 5  represented individual's family.

 6         736.0306  Designated representative.--

 7         (1)  If authorized in the trust instrument, one or more

 8  persons may be designated to represent and bind a beneficiary

 9  and receive any notice, information, accounting, or report.

10         (2)  Except as otherwise provided in this code, a

11  person designated, as provided in subsection (1) may not

12  represent and bind a beneficiary while that person is serving

13  as trustee.

14         (3)  Except as otherwise provided in this code, a

15  person designated, as provided in subsection (1) may not

16  represent and bind another beneficiary if the person

17  designated also is a beneficiary, unless:

18         (a)  That person was named by the settlor; or

19         (b)  That person is the beneficiary's spouse or a

20  grandparent or descendant of a grandparent of the beneficiary

21  or the beneficiary's spouse.

22         (4)  No person designated, as provided in subsection

23  (1) is liable to the beneficiary whose interests are

24  represented, or to anyone claiming through that beneficiary,

25  for any actions or omissions to act made in good faith.

26         Section 4.  Part IV of chapter 736, Florida Statutes,

27  consisting of sections 736.0401, 736.0402, 736.0403, 736.0404,

28  736.0405, 736.0406, 736.0407, 736.0408, 736.0409, 736.0410,

29  736.04113, 736.04115, 736.0412, 736.0413, 736.0414, 736.0415,

30  736.0416, and 736.0417, is created to read:

31                             PART IV


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 1        CREATION, VALIDITY, MODIFICATION, AND TERMINATION

 2  

 3         736.0401  Methods of creating trust.--A trust may be

 4  created by:

 5         (1)  Transfer of property to another person as trustee

 6  during the settlor's lifetime or by will or other disposition

 7  taking effect on the settlor's death;

 8         (2)  Declaration by the owner of property that the

 9  owner holds identifiable property as trustee; or

10         (3)  Exercise of a power of appointment in favor of a

11  trustee.

12         736.0402  Requirements for creation.--

13         (1)  A trust is created only if:

14         (a)  The settlor has capacity to create a trust.

15         (b)  The settlor indicates an intent to create the

16  trust.

17         (c)  The trust has a definite beneficiary or is:

18         1.  A charitable trust;

19         2.  A trust for the care of an animal, as provided in

20  s. 736.0408; or

21         3.  A trust for a noncharitable purpose, as provided in

22  s. 736.0409.

23         (d)  The trustee has duties to perform.

24         (e)  The same person is not the sole trustee and sole

25  beneficiary.

26         (2)  A beneficiary is definite if the beneficiary can

27  be ascertained now or in the future, subject to any applicable

28  rule against perpetuities.

29         (3)  A power of a trustee to select a beneficiary from

30  an indefinite class is valid. If the power is not exercised

31  within a reasonable time, the power fails and the property


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 1  subject to the power passes to the persons who would have

 2  taken the property had the power not been conferred.

 3         736.0403  Trusts created in other jurisdictions;

 4  formalities required for revocable trusts.--

 5         (1)  A trust not created by will is validly created if

 6  the creation of the trust complies with the law of the

 7  jurisdiction in which the trust instrument was executed or the

 8  law of the jurisdiction in which, at the time of creation, the

 9  settlor was domiciled.

10         (2)  Notwithstanding subsection (1):

11         (a)  No trust or confidence of or in any messuages,

12  lands, tenements, or hereditaments shall arise or result

13  unless the trust complies with the provisions of s. 689.05.

14         (b)  The testamentary aspects of a revocable trust,

15  executed by a settlor who is a domiciliary of this state at

16  the time of execution, are invalid unless the trust instrument

17  is executed by the settlor with the formalities required for

18  the execution of a will in this state. For purposes of this

19  subsection, the term "testamentary aspects" means those

20  provisions of the trust instrument that dispose of the trust

21  property on or after the death of the settlor other than to

22  the settlor's estate.

23         (3)  Paragraph (2)(b) does not apply to trusts

24  established as part of an employee annuity described in s. 403

25  of the Internal Revenue Code of 1986, as amended, an

26  individual retirement account as described in s. 408 of the

27  Internal Revenue Code of 1986, as amended, a Keogh (HR-10)

28  Plan, or a retirement or other plan that is qualified under s.

29  401 of the Internal Revenue Code of 1986, as amended.

30         (4)  Paragraph (2)(b) applies to trusts created on or

31  after the effective date of this code. Section 737.111, as in


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 1  effect prior to the effective date of this code, continues to

 2  apply to trusts created before the effective date of this

 3  code.

 4         736.0404  Trust purposes.--A trust may be created only

 5  to the extent the purposes of the trust are lawful, not

 6  contrary to public policy, and possible to achieve. A trust

 7  and its terms must be for the benefit of its beneficiaries.

 8         736.0405  Charitable purposes; enforcement.--

 9         (1)  A trust may be created for charitable purposes.

10  Charitable purposes include, but are not limited to, the

11  relief of poverty; the advancement of arts, sciences,

12  education, or religion; and the promotion of health,

13  governmental, or municipal purposes.

14         (2)  If the terms of a charitable trust do not indicate

15  a particular charitable purpose or beneficiary, the court may

16  select one or more charitable purposes or beneficiaries. The

17  selection must be consistent with the settlor's intent to the

18  extent such intent can be ascertained.

19         (3)  The settlor of a charitable trust, among others,

20  has standing to enforce the trust.

21         736.0406  Effect of fraud, duress, mistake, or undue

22  influence.--A trust is void if the creation of the trust is

23  procured by fraud, duress, mistake, or undue influence. Any

24  part of the trust is void if procured by such means, but the

25  remainder of the trust not procured by such means is valid if

26  the remainder is not invalid for other reasons.

27         736.0407  Evidence of oral trust.--Except as required

28  by s. 736.0403 or a law other than this code, a trust need not

29  be evidenced by a trust instrument but the creation of an oral

30  trust and its terms may be established only by clear and

31  convincing evidence.


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 1         736.0408  Trust for care of an animal.--

 2         (1)  A trust may be created to provide for the care of

 3  an animal alive during the settlor's lifetime. The trust

 4  terminates on the death of the animal or, if the trust was

 5  created to provide for the care of more than one animal alive

 6  during the settlor's lifetime, on the death of the last

 7  surviving animal.

 8         (2)  A trust authorized by this section may be enforced

 9  by a person appointed in the terms of the trust or, if no

10  person is appointed, by a person appointed by the court. A

11  person having an interest in the welfare of the animal may

12  request the court to appoint a person to enforce the trust or

13  to remove a person appointed.

14         (3)  Property of a trust authorized by this section may

15  be applied only to the intended use of the property, except to

16  the extent the court determines that the value of the trust

17  property exceeds the amount required for the intended use.

18  Except as otherwise provided in the terms of the trust,

19  property not required for the intended use must be distributed

20  to the settlor, if then living, otherwise as part of the

21  settlor's estate.

22         736.0409  Noncharitable trust without ascertainable

23  beneficiary.--Except as otherwise provided in s. 736.0408 or

24  by another provision of law, the following rules apply:

25         (1)  A trust may be created for a noncharitable purpose

26  without a definite or definitely ascertainable beneficiary or

27  for a noncharitable but otherwise valid purpose to be selected

28  by the trustee. The trust may not be enforced for more than 21

29  years.

30  

31  


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 1         (2)  A trust authorized by this section may be enforced

 2  by a person appointed in the terms of the trust or, if no

 3  person is appointed, by a person appointed by the court.

 4         (3)  Property of a trust authorized by this section may

 5  be applied only to the intended use of the property, except to

 6  the extent the court determines that the value of the trust

 7  property exceeds the amount required for the intended use.

 8  Except as otherwise provided in the terms of the trust,

 9  property not required for the intended use must be distributed

10  to the settlor, if then living, otherwise as part of the

11  settlor's estate.

12         736.0410  Modification or termination of trust;

13  proceedings for disapproval of nonjudicial acts.--

14         (1)  In addition to the methods of termination

15  prescribed by ss. 736.04113-736.0414, a trust terminates to

16  the extent the trust expires or is revoked or is properly

17  distributed pursuant to the terms of the trust.

18         (2)  A proceeding to disapprove a proposed modification

19  or termination under s. 736.0412 or a trust combination or

20  division under s. 736.0417 may be commenced by any

21  beneficiary.

22         (3)  A proceeding to disapprove a proposed termination

23  under s. 736.0414(1) may be commenced by any qualified

24  beneficiary.

25         736.04113  Judicial modification of irrevocable trust

26  when modification is not inconsistent with settlor's

27  purpose.--

28         (1)  Upon the application of a trustee of the trust or

29  any qualified beneficiary, a court at any time may modify the

30  terms of a trust that is not then revocable in the manner

31  provided in subsection (2), if:


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 1         (a)  The purposes of the trust have been fulfilled or

 2  have become illegal, impossible, wasteful, or impracticable to

 3  fulfill;

 4         (b)  Because of circumstances not anticipated by the

 5  settlor, compliance with the terms of the trust would defeat

 6  or substantially impair the accomplishment of a material

 7  purpose of the trust; or

 8         (c)  A material purpose of the trust no longer exists.

 9         (2)  In modifying a trust under this section, a court

10  may:

11         (a)  Amend or change the terms of the trust, including

12  terms governing distribution of the trust income or principal

13  or terms governing administration of the trust;

14         (b)  Terminate the trust in whole or in part;

15         (c)  Direct or permit the trustee to do acts that are

16  not authorized or that are prohibited by the terms of the

17  trust; or

18         (d)  Prohibit the trustee from performing acts that are

19  permitted or required by the terms of the trust.

20         (3)  In exercising discretion to modify a trust under

21  this section:

22         (a)  The court shall consider the terms and purposes of

23  the trust, the facts and circumstances surrounding the

24  creation of the trust, and extrinsic evidence relevant to the

25  proposed modification.

26         (b)  The court shall consider spendthrift provisions as

27  a factor in making a decision but the court is not precluded

28  from modifying a trust because the trust contains spendthrift

29  provisions.

30  

31  


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 1         (4)  The provisions of this section are in addition to,

 2  and not in derogation of, rights under the common law to

 3  modify, amend, terminate, or revoke trusts.

 4         736.04115  Judicial modification of irrevocable trust

 5  when modification is in best interest of beneficiaries.--

 6         (1)  Without regard to the reasons for modification

 7  provided in s. 736.04113, if compliance with the terms of a

 8  trust is not in the best interests of the beneficiaries, upon

 9  the application of a trustee or any qualified beneficiary, a

10  court may at any time modify a trust that is not then

11  revocable as provided in s. 736.04113(2).

12         (2)  In exercising discretion to modify a trust under

13  this section:

14         (a)  The court shall exercise discretion in a manner

15  that conforms to the extent possible with the intent of the

16  settlor, taking into account the current circumstances and

17  best interests of the beneficiaries.

18         (b)  The court shall consider the terms and purposes of

19  the trust, the facts and circumstances surrounding the

20  creation of the trust, and extrinsic evidence relevant to the

21  proposed modification.

22         (c)  The court shall consider spendthrift provisions as

23  a factor in making a decision but the court is not precluded

24  from modifying a trust because the trust contains spendthrift

25  provisions.

26         (3)  This section shall not apply to:

27         (a)  Any trust created prior to January 1, 2001.

28         (b)  Any trust created after December 31, 2000, if:

29         1.  Under the terms of the trust, all beneficial

30  interests in the trust must vest or terminate within the

31  


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 1  period prescribed by the rule against perpetuities in s.

 2  689.225(2), notwithstanding s. 689.225(2)(f).

 3         2.  The terms of the trust expressly prohibit judicial

 4  modification.

 5         (4)  For purposes of subsection (3), a revocable trust

 6  shall be treated as created when the right of revocation

 7  terminates.

 8         (5)  The provisions of this section are in addition to,

 9  and not in derogation of, rights under the common law to

10  modify, amend, terminate, or revoke trusts.

11         736.0412  Nonjudicial modification of irrevocable

12  trust.--

13         (1)  After the settlor's death, a trust may be modified

14  at any time as provided in s. 736.04113(2) upon the unanimous

15  agreement of the trustee and all qualified beneficiaries.

16         (2)  Modification of a trust as authorized in this

17  section is not prohibited by a spendthrift clause or by a

18  provision in the trust instrument that prohibits amendment or

19  revocation of the trust.

20         (3)  An agreement to modify a trust under this section

21  is binding on a beneficiary whose interest is represented by

22  another person under part III of this code.

23         (4)  This section shall not apply to:

24         (a)  Any trust created prior to January 1, 2001.

25         (b)  Any trust created after December 31, 2000, if,

26  under the terms of the trust, all beneficial interests in the

27  trust must vest or terminate within the period prescribed by

28  the rule against perpetuities in s. 689.225(2),

29  notwithstanding s. 689.225(2)(f), unless the terms of the

30  trust expressly authorize nonjudicial modification.

31  


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 1         (c)  Any trust for which a charitable deduction is

 2  allowed or allowable under the Internal Revenue Code until the

 3  termination of all charitable interests in the trust.

 4         (5)  For purposes of subsection (4), a revocable trust

 5  shall be treated as created when the right of revocation

 6  terminates.

 7         (6)  The provisions of this section are in addition to,

 8  and not in derogation of, rights under the common law to

 9  modify, amend, terminate, or revoke trusts.

10         736.0413  Cy pres.--

11         (1)  If a particular charitable purpose becomes

12  unlawful, impracticable, impossible to achieve, or wasteful,

13  the court may apply the doctrine of cy pres to modify or

14  terminate the trust by directing that the trust property be

15  applied or distributed, in whole or in part, in a manner

16  consistent with the settlor's charitable purposes.

17         (2)  A proceeding to modify or terminate a trust under

18  this section may be commenced by a settlor, a trustee, or any

19  qualified beneficiary.

20         736.0414  Modification or termination of uneconomic

21  trust.--

22         (1)  After notice to the qualified beneficiaries, the

23  trustee of a trust consisting of trust property having a total

24  value less than $50,000 may terminate the trust if the trustee

25  concludes that the value of the trust property is insufficient

26  to justify the cost of administration.

27         (2)  Upon application of a trustee or any qualified

28  beneficiary, the court may modify or terminate a trust or

29  remove the trustee and appoint a different trustee if the

30  court determines that the value of the trust property is

31  insufficient to justify the cost of administration.


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 1         (3)  Upon termination of a trust under this section,

 2  the trustee shall distribute the trust property in a manner

 3  consistent with the purposes of the trust. The trustee may

 4  enter into agreements or make such other provisions that the

 5  trustee deems necessary or appropriate to protect the

 6  interests of the beneficiaries and the trustee and to carry

 7  out the intent and purposes of the trust.

 8         (4)  The existence of a spendthrift provision in the

 9  trust does not make this section inapplicable unless the trust

10  instrument expressly provides that the trustee may not

11  terminate the trust pursuant to this section.

12         (5)  This section does not apply to an easement for

13  conservation or preservation.

14         736.0415  Reformation to correct mistakes.--Upon

15  application of a settlor or any interested person, the court

16  may reform the terms of a trust, even if unambiguous, to

17  conform the terms to the settlor's intent if it is proved by

18  clear and convincing evidence that both the accomplishment of

19  the settlor's intent and the terms of the trust were affected

20  by a mistake of fact or law, whether in expression or

21  inducement. In determining the settlor's original intent, the

22  court may consider evidence relevant to the settlor's intent

23  even though the evidence contradicts an apparent plain meaning

24  of the trust instrument.

25         736.0416  Modification to achieve settlor's tax

26  objectives.--Upon application of any interested person, to

27  achieve the settlor's tax objectives the court may modify the

28  terms of a trust in a manner that is not contrary to the

29  settlor's probable intent. The court may provide that the

30  modification has retroactive effect.

31         736.0417  Combination and division of trusts.--


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 1         (1)  After notice to the qualified beneficiaries, a

 2  trustee may combine two or more trusts into a single trust or

 3  divide a trust into two or more separate trusts, if the result

 4  does not impair rights of any beneficiary or adversely affect

 5  achievement of the purposes of the trusts or trust,

 6  respectively.

 7         (2)  Subject to the terms of the trust, the trustee may

 8  take into consideration differences in federal tax attributes

 9  and other pertinent factors in administering the trust

10  property of any separate account or trust, in making

11  applicable tax elections, and in making distributions. A

12  separate trust created by severance must be treated as a

13  separate trust for all purposes from the date on which the

14  severance is effective. The effective date of the severance

15  may be retroactive to a date before the date on which the

16  trustee exercises such power.

17         Section 5.  Part V of chapter 736, Florida Statutes,

18  consisting of sections 736.0501, 736.0502, 736.0503, 736.0504,

19  736.0505, 736.05053, 736.05055, 736.0506, and 736.0507, is

20  created to read:

21                              PART V

22     CREDITORS' CLAIMS; SPENDTHRIFT AND DISCRETIONARY TRUSTS

23  

24         736.0501  Rights of beneficiary's creditor or

25  assignee.--To the extent a beneficiary's interest is not

26  subject to a spendthrift provision, the court may authorize a

27  creditor or assignee of the beneficiary to reach the

28  beneficiary's interest by attachment of present or future

29  distributions to or for the benefit of the beneficiary or by

30  other means. The court may limit the award to such relief as

31  is appropriate under the circumstances.


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 1         736.0502  Spendthrift provision.--

 2         (1)  A spendthrift provision is valid only if the

 3  provision restrains both voluntary and involuntary transfer of

 4  a beneficiary's interest. This subsection does not apply to

 5  any trust in existence on the effective date of this code.

 6         (2)  A term of a trust providing that the interest of a

 7  beneficiary is held subject to a spendthrift trust, or words

 8  of similar import, is sufficient to restrain both voluntary

 9  and involuntary transfer of the beneficiary's interest.

10         (3)  A beneficiary may not transfer an interest in a

11  trust in violation of a valid spendthrift provision and,

12  except as otherwise provided in this part, a creditor or

13  assignee of the beneficiary may not reach the interest or a

14  distribution by the trustee before receipt of the interest or

15  distribution by the beneficiary.

16         (4)  A valid spendthrift provision does not prevent the

17  appointment of interests through the exercise of a power of

18  appointment.

19         736.0503  Exceptions to spendthrift provision.--

20         (1)  As used in this section, the term "child" includes

21  any person for whom an order or judgment for child support has

22  been entered in this or any other state.

23         (2)  To the extent provided in subsection (3), a

24  spendthrift provision is unenforceable against:

25         (a)  A beneficiary's child, spouse, or former spouse

26  who has a judgment or court order against the beneficiary for

27  support or maintenance.

28         (b)  A judgment creditor who has provided services for

29  the protection of a beneficiary's interest in the trust.

30         (c)  A claim of this state or the United States to the

31  extent a law of this state or a federal law so provides.


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 1         (3)  Except as otherwise provided in this subsection, a

 2  claimant against which a spendthrift provision may not be

 3  enforced may obtain from a court, or pursuant to the Uniform

 4  Interstate Family Support Act, an order attaching present or

 5  future distributions to or for the benefit of the beneficiary.

 6  The court may limit the award to such relief as is appropriate

 7  under the circumstances. Notwithstanding this subsection, the

 8  remedies provided in this subsection apply to a claim by a

 9  beneficiary's child, spouse, former spouse, or a judgment

10  creditor described in paragraph (2)(a) or paragraph (2)(b)

11  only as a last resort upon an initial showing that traditional

12  methods of enforcing the claim are insufficient.

13         736.0504  Discretionary trusts; effect of standard.--

14         (1)  Whether or not a trust contains a spendthrift

15  provision, a creditor of a beneficiary may not compel a

16  distribution that is subject to the trustee's discretion, even

17  if:

18         (a)  The discretion is expressed in the form of a

19  standard of distribution; or

20         (b)  The trustee has abused the discretion.

21         (2)  If the trustee's discretion to make distributions

22  for the trustee's own benefit is limited by an ascertainable

23  standard, a creditor may not reach or compel distribution of

24  the beneficial interest except to the extent the interest

25  would be subject to the creditor's claim were the beneficiary

26  not acting as trustee.

27         (3)  This section does not limit the right of a

28  beneficiary to maintain a judicial proceeding against a

29  trustee for an abuse of discretion or failure to comply with a

30  standard for distribution.

31         736.0505  Creditors' claims against settlor.--


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 1         (1)  Whether or not the terms of a trust contain a

 2  spendthrift provision, the following rules apply:

 3         (a)  The property of a revocable trust is subject to

 4  the claims of the settlor's creditors during the settlor's

 5  lifetime to the extent the property would not otherwise be

 6  exempt by law if owned directly by the settlor.

 7         (b)  With respect to an irrevocable trust, a creditor

 8  or assignee of the settlor may reach the maximum amount that

 9  can be distributed to or for the settlor's benefit. If a trust

10  has more than one settlor, the amount the creditor or assignee

11  of a particular settlor may reach may not exceed the settlor's

12  interest in the portion of the trust attributable to that

13  settlor's contribution.

14         (c)  Notwithstanding the provisions of paragraph (b),

15  the assets of an irrevocable trust may not be subject to the

16  claims of an existing or subsequent creditor or assignee of

17  the settlor, in whole or in part, solely because of the

18  existence of a discretionary power granted to the trustee by

19  the terms of the trust, or any other provision of law, to pay

20  directly to the taxing authorities or to reimburse the settlor

21  for any tax on trust income or principal which is payable by

22  the settlor under the law imposing such tax.

23         (2)  For purposes of this section:

24         (a)  During the period the power may be exercised, the

25  holder of a power of withdrawal is treated in the same manner

26  as the settlor of a revocable trust to the extent of the

27  property subject to the power.

28         (b)  Upon the lapse, release, or waiver of the power,

29  the holder is treated as the settlor of the trust only to the

30  extent the value of the property affected by the lapse,

31  


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 1  release, or waiver exceeds the greater of the amount specified

 2  in:

 3         1.  Section 2041(b)(2) or s. 2514(e); or

 4         2.  Section 2503(b),

 5  

 6  of the Internal Revenue Code of 1986, as amended.

 7         736.05053  Trustee's duty to pay expenses and

 8  obligations of settlor's estate.--

 9         (1)  A trustee of a trust described in s. 733.707(3)

10  shall pay to the personal representative of a settlor's estate

11  any amounts that the personal representative certifies in

12  writing to the trustee are required to pay the expenses of the

13  administration and obligations of the settlor's estate.

14  Payments made by a trustee, unless otherwise provided in the

15  trust instrument, must be charged as expenses of the trust

16  without a contribution from anyone. The interests of all

17  beneficiaries of such a trust are subject to the provisions of

18  this subsection; however, the payments must be made from

19  assets, property, or the proceeds of the assets or property,

20  other than assets proscribed in s. 733.707(3), that are

21  included in the settlor's gross estate for federal estate tax

22  purposes.

23         (2)  Unless a settlor provides by will, or designates

24  in a trust described in s. 733.707(3) funds or property

25  passing under the trust to be used as designated, the expenses

26  of the administration and obligations of the settlor's estate

27  must be paid from the trust in the following order:

28         (a)  Property of the residue of the trust remaining

29  after all distributions that are to be satisfied by reference

30  to a specific property or type of property, fund, or sum.

31  


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 1         (b)  Property that is not to be distributed from

 2  specified or identified property or a specified or identified

 3  item of property.

 4         (c)  Property that is to be distributed from specified

 5  or identified property or a specified or identified item of

 6  property.

