HB 1183

1
A bill to be entitled
2An act relating to the administration of trusts; amending
3s. 689.071, F.S.; limiting the definition of the term
4"land trust" to an arrangement in which title to real
5property is vested in a trustee by a recorded instrument
6that confers certain authority as prescribed by state law;
7providing that such a recorded instrument does not itself
8create an entity; providing that a recorded instrument is
9effective regardless of whether it refers to beneficiaries
10of the trust; providing that a recorded instrument vests
11both legal and equitable title to real property or the
12interest therein in the trustee; conforming cross-
13references; amending s. 731.303, F.S.; excluding trusts
14from guidelines regarding administration and judicial
15proceedings; amending s. 736.0102, F.S.; conforming a
16cross-reference; amending s. 736.0501, F.S.; limiting the
17ability of creditors or assignees of a beneficiary to
18reach the beneficiary's interest in a trust; amending s.
19736.0502, F.S.; clarifying the application of restrictions
20on transferring a beneficiary's interest under a
21spendthrift provision; amending s. 736.0503, F.S.;
22providing an exception to a provision authorizing the
23attachment of trust distributions; amending s. 736.0504,
24F.S.; defining the term "discretionary distribution";
25prohibiting certain creditors from compelling
26distributions or attaching a beneficiary's interest or
27expectancy; amending ss. 736.0813 and 736.1008, F.S.;
28conforming dates of applicability of the accounting
29provision and corresponding limitations to the effective
30date of the code; amending s. 736.1011, F.S.; providing
31that direct communication of exculpatory terms to the
32trust settlor is required only for trusts created on or
33after July 1, 2007; amending s. 736.1106, F.S.; providing
34that certain antilapse provisions continue to apply to
35irrevocable trusts created between June 12, 2003, and July
361, 2007; amending s. 736.1204, F.S.; clarifying the use of
37income interest of a trust; amending ss. 736.1209 and
38736.1001, F.S., relating to the release of power by a
39trustee and removal of a trustee; conforming cross-
40references; providing an effective date.
41
42Be It Enacted by the Legislature of the State of Florida:
43
44     Section 1.  Paragraph (d) of subsection (2), subsections
45(3) and (7), and paragraph (a) of subsection (9) of section
46689.071, Florida Statutes, as amended by section 21 of chapter
472006-217, 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
51means any express written agreement or arrangement by which a
52use, confidence, or trust is declared of any land, or of any
53charge upon land, for the use or benefit of any beneficiary,
54under which the title to real property, both legal and
55equitable, is vested in a trustee by a recorded instrument that
56confers on the trustee the power and authority prescribed in
57subsection (3). The recorded instrument does not itself create
58an entity, regardless of whether the relationship among the
59beneficiaries and the trustee is deemed to be an entity under
60other applicable law held by a trustee, subject only to the
61execution of the trust, which may be enforced by the
62beneficiaries.
63     (3)  OWNERSHIP VESTS IN TRUSTEE.--Every conveyance, deed,
64mortgage, lease assignment, or other instrument heretofore or
65hereafter made, hereinafter referred to as the "the recorded
66instrument," transferring any interest in real property in this
67state, including, but not limited to, a leasehold or mortgagee
68interest, to any person or any corporation, bank, trust company,
69or other entity duly formed under the laws of its state of
70qualification, in which recorded instrument the person,
71corporation, bank, trust company, or other entity is designated
72"trustee," or "as trustee," without therein naming the
73beneficiaries of such trust, whether or not reference is made in
74the recorded instrument to the beneficiaries of such trust or to
75any separate collateral unrecorded declarations or agreements,
76is effective to vest, and is hereby declared to have vested, in
77such trustee both legal and equitable title, and full rights of
78ownership, over the real property or interest therein, with full
79power and authority as granted and provided in the recorded
80instrument to deal in and with the property or interest therein
81or any part thereof; provided, the recorded instrument confers
82on the trustee the power and authority either to protect, to
83conserve, and to sell, or to lease, or to encumber, or otherwise
84to manage and dispose of the real property described in the
85recorded instrument.
86     (7)  TRUSTEE LIABILITY.--In addition to any other
87limitation on personal liability existing pursuant to statute or
88otherwise, the provisions of ss. 736.08125 and 736.1013 s.
89736.1013 apply to the trustee of a land trust created pursuant
90to this section.
91     (9)  SUCCESSOR TRUSTEE.--
92     (a)  The provisions of s. 736.0705 s. 737.309 relating to
93the resignation of a trustee do not apply to the appointment of
94a successor trustee under this section.
95     Section 2.  Section 731.303, Florida Statutes, as amended
96by section 30 of chapter 2006-217, Laws of Florida, is amended
97to read:
98     731.303  Representation.--In the administration of or in
99judicial proceedings involving estates of decedents or trusts,
100the following apply:
101     (1)  Persons are bound by orders binding others in the
102following cases:
103     (a)1.  Orders binding the sole holder or all coholders of a
104power of revocation or a general, special, or limited power of
105appointment, including one in the form of a power of amendment
106or revocation to the extent that the power has not become
107unexercisable in fact, bind all persons to the extent that their
108interests, as persons who may take by virtue of the exercise or
109nonexercise 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
112bad 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
115person is the sole trustee.
