1 | A bill to be entitled |
2 | An act relating to the administration of trusts; amending |
3 | s. 689.071, F.S.; limiting the definition of the term |
4 | "land trust" to an arrangement in which title to real |
5 | property is vested in a trustee by a recorded instrument |
6 | that confers certain authority as prescribed by state law; |
7 | providing that such a recorded instrument does not itself |
8 | create an entity; providing that a recorded instrument is |
9 | effective regardless of whether it refers to beneficiaries |
10 | of the trust; providing that a recorded instrument vests |
11 | both legal and equitable title to real property or the |
12 | interest therein in the trustee; conforming cross- |
13 | references; amending s. 731.303, F.S.; excluding trusts |
14 | from guidelines regarding administration and judicial |
15 | proceedings; amending s. 736.0102, F.S.; conforming a |
16 | cross-reference; amending s. 736.0501, F.S.; limiting the |
17 | ability of creditors or assignees of a beneficiary to |
18 | reach the beneficiary's interest in a trust; amending s. |
19 | 736.0502, F.S.; clarifying the application of restrictions |
20 | on transferring a beneficiary's interest under a |
21 | spendthrift provision; amending s. 736.0503, F.S.; |
22 | providing an exception to a provision authorizing the |
23 | attachment of trust distributions; amending s. 736.0504, |
24 | F.S.; defining the term "discretionary distribution"; |
25 | prohibiting certain creditors from compelling |
26 | distributions or attaching a beneficiary's interest or |
27 | expectancy; amending ss. 736.0813 and 736.1008, F.S.; |
28 | conforming dates of applicability of the accounting |
29 | provision and corresponding limitations to the effective |
30 | date of the code; amending s. 736.1011, F.S.; providing |
31 | that direct communication of exculpatory terms to the |
32 | trust settlor is required only for trusts created on or |
33 | after July 1, 2007; amending s. 736.1106, F.S.; providing |
34 | that certain antilapse provisions continue to apply to |
35 | irrevocable trusts created between June 12, 2003, and July |
36 | 1, 2007; amending s. 736.1204, F.S.; clarifying the use of |
37 | income interest of a trust; amending ss. 736.1209 and |
38 | 736.1001, F.S., relating to the release of power by a |
39 | trustee and removal of a trustee; conforming cross- |
40 | references; providing an effective date. |
41 |
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42 | Be It Enacted by the Legislature of the State of Florida: |
43 |
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44 | Section 1. Paragraph (d) of subsection (2), subsections |
45 | (3) and (7), and paragraph (a) of subsection (9) of section |
46 | 689.071, Florida Statutes, as amended by section 21 of chapter |
47 | 2006-217, Laws of Florida, are amended to read: |
48 | 689.071 Florida Land Trust Act.-- |
49 | (2) DEFINITIONS.--As used in this section, the term: |
50 | (d) "Land trust" is not the creation of an entity, but |
51 | means any express written agreement or arrangement by which a |
52 | use, confidence, or trust is declared of any land, or of any |
53 | charge upon land, for the use or benefit of any beneficiary, |
54 | under which the title to real property, both legal and |
55 | equitable, is vested in a trustee by a recorded instrument that |
56 | confers on the trustee the power and authority prescribed in |
57 | subsection (3). The recorded instrument does not itself create |
58 | an entity, regardless of whether the relationship among the |
59 | beneficiaries and the trustee is deemed to be an entity under |
60 | other applicable law held by a trustee, subject only to the |
61 | execution of the trust, which may be enforced by the |
62 | beneficiaries. |
63 | (3) OWNERSHIP VESTS IN TRUSTEE.--Every conveyance, deed, |
64 | mortgage, lease assignment, or other instrument heretofore or |
65 | hereafter made, hereinafter referred to as the "the recorded |
66 | instrument," transferring any interest in real property in this |
67 | state, including, but not limited to, a leasehold or mortgagee |
68 | interest, to any person or any corporation, bank, trust company, |
69 | or other entity duly formed under the laws of its state of |
70 | qualification, in which recorded instrument the person, |
71 | corporation, bank, trust company, or other entity is designated |
72 | "trustee," or "as trustee," without therein naming the |
73 | beneficiaries of such trust, whether or not reference is made in |
74 | the recorded instrument to the beneficiaries of such trust or to |
75 | any separate collateral unrecorded declarations or agreements, |
76 | is effective to vest, and is hereby declared to have vested, in |
77 | such trustee both legal and equitable title, and full rights of |