 7         (3)  Trust distributions that are to be satisfied from

 8  specified or identified property must be classed as

 9  distributions to be satisfied from the general assets of the

10  trust and not otherwise disposed of in the trust instrument on

11  the failure or insufficiency of funds or property from which

12  payment should be made, to the extent of the insufficiency.

13  Trust distributions given for valuable consideration abate

14  with other distributions of the same class only to the extent

15  of the excess over the value of the consideration until all

16  others of the same class are exhausted. Except as provided in

17  this section, trust distributions abate equally and ratably

18  and without preference or priority between real and personal

19  property. When a specified or identified item of property that

20  has been designated for distribution in the trust instrument

21  or that is charged with a distribution is sold or taken by the

22  trustee, other beneficiaries shall contribute according to

23  their respective interests to the beneficiary whose property

24  has been sold or taken. Before distribution, the trustee shall

25  determine the amounts of the respective contributions and such

26  amounts must be paid or withheld before distribution is made.

27         (4)  The trustee shall pay the expenses of trust

28  administration, including compensation of trustees and

29  attorneys of the trustees, before and in preference to the

30  expenses of the administration and obligations of the

31  settlor's estate.


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 1         736.05055  Notice of trust.--

 2         (1)  Upon the death of a settlor of a trust described

 3  in s. 733.707(3), the trustee must file a notice of trust with

 4  the court of the county of the settlor's domicile and the

 5  court having jurisdiction of the settlor's estate.

 6         (2)  The notice of trust must contain the name of the

 7  settlor, the settlor's date of death, the title of the trust,

 8  if any, the date of the trust, and the name and address of the

 9  trustee.

10         (3)  If the settlor's probate proceeding has been

11  commenced, the clerk shall notify the trustee in writing of

12  the date of the commencement of the probate proceeding and the

13  file number.

14         (4)  The clerk shall file and index the notice of trust

15  in the same manner as a caveat unless there exists a probate

16  proceeding for the settlor's estate, in which case the notice

17  of trust must be filed in the probate proceeding and the clerk

18  shall send a copy to the personal representative.

19         (5)  The clerk shall send a copy of any caveat filed

20  regarding the settlor to the trustee, and the notice of trust

21  to any caveator, unless there is a probate proceeding pending

22  and the personal representative and the trustee are the same.

23         (6)  Any proceeding affecting the expenses of the

24  administration or obligations of the settlor's estate prior to

25  the trustee filing a notice of trust are binding on the

26  trustee.

27         (7)  The trustee's failure to file the notice of trust

28  does not affect the trustee's obligation to pay expenses of

29  administration and obligations of the settlor's estate as

30  provided in s. 733.607(2).

31         736.0506  Overdue distribution.--


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 1         (1)  As used in this section, the term "mandatory

 2  distribution" means a distribution of income or principal the

 3  trustee is required to make to a beneficiary under the terms

 4  of the trust, including a distribution on termination of the

 5  trust. The term does not include a distribution subject to the

 6  exercise of the trustee's discretion even if:

 7         (a)  The discretion is expressed in the form of a

 8  standard of distribution; or

 9         (b)  The terms of the trust authorizing a distribution

10  couple language of discretion with language of direction.

11         (2)  A creditor or assignee of a beneficiary may reach

12  a mandatory distribution of income or principal, including a

13  distribution upon termination of the trust, if the trustee has

14  not made the distribution to the beneficiary within a

15  reasonable time after the designated distribution date,

16  whether or not a trust contains a spendthrift provision.

17         736.0507  Personal obligations of trustee.--Except to

18  the extent of the trustee's interest in the trust other than

19  as a trustee, trust property is not subject to personal

20  obligations of the trustee, even if the trustee becomes

21  insolvent or bankrupt.

22         Section 6.  Part VI of chapter 736, Florida Statutes,

23  consisting of sections 736.0601, 736.0602, 736.0603, and

24  736.0604, is created to read:

25                             PART VI

26                         REVOCABLE TRUSTS

27  

28         736.0601  Capacity of settlor of revocable trust.--The

29  capacity required to create, amend, revoke, or add property to

30  a revocable trust, or to direct the actions of the trustee of

31  


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 1  a revocable trust, is the same as that required to make a

 2  will.

 3         736.0602  Revocation or amendment of revocable trust.--

 4         (1)  Unless the terms of a trust expressly provide that

 5  the trust is irrevocable, the settlor may revoke or amend the

 6  trust. This subsection does not apply to a trust created under

 7  an instrument executed before the effective date of this code.

 8         (2)  If a revocable trust is created or funded by more

 9  than one settlor:

10         (a)  To the extent the trust consists of community

11  property, the trust may be revoked by either spouse acting

12  alone but may be amended only by joint action of both spouses.

13         (b)  To the extent the trust consists of property other

14  than community property, each settlor may revoke or amend the

15  trust with regard to the portion of the trust property

16  attributable to that settlor's contribution.

17         (c)  Upon the revocation or amendment of the trust by

18  fewer than all of the settlors, the trustee shall promptly

19  notify the other settlors of the revocation or amendment.

20         (3)  Subject to s. 736.0403(2), the settlor may revoke

21  or amend a revocable trust:

22         (a)  By substantial compliance with a method provided

23  in the terms of the trust; or

24         (b)  If the terms of the trust do not provide a method,

25  by:

26         1.  A later will or codicil that expressly refers to

27  the trust or specifically devises property that would

28  otherwise have passed according to the terms of the trust; or

29         2.  Any other method manifesting clear and convincing

30  evidence of the settlor's intent.

31  


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 1         (4)  Upon revocation of a revocable trust, the trustee

 2  shall deliver the trust property as the settlor directs.

 3         (5)  A settlor's powers with respect to revocation,

 4  amendment, or distribution of trust property may be exercised

 5  by an agent under a power of attorney only as authorized by s.

 6  709.08.

 7         (6)  A guardian of the property of the settlor may

 8  exercise a settlor's powers with respect to revocation,

 9  amendment, or distribution of trust property only as provided

10  in s. 744.441.

11         (7)  A trustee who does not know that a trust has been

12  revoked or amended is not liable for distributions made and

13  other actions taken on the assumption that the trust had not

14  been amended or revoked.

15         736.0603  Settlor's powers; powers of withdrawal.--

16         (1)  While a trust is revocable, the duties of the

17  trustee are owed exclusively to the settlor.

18         (2)  During the period the power may be exercised, the

19  holder of a power of withdrawal has the rights of a settlor of

20  a revocable trust under this section to the extent of the

21  property subject to the power.

22         736.0604  Limitation on action contesting validity of

23  revocable trust.--An action to contest the validity of a trust

24  that was revocable at the settlor's death is barred, if not

25  commenced within the earlier of:

26         (1)  The time as provided in chapter 95; or

27         (2)  Six months after the trustee sent the person a

28  copy of the trust instrument and a notice informing the person

29  of the trust's existence, of the trustee's name and address,

30  and of the time allowed for commencing a proceeding.

31  


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 1         Section 7.  Part VII of chapter 736, Florida Statutes,

 2  consisting of sections 736.0701, 736.0702, 736.0703, 736.0704,

 3  736.0705, 736.0706, 736.0707, 736.0708, and 736.0709, is

 4  created to read:

 5                             PART VII

 6                        OFFICE OF TRUSTEE

 7  

 8         736.0701  Accepting or declining trusteeship.--

 9         (1)  Except as otherwise provided in subsection (3), a

10  person designated as trustee accepts the trusteeship:

11         (a)  By substantially complying with a method of

12  acceptance provided in the terms of the trust; or

13         (b)  If the terms of the trust do not provide a method

14  or the method provided in the terms is not expressly made

15  exclusive, by accepting delivery of the trust property,

16  exercising powers or performing duties as trustee, or

17  otherwise indicating acceptance of the trusteeship.

18         (2)  A person designated as trustee who has not

19  accepted the trusteeship may decline the trusteeship. A

20  designated trustee who does not accept the trusteeship within

21  a reasonable time after knowing of the designation is deemed

22  to have declined the trusteeship.

23         (3)  A person designated as trustee may, without

24  accepting the trusteeship:

25         (a)  Act to preserve the trust property if, within a

26  reasonable time after acting, the person sends to a qualified

27  beneficiary a written statement declining the trusteeship.

28         (b)  Inspect or investigate trust property to determine

29  potential liability under environmental or other law or for

30  any other purpose.

31         736.0702  Trustee's bond.--


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 1         (1)  A trustee shall give bond to secure performance of

 2  the trustee's duties only if the court finds that a bond is

 3  needed to protect the interests of the beneficiaries or is

 4  required by the terms of the trust and the court has not

 5  dispensed with the requirement.

 6         (2)  The court may specify the amount of a bond, the

 7  trustee's liabilities under the bond, and whether sureties are

 8  necessary. The court may modify or terminate a bond at any

 9  time.

10         736.0703  Cotrustees.--

11         (1)  Cotrustees who are unable to reach a unanimous

12  decision may act by majority decision.

13         (2)  If a vacancy occurs in a cotrusteeship, the

14  remaining cotrustees or a majority of the remaining cotrustees

15  may act for the trust.

16         (3)  A cotrustee must participate in the performance of

17  a trustee's function unless the cotrustee is unavailable to

18  perform the function because of absence, illness,

19  disqualification under other provision of law, or other

20  temporary incapacity or the cotrustee has properly delegated

21  the performance of the function to another cotrustee.

22         (4)  If a cotrustee is unavailable to perform duties

23  because of absence, illness, disqualification under other law,

24  or other temporary incapacity, and prompt action is necessary

25  to achieve the purposes of the trust or to avoid injury to the

26  trust property, the remaining cotrustee or a majority of the

27  remaining cotrustees may act for the trust.

28         (5)  A cotrustee may not delegate to another cotrustee

29  the performance of a function the settlor reasonably expected

30  the cotrustees to perform jointly. A cotrustee may revoke a

31  delegation previously made.


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 1         (6)  Except as otherwise provided in subsection (7), a

 2  cotrustee who does not join in an action of another cotrustee

 3  is not liable for the action.

 4         (7)  Each cotrustee shall exercise reasonable care to:

 5         (a)  Prevent a cotrustee from committing a breach of

 6  trust.

 7         (b)  Compel a cotrustee to redress a breach of trust.

 8         (8)  A dissenting cotrustee who joins in an action at

 9  the direction of the majority of the cotrustees and who

10  notifies any cotrustee of the dissent at or before the time of

11  the action is not liable for the action.

12         736.0704  Vacancy in trusteeship; appointment of

13  successor.--

14         (1)  A vacancy in a trusteeship occurs if:

15         (a)  A person designated as trustee declines the

16  trusteeship;

17         (b)  A person designated as trustee cannot be

18  identified or does not exist;

19         (c)  A trustee resigns;

20         (d)  A trustee is disqualified or removed;

21         (e)  A trustee dies; or

22         (f)  A trustee is adjudicated to be incapacitated.

23         (2)  If one or more cotrustees remain in office, a

24  vacancy in a trusteeship need not be filled. A vacancy in a

25  trusteeship must be filled if the trust has no remaining

26  trustee.

27         (3)  A vacancy in a trusteeship of a noncharitable

28  trust that is required to be filled must be filled in the

29  following order of priority:

30         (a)  By a person named or designated pursuant to the

31  terms of the trust to act as successor trustee.


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 1         (b)  By a person appointed by unanimous agreement of

 2  the qualified beneficiaries.

 3         (c)  By a person appointed by the court.

 4         (4)  A vacancy in a trusteeship of a charitable trust

 5  that is required to be filled must be filled in the following

 6  order of priority:

 7         (a)  By a person named or designated pursuant to the

 8  terms of the trust to act as successor trustee.

 9         (b)  By a person selected by unanimous agreement of the

10  charitable organizations expressly designated to receive

11  distributions under the terms of the trust.

12         (c)  By a person appointed by the court.

13         (5)  The court may appoint an additional trustee or

14  special fiduciary whenever the court considers the appointment

15  necessary for the administration of the trust, whether or not

16  a vacancy in a trusteeship exists or is required to be filled.

17         736.0705  Resignation of trustee.--

18         (1)  A trustee may resign:

19         (a)  Upon at least 30 days' notice to the qualified

20  beneficiaries, the settlor, if living, and all cotrustees; or

21         (b)  With the approval of the court.

22         (2)  In approving a resignation, the court may issue

23  orders and impose conditions reasonably necessary for the

24  protection of the trust property.

25         (3)  Any liability of a resigning trustee or of any

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

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

28  resignation.

29         736.0706  Removal of trustee.--

30  

31  


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 1         (1)  The settlor, a cotrustee, or a beneficiary may

 2  request the court to remove a trustee or a trustee may be

 3  removed by the court on the court's own initiative.

 4         (2)  The court may remove a trustee if:

 5         (a)  The trustee has committed a serious breach of

 6  trust;

 7         (b)  The lack of cooperation among cotrustees

 8  substantially impairs the administration of the trust;

 9         (c)  Due to the unfitness, unwillingness, or persistent

10  failure of the trustee to administer the trust effectively,

11  the court determines that removal of the trustee best serves

12  the interests of the beneficiaries; or

13         (d)  There has been a substantial change of

14  circumstances or removal is requested by all of the qualified

15  beneficiaries, the court finds that removal of the trustee

16  best serves the interests of all of the beneficiaries and is

17  not inconsistent with a material purpose of the trust, and a

18  suitable cotrustee or successor trustee is available.

19         (3)  Pending a final decision on a request to remove a

20  trustee, or in lieu of or in addition to removing a trustee,

21  the court may order such appropriate relief under s.

22  736.1001(2) as may be necessary to protect the trust property

23  or the interests of the beneficiaries.

24         736.0707  Delivery of property by former trustee.--

25         (1)  Unless a cotrustee remains in office or the court

26  otherwise orders and until the trust property is delivered to

27  a successor trustee or other person entitled to the property,

28  a trustee who has resigned or been removed has the duties of a

29  trustee and the powers necessary to protect the trust

30  property.

31  


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 1         (2)  A trustee who has resigned or been removed shall

 2  within a reasonable time deliver the trust property within the

 3  trustee's possession to the cotrustee, successor trustee, or

 4  other person entitled to the property, subject to the right of

 5  the trustee to retain a reasonable reserve for the payment of

 6  debts, expenses, and taxes. The provisions of this subsection

 7  are in addition to and are not in derogation of the rights of

 8  a removed or resigning trustee under the common law.

 9         736.0708  Compensation of trustee.--

10         (1)  If the terms of a trust do not specify the

11  trustee's compensation, a trustee is entitled to compensation

12  that is reasonable under the circumstances.

13         (2)  If the terms of a trust specify the trustee's

14  compensation, the trustee is entitled to be compensated as

15  specified but the court may allow more or less compensation

16  if:

17         (a)  The duties of the trustee are substantially

18  different from those contemplated when the trust was created;

19  or

20         (b)  The compensation specified by the terms of the

21  trust would be unreasonably low or high.

22         (3)  If the trustee has rendered other services in

23  connection with the administration of the trust, the trustee

24  shall also be allowed reasonable compensation for the other

25  services rendered in addition to reasonable compensation as

26  trustee.

27         736.0709  Reimbursement of expenses.--

28         (1)  A trustee is entitled to be reimbursed out of the

29  trust property, with interest as appropriate, for reasonable

30  expenses that were properly incurred in the administration of

31  the trust.


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 1         (2)  An advance by the trustee of money for the

 2  protection of the trust gives rise to a lien against trust

 3  property to secure reimbursement with reasonable interest.

 4         Section 8.  Part VIII of chapter 736, Florida Statutes,

 5  consisting of sections 736.0801, 736.0802, 736.0803, 736.0804,

 6  736.0805, 736.0806, 736.0807, 736.0808, 736.0809, 736.0810,

 7  736.08105, 736.0811, 736.0812, 736.08125, 736.0813, 736.08135,

 8  736.0814, 736.08147, 736.0815, 736.0816, 736.08163, 736.08165,

 9  and 736.0817, is created to read:

10                            PART VIII

11                   DUTIES AND POWERS OF TRUSTEE

12  

13         736.0801  Duty to administer trust.--Upon acceptance of

14  a trusteeship, the trustee shall administer the trust in good

15  faith, in accordance with its terms and purposes and the

16  interests of the beneficiaries, and in accordance with this

17  code.

18         736.0802  Duty of loyalty.--

19         (1)  As between a trustee and the beneficiaries, a

20  trustee shall administer the trust solely in the interests of

21  the beneficiaries.

22         (2)  Subject to the rights of persons dealing with or

23  assisting the trustee as provided in s. 736.1016, a sale,

24  encumbrance, or other transaction involving the investment or

25  management of trust property entered into by the trustee for

26  the trustee's own personal account or which is otherwise

27  affected by a conflict between the trustee's fiduciary and

28  personal interests is voidable by a beneficiary affected by

29  the transaction unless:

30         (a)  The transaction was authorized by the terms of the

31  trust;


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 1         (b)  The transaction was approved by the court;

 2         (c)  The beneficiary did not commence a judicial

 3  proceeding within the time allowed by s. 736.1008;

 4         (d)  The beneficiary consented to the trustee's

 5  conduct, ratified the transaction, or released the trustee in

 6  compliance with s. 736.1012;

 7         (e)  The transaction involves a contract entered into

 8  or claim acquired by the trustee when that person had not

 9  become or contemplated becoming trustee; or

10         (f)  The transaction was consented to in writing by a

11  settlor of the trust while the trust was revocable.

12         (3)  A sale, encumbrance, or other transaction

13  involving the investment or management of trust property is

14  presumed to be affected by a conflict between personal and

15  fiduciary interests if the sale, encumbrance, or other

16  transaction is entered into by the trustee with:

17         (a)  The trustee's spouse;

18         (b)  The trustee's descendants, siblings, parents, or

19  their spouses;

20         (c)  An officer, director, employee, agent, or attorney

21  of the trustee; or

22         (d)  A corporation or other person or enterprise in

23  which the trustee, or a person that owns a significant

24  interest in the trustee, has an interest that might affect the

25  trustee's best judgment.

26         (4)  A transaction not concerning trust property in

27  which the trustee engages in the trustee's individual capacity

28  involves a conflict between personal and fiduciary interests

29  if the transaction concerns an opportunity properly belonging

30  to the trust.

31  


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 1         (5)(a)  An investment by a trustee authorized by lawful

 2  authority to engage in trust business, as defined in s.

 3  658.12(20), in investment instruments, as defined in s.

 4  660.25(6), that are owned or controlled by the trustee or its

 5  affiliate, or from which the trustee or its affiliate receives

 6  compensation for providing services in a capacity other than

 7  as trustee, is not presumed to be affected by a conflict

 8  between personal and fiduciary interests provided the

 9  investment otherwise complies with chapters 518 and 660 and

10  the trustee complies with the disclosure requirements of this

11  subsection.

12         (b)  A trustee who invests trust funds in investment

13  instruments that are owned or controlled by the trustee or its

14  affiliate shall disclose the following to all qualified

15  beneficiaries:

16         1.  Notice that the trustee has invested trust funds in

17  investment instruments owned or controlled by the trustee or

18  its affiliate.

19         2.  The identity of the investment instruments.

20         3.  The identity and relationship to the trustee of any

21  affiliate that owns or controls the investment instruments.

22         (c)  A trustee who invests trust funds in investment

23  instruments with respect to which the trustee or its affiliate

24  receives compensation for providing services in a capacity

25  other than as trustee shall disclose to all qualified

26  beneficiaries, the nature of the services provided by the

27  trustee or its affiliate, and all compensation, including, but

28  not limited to, fees or commissions paid or to be paid by the

29  account and received or to be received by an affiliate arising

30  from such affiliated investment.

31  


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 1         (d)  Disclosure required by this subsection shall be

 2  made at least annually unless there has been no change in the

 3  method or increase in the rate at which such compensation is

 4  calculated since the most recent disclosure. The disclosure

 5  may be given in a trust disclosure document as defined in s.

 6  736.1008, in a copy of the prospectus for the investment

 7  instrument, in any other written disclosure prepared for the

 8  investment instrument under applicable federal or state law,

 9  or in a written summary that includes all compensation

10  received or to be received by the trustee and any affiliate of

11  the trustee and an explanation of the manner in which such

12  compensation is calculated, either as a percentage of the

13  assets invested or by some other method.

14         (e)  This subsection shall apply as follows:

15         1.  This subsection does not apply to qualified

16  investment instruments or to a trust for which a right of

17  revocation exists.

18         2.  For investment instruments other than qualified

19  investment instruments, paragraphs (a), (b), (c), and (d)

20  shall apply to irrevocable trusts created on or after July 1,

21  2007, which expressly authorize the trustee, by specific

22  reference to this subsection, to invest in investment

23  instruments owned or controlled by the trustee or its

24  affiliate.

25         3.  For investment instruments other than qualified

26  investment instruments, paragraphs (a), (b), (c), and (d)

27  shall apply to irrevocable trusts not described in

28  subparagraph 2. only as follows:

29         a.  Such paragraphs shall not apply until 60 days after

30  the statement required in paragraph (f) is provided and no

31  


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 1  objection is made or any objection which is made has been

 2  terminated.

 3         (I)  An objection is made if, within 60 days after the

 4  date of the statement required in paragraph (f), a super

 5  majority of the eligible beneficiaries deliver to the trustee

 6  written objections to the application of this subsection to

 7  such trust. An objection shall be deemed to be delivered to

 8  the trustee on the date the objection is mailed to the mailing

 9  address listed in the notice provided in paragraph (f).

10         (II)  An objection is terminated upon the earlier of

11  the receipt of consent from a super majority of eligible

12  beneficiaries of the class that made the objection or the

13  resolution of the objection pursuant to this subparagraph.

14         (III)  If an objection is delivered to the trustee, the

15  trustee may petition the court for an order overruling the

16  objection and authorizing the trustee to make investments

17  under this subsection. The burden shall be on the trustee to

18  show good cause for the relief sought.

19         (IV)  Any qualified beneficiary may petition the court

20  for an order to prohibit, limit, or restrict a trustee's

21  authority to make investments under this subsection. The

22  burden shall be upon the petitioning beneficiary to show good

23  cause for the relief sought.

24         (V)  The court may award costs and attorney's fees

25  relating to any petition under this subparagraph in the same

26  manner as in chancery actions. When costs and attorney's fees

27  are to be paid out of the trust, the court, in its discretion,

28  may direct from which part of the trust such costs and fees

29  shall be paid.

30         b.  The objection of a super majority of eligible

31  beneficiaries under this subparagraph may thereafter be


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 1  removed by the written consent of a super majority of the

 2  class or classes of those eligible beneficiaries that made the

 3  objection.

 4         (f)1.  Any time prior to initially investing in any

 5  investment instrument described in this subsection other than

 6  a qualified investment instrument, the trustee of a trust

 7  described in subparagraph (e)3. shall provide to all qualified

 8  beneficiaries a statement containing the following:

 9         a.  The name, telephone number, street address, and

10  mailing address of the trustee and of any individuals who may

11  be contacted for further information.

12         b.  A statement that, unless a super majority of the

13  eligible beneficiaries objects to the application of this

14  subsection to the trust within 60 days after the date the

15  statement pursuant to this subsection was delivered, this

16  subsection shall apply to the trust.

17         c.  A statement that, if this subsection applies to the

18  trust, the trustee will have the right to make investments in

19  investment instruments, as defined in s. 660.25(6), which are

20  owned or controlled by the trustee or its affiliate, or from

21  which the trustee or its affiliate receives compensation for

22  providing services in a capacity other than as trustee, and

23  that the trustee or its affiliate may receive fees in addition

24  to the trustee's compensation for administering the trust.

25  

26  A statement by the trustee is not delivered if the statement

27  is accompanied by another written communication other than a

28  written communication by the trustee that refers only to the

29  statement.

30         2.  For purposes of paragraph (e) and this paragraph:

31         a.  "Eligible beneficiaries" means:


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 1         (I)  If at the time the determination is made there are

 2  one or more beneficiaries as described in s. 736.0103(14)(c),

 3  the beneficiaries described in s. 736.0103(14)(a) and (c); or

 4         (II)  If there is no beneficiary described in s.

 5  736.0103(14)(c), the beneficiaries described in s.

 6  736.0103(14)(a) and (b).

 7         b.  "Super majority of the eligible beneficiaries"

 8  means:

 9         (I)  If at the time the determination is made there are

10  one or more beneficiaries as described in s. 736.0103(14)(c),

11  at least two-thirds in interest of the beneficiaries described

12  in s. 736.0103(14)(a) or two-thirds in interest of the

13  beneficiaries described in s. 736.0103(14)(c), if the

14  interests of the beneficiaries are reasonably ascertainable;

15  otherwise, two-thirds in number of either such class; or

16         (II)  If there is no beneficiary as described in s.

17  736.0103(14)(c), at least two-thirds in interest of the

18  beneficiaries described in s. 736.0103(14)(a) or two-thirds in

19  interest of the beneficiaries described in s. 736.0103(14)(b),

20  if the interests of the beneficiaries are reasonably

21  ascertainable; otherwise, two-thirds in number of either such

22  class.

23         c.  "Qualified investment instrument" means a mutual

24  fund, common trust fund, or money market fund described in and

25  governed by s. 736.0816(3).

26         d.  An irrevocable trust is created upon execution of

27  the trust instrument. If a trust that was revocable when

28  created thereafter becomes irrevocable, the irrevocable trust

29  is created when the right of revocation terminates.

30         (g)  Nothing in this chapter is intended to create or

31  imply a duty for the trustee to seek the application of this


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 1  subsection to invest in investment instruments described in

 2  paragraph (a), and no inference of impropriety may be made as

 3  a result of a trustee electing not to invest trust assets in

 4  investment instruments described in paragraph (a).

 5         (6)  In voting shares of stock or in exercising powers

 6  of control over similar interests in other forms of

 7  enterprise, the trustee shall act in the best interests of the

 8  beneficiaries. If the trust is the sole owner of a corporation

 9  or other form of enterprise, the trustee shall elect or

10  appoint directors or other managers who will manage the

11  corporation or enterprise in the best interests of the

12  beneficiaries.

13         (7)  This section does not preclude the following

14  transactions, if fair to the beneficiaries:

15         (a)  An agreement between a trustee and a beneficiary

16  relating to the appointment or compensation of the trustee;

17         (b)  A payment of reasonable compensation to the

18  trustee;

19         (c)  A transaction between a trust and another trust,

20  the decedent's estate, or a guardian of the property of which

21  the trustee is a fiduciary or in which a beneficiary has an

22  interest;

23         (d)  A deposit of trust money in a regulated

24  financial-service institution operated by the trustee; or

25         (e)  An advance by the trustee of money for the

26  protection of the trust.

27         (8)  This section does not preclude the employment of

28  persons, including, but not limited to, attorneys,

29  accountants, investment advisers, or agents, even if they are

30  the trustee, an affiliate of the trustee, or otherwise

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


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 1  in the exercise of any of the trustee's powers and to pay

 2  reasonable compensation and costs incurred in connection with

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

 4  independent investigation on their recommendations; and,

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

 6  perform any act of administration, whether or not

 7  discretionary.

 8         (9)  The court may appoint a special fiduciary to act

 9  with respect to any proposed transaction that might violate

10  this section if entered into by the trustee.

11         (10)  Payment of costs or attorney's fees incurred in

12  any trust proceeding from the assets of the trust may be made

13  by the trustee without the approval of any person and without

14  court authorization, except that court authorization shall be

15  required if an action has been filed or defense asserted

16  against the trustee based upon a breach of trust. Court

17  authorization is not required if the action or defense is

18  later withdrawn or dismissed by the party that is alleging a

19  breach of trust or resolved without a determination by the

20  court that the trustee has committed a breach of trust.

21         736.0803  Impartiality.--If a trust has two or more

22  beneficiaries, the trustee shall act impartially in

23  administering the trust property, giving due regard to the

24  beneficiaries' respective interests.

25         736.0804  Prudent administration.--A trustee shall

26  administer the trust as a prudent person would, by considering

27  the purposes, terms, distribution requirements, and other

28  circumstances of the trust. In satisfying this standard, the

29  trustee shall exercise reasonable care, skill, and caution.

30         736.0805  Expenses of administration.--In administering

31  a trust, the trustee shall only incur expenses that are


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 1  reasonable in relation to the trust property, the purposes of

 2  the trust, and the skills of the trustee.

 3         736.0806  Trustee's skills.--A trustee who has special

 4  skills or expertise, or is named trustee in reliance on the

 5  trustee's representation that the trustee has special skills

 6  or expertise, shall use those special skills or expertise.

 7         736.0807  Delegation by trustee.--

 8         (1)  A trustee may delegate duties and powers that a

 9  prudent trustee of comparable skills could properly delegate

10  under the circumstances. The trustee shall exercise reasonable

11  care, skill, and caution in:

12         (a)  Selecting an agent.

13         (b)  Establishing the scope and terms of the

14  delegation, consistent with the purposes and terms of the

15  trust.

16         (c)  Reviewing the agent's actions periodically, in

17  order to monitor the agent's performance and compliance with

18  the terms of the delegation.

19         (2)  In performing a delegated function, an agent owes

20  a duty to the trust to exercise reasonable care to comply with

21  the terms of the delegation.

22         (3)  A trustee who complies with subsection (1) is not

23  liable to the beneficiaries or to the trust for an action of

24  the agent to whom the function was delegated.

25         (4)  By accepting a delegation of powers or duties from

26  the trustee of a trust that is subject to the law of this

27  state, an agent submits to the jurisdiction of the courts of

28  this state.

29         736.0808  Powers to direct.--

30  

31  


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 1         (1)  Subject to ss. 736.0403(2) and 736.0602(3)(a), the

 2  trustee may follow a direction of the settlor that is contrary

 3  to the terms of the trust while a trust is revocable.

 4         (2)  If the terms of a trust confer on a person other

 5  than the settlor of a revocable trust, the power to direct

 6  certain actions of the trustee, the trustee shall act in

 7  accordance with an exercise of the power unless the attempted

 8  exercise is manifestly contrary to the terms of the trust or

 9  the trustee knows the attempted exercise would constitute a

10  serious breach of a fiduciary duty that the person holding the

11  power owes to the beneficiaries of the trust.

12         (3)  The terms of a trust may confer on a trustee or

13  other person a power to direct the modification or termination

14  of the trust.

15         (4)  A person, other than a beneficiary, who holds a

16  power to direct is presumptively a fiduciary who, as such, is

17  required to act in good faith with regard to the purposes of

18  the trust and the interests of the beneficiaries. The holder

19  of a power to direct is liable for any loss that results from

20  breach of a fiduciary duty.

21         736.0809  Control and protection of trust property.--A

22  trustee shall take reasonable steps to take control of and

23  protect the trust property.

24         736.0810  Recordkeeping and identification of trust

25  property.--

26         (1)  A trustee shall keep clear, distinct, and accurate

27  records of the administration of the trust.

28         (2)  A trustee shall keep trust property separate from

29  the trustee's own property.

30         (3)  Except as otherwise provided in subsection (4), a

31  trustee shall cause the trust property to be designated so


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 1  that the interest of the trust, to the extent feasible,

 2  appears in records maintained by a party other than a trustee

 3  or beneficiary.

 4         (4)  If the trustee maintains records clearly

 5  indicating the respective interests, a trustee may invest as a

 6  whole the property of two or more separate trusts.

 7         736.08105  Duty to ascertain marketable title of trust

 8  real property.--A trustee holding title to real property

 9  received from a settlor or estate shall not be required to

10  obtain title insurance or proof of marketable title until a

11  marketable title is required for a sale or conveyance of the

12  real property.

13         736.0811  Enforcement and defense of claims.--A trustee

14  shall take reasonable steps to enforce claims of the trust and

15  to defend claims against the trust.

16         736.0812  Collecting trust property.--A trustee shall

17  take reasonable steps to compel a former trustee or other

18  person to deliver trust property to the trustee and, except as

19  provided in s. 736.08125, to redress a breach of trust known

20  to the trustee to have been committed by a former trustee.

21         736.08125  Protection of successor trustees.--

22         (1)  A successor trustee is not personally liable for

23  actions taken by any prior trustee, nor does any successor

24  trustee have a duty to institute any proceeding against any

25  prior trustee, or file any claim against any prior trustee's

26  estate, for any of the prior trustee's actions as trustee

27  under any of the following circumstances:

28         (a)  As to a successor trustee who succeeds a trustee

29  who was also the settlor of a trust that was revocable during

30  the time that the settlor served as trustee;

31  


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 1         (b)  As to any beneficiary who has waived any

 2  accounting required by s. 736.0813, but only as to the periods

 3  included in the waiver;

 4         (c)  As to any beneficiary who has released the

 5  successor trustee from the duty to institute any proceeding or

 6  file any claim;

 7         (d)  As to any person who is not an eligible

 8  beneficiary; or

 9         (e)  As to any eligible beneficiary:

10         1.  If a supermajority of the eligible beneficiaries

11  have released the successor trustee;

12         2.  If the eligible beneficiary has not delivered a

13  written request to the successor trustee to institute an

14  action or file a claim against the prior trustee within 6

15  months after the date of the successor trustee's acceptance of

16  the trust, if the successor trustee has notified the eligible

17  beneficiary in writing of acceptance by the successor trustee

18  in accordance with 736.0813(1)(a) and that writing advises the

19  beneficiary that, unless the beneficiary delivers the written

20  request within 6 months after the date of acceptance, the

21  right to proceed against the successor trustee will be barred

22  pursuant to this section; or

23         3.  For any action or claim that the eligible

24  beneficiary is barred from bringing against the prior trustee.

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

26         (a)  "Eligible beneficiaries" means:

27         1.  At the time the determination is made, if there are

28  one or more beneficiaries as described in s. 736.0103(14)(c),

29  the beneficiaries described in s. 736.0103(14)(a) and (c); or

30  

31  


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 1         2.  If there is no beneficiary as described in s.

 2  736.0103(14)(c), the beneficiaries described in s.

 3  736.0103(14)(a) and (b).

 4         (b)  "Supermajority of eligible beneficiaries" means at

 5  least two-thirds in interest of the eligible beneficiaries if

 6  the interests of the eligible beneficiaries are reasonably

 7  ascertainable, otherwise, at least two-thirds in number of the

 8  eligible beneficiaries.

 9         (3)  Nothing in this section affects any liability of

10  the prior trustee or the right of the successor trustee or any

11  beneficiary to pursue an action or claim against the prior

12  trustee.

13         736.0813  Duty to inform and account.--The trustee

14  shall keep the qualified beneficiaries of the trust reasonably

15  informed of the trust and its administration.

16         (1)  The trustee's duty to inform and account includes,

17  but is not limited to, the following:

18         (a)  Within 60 days after acceptance of the trust, the

19  trustee shall give notice to the qualified beneficiaries of

20  the acceptance of the trust and the full name and address of

21  the trustee.

22         (b)  Within 60 days after the date the trustee acquires

23  knowledge of the creation of an irrevocable trust, or the date

24  the trustee acquires knowledge that a formerly revocable trust

25  has become irrevocable, whether by the death of the settlor or

26  otherwise, the trustee shall give notice to the qualified

27  beneficiaries of the trust's existence, the identity of the

28  settlor or settlors, the right to request a copy of the trust

29  instrument, and the right to accountings under this section.

30  

31  


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 1         (c)  Upon reasonable request, the trustee shall provide

 2  a qualified beneficiary with a complete copy of the trust

 3  instrument.

 4         (d)  A trustee of an irrevocable trust shall provide a

 5  trust accounting, as set forth in s. 736.08135, to each

 6  qualified beneficiary annually and on termination of the trust

 7  or on change of the trustee.

 8         (e)  Upon reasonable request, the trustee shall provide

 9  a qualified beneficiary with relevant information about the

10  assets and liabilities of the trust and the particulars

11  relating to administration.

12  

13  Paragraphs (a) and (b) do not apply to an irrevocable trust

14  created before the effective date of this code, or to a

15  revocable trust that becomes irrevocable before the effective

16  date of this code. Paragraph (a) does not apply to a trustee

17  who accepts a trusteeship before the effective date of this

18  code.

19         (2)  A qualified beneficiary may waive the trustee's

20  duty to account under paragraph (1)(d). A qualified

21  beneficiary may withdraw a waiver previously given. Waivers

22  and withdrawals of prior waivers under this subsection must be

23  in writing. Withdrawals of prior waivers are effective only

24  with respect to accountings for future periods.

25         (3)  The representation provisions of part III apply

26  with respect to all rights of a qualified beneficiary under

27  this section.

28         (4)  As provided in s. 736.0603(1), the trustee's

29  duties under this section extend only to the settlor while a

30  trust is revocable.

31  


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 1         (5)  This section applies to trust accountings rendered

 2  for accounting periods beginning on or after January 1, 2008.

 3         736.08135  Trust accountings.--

 4         (1)  A trust accounting must be a reasonably

 5  understandable report from the date of the last accounting or,

 6  if none, from the date on which the trustee became

 7  accountable, that adequately discloses the information

 8  required in subsection (2).

 9         (2)(a)  The accounting must begin with a statement

10  identifying the trust, the trustee furnishing the accounting,

11  and the time period covered by the accounting.

12         (b)  The accounting must show all cash and property

13  transactions and all significant transactions affecting

14  administration during the accounting period, including

15  compensation paid to the trustee and the trustee's agents.

16  Gains and losses realized during the accounting period and all

17  receipts and disbursements must be shown.

18         (c)  To the extent feasible, the accounting must

19  identify and value trust assets on hand at the close of the

20  accounting period. For each asset or class of assets

21  reasonably capable of valuation, the accounting shall contain

22  two values, the asset acquisition value or carrying value and

23  the estimated current value. The accounting must identify each

24  known noncontingent liability with an estimated current amount

25  of the liability if known.

26         (d)  To the extent feasible, the accounting must show

27  significant transactions that do not affect the amount for

28  which the trustee is accountable, including name changes in

29  investment holdings, adjustments to carrying value, a change

30  of custodial institutions, and stock splits.

31  


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 1         (e)  The accounting must reflect the allocation of

 2  receipts, disbursements, accruals, or allowances between

 3  income and principal when the allocation affects the interest

 4  of any beneficiary of the trust.

 5         (f)  The trustee shall include in the final accounting

 6  a plan of distribution for any undistributed assets shown on

 7  the final accounting.

 8         (3)  This section applies to all trust accountings

 9  rendered for any accounting periods beginning on or after

10  January 1, 2003.

11         736.0814  Discretionary powers; tax savings.--

12         (1)  Notwithstanding the breadth of discretion granted

13  to a trustee in the terms of the trust, including the use of

14  such terms as "absolute," "sole," or "uncontrolled," the

15  trustee shall exercise a discretionary power in good faith and

16  in accordance with the terms and purposes of the trust and the

17  interests of the beneficiaries. A court shall not determine

18  that a trustee abused its discretion merely because the court

19  would have exercised the discretion in a different manner or

20  would not have exercised the discretion.

21         (2)  Subject to subsection (3) and unless the terms of

22  the trust expressly indicate that a rule in this subsection

23  does not apply, a person who is a beneficiary and a trustee

24  may not:

25         (a)  Make discretionary distributions of either

26  principal or income to or for the benefit of that trustee,

27  except to provide for that trustee's health, education,

28  maintenance, or support as described under ss. 2041 and 2514

29  of the Internal Revenue Code;

30         (b)  Make discretionary allocations of receipts or

31  expenses as between principal and income, unless the trustee


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 1  acts in a fiduciary capacity whereby the trustee has no power

 2  to enlarge or shift any beneficial interest except as an

 3  incidental consequence of the discharge of the trustee's

 4  fiduciary duties;

 5         (c)  Make discretionary distributions of either

 6  principal or income to satisfy any of the trustee's legal

 7  support obligations; or

 8         (d)  Exercise any other power, including, but not

 9  limited to, the right to remove or to replace any trustee, so

10  as to cause the powers enumerated in paragraph (a), paragraph

11  (b), or paragraph (c) to be exercised on behalf of, or for the

12  benefit of, a beneficiary who is also a trustee.

13         (3)  Subsection (2) does not apply to:

14         (a)  A power held by the settlor of the trust;

15         (b)  A power held by the settlor's spouse who is the

16  trustee of a trust for which a marital deduction, as defined

17  in s. 2056(a) or s. 2523(a) of the Internal Revenue Code of

18  1986, as amended, was previously allowed;

19         (c)  Any trust during any period that the trust may be

20  revoked or amended by its settlor; or

21         (d)  A trust if contributions to the trust qualify for

22  the annual exclusion under s. 2503(c) of the Internal Revenue

23  Code of 1986, as amended.

24         (4)  A power whose exercise is limited or prohibited by

25  subsection (2) may be exercised by the remaining trustees

26  whose exercise of the power is not so limited or prohibited.

27  If there is no trustee qualified to exercise the power, on

28  petition by any qualified beneficiary, the court may appoint

29  an independent trustee with authority to exercise the power.

30         (5)  A person who has the right to remove or to replace

31  a trustee does not possess nor may that person be deemed to


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 1  possess, by virtue of having that right, the powers of the

 2  trustee that is subject to removal or to replacement.

 3         736.08147  Duty to distribute trust income.--If a will

 4  or trust instrument granting income to the settlor's or

 5  testator's spouse for life is silent as to the time of

 6  distribution of income and the frequency of distributions, the

 7  trustee shall distribute all net income, as defined in chapter

 8  738, to the spouse no less frequently than annually. This

 9  provision shall apply to any trust established before, on, or

10  after July 1, 2007, unless the trust instrument expressly

11  directs or permits net income to be distributed less

12  frequently than annually.

13         736.0815  General powers of trustee.--

14         (1)  A trustee, without authorization by the court,

15  may, except as limited or restricted by this code, exercise:

16         (a)  Powers conferred by the terms of the trust.

17         (b)  Except as limited by the terms of the trust:

18         1.  All powers over the trust property that an

19  unmarried competent owner has over individually owned

20  property.

21         2.  Any other powers appropriate to achieve the proper

22  investment, management, and distribution of the trust

23  property.

24         3.  Any other powers conferred by this code.

25         (2)  The exercise of a power is subject to the

26  fiduciary duties prescribed by this code.

27         736.0816  Specific powers of trustee.--Except as

28  limited or restricted by this code, a trustee may:

29         (1)  Collect trust property and accept or reject

30  additions to the trust property from a settlor, including an

31  asset in which the trustee is personally interested, and hold


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 1  property in the name of a nominee or in other form without

 2  disclosure of the trust so that title to the property may pass

 3  by delivery but the trustee is liable for any act of the

 4  nominee in connection with the property so held.

 5         (2)  Acquire or sell property, for cash or on credit,

 6  at public or private sale.

 7         (3)  Acquire an undivided interest in a trust asset,

 8  including, but not limited to, a money market mutual fund,

 9  mutual fund, or common trust fund, in which asset the trustee

10  holds an undivided interest in any trust capacity, including

11  any money market or other mutual fund from which the trustee

12  or any affiliate or associate of the trustee is entitled to

13  receive reasonable compensation for providing necessary

14  services as an investment adviser, portfolio manager, or

15  servicing agent. A trustee or affiliate or associate of the

16  trustee may receive compensation for such services in addition

17  to fees received for administering the trust provided such

18  compensation is fully disclosed in writing to all qualified

19  beneficiaries.

20         (4)  Exchange, partition, or otherwise change the

21  character of trust property.

22         (5)  Deposit trust money in an account in a regulated

23  financial-service institution.

24         (6)  Borrow money, with or without security, and

25  mortgage or pledge trust property for a period within or

26  extending beyond the duration of the trust and advance money

27  for the protection of the trust.

28         (7)  With respect to an interest in a proprietorship,

29  partnership, limited liability company, business trust,

30  corporation, or other form of business or enterprise, continue

31  the business or other enterprise and take any action that may


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 1  be taken by shareholders, members, or property owners,

 2  including, but not limited to, merging, dissolving, or

 3  otherwise changing the form of business organization or

 4  contributing additional capital.

 5         (8)  With respect to stocks or other securities,

 6  exercise the rights of an absolute owner, including, but not

 7  limited to, the right to:

 8         (a)  Vote, or give proxies to vote, with or without

 9  power of substitution, or enter into or continue a voting

10  trust agreement.

11         (b)  Hold a security in the name of a nominee or in

12  other form without disclosure of the trust so that title may

13  pass by delivery.

14         (c)  Pay calls, assessments, and other sums chargeable

15  or accruing against the securities, and sell or exercise stock

16  subscription or conversion rights.

17         (d)  Deposit the securities with a depositary or other

18  regulated financial-service institution.

19         (9)  With respect to an interest in real property,

20  construct, or make ordinary or extraordinary repairs to,

21  alterations to, or improvements in, buildings or other

22  structures, demolish improvements, raze existing or erect new

23  party walls or buildings, subdivide or develop land, dedicate

24  land to public use or grant public or private easements, and

25  make or vacate plats and adjust boundaries.

26         (10)  Enter into a lease for any purpose as lessor or

27  lessee, including a lease or other arrangement for exploration

28  and removal of natural resources, with or without the option

29  to purchase or renew, for a period within or extending beyond

30  the duration of the trust.

31  


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 1         (11)  Grant an option involving a sale, lease, or other

 2  disposition of trust property or acquire an option for the

 3  acquisition of property, including an option exercisable

 4  beyond the duration of the trust, and exercise an option so

 5  acquired.

 6         (12)  Insure the property of the trust against damage

 7  or loss and insure the trustee, trustee's agents, and

 8  beneficiaries against liability arising from the

 9  administration of the trust.

10         (13)  Abandon or decline to administer property of no

11  value or of insufficient value to justify the collection or

12  continued administration of such property.

13         (14)  Pay or contest any claim, settle a claim by or

14  against the trust, and release, in whole or in part, a claim

15  belonging to the trust.

16         (15)  Pay taxes, assessments, compensation of the

17  trustee and of employees and agents of the trust, and other

18  expenses incurred in the administration of the trust.

19         (16)  Allocate items of income or expense to trust

20  income or principal, as provided by law.

21         (17)  Exercise elections with respect to federal,

22  state, and local taxes.

23         (18)  Select a mode of payment under any employee

24  benefit or retirement plan, annuity, or life insurance payable

25  to the trustee, exercise rights under such plan, annuity, or

26  insurance, including exercise of the right to indemnification

27  for expenses and against liabilities, and take appropriate

28  action to collect the proceeds.

29         (19)  Make loans out of trust property, including, but

30  not limited to, loans to a beneficiary on terms and conditions

31  that are fair and reasonable under the circumstances, and the


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 1  trustee has a lien on future distributions for repayment of

 2  those loans.