78 | ownership, over the real property or interest therein, with full |
79 | power and authority as granted and provided in the recorded |
80 | instrument to deal in and with the property or interest therein |
81 | or any part thereof; provided, the recorded instrument confers |
82 | on the trustee the power and authority either to protect, to |
83 | conserve, and to sell, or to lease, or to encumber, or otherwise |
84 | to manage and dispose of the real property described in the |
85 | recorded instrument. |
86 | (7) TRUSTEE LIABILITY.--In addition to any other |
87 | limitation on personal liability existing pursuant to statute or |
88 | otherwise, the provisions of ss. 736.08125 and 736.1013 s. |
89 | 736.1013 apply to the trustee of a land trust created pursuant |
90 | to this section. |
91 | (9) SUCCESSOR TRUSTEE.-- |
92 | (a) The provisions of s. 736.0705 s. 737.309 relating to |
93 | the resignation of a trustee do not apply to the appointment of |
94 | a successor trustee under this section. |
95 | Section 2. Section 731.303, Florida Statutes, as amended |
96 | by section 30 of chapter 2006-217, Laws of Florida, is amended |
97 | to read: |
98 | 731.303 Representation.--In the administration of or in |
99 | judicial proceedings involving estates of decedents or trusts, |
100 | the following apply: |
101 | (1) Persons are bound by orders binding others in the |
102 | following cases: |
103 | (a)1. Orders binding the sole holder or all coholders of a |
104 | power of revocation or a general, special, or limited power of |
105 | appointment, including one in the form of a power of amendment |
106 | or revocation to the extent that the power has not become |
107 | unexercisable in fact, bind all persons to the extent that their |
108 | interests, as persons who may take by virtue of the exercise or |
109 | nonexercise of the power, are subject to the power. |
110 | 2. Subparagraph 1. does not apply to: |
111 | a. Any matter determined by the court to involve fraud or |
112 | bad faith by the trustee; |
113 | b. A power of a trustee to distribute trust property; or |
114 | c. A power of appointment held by a person while the |
115 | person is the sole trustee. |
116 | (b) To the extent there is no conflict of interest between |
117 | them or among the persons represented: |
118 | 1. Orders binding a guardian of the property bind the |
119 | ward. |
120 | 2. Orders binding a trustee bind beneficiaries of the |
121 | trust in proceedings to probate a will, in establishing or |
122 | adding to a trust, in reviewing the acts or accounts of a prior |
123 | fiduciary, and in proceedings involving creditors or other third |
124 | parties. However, for purposes of this section, a conflict of |
125 | interest shall be deemed to exist when each trustee of a trust |
126 | that is a beneficiary of the estate is also a personal |
127 | representative of the estate. |
128 | 3. Orders binding a personal representative bind persons |
129 | interested in the undistributed assets of a decedent's estate, |
130 | in actions or proceedings by or against the estate. |
131 | (c) An unborn or unascertained person, or a minor or any |
132 | other person under a legal disability, who is not otherwise |
133 | represented is bound by an order to the extent that person's |
134 | interest is represented by another party having the same or |
135 | greater quality of interest in the proceeding. |
136 | (2) Orders binding a guardian of the person shall not bind |
137 | the ward. |
138 | (3) In proceedings involving the administration of estates |
139 | or trusts, notice is required as follows: |
140 | (a) Notice as prescribed by law shall be given to every |
141 | interested person, or to one who can bind the interested person |
142 | as described in paragraph (1)(a) or paragraph (1)(b). Notice may |
143 | be given both to the interested person and to another who can |
144 | bind him or her. |
145 | (b) Notice is given to unborn or unascertained persons who |
146 | are not represented pursuant to paragraph (1)(a) or paragraph |
147 | (1)(b) by giving notice to all known persons whose interests in |
148 | the proceedings are the same as, or of a greater quality than, |
149 | those of the unborn or unascertained persons. |
150 | (4) If the court determines that representation of the |
151 | interest would otherwise be inadequate, the court may, at any |
152 | time, appoint a guardian ad litem to represent the interests of |
153 | an incapacitated person, an unborn or unascertained person, a |
154 | minor or any other person otherwise under a legal disability, or |
155 | a person whose identity or address is unknown. If not precluded |
156 | by conflict of interest, a guardian ad litem may be appointed to |
157 | represent several persons or interests. |
158 | (5) The holder of a power of appointment over property not |