 3         (20)  Employ persons, including, but not limited to,

 4  attorneys, accountants, investment advisers, or agents, even

 5  if they are the trustee, an affiliate of the trustee, or

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

 7  trustee in the exercise of any of the trustee's powers and pay

 8  reasonable compensation and costs incurred in connection with

 9  such employment from the assets of the trust and act without

10  independent investigation on the recommendations of such

11  persons.

12         (21)  Pay an amount distributable to a beneficiary who

13  is under a legal disability or who the trustee reasonably

14  believes is incapacitated, by paying the amount directly to

15  the beneficiary or applying the amount for the beneficiary's

16  benefit, or by:

17         (a)  Paying the amount to the beneficiary's guardian of

18  the property or, if the beneficiary does not have a guardian

19  of the property, the beneficiary's guardian of the person;

20         (b)  Paying the amount to the beneficiary's custodian

21  under a Uniform Transfers to Minors Act or custodial trustee

22  under a Uniform Custodial Trust Act, and, for that purpose,

23  creating a custodianship or custodial trust;

24         (c)  Paying the amount to an adult relative or other

25  person having legal or physical care or custody of the

26  beneficiary, to be expended on the beneficiary's behalf, if

27  the trustee does not know of a guardian of the property,

28  guardian of the person, custodian, or custodial trustee; or

29         (d)  Managing the amount as a separate fund on the

30  beneficiary's behalf, subject to the beneficiary's continuing

31  right to withdraw the distribution.


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 1         (22)  On distribution of trust property or the division

 2  or termination of a trust, make distributions in divided or

 3  undivided interests, allocate particular assets in

 4  proportionate or disproportionate shares, value the trust

 5  property for those purposes, and adjust for resulting

 6  differences in valuation.

 7         (23)  Prosecute or defend, including appeals, an

 8  action, claim, or judicial proceeding in any jurisdiction to

 9  protect trust property or the trustee in the performance of

10  the trustee's duties.

11         (24)  Sign and deliver contracts and other instruments

12  that are useful to achieve or facilitate the exercise of the

13  trustee's powers.

14         (25)  On termination of the trust, exercise the powers

15  appropriate to wind up the administration of the trust and

16  distribute the trust property to the persons entitled to the

17  property, subject to the right of the trustee to retain a

18  reasonable reserve for the payment of debts, expenses, and

19  taxes.

20         736.08163  Powers of trustees relating to environmental

21  or human health laws or to trust property contaminated with

22  hazardous or toxic substances; liability.--

23         (1)  From the creation of a trust until final

24  distribution of the assets from the trust, the trustee has,

25  without court authorization, the powers specified in

26  subsection (2).

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

28  a trustee has the power, acting reasonably, to:

29         (a)  Inspect or investigate, or cause to be inspected

30  or investigated, property held by the trustee, including

31  interests in sole proprietorships, partnerships, or


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 1  corporations and any assets owned by any such business entity

 2  for the purpose of determining compliance with an

 3  environmental law affecting that property or to respond to an

 4  actual or threatened violation of an environmental law

 5  affecting that property;

 6         (b)  Take, on behalf of the trust, any action necessary

 7  to prevent, abate, or otherwise remedy an actual or potential

 8  violation of an environmental law affecting property held by

 9  the trustee, before or after initiation of an enforcement

10  action by a governmental body;

11         (c)  Refuse to accept property in trust if the trustee

12  determines that any property to be donated or conveyed to the

13  trustee is contaminated with a hazardous substance or is being

14  used or has been used for an activity directly or indirectly

15  involving a hazardous substance, which circumstance could

16  result in liability to the trust or trustee or otherwise

17  impair the value of the assets to be held;

18         (d)  Settle or compromise at any time any claim against

19  the trust or trustee that may be asserted by a governmental

20  body or private party that involves the alleged violation of

21  an environmental law affecting property of any trust over

22  which the trustee has responsibility;

23         (e)  Disclaim any power granted by any document, law,

24  or rule of law that, in the sole judgment of the trustee, may

25  cause the trustee to incur personal liability, or the trust to

26  incur liability, under any environmental law;

27         (f)  Decline to serve as a trustee, or having

28  undertaken to serve as a trustee, resign at any time, if the

29  trustee believes there is or may be a conflict of interest in

30  its fiduciary capacity and in its individual capacity because

31  of potential claims or liabilities that may be asserted


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 1  against the trustee on behalf of the trust by reason of the

 2  type or condition of the assets held; or

 3         (g)  Charge against the income and principal of the

 4  trust the cost of any inspection, investigation, review,

 5  abatement, response, cleanup, or remedial action that this

 6  section authorizes the trustee to take and, if the trust

 7  terminates or closes or the trust property is transferred to

 8  another trustee, hold assets sufficient to cover the cost of

 9  cleaning up any known environmental problem.

10         (3)  A trustee is not personally liable to any

11  beneficiary or any other person for a decrease in value of

12  assets in a trust by reason of the trustee's compliance or

13  efforts to comply with an environmental law, specifically

14  including any reporting requirement under that law.

15         (4)  A trustee that acquires ownership or control of a

16  vessel or other property, without having owned, operated, or

17  materially participated in the management of that vessel or

18  property before assuming ownership or control as trustee, is

19  not considered an owner or operator for purposes of liability

20  under chapter 376, chapter 403, or any other environmental

21  law. A trustee that willfully, knowingly, or recklessly causes

22  or exacerbates a release or threatened release of a hazardous

23  substance is personally liable for the cost of the response,

24  to the extent that the release or threatened release is

25  attributable to the trustee's activities. This subsection does

26  not preclude the filing of claims against the assets that

27  constitute the trust held by the trustee or the filing of

28  actions against the trustee in its representative capacity and

29  in any such action, an award or judgment against the trustee

30  must be satisfied only from the assets of the trust.

31  


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 1         (5)  The acceptance by the trustee of the property or a

 2  failure by the trustee to inspect or investigate the property

 3  does not create any inference as to whether there is liability

 4  under an environmental law with respect to that property.

 5         (6)  For the purposes of this section, the term

 6  "hazardous substance" means a substance defined as hazardous

 7  or toxic, or any contaminant, pollutant, or constituent

 8  thereof, or otherwise regulated, by an environmental law.

 9         (7)  This section does not apply to any trust created

10  under a document executed before July 1, 1995, unless the

11  trust is amendable and the settlor amends the trust at any

12  time to incorporate the provisions of this section.

13         736.08165  Administration pending outcome of contest or

14  other proceeding.--

15         (1)  Pending the outcome of a proceeding filed to

16  determine the validity of all or part of a trust or the

17  beneficiaries of all or part of a trust, the trustee shall

18  proceed with the administration of the trust as if no

19  proceeding had been commenced, except no action may be taken

20  and no distribution may be made to a beneficiary in

21  contravention of the rights of those persons who may be

22  affected by the outcome of the proceeding.

23         (2)  Upon motion of a party and after notice to

24  interested persons, a court, on good cause shown, may make an

25  exception to the prohibition under subsection (1) and

26  authorize the trustee to act or to distribute trust assets to

27  a beneficiary subject to any conditions the court, in the

28  court's discretion, may impose, including the posting of bond

29  by the beneficiary.

30         736.0817  Distribution on termination.--Upon the

31  occurrence of an event terminating or partially terminating a


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 1  trust, the trustee shall proceed expeditiously to distribute

 2  the trust property to the persons entitled to the property,

 3  subject to the right of the trustee to retain a reasonable

 4  reserve for the payment of debts, expenses, and taxes. The

 5  provisions of this section are in addition to and are not in

 6  derogation of the rights of a trustee under the common law

 7  with respect to final distribution of a trust.

 8         Section 9.  Part IX of chapter 736, Florida Statutes,

 9  consisting of section 736.0901, is created to read:

10                             PART IX

11                        TRUST INVESTMENTS

12  

13         736.0901  Applicability of chapter 518.--A trustee

14  shall invest trust property in accordance with chapter 518.

15         Section 10.  Part X of chapter 736, Florida Statutes,

16  consisting of sections 736.1001, 736.1002, 736.1003, 736.1004,

17  736.1005, 736.1006, 736.1007, 736.1008, 736.1009, 736.1010,

18  736.1011, 736.1012, 736.1013, 736.1014, 736.1015, 736.1016,

19  736.1017, and 736.1018, is created to read:

20                              PART X

21  LIABILITY OF TRUSTEE AND RIGHTS OF PERSONS DEALING WITH TRUSTEE

22  

23         736.1001  Remedies for breach of trust.--

24         (1)  A violation by a trustee of a duty the trustee

25  owes to a beneficiary is a breach of trust.

26         (2)  To remedy a breach of trust that has occurred or

27  may occur, the court may:

28         (a)  Compel the trustee to perform the trustee's

29  duties;

30         (b)  Enjoin the trustee from committing a breach of

31  trust;


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 1         (c)  Compel the trustee to redress a breach of trust by

 2  paying money or restoring property or by other means;

 3         (d)  Order a trustee to account;

 4         (e)  Appoint a special fiduciary to take possession of

 5  the trust property and administer the trust;

 6         (f)  Suspend the trustee;

 7         (g)  Remove the trustee as provided in s. 736.706;

 8         (h)  Reduce or deny compensation to the trustee;

 9         (i)  Subject to s. 736.1016, void an act of the

10  trustee, impose a lien or a constructive trust on trust

11  property, or trace trust property wrongfully disposed of and

12  recover the property or its proceeds; or

13         (j)  Order any other appropriate relief.

14         (3)  As an illustration of the remedies available to

15  the court and without limiting the court's discretion as

16  provided in subsection (2), if a breach of trust results in

17  the favoring of any beneficiary to the detriment of any other

18  beneficiary or consists of an abuse of the trustee's

19  discretion:

20         (a)  To the extent the breach of trust has resulted in

21  no distribution to a beneficiary or a distribution that is too

22  small, the court may require the trustee to pay from the trust

23  to the beneficiary an amount the court determines will restore

24  the beneficiary, in whole or in part, to his or her

25  appropriate position.

26         (b)  To the extent the breach of trust has resulted in

27  a distribution to a beneficiary that is too large, the court

28  may restore the beneficiaries, the trust, or both, in whole or

29  in part, to their appropriate positions by requiring the

30  trustee to withhold an amount from one or more future

31  distributions to the beneficiary who received the distribution


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 1  that was too large or by requiring that beneficiary to return

 2  some or all of the distribution to the trust.

 3         736.1002  Damages for breach of trust.--

 4         (1)  A trustee who commits a breach of trust is liable

 5  for the greater of:

 6         (a)  The amount required to restore the value of the

 7  trust property and trust distributions to what they would have

 8  been if the breach had not occurred, including lost income,

 9  capital gain, or appreciation that would have resulted from

10  proper administration; or

11         (b)  The profit the trustee made by reason of the

12  breach.

13         (2)  Except as otherwise provided in this subsection,

14  if more than one person, including a trustee or trustees, is

15  liable to the beneficiaries for a breach of trust, each liable

16  person is entitled to pro rata contribution from the other

17  person or persons. A person is not entitled to contribution if

18  the person committed the breach of trust in bad faith. A

19  person who received a benefit from the breach of trust is not

20  entitled to contribution from another person to the extent of

21  the benefit received.

22         (3)  In determining the pro rata shares of liable

23  persons in the entire liability for a breach of trust:

24         (a)  Their relative degrees of fault shall be the basis

25  for allocation of liability.

26         (b)  If equity requires, the collective liability of

27  some as a group shall constitute a single share.

28         (c)  Principles of equity applicable to contribution

29  generally shall apply.

30         (4)  The right of contribution shall be enforced as

31  follows:


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 1         (a)  Contribution may be enforced by separate action,

 2  whether or not judgment has been entered in an action against

 3  two or more liable persons for the same breach of trust.

 4         (b)  When a judgment has been entered in an action

 5  against two or more liable persons for the same breach of

 6  trust, contribution may be enforced in that action by judgment

 7  in favor of one judgment defendant against any other judgment

 8  defendants by motion upon notice to all parties to the action.

 9         (c)  If there is a judgment for breach of trust against

10  the liable person seeking contribution, any separate action by

11  that person to enforce contribution must be commenced within 1

12  year after the judgment has become final by lapse of time for

13  appeal or after appellate review.

14         (d)  If there is no judgment for the breach of trust

15  against the liable person seeking contribution, the person's

16  right of contribution is barred unless the person has:

17         1.  Discharged by payment the common liability within

18  the period of the statute of limitations applicable to the

19  beneficiary's right of action against the liable person and

20  the person has commenced an action for contribution within 1

21  year after payment, or

22         2.  Agreed, while action is pending against the liable

23  person, to discharge the common liability and has within 1

24  year after the agreement paid the liability and commenced the

25  person's action for contribution.

26         (5)  The beneficiary's recovery of a judgment for

27  breach of trust against one liable person does not of itself

28  discharge other liable persons from liability for the breach

29  of trust unless the judgment is satisfied. The satisfaction of

30  the judgment does not impair any right of contribution.

31  


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 1         (6)  The judgment of the court in determining the

 2  liability of several defendants to the beneficiary for breach

 3  of trust is binding upon such defendants in determining the

 4  right of such defendants to contribution.

 5         (7)  Subsection (2) applies to all causes of action for

 6  breach of trust pending on July 1, 2007, under which causes of

 7  action the right of contribution among persons jointly and

 8  severally liable is involved and to all causes of action filed

 9  after July 1, 2007.

10         736.1003  Damages in absence of breach.--Absent a

11  breach of trust, a trustee is not liable to a beneficiary for

12  a loss or depreciation in the value of trust property or for

13  not having made a profit.

14         736.1004  Attorney's fees and costs.--

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

16  challenging the exercise of, or failure to exercise, a

17  trustee's powers; and

18         (b)  In proceedings arising under ss.

19  736.0410-736.0417,

20  

21  the court shall award taxable costs as in chancery actions,

22  including attorney fees and guardian ad litem fees.

23         (2)  When awarding taxable costs under this section,

24  including attorney fees and guardian ad litem fees, the court,

25  in its discretion, may direct payment from a party's interest,

26  if any, in the trust or enter a judgment that may be satisfied

27  from other property of the party, or both.

28         736.1005  Attorney's fees for services to the trust.--

29         (1)  Any attorney who has rendered services to a trust

30  may be awarded reasonable compensation from the trust. The

31  attorney may apply to the court for an order awarding


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 1  attorney's fees and, after notice and service on the trustee

 2  and all beneficiaries entitled to an accounting under s.

 3  736.0813, the court shall enter an order on the fee

 4  application.

 5         (2)  Whenever attorney's fees are to be paid out of the

 6  trust, the court, in its discretion, may direct from what part

 7  of the trust the fees shall be paid.

 8         (3)  Except when a trustee's interest may be adverse in

 9  a particular matter, the attorney shall give reasonable notice

10  in writing to the trustee of the attorney's retention by an

11  interested person and the attorney's entitlement to fees

12  pursuant to this section. A court may reduce any fee award for

13  services rendered by the attorney prior to the date of actual

14  notice to the trustee, if the actual notice date is later than

15  a date of reasonable notice. In exercising this discretion,

16  the court may exclude compensation for services rendered after

17  the reasonable notice date but prior to the date of actual

18  notice.

19         736.1006  Costs in trust proceedings.--

20         (1)  In all trust proceedings, costs may be awarded as

21  in chancery actions.

22         (2)  Whenever costs are to be paid out of the trust,

23  the court, in its discretion, may direct from what part of the

24  trust the costs shall be paid.

25         736.1007  Trustee's attorney's fees.--

26         (1)  If the trustee of a revocable trust retains an

27  attorney to render legal services in connection with the

28  initial administration of the trust, the attorney is entitled

29  to reasonable compensation for those legal services, payable

30  from the assets of the trust without court order. The trustee

31  and the attorney may agree to compensation that is determined


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 1  in a manner or amount other than the manner or amount provided

 2  in this section. The agreement is not binding on a person who

 3  bears the impact of the compensation unless that person is a

 4  party to or otherwise consents to be bound by the agreement.

 5  The agreement may provide that the trustee is not individually

 6  liable for the attorney's fees and costs.

 7         (2)  Unless otherwise agreed, compensation based on the

 8  value of the trust assets immediately following the settlor's

 9  death and the income earned by the trust during initial

10  administration at the rate of 75 percent of the schedule

11  provided in s. 733.6171(3)(a)-(h) is presumed to be reasonable

12  total compensation for ordinary services of all attorneys

13  employed generally to advise a trustee concerning the

14  trustee's duties in initial trust administration.

15         (3)  An attorney who is retained to render only limited

16  and specifically defined legal services shall be compensated

17  as provided in the retaining agreement. If the amount or

18  method of determining compensation is not provided in the

19  agreement, the attorney is entitled to a reasonable fee,

20  taking into account the factors set forth in subsection (6).

21         (4)  Ordinary services of the attorney in an initial

22  trust administration include legal advice and representation

23  concerning the trustee's duties relating to:

24         (a)  Review of the trust instrument and each amendment

25  for legal sufficiency and interpretation.

26         (b)  Implementation of substitution of the successor

27  trustee.

28         (c)  Persons who must or should be served with required

29  notices and the method and timing of such service.

30         (d)  The obligation of a successor to require a former

31  trustee to provide an accounting.


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 1         (e)  The trustee's duty to protect, insure, and manage

 2  trust assets and the trustee's liability relating to these

 3  duties.

 4         (f)  The trustee's duty regarding investments imposed

 5  by the prudent investor rule.

 6         (g)  The trustee's obligation to inform and account to

 7  beneficiaries and the method of satisfaction of such

 8  obligations, the liability of the trust and trustee to the

 9  settlor's creditors, and the advisability or necessity for

10  probate proceedings to bar creditors.

11         (h)  Contributions due to the personal representative

12  of the settlor's estate for payment of expenses of

13  administration and obligations of the settlor's estate.

14         (i)  Identifying tax returns required to be filed by

15  the trustee, the trustee's liability for payment of taxes, and

16  the due date of returns.

17         (j)  Filing a nontaxable affidavit, if not filed by a

18  personal representative.

19         (k)  Order of payment of expenses of administration of

20  the trust and order and priority of abatement of trust

21  distributions.

22         (l)  Distribution of income or principal to

23  beneficiaries or funding of further trusts provided in the

24  governing instrument.

25         (m)  Preparation of any legal documents required to

26  effect distribution.

27         (n)  Fiduciary duties, avoidance of self-dealing,

28  conflicts of interest, duty of impartiality, and obligations

29  to beneficiaries.

30         (o)  If there is a conflict of interest between a

31  trustee who is a beneficiary and other beneficiaries of the


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 1  trust, advice to the trustee on limitations of certain

 2  authority of the trustee regarding discretionary distributions

 3  or exercise of certain powers and alternatives for appointment

 4  of an independent trustee and appropriate procedures.

 5         (p)  Procedures for the trustee's discharge from

 6  liability for administration of the trust on termination or

 7  resignation.

 8         (5)  In addition to the attorney's fees for ordinary

 9  services, the attorney for the trustee shall be allowed

10  further reasonable compensation for any extraordinary service.

11  What constitutes an extraordinary service may vary depending

12  on many factors, including the size of the trust.

13  Extraordinary services may include, but are not limited to:

14         (a)  Involvement in a trust contest, trust

15  construction, a proceeding for determination of beneficiaries,

16  a contested claim, elective share proceedings, apportionment

17  of estate taxes, or other adversary proceedings or litigation

18  by or against the trust.

19         (b)  Representation of the trustee in an audit or any

20  proceeding for adjustment, determination, or collection of any

21  taxes.

22         (c)  Tax advice on postmortem tax planning, including,

23  but not limited to, disclaimer, renunciation of fiduciary

24  commission, alternate valuation date, allocation of

25  administrative expenses between tax returns, the QTIP or

26  reverse QTIP election, allocation of GST exemption,

27  qualification for Internal Revenue Code ss. 303 and 6166

28  privileges, deduction of last illness expenses, distribution

29  planning, asset basis considerations, throwback rules,

30  handling income or deductions in respect of a decedent,

31  valuation discounts, special use and other valuation, handling


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 1  employee benefit or retirement proceeds, prompt assessment

 2  request, or request for release from personal liability for

 3  payment of tax.

 4         (d)  Review of an estate tax return and preparation or

 5  review of other tax returns required to be filed by the

 6  trustee.

 7         (e)  Preparation of decedent's federal estate tax

 8  return. If this return is prepared by the attorney, a fee of

 9  one-half of 1 percent up to a value of $10 million and

10  one-fourth of 1 percent on the value in excess of $10 million,

11  of the gross estate as finally determined for federal estate

12  tax purposes, is presumed to be reasonable compensation for

13  the attorney for this service. These fees shall include

14  services for routine audit of the return, not beyond the

15  examining agent level, if required.

16         (f)  Purchase, sale, lease, or encumbrance of real

17  property by the trustee or involvement in zoning, land use,

18  environmental, or other similar matters.

19         (g)  Legal advice regarding carrying on of decedent's

20  business or conducting other commercial activity by the

21  trustee.

22         (h)  Legal advice regarding claims for damage to the

23  environment or related procedures.

24         (i)  Legal advice regarding homestead status of trust

25  real property or proceedings involving the status.

26         (j)  Involvement in fiduciary, employee, or attorney

27  compensation disputes.

28         (k)  Considerations of special valuation of trust

29  assets, including discounts for blockage, minority interests,

30  lack of marketability, and environmental liability.

31  


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 1         (6)  Upon petition of any interested person in a

 2  proceeding to review the compensation paid or to be paid to

 3  the attorney for the trustee, the court may increase or

 4  decrease the compensation for ordinary services of the

 5  attorney for the trustee or award compensation for

 6  extraordinary services if the facts and circumstances of the

 7  particular administration warrant. In determining reasonable

 8  compensation, the court shall consider all of the following

 9  factors giving such weight to each as the court may determine

10  to be appropriate:

11         (a)  The promptness, efficiency, and skill with which

12  the initial administration was handled by the attorney.

13         (b)  The responsibilities assumed by, and potential

14  liabilities of, the attorney.

15         (c)  The nature and value of the assets that are

16  affected by the decedent's death.

17         (d)  The benefits or detriments resulting to the trust

18  or the trust's beneficiaries from the attorney's services.

19         (e)  The complexity or simplicity of the administration

20  and the novelty of issues presented.

21         (f)  The attorney's participation in tax planning for

22  the estate, the trust, and the trust's beneficiaries and tax

23  return preparation or review and approval.

24         (g)  The nature of the trust assets, the expenses of

25  administration, and the claims payable by the trust and the

26  compensation paid to other professionals and fiduciaries.

27         (h)  Any delay in payment of the compensation after the

28  services were furnished.

29         (i)  Any other relevant factors.

30         (7)  The court may determine reasonable attorney's

31  compensation without receiving expert testimony. Any party may


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 1  offer expert testimony after notice to interested persons. If

 2  expert testimony is offered, an expert witness fee may be

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

 4  The court shall direct from what part of the trust the fee is

 5  to be paid.

 6         (8)  If a separate written agreement regarding

 7  compensation exists between the attorney and the settlor, the

 8  attorney shall furnish a copy to the trustee prior to

 9  commencement of employment and, if employed, shall promptly

10  file and serve a copy on all interested persons. A separate

11  agreement or a provision in the trust suggesting or directing

12  the trustee to retain a specific attorney does not obligate

13  the trustee to employ the attorney or obligate the attorney to

14  accept the representation but, if the attorney who is a party

15  to the agreement or who drafted the trust is employed, the

16  compensation paid shall not exceed the compensation provided

17  in the agreement.

18         (9)  Court proceedings to determine compensation, if

19  required, are a part of the trust administration process and

20  the costs, including fees for the trustee's attorney, shall be

21  determined by the court and paid from the assets of the trust

22  unless the court finds the attorney's fees request to be

23  substantially unreasonable. The court shall direct from what

24  part of the trust the fees are to be paid.

25         (10)  As used in this section, the term "initial trust

26  administration" means administration of a revocable trust

27  during the period that begins with the death of the settlor

28  and ends on the final distribution of trust assets outright or

29  to continuing trusts created under the trust agreement but, if

30  an estate tax return is required, not until after issuance of

31  an estate tax closing letter or other evidence of termination


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 1  of the estate tax proceeding. This initial period is not

 2  intended to include continued regular administration of the

 3  trust.

 4         736.1008  Limitations on proceedings against

 5  trustees.--

 6         (1)  Except as provided in subsection (2), all claims

 7  by a beneficiary against a trustee for breach of trust are

 8  barred as provided in chapter 95 as to:

 9         (a)  All matters adequately disclosed in a trust

10  disclosure document issued by the trustee, with the

11  limitations period beginning on the date of receipt of

12  adequate disclosure.

13         (b)  All matters not adequately disclosed in a trust

14  disclosure document if the trustee has issued a final trust

15  accounting and has given written notice to the beneficiary of

16  the availability of the trust records for examination and that

17  any claims with respect to matters not adequately disclosed

18  may be barred unless an action is commenced within the

19  applicable limitations period provided in chapter 95. The

20  limitations period begins on the date of receipt of the final

21  trust accounting and notice.

22         (2)  Unless sooner barred by adjudication, consent, or

23  limitations, a beneficiary is barred from bringing an action

24  against a trustee for breach of trust with respect to a matter

25  that was adequately disclosed in a trust disclosure document

26  unless a proceeding to assert the claim is commenced within 6

27  months after receipt from the trustee of the trust disclosure

28  document or a limitation notice that applies to that

29  disclosure document, whichever is received later.

30         (3)  When a trustee has not issued a final trust

31  accounting or has not given written notice to the beneficiary


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 1  of the availability of the trust records for examination and

 2  that claims with respect to matters not adequately disclosed

 3  may be barred, a claim against the trustee for breach of trust

 4  based on a matter not adequately disclosed in a trust

 5  disclosure document accrues when the beneficiary has actual

 6  knowledge of the trustee's repudiation of the trust or adverse

 7  possession of trust assets, and is barred as provided in

 8  chapter 95.

 9         (4)  As used in this section, the term:

10         (a)  "Trust disclosure document" means a trust

11  accounting or any other written report of the trustee. A trust

12  disclosure document adequately discloses a matter if the

13  document provides sufficient information so that a beneficiary

14  knows of a claim or reasonably should have inquired into the

15  existence of a claim with respect to that matter.

16         (b)  "Trust accounting" means an accounting that

17  adequately discloses the information required by and that

18  substantially complies with the standards set forth in s.

19  736.08135.

20         (c)  "Limitation notice" means a written statement of

21  the trustee that an action by a beneficiary against the

22  trustee for breach of trust based on any matter adequately

23  disclosed in a trust disclosure document may be barred unless

24  the action is commenced within 6 months after receipt of the

25  trust disclosure document or receipt of a limitation notice

26  that applies to that trust disclosure document, whichever is

27  later. A limitation notice may but is not required to be in

28  the following form: "An action for breach of trust based on

29  matters disclosed in a trust accounting or other written

30  report of the trustee may be subject to a 6-month statute of

31  limitations from the receipt of the trust accounting or other


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 1  written report. If you have questions, please consult your

 2  attorney."

 3         (5)  For purposes of this section, a limitation notice

 4  applies to a trust disclosure document when the limitation

 5  notice is:

 6         (a)  Contained as a part of the trust disclosure

 7  document or as a part of another trust disclosure document

 8  received within 1 year prior to the receipt of the latter

 9  trust disclosure document;

10         (b)  Accompanied concurrently by the trust disclosure

11  document or by another trust disclosure document that was

12  received within 1 year prior to the receipt of the latter

13  trust disclosure document;

14         (c)  Delivered separately within 10 days after the

15  delivery of the trust disclosure document or of another trust

16  disclosure document that was received within 1 year prior to

17  the receipt of the latter trust disclosure document. For

18  purposes of this paragraph, a limitation notice is not

19  delivered separately if the notice is accompanied by another

20  written communication, other than a written communication that

21  refers only to the limitation notice; or

22         (d)  Received more than 10 days after the delivery of

23  the trust disclosure document but only if the limitation

24  notice references that trust disclosure document and:

25         1.  Offers to provide to the beneficiary on request

26  another copy of that trust disclosure document if the document

27  was received by the beneficiary within 1 year prior to receipt

28  of the limitation notice; or

29         2.  Is accompanied by another copy of that trust

30  disclosure document if the trust disclosure document was

31  


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 1  received by the beneficiary 1 year or more prior to the

 2  receipt of the limitation notice.

 3         (6)  This section applies to trust accountings for

 4  accounting periods beginning on or after January 1, 2008, and

 5  to written reports, other than trust accountings, received by

 6  a beneficiary on or after January 1, 2008.

 7         736.1009  Reliance on trust instrument.--A trustee who

 8  acts in reasonable reliance on the terms of the trust as

 9  expressed in the trust instrument is not liable to a

10  beneficiary for a breach of trust to the extent the breach

11  resulted from the reliance.

12         736.1010  Event affecting administration or

13  distribution.--If the happening of an event, including

14  marriage, divorce, performance of educational requirements, or

15  death, affects the administration or distribution of a trust,

16  a trustee who has exercised reasonable care to ascertain the

17  happening of the event is not liable for a loss resulting from

18  the trustee's lack of knowledge.

19         736.1011  Exculpation of trustee.--

20         (1)  A term of a trust relieving a trustee of liability

21  for breach of trust is unenforceable to the extent that the

22  term:

23         (a)  Relieves the trustee of liability for breach of

24  trust committed in bad faith or with reckless indifference to

25  the purposes of the trust or the interests of the

26  beneficiaries; or

27         (b)  Was inserted into the trust instrument as the

28  result of an abuse by the trustee of a fiduciary or

29  confidential relationship with the settlor.

30         (2)  An exculpatory term drafted or caused to be

31  drafted by the trustee is invalid as an abuse of a fiduciary


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 1  or confidential relationship unless the trustee proves that

 2  the exculpatory term is fair under the circumstances and that

 3  the term's existence and contents were adequately communicated

 4  directly to the settlor.

 5         736.1012  Beneficiary's consent, release, or

 6  ratification.--A trustee is not liable to a beneficiary for

 7  breach of trust if the beneficiary consented to the conduct

 8  constituting the breach, released the trustee from liability

 9  for the breach, or ratified the transaction constituting the

10  breach, unless:

11         (1)  The consent, release, or ratification of the

12  beneficiary was induced by improper conduct of the trustee; or

13         (2)  At the time of the consent, release, or

14  ratification, the beneficiary did not know of the

15  beneficiary's rights or of the material facts relating to the

16  breach.

17         736.1013  Limitation on personal liability of

18  trustee.--

19         (1)  Except as otherwise provided in the contract, a

20  trustee is not personally liable on a contract properly

21  entered into in the trustee's fiduciary capacity in the course

22  of administering the trust if the trustee in the contract

23  disclosed the fiduciary capacity.

24         (2)  A trustee is personally liable for torts committed

25  in the course of administering a trust or for obligations

26  arising from ownership or control of trust property only if

27  the trustee is personally at fault.

28         (3)  A claim based on a contract entered into by a

29  trustee in the trustee's fiduciary capacity, on an obligation

30  arising from ownership or control of trust property, or on a

31  tort committed in the course of administering a trust may be


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 1  asserted in a judicial proceeding against the trustee in the

 2  trustee's fiduciary capacity, whether or not the trustee is

 3  personally liable for the claim.

 4         (4)  Issues of liability between the trust estate and

 5  the trustee individually may be determined in a proceeding for

 6  accounting, surcharge, or indemnification or in any other

 7  appropriate proceeding.

 8         736.1014  Limitations on actions against certain

 9  trusts.--

10         (1)  After the death of a settlor, no creditor of the

11  settlor may bring, maintain, or continue any direct action

12  against a trust described in s. 733.707(3), the trustee of the

13  trust, or any beneficiary of the trust that is dependent on

14  the individual liability of the settlor. Such claims and

15  causes of action against the settlor shall be presented and

16  enforced against the settlor's estate as provided in part VII

17  of chapter 733 and the personal representative of the

18  settlor's estate may obtain payment from the trustee of a

19  trust described in s. 733.707(3) as provided in ss.

20  733.607(2), 733.707(3), and 736.05053.

21         (2)  This section does not preclude a direct action

22  against a trust described in s. 733.707(3), the trustee of the

23  trust, or a beneficiary of the trust that is not dependent on

24  the individual liability of the settlor.

25         (3)  This section does not affect the lien of any duly

26  recorded mortgage or security interest or the lien of any

27  person in possession of personal property or the right to

28  foreclose and enforce the mortgage or lien.

29         736.1015  Interest as general partner.--

30         (1)  Unless personal liability is imposed in the

31  contract, a trustee who holds an interest as a general partner


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 1  in a general or limited partnership is not personally liable

 2  on a contract entered into by the partnership after the

 3  trust's acquisition of the interest if the fiduciary capacity

 4  was disclosed in the contract or in a statement previously

 5  filed pursuant to a Uniform Partnership Act or Uniform Limited

 6  Partnership Act.

 7         (2)  A trustee who holds an interest as a general

 8  partner is not personally liable for torts committed by the

 9  partnership or for obligations arising from ownership or

10  control of the interest unless the trustee is personally at

11  fault.

12         (3)  If the trustee of a revocable trust holds an

13  interest as a general partner, the settlor is personally

14  liable for contracts and other obligations of the partnership

15  as if the settlor were a general partner.

16         736.1016  Protection of person dealing with trustee.--

17         (1)  A person other than a beneficiary who in good

18  faith assists a trustee or who in good faith and for value

19  deals with a trustee, without knowledge that the trustee is

20  exceeding or improperly exercising the trustee's powers, is

21  protected from liability as if the trustee properly exercised

22  the power.

23         (2)  A person other than a beneficiary who in good

24  faith deals with a trustee is not required to inquire into the

25  extent of the trustee's powers or the propriety of their

26  exercise.

27         (3)  A person who in good faith delivers assets to a

28  trustee need not ensure their proper application.

29         (4)  A person other than a beneficiary who in good

30  faith assists a former trustee or who in good faith and for

31  value deals with a former trustee, without knowledge that the


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 1  trusteeship has terminated, is protected from liability as if

 2  the former trustee were still a trustee.

 3         (5)  Comparable protective provisions of other laws

 4  relating to commercial transactions or transfer of securities

 5  by fiduciaries prevail over the protection provided by this

 6  section.

 7         736.1017  Certification of trust.--

 8         (1)  Instead of furnishing a copy of the trust

 9  instrument to a person other than a beneficiary, the trustee

10  may furnish to the person a certification of trust containing

11  the following information:

12         (a)  The trust exists and the date the trust instrument

13  was executed.

14         (b)  The identity of the settlor.

15         (c)  The identity and address of the currently acting

16  trustee.

17         (d)  The powers of the trustee.

18         (e)  The revocability or irrevocability of the trust

19  and the identity of any person holding a power to revoke the

20  trust.

21         (f)  The authority of cotrustees to sign or otherwise

22  authenticate and whether all or less than all are required in

23  order to exercise powers of the trustee.

24         (g)  The manner of taking title to trust property.

25         (2)  A certification of trust may be signed or

26  otherwise authenticated by any trustee.

27         (3)  A certification of trust must state that the trust

28  has not been revoked, modified, or amended in any manner that

29  would cause the representations contained in the certification

30  of trust to be incorrect.

31  


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 1         (4)  A certification of trust need not contain the

 2  dispositive terms of a trust.

 3         (5)  A recipient of a certification of trust may

 4  require the trustee to furnish copies of any excerpts from the

 5  original trust instrument and later amendments that designate

 6  the trustee and confer upon the trustee the power to act in

 7  the pending transaction.

 8         (6)  A person who acts in reliance on a certification

 9  of trust without knowledge that the representations contained

10  in the certification are incorrect is not liable to any person

11  for so acting and may assume without inquiry the existence of

12  the facts contained in the certification. Knowledge of the

13  terms of the trust may not be inferred solely from the fact

14  that a copy of all or part of the trust instrument is held by

15  the person relying on the certification.

16         (7)  A person who in good faith enters into a

17  transaction in reliance on a certification of trust may

18  enforce the transaction against the trust property as if the

19  representations contained in the certification were correct.

20         (8)  This section does not limit the right of a person

21  to obtain a copy of the trust instrument when required to be

22  furnished by law or in a judicial proceeding concerning the

23  trust.

24         736.1018  Improper distribution or payment; liability

25  of distributee.--Any person who received a distribution or was

26  paid improperly from a trust shall return the assets or funds

27  received and the income from those assets or interest on the

28  funds from the date of distribution or payment unless the

29  distribution or payment cannot be questioned because of

30  adjudication, estoppel, or limitations. If the person does not

31  have the assets or funds, the value of the assets or funds at


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 1  the date of disposition, income from the assets or funds, and

 2  gain received by the person from the assets or funds shall be

 3  returned.

 4         Section 11.  Part XI of chapter 736, Florida Statutes,

 5  consisting of sections 736.1101, 736.1102, 736.1103, 736.1104,

 6  736.1105, 736.1106, 736.1107, and 736.1108, is created to

 7  read:

 8                             PART XI

 9                      RULES OF CONSTRUCTION

10  

11         736.1101  Rules of construction; general

12  provisions.--Except as provided in s. 736.0105(2):

13         (1)  The intent of the settlor as expressed in the

14  terms of the trust controls the legal effect of the

15  dispositions made in the trust.

16         (2)  The rules of construction as expressed in this

17  part shall apply unless a contrary intent is indicated by the

18  terms of the trust.

19         736.1102  Construction of generic terms.--Adopted

20  persons and persons born out of wedlock are included in class

21  gift terminology and terms of relationship, in accordance with

22  rules for determining relationships for purposes of intestate

23  succession.

24         736.1103  Gifts to multi-generation classes to be per

25  stirpes.--Class gifts to descendants, issue, and other

26  multi-generation classes shall be per stirpes.

27         736.1104  Killer not entitled to receive property or

28  other benefits by reason of victim's death.--

29         (1)  A beneficiary of a trust who unlawfully and

30  intentionally kills or unlawfully and intentionally

31  participates in procuring the death of the settlor or another


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 1  person on whose death such beneficiary's interest depends, is

 2  not entitled to any trust interest, including homestead,

 3  dependent on the victim's death and such interest shall

 4  devolve as though the killer had predeceased the victim.

 5         (2)  A final judgment of conviction of murder in any

 6  degree is conclusive for the purposes of this section. In the

 7  absence of a murder conviction in any degree, the court may

 8  determine by the greater weight of the evidence whether the

 9  killing was unlawful and intentional for purposes of this

10  section.

11         736.1105  Dissolution of marriage; effect on revocable

12  trust.--Unless the trust instrument or the judgment for

13  dissolution of marriage or divorce expressly provides

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

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

16  a judgment for dissolution of marriage or divorce of the

17  settlor from the settlor's spouse, any provision of the trust

18  that affects the settlor's spouse will become void upon

19  annulment of the marriage or entry of the judgment of

20  dissolution of marriage or divorce and any such trust shall be

21  administered and construed as if the settlor's spouse had died

22  on the date of the annulment or on entry of the judgment for

23  dissolution of marriage or divorce.

24         736.1106  Antilapse; survivorship with respect to

25  future interests under terms of inter vivos and testamentary

26  trusts; substitute takers.--

27         (1)  As used in this section, the term:

28         (a)  "Beneficiary" means the beneficiary of a future

29  interest and includes a class member if the future interest is

30  in the form of a class gift.

31  


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 1         (b)  "Distribution date," with respect to a future

 2  interest, means the time when the future interest is to take

 3  effect in possession or enjoyment. The distribution date need

 4  not occur at the beginning or end of a calendar day, but can

 5  occur at a time during the course of a day.

 6         (c)  "Future interest" includes an alternative future

 7  interest and a future interest in the form of a class gift.

 8         (d)  "Future interest under the terms of a trust" means

 9  a future interest created by an inter vivos or testamentary

10  transfer to an existing trust or creating a trust or by an

11  exercise of a power of appointment to an existing trust

12  directing the continuance of an existing trust, designating a

13  beneficiary of an existing trust, or creating a trust.

14         (e)  "Surviving beneficiary" or "surviving descendant"

15  means a beneficiary or a descendant who did not predecease the

16  distribution date or is not deemed to have predeceased the

17  distribution date by operation of law.

18         (2)  A future interest under the terms of a trust is

19  contingent upon the beneficiary surviving the distribution

20  date. Unless a contrary intent appears in the trust

21  instrument, if a beneficiary of a future interest under the

22  terms of a trust fails to survive the distribution date, and

23  the deceased beneficiary leaves surviving descendants, a

24  substitute gift is created in the beneficiary's surviving

25  descendants. They take per stirpes the property to which the

26  beneficiary would have been entitled if the beneficiary had

27  survived the distribution date.

28         (3)  In the application of this section:

29         (a)  Words of survivorship attached to a future

30  interest are a sufficient indication of an intent contrary to

31  the application of this section.


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 1         (b)  A residuary clause in a will is not a sufficient

 2  indication of an intent contrary to the application of this

 3  section, whether or not the will specifically provides that

 4  lapsed or failed devises are to pass under the residuary

 5  clause.

 6         (4)  If, after the application of subsections (2) and

 7  (3), there is no surviving taker, the property passes in the

 8  following order:

 9         (a)  If the future interest was created by the exercise

10  of a power of appointment, the property passes under the

11  donor's gift-in-default clause, if any, which clause is

12  treated as creating a future interest under the terms of a

13  trust.

14         (b)  If no taker is produced by the application of

15  paragraph (a) and the trust was created in a nonresiduary

16  devise or appointment in the transferor's will, the property

17  passes under the residuary clause in the transferor's will.

18  For purposes of this section, the residuary clause is treated

19  as creating a future interest under the terms of a trust.

20         (c)  If no taker is produced by the application of

21  paragraph (a) or paragraph (b), the property passes to those

22  persons, including the state, and in such shares as would

23  succeed to the transferor's intestate estate under the

24  intestate succession law of the transferor's domicile if the

25  transferor died when the disposition is to take effect in

26  possession or enjoyment.

27  

28  For purposes of paragraphs (b) and (c), the term "transferor"

29  with respect to a future interest created by the exercise of a

30  power of appointment, means the donor if the power was a

31  


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 1  nongeneral power and the donee if the power was a general

 2  power.

 3         (5)  This section applies to all trusts other than

 4  trusts that were irrevocable before the effective date of this

 5  code.

 6         736.1107  Change in securities; accessions;

 7  nonademption.--A gift of specific securities, rather than

 8  their equivalent value, entitles the beneficiary only to:

 9         (1)  As much of the gifted securities of the same

10  issuer held by the trust estate at the time of the occurrence

11  of the event entitling the beneficiary to distribution.

12         (2)  Any additional or other securities of the same

13  issuer held by the trust estate because of action initiated by

14  the issuer, excluding any acquired by exercise of purchase

15  options.

16         (3)  Securities of another issuer held by the trust

17  estate as a result of a merger, consolidation, reorganization,

18  or other similar action initiated by the original issuer.

19         736.1108  Penalty clause for contest.--

20         (1)  A provision in a trust instrument purporting to

21  penalize any interested person for contesting the trust

22  instrument or instituting other proceedings relating to a

23  trust estate or trust assets is unenforceable.

24         (2)  This section applies to trusts created on or after

25  October 1, 1993. For purposes of this subsection, a revocable

26  trust shall be treated as created when the right of revocation

27  terminates.

28         Section 12.  Part XII of chapter 736, Florida Statutes,

29  consisting of sections 736.1201, 736.1202, 736.1203, 736.1204,

30  736.1205, 736.1206, 736.1207, 736.1208, 736.1209, and

31  736.1210, is created to read:


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 1                             PART XII

 2                        CHARITABLE TRUSTS

 3  

 4         736.1201  Definitions.--As used in this part:

 5         (1)  "Charitable organization" means an organization

 6  described in s. 501(c)(3) of the Internal Revenue Code and

 7  exempt from tax under s. 501(a) of the Internal Revenue Code.

 8         (2)  "Internal Revenue Code" means the Internal Revenue

 9  Code of 1986, as amended.

10         (3)  "Private foundation trust" means a trust,

11  including a trust described in s. 4947(a)(1) of the Internal

12  Revenue Code, as defined in s. 509(a) of the Internal Revenue

13  Code.

14         (4)  "Split interest trust" means a trust for

15  individual and charitable beneficiaries that is subject to the

16  provisions of s. 4947(a)(2) of the Internal Revenue Code.

17         (5)  "State attorney" means the state attorney for the

18  judicial circuit of the principal place of administration of

19  the trust pursuant to s. 736.0108.

20         736.1202  Application of this part.--Except as

21  otherwise provided in the trust, the provisions of this part

22  apply to all private foundation trusts and split interest

23  trusts, whether created or established before or after

24  November 1, 1971, and to all trust assets acquired by the

25  trustee before or after November 1, 1971.

26         736.1203  Trustee of a private foundation trust or a

27  split interest trust.--Except as provided in s. 736.1205, the

28  trustee of a private foundation trust or a split interest

29  trust has the duties and powers conferred on the trustee by

30  this part.

31  


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 1         736.1204  Powers and duties of trustee of a private

 2  foundation trust or a split interest trust.--

 3         (1)  In the exercise of a trustee's powers, including

 4  the powers granted by this part, a trustee has a duty to act

 5  with due regard to the trustee's obligation as a fiduciary,

 6  including a duty not to exercise any power in such a way as

 7  to:

 8         (a)  Deprive the trust of an otherwise available tax

 9  exemption, deduction, or credit for tax purposes;

10         (b)  Deprive a donor of a trust asset or tax deduction

11  or credit; or

12         (c)  Operate to impose a tax on a donor, trust, or

13  other person.

14  

15  For purposes of this subsection, the term "tax" includes, but

16  is not limited to, any federal, state, or local excise,

17  income, gift, estate, or inheritance tax.

18         (2)  Except as provided in s. 736.1205, a trustee of a

19  private foundation trust shall make distributions at such time

20  and in such manner as not to subject the trust to tax under s.

21  4942 of the Internal Revenue Code.

22         (3)  Except as provided in subsection (4) and in s.

23  736.1205, a trustee of a private foundation trust, or a split

24  interest trust to the extent that the split interest trust is

25  subject to the provisions of s. 4947(a)(2) of the Internal

26  Revenue Code, in the exercise of the trustee's powers shall

27  not:

28         (a)  Engage in any act of self-dealing as defined in s.