159 | held in trust may represent and bind persons whose interests, as |
160 | permissible appointees, takers in default, or otherwise, are |
161 | subject to the power. Representation under this subsection does |
162 | not apply to: |
163 | (a) Any matter determined by the court to involve fraud or |
164 | bad faith by the trustee; |
165 | (b) A power of a trustee to distribute trust property; or |
166 | (c) A power of appointment held by a person while the |
167 | person is the sole trustee. |
168 | Section 3. Section 736.0102, Florida Statutes, is amended |
169 | to read: |
170 | 736.0102 Scope.--This code applies to express trusts, |
171 | charitable or noncharitable, and trusts created pursuant to a |
172 | law, judgment, or decree that requires the trust to be |
173 | administered in the manner of an express trust. This code does |
174 | not apply to constructive or resulting trusts; conservatorships; |
175 | custodial arrangements pursuant to the Florida Uniform Transfers |
176 | to Minors Act; business trusts providing for certificates to be |
177 | issued to beneficiaries; common trust funds; land trusts under |
178 | s. 689.071, except to the extent provided in s. 689.071(7) s. |
179 | 689.05; trusts created by the form of the account or by the |
180 | deposit agreement at a financial institution; voting trusts; |
181 | security arrangements; liquidation trusts; trusts for the |
182 | primary purpose of paying debts, dividends, interest, salaries, |
183 | wages, profits, pensions, or employee benefits of any kind; and |
184 | any arrangement under which a person is nominee or escrowee for |
185 | another. |
186 | Section 4. Section 736.0501, Florida Statutes, is amended |
187 | to read: |
188 | 736.0501 Rights of beneficiary's creditor or |
189 | assignee.--Except as provided in s. 736.0504, to the extent a |
190 | beneficiary's interest is not subject to a spendthrift |
191 | provision, the court may authorize a creditor or assignee of the |
192 | beneficiary to reach the beneficiary's interest by attachment of |
193 | present or future distributions to or for the benefit of the |
194 | beneficiary or by other means. The court may limit the award to |
195 | such relief as is appropriate under the circumstances. |
196 | Section 5. Subsection (1) of section 736.0502, Florida |
197 | Statutes, is amended to read: |
198 | 736.0502 Spendthrift provision.-- |
199 | (1) A spendthrift provision is valid only if the provision |
200 | restrains both voluntary and involuntary transfer of a |
201 | beneficiary's interest. This subsection does not apply to any |
202 | trust the terms of which are included in an instrument executed |
203 | before in existence on the effective date of this code. |
204 | Section 6. Subsection (3) of section 736.0503, Florida |
205 | Statutes, is amended to read: |
206 | 736.0503 Exceptions to spendthrift provision.-- |
207 | (3) Except as otherwise provided in this subsection and in |
208 | s. 736.0504, a claimant against which a spendthrift provision |
209 | may not be enforced may obtain from a court, or pursuant to the |
210 | Uniform Interstate Family Support Act, an order attaching |
211 | present or future distributions to or for the benefit of the |
212 | beneficiary. The court may limit the award to such relief as is |
213 | appropriate under the circumstances. Notwithstanding this |
214 | subsection, the remedies provided in this subsection apply to a |
215 | claim by a beneficiary's child, spouse, former spouse, or a |
216 | judgment creditor described in paragraph (2)(a) or paragraph |
217 | (2)(b) only as a last resort upon an initial showing that |
218 | traditional methods of enforcing the claim are insufficient. |
219 | Section 7. Section 736.0504, Florida Statutes, is amended |
220 | to read: |
221 | 736.0504 Discretionary trusts; effect of standard.-- |
222 | (1) As used in this section, the term "discretionary |
223 | distribution" means a distribution that is subject to the |
224 | trustee's discretion whether or not the discretion is expressed |
225 | in the form of a standard of distribution and whether or not the |
226 | trustee has abused the discretion. |
227 | (2) Whether or not a trust contains a spendthrift |
228 | provision, if a trustee may make discretionary distributions to |
229 | or for the benefit of a beneficiary, a creditor of the |
230 | beneficiary, including a creditor as described in s. |
231 | 736.0503(2), may not: |
232 | (a) Compel a distribution that is subject to the trustee's |
233 | discretion; or |
234 | (b) Attach or otherwise reach the interest, if any, which |
235 | the beneficiary might have as a result of the trustee's |
236 | authority to make discretionary distributions to or for the |
237 | benefit of the beneficiary. Whether or not a trust contains a |