29  4941(d) of the Internal Revenue Code;

30         (b)  Retain any excess business holdings as defined in

31  s. 4943(c) of the Internal Revenue Code;


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 1         (c)  Make any investments in a manner that subjects the

 2  foundation to tax under s. 4944 of the Internal Revenue Code;

 3  or

 4         (d)  Make any taxable expenditures as defined in s.

 5  4945(d) of the Internal Revenue Code.

 6         (4)  Paragraphs (3)(b) and (c) shall not apply to a

 7  split interest trust if:

 8         (a)  All the interest from income, and none of the

 9  remainder interest, of the trust is devoted solely to one or

10  more of the purposes described in s. 170(c)(2)(B) of the

11  Internal Revenue Code, and all amounts in the trust for which

12  a deduction was allowed under s. 170, s. 545(b)(2), s.

13  556(b)(2), s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of

14  the Internal Revenue Code have an aggregate fair market value

15  of not more than 60 percent of the aggregate fair market value

16  of all amounts in the trust; or

17         (b)  A deduction was allowed under s. 170, s.

18  545(b)(2), s. 556(b)(2), s. 642(c), s. 2055, s. 2106(a)(2), or

19  s. 2522 of the Internal Revenue Code for amounts payable under

20  the terms of the trust to every remainder beneficiary but not

21  to any income beneficiary.

22         736.1205  Notice that this part does not apply.--In the

23  case of a power to make distributions, if the trustee

24  determines that the governing instrument contains provisions

25  that are more restrictive than s. 736.1204(2), or if the trust

26  contains other powers, inconsistent with the provisions of s.

27  736.1204(3) that specifically direct acts by the trustee, the

28  trustee shall notify the state attorney when the trust becomes

29  subject to this part. Section 736.1204 does not apply to any

30  trust for which notice has been given pursuant to this section

31  


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 1  unless the trust is amended to comply with the terms of this

 2  part.

 3         736.1206  Power to amend trust instrument.--

 4         (1)  In the case of a trust that is solely for a named

 5  charitable organization or organizations and for which the

 6  trustee does not possess any discretion concerning the

 7  distribution of income or principal among two or more such

 8  organizations, the trustee may amend the governing instrument

 9  to comply with the provisions of s. 736.1204(2) with the

10  consent of the named charitable organization or organizations.

11         (2)  In the case of a charitable trust that is not

12  subject to the provisions of subsection (1), the trustee may

13  amend the governing instrument to comply with the provisions

14  of s. 736.1204(2) with the consent of the state attorney.

15         736.1207  Power of court to permit deviation.--This

16  part does not affect the power of a court to relieve a trustee

17  from any restrictions on the powers and duties that are placed

18  on the trustee by the governing instrument or applicable law

19  for cause shown and on complaint of the trustee, state

20  attorney, or an affected beneficiary and notice to the

21  affected parties.

22         736.1208  Release; property and persons affected;

23  manner of effecting.--

24         (1)  The trustee of a trust, all of the unexpired

25  interests in which are devoted to one or more charitable

26  purposes, may release a power to select charitable donees

27  unless the creating instrument provides otherwise.

28         (2)  The release of a power to select charitable donees

29  may apply to all or any part of the property subject to the

30  power and may reduce or limit the charitable organizations, or

31  


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 1  classes of charitable organizations, in whose favor the power

 2  is exercisable.

 3         (3)  A release shall be effected by a duly acknowledged

 4  written instrument signed by the trustee and delivered as

 5  provided in subsection (4).

 6         (4)  Delivery of a release shall be accomplished as

 7  follows:

 8         (a)  If the release is accomplished by specifying a

 9  charitable organization or organizations as beneficiary or

10  beneficiaries of the trust, by delivery of a copy of the

11  release to each designated charitable organization.

12         (b)  If the release is accomplished by reducing the

13  class of permissible charitable organizations, by delivery of

14  a copy of the release to the state attorney.

15         (5)  If a release is accomplished by specifying a

16  public charitable organization or organizations as beneficiary

17  or beneficiaries of the trust, the trust at all times

18  thereafter shall be operated exclusively for the benefit of,

19  and be supervised by, the specified public charitable

20  organization or organizations.

21         736.1209  Election to come under this part.--With the

22  consent of that organization or organizations, a trustee of a

23  trust for the benefit of a public charitable organization or

24  organizations may come under s. 736.0838(5) by filing with the

25  state attorney an election, accompanied by the proof of

26  required consent. Thereafter the trust shall be subject to s.

27  736.1208(5).

28         736.1210  Interpretation.--This part shall be

29  interpreted to effectuate the intent of the state to preserve,

30  foster, and encourage gifts to, or for the benefit of,

31  charitable organizations.


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 1         Section 13.  Part XIII of chapter 736, Florida

 2  Statutes, consisting of sections 736.1301, 736.1302, and

 3  736.1303, is created to read:

 4                            PART XIII

 5                          MISCELLANEOUS

 6  

 7         736.1301  Electronic records and signatures.--Any

 8  provisions of this code governing the legal effect, validity,

 9  or enforceability of electronic records or electronic

10  signatures, and of contracts formed or performed with the use

11  of such records or signatures, are deemed to conform to the

12  requirements of s. 102 of the Electronic Signatures in Global

13  and National Commerce Act, 15 U.S.C. s. 7002, and supersede,

14  modify, and limit the requirements of the Electronic

15  Signatures in Global and National Commerce Act.

16         736.1302  Severability clause.--If any provision of

17  this code or its application to any person or circumstances is

18  held invalid, the invalidity does not affect other provisions

19  or applications of this code that can be given effect without

20  the invalid provision or application, and to this end the

21  provisions of this code are severable.

22         736.1303  Application to existing relationships.--

23         (1)  Except as otherwise provided in this code, on July

24  1, 2007:

25         (a)  This code applies to all trusts created before,

26  on, or after such date.

27         (b)  This code applies to all judicial proceedings

28  concerning trusts commenced on or after such date.

29         (c)  This code applies to judicial proceedings

30  concerning trusts commenced before such date, unless the court

31  finds that application of a particular provision of this code


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 1  would substantially interfere with the effective conduct of

 2  the judicial proceedings or prejudice the rights of the

 3  parties, in which case the particular provision of this code

 4  does not apply and the superseded law applies.

 5         (d)  Any rule of construction or presumption provided

 6  in this code applies to trust instruments executed before the

 7  effective date of this code unless there is a clear indication

 8  of a contrary intent in the terms of the trust.

 9         (e)  An act done before such date is not affected by

10  this code.

11         (2)  If a right is acquired, extinguished, or barred on

12  the expiration of a prescribed period that has commenced to

13  run under any other law before July 1, 2007, that law

14  continues to apply to the right even if it has been repealed

15  or superseded.

16         Section 14.  Paragraph (a) of subsection (5) of section

17  497.458, Florida Statutes, is amended to read:

18         497.458  Disposition of proceeds received on

19  contracts.--

20         (5)  The trustee of the trust established pursuant to

21  this section shall only have the power to:

22         (a)  Invest in investments as prescribed in s. 215.47

23  and exercise the powers set forth in part VIII of chapter 736

24  part IV of chapter 737, provided that the licensing authority

25  may by order require the trustee to liquidate or dispose of

26  any investment within 30 days after such order, or within such

27  other times as the order may direct. The licensing authority

28  may issue such order if it determines that the investment

29  violates any provision of this chapter or is not in the best

30  interests of the preneed contract holders whose contracts are

31  secured by the trust funds.


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 1         Section 15.  Section 518.117, Florida Statutes, is

 2  created to read:

 3         518.117  Permissible investments of fiduciary funds.--A

 4  fiduciary that is authorized by lawful authority to engage in

 5  trust business as defined in s. 658.12(20) may invest

 6  fiduciary funds in accordance with s. 660.417 so long as the

 7  investment otherwise complies with this chapter.

 8         Section 16.  Subsection (2) of section 607.0802,

 9  Florida Statutes, is amended to read:

10         607.0802  Qualifications of directors.--

11         (2)  In the event that the eligibility to serve as a

12  member of the board of directors of a condominium association,

13  cooperative association, homeowners' association, or mobile

14  home owners' association is restricted to membership in such

15  association and membership is appurtenant to ownership of a

16  unit, parcel, or mobile home, a grantor of a trust described

17  in s. 733.707(3), or a qualified beneficiary as defined in s.

18  736.0103(14) 737.303(4)(b) of a trust which owns a unit,

19  parcel, or mobile home shall be deemed a member of the

20  association and eligible to serve as a director of the

21  condominium association, cooperative association, homeowners'

22  association, or mobile home owners' association, provided that

23  said beneficiary occupies the unit, parcel, or mobile home.

24         Section 17.  Subsection (6) of section 660.25, Florida

25  Statutes, renumbered as subsection (7) and amended, and a new

26  subsection (6) is added to that section, to read:

27         660.25  Definitions.--Subject to other definitions

28  contained in other sections of this code, and unless the

29  context otherwise requires, in this chapter:

30         (6)  "Investment instrument" means any security as

31  defined in s. 2(a)(1) of the Securities Act of 1933; any


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 1  security of an open-end or closed-end management investment

 2  company or investment trust registered under the Investment

 3  Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended;

 4  any contract of sale of a commodity for future delivery within

 5  the meaning of s. 2(i) of the Commodity Exchange Act; or any

 6  other interest in securities, including, but not limited to,

 7  shares or interests in a private investment fund, including,

 8  but not limited to, a private investment fund organized as a

 9  limited partnership, a limited liability company, a statutory

10  or common law business trust, a statutory trust, or a real

11  estate investment trust, a joint venture, or any other general

12  or limited partnership; derivatives or other interests of any

13  nature in securities such as options, options on futures, and

14  variable forward contracts; mutual funds; common trust funds;

15  money market funds; hedge funds; private equity or venture

16  capital funds; insurance contracts; and other entities or

17  vehicles investing in securities or interests in securities

18  whether registered or otherwise.

19         (7)(6)  Terms used but not defined in this chapter, but

20  which are expressly defined in chapter 518, the financial

21  institutions codes, chapter 732, chapter 733, chapter 734,

22  chapter 735, chapter 736 737, chapter 738, chapter 744, or

23  chapter 747, shall in this chapter, unless the context

24  otherwise requires, have the meanings ascribed to them in said

25  chapters; and references in any of said chapters to a "trust

26  company" or to "trust companies" shall include every trust

27  department as defined in s. 658.12.

28         Section 18.  Section 660.417, Florida Statutes, is

29  amended to read:

30  

31  


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 1         660.417  Investment of fiduciary funds in investment

 2  instruments into mutual fund accounts; permissible activity

 3  under certain circumstances; limitations.--

 4         (1)  In addition to other investments authorized by law

 5  for the investment of funds held by a fiduciary, or by the

 6  instrument governing the fiduciary relationship, and

 7  notwithstanding any other provision of law, a bank or trust

 8  company acting as a fiduciary, agent or otherwise may, in the

 9  exercise of its investment discretion or at the direction of

10  another person authorized to direct investment of funds held

11  by the bank or trust company as fiduciary, invest and reinvest

12  in investment instruments the securities of an open-end or

13  closed-end management investment company or investment trust

14  registered under the Investment Company Act of 1940, 15 U.S.C.

15  ss. 80a-1 et seq., as amended, so long as the portfolio of

16  such investment instruments consist company or investment

17  trust consists substantially of investments not prohibited by

18  the governing instrument.

19         (2)  The fact that such bank or trust company or an

20  affiliate of the bank or trust company provides services with

21  respect to the investment instruments company or investment

22  trust such as that of an investment adviser, administrator,

23  broker, custodian, transfer agent, placement agent, servicing

24  agent, registrar, underwriter, sponsor, distributor, or

25  manager or in any other capacity, otherwise and is receiving

26  reasonable compensation for those services, shall not preclude

27  such bank or trust company from investing or reinvesting in

28  investment instruments the securities of the open-end or

29  closed-end management investment trust registered under the

30  Investment Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq.,

31  as amended. However, with respect to any funds so invested,


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 1  the basis (expressed as a percentage of asset value or

 2  otherwise) upon which such compensation is calculated shall be

 3  disclosed (by prospectus, account statement or otherwise) to

 4  all persons to whom statements of such account are rendered.

 5         (3)  The fact that such bank or trust company or an

 6  affiliate of the bank or trust company owns or controls

 7  investment instruments shall not preclude the bank or trust

 8  company acting as a fiduciary from investing or reinvesting in

 9  such investment instruments, provided such investment

10  instruments:

11         (a)  Are held for sale by the bank or trust company or

12  by an affiliate of the bank or trust company in the ordinary

13  course of its business of providing investment services to its

14  customers and do not include any such interests held by the

15  bank or trust company or by an affiliate of the bank or trust

16  company for its own account.

17         (b)  Are sold primarily to accounts for which the bank

18  or trust company is not acting as a fiduciary upon terms that

19  are not more favorable to the buyer than the terms upon which

20  they are sold to accounts for which the bank or trust company

21  is acting as a fiduciary.

22         Section 19.  Paragraphs (a), (d), and (e) of subsection

23  (1) and subsections (2), (3), (9), and (10) of section 660.46,

24  Florida Statutes, are amended to read:

25         660.46  Substitution of fiduciaries.--

26         (1)  The provisions of this section shall apply to the

27  transfer of fiduciary accounts by substitution, and for those

28  purposes these provisions shall constitute alternative

29  procedures to those provided or required by any other

30  provisions of law relating to the transfer of fiduciary

31  accounts or the substitution of persons acting or who are to


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 1  act in a fiduciary capacity. In this section, and only for its

 2  purposes, the term:

 3         (a)  "Limitation notice" has the meaning ascribed in s.

 4  736.1008(4) 737.307(3).

 5         (d)  "Trust accounting" has the meaning ascribed in s.

 6  736.08135 737.3035.

 7         (e)  "Trust disclosure document" has the meaning

 8  ascribed in s. 736.1008(4)(a) 737.307(2).

 9         (2)  Any original fiduciary and any proposed substitute

10  fiduciary may, with respect to any fiduciary account or

11  accounts which they shall mutually select, initiate

12  proceedings by joining in the filing of a petition in the

13  circuit court, requesting the substitution of the proposed

14  substitute fiduciary for the original fiduciary as to such

15  fiduciary account or accounts. The petition may be filed in

16  the county in which the main office of the original fiduciary

17  is located and, except to the extent inconsistent with the

18  provisions of this section, shall be governed by the Florida

19  Rules of Civil Procedure; however, if any fiduciary account is

20  then the subject of a proceeding in a court in this state

21  pursuant to the Florida Probate Code, the Florida Guardianship

22  Law, chapter 736 737, or chapter 747, the petition relating to

23  such fiduciary account shall be filed in that proceeding and

24  shall be governed by the procedural or other relevant rules

25  applicable to such proceeding except to the extent

26  inconsistent with the provisions of this section.

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

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

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

30  the proceedings to all persons who are then cofiduciaries with

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


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

 2  governing instrument as substitutes or successors to the

 3  fiduciary capacity of the original fiduciary; to the persons

 4  then living who are entitled under the governing instrument to

 5  appoint a substitute or successor to act in the fiduciary

 6  capacity of the original fiduciary; to all vested

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

 8  originators of the governing instrument. Unless a waiver or

 9  consent shall be filed in the proceedings as provided in

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

11  respect to notice to all contingent beneficiaries of the

12  fiduciary account. Only the persons or classes of persons

13  described in the foregoing provisions of this subsection shall

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

15  section and the proceedings and notices provided for in this

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

17  and, (4), and (5), part III of chapter 736, relating to notice

18  requirements, the effect of notice, and representation of

19  interests, shall apply to the proceedings provided for in this

20  section.

21         (9)  Unless previously or otherwise barred by

22  adjudication, waiver, consent, limitation, or the provisions

23  of subsection (8), an action for breach of trust or breach of

24  fiduciary duties or responsibilities against an original

25  fiduciary in whose place and stead another trust company or

26  trust department has been substituted pursuant to the

27  provisions of this section is barred for any beneficiary who

28  has received a trust disclosure document adequately disclosing

29  the matter unless a proceeding to assert the claim is

30  commenced within 6 months after receipt of the trust

31  disclosure document or the limitation notice that applies to


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 1  the trust disclosure document, whichever is received later. In

 2  any event, and notwithstanding lack of adequate disclosure,

 3  all claims against such original fiduciary which has complied

 4  with the requirements of s. 736.1008 issued a final trust

 5  disclosure document received by the beneficiary and has

 6  informed the beneficiary of the location and availability of

 7  records for his or her examination are barred as provided in

 8  chapter 95. Section 736.1008(4)(a) and (c) 737.307(2) and (3)

 9  applies to this subsection.

10         (10)  A beneficiary has received a final trust

11  disclosure document or a limitation notice if, when the

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

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

14  received by his or her representative as provided in part III

15  of chapter 736 defined in s. 731.303.

16         Section 20.  Section 660.418, Florida Statutes, is

17  amended to read:

18         660.418  Investment of fiduciary funds in syndicate

19  securities.--Notwithstanding any other provision of law, any

20  financial institution with fiduciary powers may, in its

21  fiduciary capacity, purchase bonds or other securities

22  underwritten or otherwise distributed by the financial

23  institution or by a syndicate that includes the financial

24  institution, or an affiliate of the financial institution,

25  provided that such purchase is made through a licensed

26  securities dealer, is otherwise prudent, and is not prohibited

27  by the instrument governing the fiduciary relationship and

28  that disclosure is made at least annually to those persons

29  entitled to a statement of accounts pursuant to s. 736.0813

30  737.303(4) indicating that such securities have been or may be

31  purchased. This section applies to purchases of bonds or other


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 1  securities made at the time of the initial offering of such

 2  bonds or securities or at any time after such initial

 3  offering.

 4         Section 21.  Subsection (5) of section 689.071, Florida

 5  Statutes, is amended to read:

 6         689.071  Land trusts transferring interests in real

 7  estate; ownership vests in trustee.--

 8         (5)  In addition to any other limitation on personal

 9  liability existing pursuant to statute or otherwise, the

10  provisions of s. 736.1013 737.306 apply to the trustee of a

11  land trust created pursuant to this section.

12         Section 22.  Subsections (1) and (4) of section

13  689.075, Florida Statutes, are amended to read:

14         689.075  Inter vivos trusts; powers retained by

15  settlor.--

16         (1)  A trust which is otherwise valid and which

17  complies with s. 736.0403 737.111, including, but not limited

18  to, a trust the principal of which is composed of real

19  property, intangible personal property, tangible personal

20  property, the possible expectancy of receiving as a named

21  beneficiary death benefits as described in s. 733.808, or any

22  combination thereof, and which has been created by a written

23  instrument shall not be held invalid or an attempted

24  testamentary disposition for any one or more of the following

25  reasons:

26         (a)  Because the settlor or another person or both

27  possess the power to revoke, amend, alter, or modify the trust

28  in whole or in part;

29         (b)  Because the settlor or another person or both

30  possess the power to appoint by deed or will the persons and

31  


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 1  organizations to whom the income shall be paid or the

 2  principal distributed;

 3         (c)  Because the settlor or another person or both

 4  possess the power to add to, or withdraw from, the trust all

 5  or any part of the principal or income at one time or at

 6  different times;

 7         (d)  Because the settlor or another person or both

 8  possess the power to remove the trustee or trustees and

 9  appoint a successor trustee or trustees;

10         (e)  Because the settlor or another person or both

11  possess the power to control the trustee or trustees in the

12  administration of the trust;

13         (f)  Because the settlor has retained the right to

14  receive all or part of the income of the trust during her or

15  his life or for any part thereof; or

16         (g)  Because the settlor is, at the time of the

17  execution of the instrument, or thereafter becomes, sole

18  trustee.

19         (4)  This section shall be applicable to trusts

20  executed before or after July 1, 1969, by persons who are

21  living on or after said date. However, the requirement of

22  conformity with the formalities for the execution of wills as

23  found in paragraph (1)(g) shall not be imposed upon any trust

24  executed prior to July 1, 1969.

25         Section 23.  Section 689.175, Florida Statutes, is

26  created to read:

27         689.175  Worthier title doctrine abolished.--The

28  doctrine of worthier title is abolished as a rule of law and

29  as a rule of construction. Language in a governing instrument

30  describing the beneficiaries of a disposition as the

31  transferor's "heirs," "heirs at law," "next of kin,"


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 1  "distributees," "relatives," or "family," or language of

 2  similar import, does not create or presumptively create a

 3  reversionary interest in the transferor.

 4         Section 24.  Subsection (8) of section 709.08, Florida

 5  Statutes, is amended to read:

 6         709.08  Durable power of attorney.--

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

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

 9  observe the standards of care applicable to trustees as

10  described in s. 736.0901 737.302. The attorney in fact is not

11  liable to third parties for any act pursuant to the durable

12  power of attorney if the act was authorized at the time. If

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

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

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

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

17  express trust.

18         Section 25.  Paragraph (c) of subsection (2) of section

19  721.08, Florida Statutes, is amended to read:

20         721.08  Escrow accounts; nondisturbance instruments;

21  alternate security arrangements; transfer of legal title.--

22         (2)  One hundred percent of all funds or other property

23  which is received from or on behalf of purchasers of the

24  timeshare plan or timeshare interest prior to the occurrence

25  of events required in this subsection shall be deposited

26  pursuant to an escrow agreement approved by the division. The

27  funds or other property may be released from escrow only as

28  follows:

29         (c)  Compliance with conditions.--

30         1.  Timeshare licenses.--If the timeshare plan is one

31  in which timeshare licenses are to be sold and no cancellation


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 1  or default has occurred, the escrow agent may release the

 2  escrowed funds or other property to or on the order of the

 3  developer upon presentation of:

 4         a.  An affidavit by the developer that all of the

 5  following conditions have been met:

 6         (I)  Expiration of the cancellation period.

 7         (II)  Completion of construction.

 8         (III)  Closing.

 9         (IV)  Either:

10         (A)  Execution, delivery, and recordation by each

11  interestholder of the nondisturbance and notice to creditors

12  instrument, as described in this section; or

13         (B)  Transfer by the developer of legal title to the

14  subject accommodations and facilities, or all use rights

15  therein, into a trust satisfying the requirements of

16  subparagraph 4. and the execution, delivery, and recordation

17  by each other interestholder of the nondisturbance and notice

18  to creditors instrument, as described in this section.

19         b.  A certified copy of each recorded nondisturbance

20  and notice to creditors instrument.

21         c.  One of the following:

22         (I)  A copy of a memorandum of agreement, as defined in

23  s. 721.05, together with satisfactory evidence that the

24  original memorandum of agreement has been irretrievably

25  delivered for recording to the appropriate official

26  responsible for maintaining the public records in the county

27  in which the subject accommodations and facilities are

28  located. The original memorandum of agreement must be recorded

29  within 180 days after the date on which the purchaser executed

30  her or his purchase agreement.

31  


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 1         (II)  A notice delivered for recording to the

 2  appropriate official responsible for maintaining the public

 3  records in each county in which the subject accommodations and

 4  facilities are located notifying all persons of the identity

 5  of an independent escrow agent or trustee satisfying the

 6  requirements of subparagraph 4. that shall maintain separate

 7  books and records, in accordance with good accounting

 8  practices, for the timeshare plan in which timeshare licenses

 9  are to be sold. The books and records shall indicate each

10  accommodation and facility that is subject to such a timeshare

11  plan and each purchaser of a timeshare license in the

12  timeshare plan.

13         2.  Timeshare estates.--If the timeshare plan is one in

14  which timeshare estates are to be sold and no cancellation or

15  default has occurred, the escrow agent may release the

16  escrowed funds or other property to or on the order of the

17  developer upon presentation of:

18         a.  An affidavit by the developer that all of the

19  following conditions have been met:

20         (I)  Expiration of the cancellation period.

21         (II)  Completion of construction.

22         (III)  Closing.

23         b.  If the timeshare estate is sold by agreement for

24  deed, a certified copy of the recorded nondisturbance and

25  notice to creditors instrument, as described in this section.

26         c.  Evidence that each accommodation and facility:

27         (I)  Is free and clear of the claims of any

28  interestholders, other than the claims of interestholders

29  that, through a recorded instrument, are irrevocably made

30  subject to the timeshare instrument and the use rights of

31  purchasers made available through the timeshare instrument;


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 1         (II)  Is the subject of a recorded nondisturbance and

 2  notice to creditors instrument that complies with subsection

 3  (3) and s. 721.17; or

 4         (III)  Has been transferred into a trust satisfying the

 5  requirements of subparagraph 4.

 6         d.  Evidence that the timeshare estate:

 7         (I)  Is free and clear of the claims of any

 8  interestholders, other than the claims of interestholders

 9  that, through a recorded instrument, are irrevocably made

10  subject to the timeshare instrument and the use rights of

11  purchasers made available through the timeshare instrument; or

12         (II)  Is the subject of a recorded nondisturbance and

13  notice to creditors instrument that complies with subsection

14  (3) and s. 721.17.

15         3.  Personal property timeshare interests.--If the

16  timeshare plan is one in which personal property timeshare

17  interests are to be sold and no cancellation or default has

18  occurred, the escrow agent may release the escrowed funds or

19  other property to or on the order of the developer upon

20  presentation of:

21         a.  An affidavit by the developer that all of the

22  following conditions have been met:

23         (I)  Expiration of the cancellation period.

24         (II)  Completion of construction.

25         (III)  Closing.

26         b.  If the personal property timeshare interest is sold

27  by agreement for transfer, evidence that the agreement for

28  transfer complies fully with s. 721.06 and this section.

29         c.  Evidence that one of the following has occurred:

30         (I)  Transfer by the owner of the underlying personal

31  property of legal title to the subject accommodations and


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 1  facilities or all use rights therein into a trust satisfying

 2  the requirements of subparagraph 4.; or

 3         (II)  Transfer by the owner of the underlying personal

 4  property of legal title to the subject accommodations and

 5  facilities or all use rights therein into an owners'

 6  association satisfying the requirements of subparagraph 5.

 7         d.  Evidence of compliance with the provisions of

 8  subparagraph 6., if required.

 9         e.  If a personal property timeshare plan is created

10  with respect to accommodations and facilities that are located

11  on or in an oceangoing vessel, including a "documented vessel"

12  or a "foreign vessel," as defined and governed by 46 U.S.C.,

13  chapter 301:

14         (I)  In making the transfer required in

15  sub-subparagraph c., the developer shall use as its transfer

16  instrument a document that establishes and protects the

17  continuance of the use rights in the subject accommodations

18  and facilities in a manner that is enforceable by the trust or

19  owners' association.

20         (II)  The transfer instrument shall comply fully with

21  the provisions of this chapter, shall be part of the timeshare

22  instrument, and shall contain specific provisions that:

23         (A)  Prohibit the vessel owner, the developer, any

24  manager or operator of the vessel, the owners' association or

25  the trustee, the managing entity, or any other person from

26  incurring any liens against the vessel except for liens that

27  are required for the operation and upkeep of the vessel,

28  including liens for fuel expenditures, repairs, crews' wages,

29  and salvage, and except as provided in sub-sub-subparagraphs

30  4.b.(III) and 5.b.(III). All expenses, fees, and taxes

31  properly incurred in connection with the creation,


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 1  satisfaction, and discharge of any such permitted lien, or a

 2  prorated portion thereof if less than all of the

 3  accommodations on the vessel are subject to the timeshare

 4  plan, shall be common expenses of the timeshare plan.

 5         (B)  Grant a lien against the vessel in favor of the

 6  owners' association or trustee to secure the full and faithful

 7  performance of the vessel owner and developer of all of their

 8  obligations to the purchasers.

 9         (C)  Establish governing law in a jurisdiction that

10  recognizes and will enforce the timeshare instrument and the

11  laws of the jurisdiction of registry of the vessel.

12         (D)  Require that a description of the use rights of

13  purchasers be posted and displayed on the vessel in a manner

14  that will give notice of such rights to any party examining

15  the vessel. This notice must identify the owners' association

16  or trustee and include a statement disclosing the limitation

17  on incurring liens against the vessel described in

18  sub-sub-sub-subparagraph (A).

19         (E)  Include the nondisturbance and notice to creditors

20  instrument for the vessel owner and any other interestholders.

21         (F)  The owners' association created under subparagraph

22  5. or trustee created under subparagraph 4. shall have access

23  to any certificates of classification in accordance with the

24  timeshare instrument.

25         (III)  If the vessel is a foreign vessel, the vessel

26  must be registered in a jurisdiction that permits a filing

27  evidencing the use rights of purchasers in the subject

28  accommodations and facilities, offers protection for such use

29  rights against unfiled and inferior claims, and recognizes the

30  document or instrument creating such use rights as a lien

31  against the vessel.


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 1         (IV)  In addition to the disclosures required by s.

 2  721.07(5), the public offering statement and purchase contract

 3  must contain a disclosure in conspicuous type in substantially

 4  the following form:

 5  

 6  The laws of the State of Florida govern the offering of this

 7  timeshare plan in this state. There are inherent risks in

 8  purchasing a timeshare interest in this timeshare plan because

 9  the accommodations and facilities of the timeshare plan are

10  located on a vessel that will sail into international waters

11  and into waters governed by many different jurisdictions.

12  Therefore, the laws of the State of Florida cannot fully

13  protect your purchase of an interest in this timeshare plan.

14  Specifically, management and operational issues may need to be

15  addressed in the jurisdiction in which the vessel is

16  registered, which is (insert jurisdiction in which vessel is

17  registered). Concerns of purchasers may be sent to (insert

18  name of applicable regulatory agency and address).

19         4.  Trust.--

20         a.  If the subject accommodations or facilities, or all

21  use rights therein, are to be transferred into a trust in

22  order to comply with this paragraph, such transfer shall take

23  place pursuant to this subparagraph.

24         b.  Prior to the transfer by each interestholder of the

25  subject accommodations and facilities, or all use rights

26  therein, to a trust, any lien or other encumbrance against

27  such accommodations and facilities, or use rights therein,

28  shall be made subject to a nondisturbance and notice to

29  creditors instrument pursuant to subsection (3). No transfer

30  pursuant to this subparagraph shall become effective until the

31  trustee accepts such transfer and the responsibilities set


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 1  forth herein. A trust established pursuant to this

 2  subparagraph shall comply with the following provisions:

 3         (I)  The trustee shall be an individual or a business

 4  entity authorized and qualified to conduct trust business in

 5  this state. Any corporation authorized to do business in this

 6  state may act as trustee in connection with a timeshare plan

 7  pursuant to this chapter. The trustee must be independent from

 8  any developer or managing entity of the timeshare plan or any

 9  interestholder of any accommodation or facility of such plan.

10         (II)  The trust shall be irrevocable so long as any

11  purchaser has a right to occupy any portion of the timeshare

12  property pursuant to the timeshare plan.

13         (III)  The trustee shall not convey, hypothecate,

14  mortgage, assign, lease, or otherwise transfer or encumber in

15  any fashion any interest in or portion of the timeshare

16  property with respect to which any purchaser has a right of

17  use or occupancy unless the timeshare plan is terminated

18  pursuant to the timeshare instrument, or such conveyance,

19  hypothecation, mortgage, assignment, lease, transfer, or

20  encumbrance is approved by a vote of two-thirds of all voting

21  interests of the timeshare plan and such decision is declared

22  by a court of competent jurisdiction to be in the best

23  interests of the purchasers of the timeshare plan. The trustee

24  shall notify the division in writing within 10 days after

25  receiving notice of the filing of any petition relating to

26  obtaining such a court order. The division shall have standing

27  to advise the court of the division's interpretation of the

28  statute as it relates to the petition.

29         (IV)  All purchasers of the timeshare plan or the

30  owners' association of the timeshare plan shall be the express

31  beneficiaries of the trust. The trustee shall act as a


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 1  fiduciary to the beneficiaries of the trust. The personal

 2  liability of the trustee shall be governed by ss. 736.08125,

 3  736.08163, 736.1013, and 736.1015 s. 737.306. The agreement

 4  establishing the trust shall set forth the duties of the

 5  trustee. The trustee shall be required to furnish promptly to

 6  the division upon request a copy of the complete list of the

 7  names and addresses of the owners in the timeshare plan and a

 8  copy of any other books and records of the timeshare plan

 9  required to be maintained pursuant to s. 721.13 that are in

10  the possession, custody, or control of the trustee. All

11  expenses reasonably incurred by the trustee in the performance

12  of its duties, together with any reasonable compensation of

13  the trustee, shall be common expenses of the timeshare plan.

14         (V)  The trustee shall not resign upon less than 90

15  days' prior written notice to the managing entity and the

16  division. No resignation shall become effective until a

17  substitute trustee, approved by the division, is appointed by

18  the managing entity and accepts the appointment.

19         (VI)  The documents establishing the trust arrangement

20  shall constitute a part of the timeshare instrument.

21         (VII)  For trusts holding property in a timeshare plan

22  located outside this state, the trust and trustee holding such

23  property shall be deemed in compliance with the requirements

24  of this subparagraph if such trust and trustee are authorized

25  and qualified to conduct trust business under the laws of such

26  jurisdiction and the agreement or law governing such trust

27  arrangement provides substantially similar protections for the

28  purchaser as are required in this subparagraph for trusts

29  holding property in a timeshare plan in this state.

30         (VIII)  The trustee shall have appointed a registered

31  agent in this state for service of process. In the event such


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 1  a registered agent is not appointed, service of process may be

 2  served pursuant to s. 721.265.

 3         5.  Owners' association.--

 4         a.  If the subject accommodations or facilities, or all

 5  use rights therein, are to be transferred into an owners'

 6  association in order to comply with this paragraph, such

 7  transfer shall take place pursuant to this subparagraph.

 8         b.  Prior to the transfer by each interestholder of the

 9  subject accommodations and facilities, or all use rights

10  therein, to an owners' association, any lien or other

11  encumbrance against such accommodations and facilities, or use

12  rights therein, shall be made subject to a nondisturbance and

13  notice to creditors instrument pursuant to subsection (3). No

14  transfer pursuant to this subparagraph shall become effective

15  until the owners' association accepts such transfer and the

16  responsibilities set forth herein. An owners' association

17  established pursuant to this subparagraph shall comply with

18  the following provisions:

19         (I)  The owners' association shall be a business entity

20  authorized and qualified to conduct business in this state.

21  Control of the board of directors of the owners' association

22  must be independent from any developer or managing entity of

23  the timeshare plan or any interestholder.

24         (II)  The bylaws of the owners' association shall

25  provide that the corporation may not be voluntarily dissolved

26  without the unanimous vote of all owners of personal property

27  timeshare interests so long as any purchaser has a right to

28  occupy any portion of the timeshare property pursuant to the

29  timeshare plan.

30         (III)  The owners' association shall not convey,

31  hypothecate, mortgage, assign, lease, or otherwise transfer or


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 1  encumber in any fashion any interest in or portion of the

 2  timeshare property with respect to which any purchaser has a

 3  right of use or occupancy, unless the timeshare plan is

 4  terminated pursuant to the timeshare instrument, or unless

 5  such conveyance, hypothecation, mortgage, assignment, lease,

 6  transfer, or encumbrance is approved by a vote of two-thirds

 7  of all voting interests of the association and such decision

 8  is declared by a court of competent jurisdiction to be in the

 9  best interests of the purchasers of the timeshare plan. The

10  owners' association shall notify the division in writing

11  within 10 days after receiving notice of the filing of any

12  petition relating to obtaining such a court order. The

13  division shall have standing to advise the court of the

14  division's interpretation of the statute as it relates to the

15  petition.

16         (IV)  All purchasers of the timeshare plan shall be

17  members of the owners' association and shall be entitled to

18  vote on matters requiring a vote of the owners' association as

19  provided in this chapter or the timeshare instrument. The

20  owners' association shall act as a fiduciary to the purchasers

21  of the timeshare plan. The articles of incorporation

22  establishing the owners' association shall set forth the

23  duties of the owners' association. All expenses reasonably

24  incurred by the owners' association in the performance of its

25  duties, together with any reasonable compensation of the

26  officers or directors of the owners' association, shall be

27  common expenses of the timeshare plan.

28         (V)  The documents establishing the owners' association

29  shall constitute a part of the timeshare instrument.

30         (VI)  For owners' associations holding property in a

31  timeshare plan located outside this state, the owners'


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 1  association holding such property shall be deemed in

 2  compliance with the requirements of this subparagraph if such

 3  owners' association is authorized and qualified to conduct

 4  owners' association business under the laws of such

 5  jurisdiction and the agreement or law governing such

 6  arrangement provides substantially similar protections for the

 7  purchaser as are required in this subparagraph for owners'

 8  associations holding property in a timeshare plan in this

 9  state.

10         (VII)  The owners' association shall have appointed a

11  registered agent in this state for service of process. In the

12  event such a registered agent cannot be located, service of

13  process may be made pursuant to s. 721.265.

14         6.  Personal property subject to certificate of

15  title.--If any personal property that is an accommodation or

16  facility of a timeshare plan is subject to a certificate of

17  title in this state pursuant to chapter 319 or chapter 328,

18  the following notation must be made on such certificate of

19  title pursuant to s. 319.27(1) or s. 328.15(1):

20  

21  The further transfer or encumbrance of the property subject to

22  this certificate of title, or any lien or encumbrance thereon,

23  is subject to the requirements of section 721.17, Florida

24  Statutes, and the transferee or lienor agrees to be bound by

25  all of the obligations set forth therein.

26         7.  If the developer has previously provided a

27  certified copy of any document required by this paragraph, she

28  or he may for all subsequent disbursements substitute a true

29  and correct copy of the certified copy, provided no changes to

30  the document have been made or are required to be made.

31  


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 1         8.  In the event that use rights relating to an

 2  accommodation or facility are transferred into a trust

 3  pursuant to subparagraph 4. or into an owners' association

 4  pursuant to subparagraph 5., all other interestholders,

 5  including the owner of the underlying fee or underlying

 6  personal property, must execute a nondisturbance and notice to

 7  creditors instrument pursuant to subsection (3).

 8         Section 26.  Paragraph (e) of subsection (1) of section

 9  721.53, Florida Statutes, is amended to read:

10         721.53  Subordination instruments; alternate security

11  arrangements.--

12         (1)  With respect to each accommodation or facility of

13  a multisite timeshare plan, the developer shall provide the

14  division with satisfactory evidence that one of the following

15  has occurred with respect to each interestholder prior to

16  offering the accommodation or facility as a part of the

17  multisite timeshare plan:

18         (e)  The interestholder has transferred the subject

19  accommodation or facility or all use rights therein to a trust

20  that complies with this paragraph. Prior to such transfer, any

21  lien or other encumbrance against such accommodation or

22  facility shall be made subject to a nondisturbance and notice

23  to creditors instrument pursuant to paragraph (a) or a

24  subordination and notice to creditors instrument pursuant to

25  paragraph (b). No transfer pursuant to this paragraph shall

26  become effective until the trust accepts such transfer and the

27  responsibilities set forth herein. A trust established

28  pursuant to this paragraph shall comply with the following

29  provisions:

30         1.  The trustee shall be an individual or a business

31  entity authorized and qualified to conduct trust business in


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 1  this state. Any corporation authorized to do business in this

 2  state may act as trustee in connection with a timeshare plan

 3  pursuant to this chapter. The trustee must be independent from

 4  any developer or managing entity of the timeshare plan or any

 5  interestholder of any accommodation or facility of such plan.

 6  The same trustee may hold the accommodations and facilities,

 7  or use rights therein, for one or more of the component sites

 8  of the timeshare plan.

 9         2.  The trust shall be irrevocable so long as any

10  purchaser has a right to occupy any portion of the timeshare

11  property pursuant to the timeshare plan.

12         3.  The trustee shall not convey, hypothecate,

13  mortgage, assign, lease, or otherwise transfer or encumber in

14  any fashion any interests in or portion of the timeshare

15  property with respect to which any purchaser has a right of

16  use or occupancy unless the timeshare plan is terminated

17  pursuant to the timeshare instrument, or the timeshare

18  property held in trust is deleted from a multisite timeshare

19  plan pursuant to s. 721.552(3), or such conveyance,

20  hypothecation, mortgage, assignment, lease, transfer, or

21  encumbrance is approved by vote of two-thirds of all voting

22  interests of the timeshare plan and such decision is declared

23  by a court of competent jurisdiction to be in the best

24  interests of the purchasers of the timeshare plan.

25         4.  All purchasers of the timeshare plan or the owners'

26  association of the timeshare plan shall be express

27  beneficiaries of the trust. The trustee shall act as a

28  fiduciary to the beneficiaries of the trust. The personal

29  liability of the trustee shall be governed by ss. 736.08125,

30  736.08163, 736.1013, and 736.1015 s. 737.306. The agreement

31  establishing the trust shall set forth the duties of the


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 1  trustee. The trustee shall be required to furnish promptly to

 2  the division upon request a copy of the complete list of the

 3  names and addresses of the owners in the timeshare plan and a

 4  copy of any other books and records of the timeshare plan

 5  required to be maintained pursuant to s. 721.13 that are in

 6  the possession of the trustee. All expenses reasonably

 7  incurred by the trustee in the performance of its duties,

 8  together with any reasonable compensation of the trustee,

 9  shall be common expenses of the timeshare plan.

10         5.  The trustee shall not resign upon less than 90

11  days' prior written notice to the managing entity and the

12  division. No resignation shall become effective until a

13  substitute trustee, approved by the division, is appointed by

14  the managing entity and accepts the appointment.

15         6.  The documents establishing the trust arrangement

16  shall constitute a part of the timeshare instrument.

17         7.  For trusts holding property in component sites

18  located outside this state, the trust holding such property

19  shall be deemed in compliance with the requirements of this

20  paragraph, if such trust is authorized and qualified to

21  conduct trust business under the laws of such jurisdiction and

22  the agreement or law governing such trust arrangement provides

23  substantially similar protections for the purchaser as are

24  required in this paragraph for trusts holding property in a

25  component site located in this state.

26         8.  The trustee shall have appointed a registered agent

27  in this state for service of process. In the event such a

28  registered agent is not appointed, service of process may be

29  served pursuant to s. 721.265.

30         Section 27.  Section 731.103, Florida Statutes, is

31  amended to read:


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 1         731.103  Evidence as to death or status.--In

 2  proceedings under this code and under chapter 736, the rules

 3  of evidence in civil actions are applicable unless

 4  specifically changed by the code. The following additional

 5  rules relating to determination of death and status are

 6  applicable:

 7         (1)  An authenticated copy of a death certificate

 8  issued by an official or agency of the place where the death

 9  purportedly occurred is prima facie proof of the fact, place,

10  date, and time of death and the identity of the decedent.

11         (2)  A copy of any record or report of a governmental

12  agency, domestic or foreign, that a person is alive, missing,

13  detained, or, from the facts related, presumed dead is prima

14  facie evidence of the status and of the dates, circumstances,

15  and places disclosed by the record or report.

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

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

18  whose absence is not satisfactorily explained after diligent

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

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

21  there is evidence establishing that death occurred earlier.

22  Evidence showing that the absent person was exposed to a

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

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

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

26  absence commenced. A petition for this determination shall be

27  filed in the county in Florida where the decedent maintained

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

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

30  absence commenced.

31  


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 1         (4)  This section does not preclude the establishment

 2  of death by direct or circumstantial evidence prior to

 3  expiration of the 5-year time period set forth in subsection

 4  (3).

 5         Section 28.  Section 731.1035, Florida Statutes, is

 6  created to read:

 7         731.1035  Applicable rules of evidence.--In proceedings

 8  under this code, the rules of evidence in civil actions are

 9  applicable unless specifically changed by the code.

10         Section 29.  Section 731.201, Florida Statutes, is

11  amended to read:

12         731.201  General definitions.--Subject to additional

13  definitions in subsequent chapters that are applicable to

14  specific chapters or parts, and unless the context otherwise

15  requires, in this code, in s. 409.9101, and in chapters 736

16  737, 738, 739, and 744, the term:

17         (1)  "Authenticated," when referring to copies of

18  documents or judicial proceedings required to be filed with

19  the court under this code, means a certified copy or a copy

20  authenticated according to the Federal Rules of Civil

21  Procedure.

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

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

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

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

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

27  trust or trustee described by will, the trustee is a

28  beneficiary of the estate. Except as otherwise provided in

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

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

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


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 1  also a personal representative of the estate, each qualified

 2  beneficiary the beneficiary or beneficiaries of the trust as

 3  defined in s. 736.0103(14) 737.303(4)(b) shall be regarded as

 4  a beneficiary of the estate.

 5         (3)  "Child" includes a person entitled to take as a

 6  child under this code by intestate succession from the parent

 7  whose relationship is involved, and excludes any person who is

 8  only a stepchild, a foster child, a grandchild, or a more

 9  remote descendant.

10         (4)  "Claim" means a liability of the decedent, whether

11  arising in contract, tort, or otherwise, and funeral expense.

12  The term does not include an expense of administration or

13  estate, inheritance, succession, or other death taxes.

14         (5)  "Clerk" means the clerk or deputy clerk of the

15  court.

16         (6)  "Court" means the circuit court.

17         (7)  "Curator" means a person appointed by the court to

18  take charge of the estate of a decedent until letters are

19  issued.

20         (8)  "Devise," when used as a noun, means a

21  testamentary disposition of real or personal property and,

22  when used as a verb, means to dispose of real or personal

23  property by will or trust. The term includes "gift," "give,"

24  "bequeath," "bequest," and "legacy." A devise is subject to

25  charges for debts, expenses, and taxes as provided in this

26  code, the will, or the trust.

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

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

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

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

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


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

 2  personal representative of the estate, each qualified

 3  beneficiary the beneficiary or beneficiaries of the trust as

 4  defined in s. 736.0103(14) 737.303(4)(b) shall be regarded as

 5  a devisee.

 6         (10)  "Distributee" means a person who has received

 7  estate property from a personal representative or other

 8  fiduciary other than as a creditor or purchaser. A

 9  testamentary trustee is a distributee only to the extent of

10  distributed assets or increments to them remaining in the

11  trustee's hands. A beneficiary of a testamentary trust to whom

12  the trustee has distributed property received from a personal

13  representative is a distributee. For purposes of this

14  provision, "testamentary trustee" includes a trustee to whom

15  assets are transferred by will, to the extent of the devised

16  assets.

17         (11)  "Domicile" means a person's usual place of

18  dwelling and shall be synonymous with residence.

19         (12)  "Estate" means the property of a decedent that is

20  the subject of administration.

21         (13)  "Exempt property" means the property of a

22  decedent's estate which is described in s. 732.402.

23         (14)  "File" means to file with the court or clerk.

24         (15)  "Foreign personal representative" means a

25  personal representative of another state or a foreign country.