238 | spendthrift provision, a creditor of a beneficiary may not |
239 | compel a distribution that is subject to the trustee's |
240 | discretion, even if: |
241 | (a) The discretion is expressed in the form of a standard |
242 | of distribution; or |
243 | (b) The trustee has abused the discretion. |
244 | (3)(2) If the trustee's discretion to make distributions |
245 | for the trustee's own benefit is limited by an ascertainable |
246 | standard, a creditor may not reach or compel distribution of the |
247 | beneficial interest except to the extent the interest would be |
248 | subject to the creditor's claim were the beneficiary not acting |
249 | as trustee. |
250 | (4)(3) This section does not limit the right of a |
251 | beneficiary to maintain a judicial proceeding against a trustee |
252 | for an abuse of discretion or failure to comply with a standard |
253 | for distribution. |
254 | Section 8. Subsection (5) of section 736.0813, Florida |
255 | Statutes, is amended to read: |
256 | 736.0813 Duty to inform and account.--The trustee shall |
257 | keep the qualified beneficiaries of the trust reasonably |
258 | informed of the trust and its administration. |
259 | (5) This section applies to trust accountings rendered for |
260 | accounting periods beginning on or after July 1, 2007 January 1, |
261 | 2008. |
262 | Section 9. Subsection (6) of section 736.1008, Florida |
263 | Statutes, is amended to read: |
264 | 736.1008 Limitations on proceedings against trustees.-- |
265 | (6) This section applies to trust accountings for |
266 | accounting periods beginning on or after July 1, 2007 January 1, |
267 | 2008, and to written reports, other than trust accountings, |
268 | received by a beneficiary on or after July 1, 2007 January 1, |
269 | 2008. |
270 | Section 10. Subsection (2) of section 736.1011, Florida |
271 | Statutes, is amended to read: |
272 | 736.1011 Exculpation of trustee.-- |
273 | (2) An exculpatory term drafted or caused to be drafted by |
274 | the trustee is invalid as an abuse of a fiduciary or |
275 | confidential relationship unless: |
276 | (a) The trustee proves that the exculpatory term is fair |
277 | under the circumstances; and that |
278 | (b) The term's existence and contents were adequately |
279 | communicated directly to the settlor. This paragraph applies |
280 | only to trusts created on or after July 1, 2007. |
281 | Section 11. Subsection (5) of section 736.1106, Florida |
282 | Statutes, is amended to read: |
283 | 736.1106 Antilapse; survivorship with respect to future |
284 | interests under terms of inter vivos and testamentary trusts; |
285 | substitute takers.-- |
286 | (5) Subsections (1) through (4) apply This section applies |
287 | to all trusts other than trusts that were irrevocable before the |
288 | effective date of this code. Sections 732.603, 732.604, and |
289 | 737.6035, as they exist on June 30, 2007, continue to apply to |
290 | other trusts executed on or after June 12, 2003. |
291 | Section 12. Paragraph (a) of subsection (4) of section |
292 | 736.1204, Florida Statutes, is amended to read: |
293 | 736.1204 Powers and duties of trustee of a private |
294 | foundation trust or a split interest trust.-- |
295 | (4) Paragraphs (3)(b) and (c) shall not apply to a split |
296 | interest trust if: |
297 | (a) All the income interest from income, and none of the |
298 | remainder interest, of the trust is devoted solely to one or |
299 | more of the purposes described in s. 170(c)(2)(B) of the |
300 | Internal Revenue Code, and all amounts in the trust for which a |
301 | deduction was allowed under s. 170, s. 545(b)(2), s. 556(b)(2), |
302 | s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of the Internal |
303 | Revenue Code have an aggregate fair market value of not more |
304 | than 60 percent of the aggregate fair market value of all |
305 | amounts in the trust; or |
306 | Section 13. Section 736.1209, Florida Statutes, is amended |
307 | to read: |
308 | 736.1209 Election to come under this part.--With the |
309 | consent of that organization or organizations, a trustee of a |
310 | trust for the benefit of a public charitable organization or |
311 | organizations may come under s. 736.1208(5) s. 736.0838(5) by |
312 | filing with the state attorney an election, accompanied by the |
313 | proof of required consent. Thereafter the trust shall be subject |
314 | to s. 736.1208(5). |
315 | Section 14. Paragraph (g) of subsection (2) of section |
316 | 736.1001, Florida Statutes, is amended to read: |
317 | 736.1001 Remedies for breach of trust.-- |
318 | (2) To remedy a breach of trust that has occurred or may |
319 | occur, the court may: |
320 | (g) Remove the trustee as provided in s. 736.0706 s. |
321 | 736.706; |
322 | Section 15. This act shall take effect July 1, 2007. |