26         (16)  "Formal notice" means formal notice under the

27  Florida Probate Rules.

28         (17)  "Grantor" means one who creates or adds to a

29  trust and includes "settlor" or "trustor" and a testator who

30  creates or adds to a trust.

31  


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 1         (18)  "Heirs" or "heirs at law" means those persons,

 2  including the surviving spouse, who are entitled under the

 3  statutes of intestate succession to the property of a

 4  decedent.

 5         (19)  "Incompetent" means a minor or a person

 6  adjudicated incompetent.

 7         (20)  "Informal notice" or "notice" means informal

 8  notice under the Florida Probate Rules.

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

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

11  particular proceeding involved. In any proceeding affecting

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

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

14  interested person. In any proceeding affecting the expenses of

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

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

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

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

19  include a beneficiary who has received complete distribution.

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

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

22  particular purpose of, and matter involved in, any

23  proceedings.

24         (22)  "Letters" means authority granted by the court to

25  the personal representative to act on behalf of the estate of

26  the decedent and refers to what has been known as letters

27  testamentary and letters of administration. All letters shall

28  be designated "letters of administration."

29         (23)  "Other state" means any state of the United

30  States other than Florida and includes the District of

31  Columbia, the Commonwealth of Puerto Rico, and any territory


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 1  or possession subject to the legislative authority of the

 2  United States.

 3         (24)  "Parent" excludes any person who is only a

 4  stepparent, foster parent, or grandparent.

 5         (25)  "Personal representative" means the fiduciary

 6  appointed by the court to administer the estate and refers to

 7  what has been known as an administrator, administrator cum

 8  testamento annexo, administrator de bonis non, ancillary

 9  administrator, ancillary executor, or executor.

10         (26)  "Petition" means a written request to the court

11  for an order.

12         (27)  "Power of appointment" means an authority, other

13  than as an incident of the beneficial ownership of property,

14  to designate recipients of beneficial interests in property.

15         (28)(27)  "Probate of will" means all steps necessary

16  to establish the validity of a will and to admit a will to

17  probate.

18         (29)(28)  "Property" means both real and personal

19  property or any interest in it and anything that may be the

20  subject of ownership.

21         (30)(29)  "Protected homestead" means the property

22  described in s. 4(a)(1), Art. X of the State Constitution on

23  which at the death of the owner the exemption inures to the

24  owner's surviving spouse or heirs under s. 4(b), Art. X of the

25  State Constitution. For purposes of the code, real property

26  owned as tenants by the entirety is not protected homestead.

27         (31)(30)  "Residence" means a person's place of

28  dwelling.

29         (32)(31)  "Residuary devise" means a devise of the

30  assets of the estate which remain after the provision for any

31  devise which is to be satisfied by reference to a specific


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 1  property or type of property, fund, sum, or statutory amount.

 2  If the will contains no devise which is to be satisfied by

 3  reference to a specific property or type of property, fund,

 4  sum, or statutory amount, "residuary devise" or "residue"

 5  means a devise of all assets remaining after satisfying the

 6  obligations of the estate.

 7         (33)(32)  "Security" means a security as defined in s.

 8  517.021.

 9         (34)(33)  "Security interest" means a security interest

10  as defined in s. 671.201.

11         (35)(34)  "Trust" means an express trust, private or

12  charitable, with additions to it, wherever and however

13  created. It also includes a trust created or determined by a

14  judgment or decree under which the trust is to be administered

15  in the manner of an express trust. "Trust" excludes other

16  constructive trusts, and it excludes resulting trusts;

17  conservatorships; custodial arrangements pursuant to the

18  Florida Uniform Transfers to Minors Act; business trusts

19  providing for certificates to be issued to beneficiaries;

20  common trust funds; land trusts under s. 689.05; trusts

21  created by the form of the account or by the deposit agreement

22  at a financial institution; voting trusts; security

23  arrangements; liquidation trusts; trusts for the primary

24  purpose of paying debts, dividends, interest, salaries, wages,

25  profits, pensions, or employee benefits of any kind; and any

26  arrangement under which a person is nominee or escrowee for

27  another.

28         (36)(35)  "Trustee" includes an original, additional,

29  surviving, or successor trustee, whether or not appointed or

30  confirmed by court.

31  


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 1         (37)(36)  "Will" means an instrument, including a

 2  codicil, executed by a person in the manner prescribed by this

 3  code, which disposes of the person's property on or after his

 4  or her death and includes an instrument which merely appoints

 5  a personal representative or revokes or revises another will.

 6         Section 30.  Paragraph (a) of subsection (1) and

 7  subsection (5) of section 731.303, Florida Statutes, are

 8  amended to read:

 9         731.303  Representation.--In the administration of or

10  in judicial proceedings involving estates of decedents or

11  trusts, the following apply:

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

13  following cases:

14         (a)1.  Orders binding the sole holder or all coholders

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

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

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

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

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

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

21  power.

22         2.  Subparagraph 1. does not apply to:

23         a.  Any matter determined by the court to involve fraud

24  or bad faith by the trustee;

25         b.  A power of a trustee to distribute trust property;

26  or

27         c.  A power of appointment held by a person while the

28  person is the sole trustee.

29         (5)  The holder of a power of appointment over property

30  not held in trust may represent and bind persons whose

31  interests, as permissible appointees, takers in default, or


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 1  otherwise, are subject to the power. Representation under this

 2  subsection does not apply to:

 3         (a)  Any matter determined by the court to involve

 4  fraud or bad faith by the trustee;

 5         (b)  A power of a trustee to distribute trust property;

 6  or

 7         (c)  A power of appointment held by a person while the

 8  person is the sole trustee When a sole holder or coholder of a

 9  general, special, or limited power of appointment, including

10  an exercisable power of amendment or revocation over property

11  in an estate or trust, is bound by:

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

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

14  reports that adequately disclose matters set forth therein,

15  

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

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

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

19  interests which could otherwise be affected by the exercise or

20  nonexercise of the power.

21         Section 31.  Subsection (5) of section 732.2075,

22  Florida Statutes, is amended to read:

23         732.2075  Sources from which elective share payable;

24  abatement.--

25         (5)  Unless otherwise provided in the trust instrument

26  or, in the decedent's will if there is no provision in the

27  trust instrument, any amount to be satisfied from trust

28  property shall be paid from the assets of the trust in the

29  order provided for claims under s. 736.05053 737.3054(2) and

30  (3). A direction in the decedent's will is effective only for

31  revocable trusts.


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 1         Section 32.  Subsection (2) of section 732.513, Florida

 2  Statutes, is amended to read:

 3         732.513  Devises to trustee.--

 4         (2)  The devise shall not be invalid for any or all of

 5  the following reasons:

 6         (a)  Because the trust is amendable or revocable, or

 7  both, by any person.

 8         (b)  Because the trust has been amended or revoked in

 9  part after execution of the will or a codicil to it.

10         (c)  Because the trust instrument or any amendment to

11  it was not executed in the manner required for wills.

12         (c)(d)  Because the only res of the trust is the

13  possible expectancy of receiving, as a named beneficiary, a

14  devise under a will or death benefits as described in s.

15  733.808, and even though the testator or other person has

16  reserved any or all rights of ownership in the death benefit

17  policy, contract, or plan, including the right to change the

18  beneficiary.

19         (d)(e)  Because of any of the provisions of s. 689.075.

20         Section 33.  Section 732.603, Florida Statutes, is

21  amended to read:

22         (Substantial rewording of section. See

23         s. 732.603, F.S., for present text.)

24         732.603  Antilapse; deceased devisee; class gifts.--

25         (1)  Unless a contrary intent appears in the will, if a

26  devisee who is a grandparent, or a descendant of a

27  grandparent, of the testator:

28         (a)  Is dead at the time of the execution of the will;

29         (b)  Fails to survive the testator; or

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

31  be treated as having predeceased the testator,


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 1  

 2  a substitute gift is created in the devisee's surviving

 3  descendants who take per stirpes the property to which the

 4  devisee would have been entitled had the devisee survived the

 5  testator.

 6         (2)  When a power of appointment is exercised by will,

 7  unless a contrary intent appears in the document creating the

 8  power of appointment or in the testator's will, if an

 9  appointee who is a grandparent, or a descendant of a

10  grandparent, of the donor of the power:

11         (a)  Is dead at the time of the execution of the will

12  or the creation of the power;

13         (b)  Fails to survive the testator; or

14         (c)  Is required by the will, the document creating the

15  power, or by operation of law to be treated as having

16  predeceased the testator,

17  

18  a substitute gift is created in the appointee's surviving

19  descendants who take per stirpes the property to which the

20  appointee would have been entitled had the appointee survived

21  the testator. Unless the language creating a power of

22  appointment expressly excludes the substitution of the

23  descendants of an object of a power for the object, a

24  surviving descendant of a deceased object of a power of

25  appointment may be substituted for the object whether or not

26  the descendant is an object of the power.

27         (3)  In the application of this section:

28         (a)  Words of survivorship in a devise or appointment

29  to an individual, such as "if he survives me," or to "my

30  surviving children," are a sufficient indication of an intent

31  contrary to the application of subsections (1) and (2). Words


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 1  of survivorship used by the donor of the power in a power to

 2  appoint to an individual, such as the term "if he survives the

 3  donee," or in a power to appoint to the donee's "then

 4  surviving children," are a sufficient indication of an intent

 5  contrary to the application of subsection (2).

 6         (b)  The term:

 7         1.  "Appointment" includes an alternative appointment

 8  and an appointment in the form of a class gift.

 9         2.  "Appointee" includes:

10         a.  A class member if the appointment is in the form of

11  a class gift.

12         b.  An individual or class member who was deceased at

13  the time the testator executed his or her will as well as an

14  individual or class member who was then living but who failed

15  to survive the testator.

16         3.  "Devise" also includes an alternative devise and a

17  devise in the form of a class gift.

18         4.  "Devisee" also includes:

19         a.  A class member if the devise is in the form of a

20  class gift.

21         b.  An individual or class member who was deceased at

22  the time the testator executed his or her will as well as an

23  individual or class member who was then living but who failed

24  to survive the testator.

25         (4)  This section applies only to outright devises and

26  appointments. Devises and appointments in trust, including to

27  a testamentary trust, are subject to s. 736.1106.

28         Section 34.  Section 732.604, Florida Statutes, is

29  amended to read:

30         732.604  Failure of testamentary provision.--

31  


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

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

 3  a part of the residue.

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

 5  is devised to two or more persons, the share of a residuary

 6  devisee that fails for any reason and the devise to one of the

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

 8  the other residuary devisee, or to the other residuary

 9  devisees in proportion to the their interests of each in the

10  remaining part of the residue.

11         Section 35.  Section 732.611, Florida Statutes, is

12  amended to read:

13         732.611  Devises to multi-generation classes to be per

14  stirpes.--Unless the will provides otherwise, all devises to

15  descendants, issue, and other multi-generation classes shall

16  be per stirpes.

17         Section 36.  Subsection (1) of section 733.212, Florida

18  Statutes, is amended to read:

19         733.212  Notice of administration; filing of

20  objections.--

21         (1)  The personal representative shall promptly serve a

22  copy of the notice of administration on the following persons

23  who are known to the personal representative:

24         (a)  The decedent's surviving spouse;

25         (b)  Beneficiaries;

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

27  733.707(3) and each qualified beneficiary of the trust as

28  defined in s. 736.0103(14) 737.303(4)(b), if each trustee is

29  also a personal representative of the estate; and

30         (d)  Persons who may be entitled to exempt property

31  


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

 2  served under s. 733.2123. The personal representative may

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

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

 5  interest in the estate.

 6         Section 37.  Subsection (1) of section 733.602, Florida

 7  Statutes, is amended to read:

 8         733.602  General duties.--

 9         (1)  A personal representative is a fiduciary who shall

10  observe the standards of care applicable to trustees as

11  described by part VII of chapter 736 s. 737.302. A personal

12  representative is under a duty to settle and distribute the

13  estate of the decedent in accordance with the terms of the

14  decedent's will and this code as expeditiously and efficiently

15  as is consistent with the best interests of the estate. A

16  personal representative shall use the authority conferred by

17  this code, the authority in the will, if any, and the

18  authority of any order of the court, for the best interests of

19  interested persons, including creditors.

20         Section 38.  Subsection (4) of section 733.805, Florida

21  Statutes, is amended to read:

22         733.805  Order in which assets abate.--

23         (4)  In determining the contribution required under s.

24  733.607(2), subsections (1)-(3) of this section and s.

25  736.05053 737.3054(2) shall be applied as if the beneficiaries

26  of the estate and the beneficiaries of a trust described in s.

27  733.707(3), other than the estate or trust itself, were taking

28  under a common instrument.

29         Section 39.  Paragraph (j) of subsection (1) of section

30  733.817, Florida Statutes, is amended to read:

31         733.817  Apportionment of estate taxes.--


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 1         (1)  For purposes of this section:

 2         (j)  "Residuary devise" has the meaning set forth in s.

 3  731.201(31).

 4         Section 40.  Paragraphs (a) and (f) of subsection (8)

 5  and paragraphs (a) and (d) of subsection (9) of section

 6  738.104, Florida Statutes, are amended to read:

 7         738.104  Trustee's power to adjust.--

 8         (8)  With respect to a trust in existence on January 1,

 9  2003:

10         (a)  A trustee shall not have the power to adjust under

11  this section until the statement required in subsection (9) is

12  provided and either no objection is made or any objection

13  which is made has been terminated.

14         1.  An objection is made if, within 60 days after the

15  date of the statement required in subsection (9), a super

16  majority of the eligible trust beneficiaries deliver to the

17  trustee a written objection to the application of this section

18  to such trust. An objection shall be deemed to be delivered to

19  the trustee on the date the objection is mailed to the mailing

20  address listed in the notice provided in subsection (9).

21         2.  An objection is terminated upon the earlier of the

22  receipt of consent from a super majority of eligible trust

23  beneficiaries of the class that made the objection, or the

24  resolution of the objection pursuant to paragraph (c).

25         (f)  The objection of a super majority of eligible

26  beneficiaries under this subsection shall be valid for a

27  period of 1 year after the date of the notice set forth in

28  subsection (9). Upon expiration of the objection, the trustee

29  may thereafter give a new notice under subsection (9).

30         (9)(a)  A trustee of a trust in existence on January 1,

31  2003, that is not prohibited under subsection (3) from


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 1  exercising the power to adjust shall, any time prior to

 2  initially exercising the power, provide to all eligible

 3  reasonably ascertainable current beneficiaries described in s.

 4  737.303(4)(b)1. and all reasonably ascertainable remainder

 5  beneficiaries described in s. 737.303(4)(b)2. a statement

 6  containing the following:

 7         1.  The name, telephone number, street address, and

 8  mailing address of the trustee and of any individuals who may

 9  be contacted for further information;

10         2.  A statement that unless a super majority of the

11  eligible beneficiaries objects to the application of this

12  section to the trust within 60 days after the date the

13  statement pursuant to this subsection was served, s. 738.104

14  shall apply to the trust; and

15         3.  A statement that, if s. 738.104 applies to the

16  trust, the trustee will have the power to adjust between

17  income and principal and that such a power may have an effect

18  on the distributions to such beneficiary from the trust.

19         (d)  For purposes of subsection (8) and this

20  subsection, the term:

21         1.  "Eligible beneficiaries" means:

22         a.  If at the time the determination is made there is

23  one or more beneficiaries described in s. 736.0103(14)(c), the

24  beneficiaries described in s. 736.0103(14)(a) and (c); or

25         b.  If there is no beneficiary described in s.

26  736.0103(14)(c), the beneficiaries described in s.

27  736.0103(14)(a) and (b).

28         2.  A "Super majority of the eligible trust

29  beneficiaries" means:

30         a.  If at the time the determination is made there is

31  one or more beneficiaries described in s. 736.0103(14)(c), at


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 1  least two-thirds in interest of the reasonably ascertainable

 2  current beneficiaries described in s. 736.0103(14)(a)

 3  737.303(4)(b)1. or two-thirds in interest of the reasonably

 4  ascertainable remainder beneficiaries described in s.

 5  736.0103(14)(c) 737.303(4)(b)2., if the interests of the

 6  beneficiaries are reasonably ascertainable; otherwise, it

 7  means two-thirds in number of either such class; or

 8         b.  If there is no beneficiary described in s.

 9  736.0103(14)(c), at least two-thirds in interest of the

10  beneficiaries described in s. 736.0103(14)(a) or two-thirds in

11  interest of the beneficiaries described in s. 736.0103(14)(b),

12  if the interests of the beneficiaries are reasonably

13  ascertainable, otherwise, two-thirds in number of either such

14  class.

15         Section 41.  Subsection (4) of section 738.1041,

16  Florida Statutes, is amended to read:

17         738.1041  Total return unitrust.--

18         (4)  All determinations made pursuant to

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

20  and made in good faith. Such determination shall be

21  conclusively presumed to have been made reasonably and in good

22  faith unless proven otherwise in a proceeding commenced by or

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

24  provided in s. 736.1008 737.307. The burden will be on the

25  objecting interested party to prove that the determinations

26  were not made reasonably and in good faith.

27         Section 42.  Subsection (5) of section 738.202, Florida

28  Statutes, is amended to read:

29         738.202  Distribution to residuary and remainder

30  beneficiaries.--

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 1         (5)  The value of trust assets shall be determined on

 2  an asset-by-asset basis and shall be conclusive if reasonable

 3  and determined in good faith. Determinations based on

 4  appraisals performed within 2 years before or after the

 5  valuation date shall be presumed reasonable. The value of

 6  trust assets shall be conclusively presumed to be reasonable

 7  and determined in good faith unless proven otherwise in a

 8  proceeding commenced by or on behalf of a person interested in

 9  the trust within the time provided in s. 736.1008 737.307.

10         Section 43.  Paragraph (a) of subsection (12) of

11  section 739.102, Florida Statutes, is amended to read:

12         739.102  Definitions.--As used in this chapter, the

13  term:

14         (12)  "Trust" means:

15         (a)  An express trust (including an honorary trust or a

16  trust under s. 736.0408 737.116), charitable or noncharitable,

17  with additions thereto, whenever and however created; and

18  

19  As used in this chapter, the term "trust" does not include a

20  constructive trust or a resulting trust.

21         Section 44.  Paragraphs (b) and (f) of subsection (6)

22  of section 744.331, Florida Statutes, are amended to read:

23         744.331  Procedures to determine incapacity.--

24         (6)  ORDER DETERMINING INCAPACITY.--If, after making

25  findings of fact on the basis of clear and convincing

26  evidence, the court finds that a person is incapacitated with

27  respect to the exercise of a particular right, or all rights,

28  the court shall enter a written order determining such

29  incapacity. A person is determined to be incapacitated only

30  with respect to those rights specified in the order.

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 1         (b)  When an order determines that a person is

 2  incapable of exercising delegable rights, the court must

 3  consider and find whether there is an alternative to

 4  guardianship which will sufficiently address the problems of

 5  the incapacitated person. A guardian must be appointed to

 6  exercise the incapacitated person's delegable rights unless

 7  the court finds there is an alternative. A guardian may not be

 8  appointed if the court finds there is an alternative to

 9  guardianship which will sufficiently address the problems of

10  the incapacitated person. In any order declaring a person

11  incapacitated the court must find that alternatives to

12  guardianship were considered and that no alternative to

13  guardianship will sufficiently address the problems of the

14  ward.

15         (f)  Upon the filing of a verified statement by an

16  interested person stating:

17         1.  That he or she has a good faith belief that the

18  alleged incapacitated person's trust, trust amendment, or

19  durable power of attorney is invalid; and

20         2.  A reasonable factual basis for that belief,

21  

22  the trust, trust amendment, or durable power of attorney shall

23  not be deemed to be an alternative to the appointment of a

24  guardian. The appointment of a guardian does not limit the

25  court's power to determine that certain authority granted by a

26  durable power of attorney is to remain exercisable by the

27  attorney in fact. When an order is entered which determines

28  that a person is incapable of exercising delegable rights, a

29  guardian must be appointed to exercise those rights.

30         Section 45.  Paragraph (a) of subsection (6) of section

31  744.361, Florida Statutes, is amended to read:


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 1         744.361  Powers and duties of guardian.--

 2         (6)  A guardian who is given authority over any

 3  property of the ward shall:

 4         (a)  Protect and preserve the property and invest it

 5  prudently as provided in chapter 518 defined in s. 737.302,

 6  apply it as provided in s. 744.397, and account for it

 7  faithfully.

 8         Section 46.  Subsections (11) and (18) of section

 9  744.441, Florida Statutes, are amended to read:

10         744.441  Powers of guardian upon court approval.--After

11  obtaining approval of the court pursuant to a petition for

12  authorization to act, a plenary guardian of the property, or a

13  limited guardian of the property within the powers granted by

14  the order appointing the guardian or an approved annual or

15  amended guardianship report, may:

16         (11)  Prosecute or defend claims or proceedings in any

17  jurisdiction for the protection of the estate and of the

18  guardian in the performance of his or her duties. Before

19  authorizing a guardian to bring an action described in s.

20  736.0207, the court shall first find that the action appears

21  to be in the ward's best interests during the ward's probable

22  lifetime. If the court denies a request that a guardian be

23  authorized to bring an action described in s. 736.0207, the

24  court shall review the continued need for a guardian and the

25  extent of the need for delegation of the ward's rights.

26         (18)  When the ward's will evinces an objective to

27  obtain a United States estate tax charitable deduction by use

28  of a split interest trust (as that term is defined in s.

29  736.1201 737.501), but the maximum charitable deduction

30  otherwise allowable will not be achieved in whole or in part,

31  execute a codicil on the ward's behalf amending said will to


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 1  obtain the maximum charitable deduction allowable without

 2  diminishing the aggregate value of the benefits of any

 3  beneficiary under such will.

 4         Section 47.  Section 744.462, Florida Statutes, is

 5  created to read:

 6         744.462  Determination regarding alternatives to

 7  guardianship.--Any judicial determination concerning the

 8  validity of the ward's durable power of attorney, trust, or

 9  trust amendment shall be promptly reported in the guardianship

10  proceeding by the guardian of the property. If the instrument

11  has been judicially determined to be valid or if, after the

12  appointment of a guardian, a petition is filed alleging that

13  there is an alternative to guardianship which will

14  sufficiently address the problems of the ward, the court shall

15  review the continued need for a guardian and the extent of the

16  need for delegation of the ward's rights.

17         Section 48.  Sections 737.101, 737.105, 737.106,

18  737.111, 737.115, 737.116, 737.201, 737.202, 737.203,

19  737.2035, 737.204, 737.2041, 737.205, 737.206, 737.2065,

20  737.207, 737.208, 737.209, 737.301, 737.302, 737.303,

21  737.3035, 737.304, 737.305, 737.3053, 737.3054, 737.3055,

22  737.306, 737.3061, 737.307, 737.308, 737.309, 737.401,

23  737.402, 737.4025, 737.403, 737.4031, 737.4032, 737.4033,

24  737.404, 737.405, 737.406, 737.501, 737.502, 737.503, 737.504,

25  737.505, 737.506, 737.507, 737.508, 737.509, 737.510, 737.511,

26  737.512, 737.6035, 737.621, 737.622, 737.623, 737.624,

27  737.625, 737.626, and 737.627, Florida Statutes, are repealed.

28         Section 49.  This act shall take effect July 1, 2007.

29  

30  

31  


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