116     (b)  To the extent there is no conflict of interest between
117them or among the persons represented:
118     1.  Orders binding a guardian of the property bind the
119ward.
120     2.  Orders binding a trustee bind beneficiaries of the
121trust in proceedings to probate a will, in establishing or
122adding to a trust, in reviewing the acts or accounts of a prior
123fiduciary, and in proceedings involving creditors or other third
124parties. However, for purposes of this section, a conflict of
125interest shall be deemed to exist when each trustee of a trust
126that is a beneficiary of the estate is also a personal
127representative of the estate.
128     3.  Orders binding a personal representative bind persons
129interested in the undistributed assets of a decedent's estate,
130in actions or proceedings by or against the estate.
131     (c)  An unborn or unascertained person, or a minor or any
132other person under a legal disability, who is not otherwise
133represented is bound by an order to the extent that person's
134interest is represented by another party having the same or
135greater quality of interest in the proceeding.
136     (2)  Orders binding a guardian of the person shall not bind
137the ward.
138     (3)  In proceedings involving the administration of estates
139or trusts, notice is required as follows:
140     (a)  Notice as prescribed by law shall be given to every
141interested person, or to one who can bind the interested person
142as described in paragraph (1)(a) or paragraph (1)(b). Notice may
143be given both to the interested person and to another who can
144bind him or her.
145     (b)  Notice is given to unborn or unascertained persons who
146are not represented pursuant to paragraph (1)(a) or paragraph
147(1)(b) by giving notice to all known persons whose interests in
148the proceedings are the same as, or of a greater quality than,
149those of the unborn or unascertained persons.
150     (4)  If the court determines that representation of the
151interest would otherwise be inadequate, the court may, at any
152time, appoint a guardian ad litem to represent the interests of
153an incapacitated person, an unborn or unascertained person, a
154minor or any other person otherwise under a legal disability, or
155a person whose identity or address is unknown. If not precluded
156by conflict of interest, a guardian ad litem may be appointed to
157represent several persons or interests.
158     (5)  The holder of a power of appointment over property not
159held in trust may represent and bind persons whose interests, as
160permissible appointees, takers in default, or otherwise, are
161subject to the power. Representation under this subsection does
162not apply to:
163     (a)  Any matter determined by the court to involve fraud or
164bad 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
167person is the sole trustee.
168     Section 3.  Section 736.0102, Florida Statutes, is amended
169to read:
170     736.0102  Scope.--This code applies to express trusts,
171charitable or noncharitable, and trusts created pursuant to a
172law, judgment, or decree that requires the trust to be
173administered in the manner of an express trust. This code does
174not apply to constructive or resulting trusts; conservatorships;
175custodial arrangements pursuant to the Florida Uniform Transfers
176to Minors Act; business trusts providing for certificates to be
177issued to beneficiaries; common trust funds; land trusts under
178s. 689.071, except to the extent provided in s. 689.071(7) s.
179689.05; trusts created by the form of the account or by the
180deposit agreement at a financial institution; voting trusts;
181security arrangements; liquidation trusts; trusts for the
182primary purpose of paying debts, dividends, interest, salaries,
183wages, profits, pensions, or employee benefits of any kind; and
184any arrangement under which a person is nominee or escrowee for
185another.
186     Section 4.  Section 736.0501, Florida Statutes, is amended
187to read:
188     736.0501  Rights of beneficiary's creditor or
189assignee.--Except as provided in s. 736.0504, to the extent a
190beneficiary's interest is not subject to a spendthrift
191provision, the court may authorize a creditor or assignee of the
192beneficiary to reach the beneficiary's interest by attachment of
193present or future distributions to or for the benefit of the
194beneficiary or by other means. The court may limit the award to
195such relief as is appropriate under the circumstances.
196     Section 5.  Subsection (1) of section 736.0502, Florida
197Statutes, is amended to read:
198     736.0502  Spendthrift provision.--
199     (1)  A spendthrift provision is valid only if the provision
200restrains both voluntary and involuntary transfer of a
201beneficiary's interest. This subsection does not apply to any
202trust the terms of which are included in an instrument executed
203before in existence on the effective date of this code.
204     Section 6.  Subsection (3) of section 736.0503, Florida
205Statutes, is amended to read:
206     736.0503  Exceptions to spendthrift provision.--
207     (3)  Except as otherwise provided in this subsection and in
208s. 736.0504, a claimant against which a spendthrift provision
209may not be enforced may obtain from a court, or pursuant to the
210Uniform Interstate Family Support Act, an order attaching
211present or future distributions to or for the benefit of the
212beneficiary. The court may limit the award to such relief as is
213appropriate under the circumstances. Notwithstanding this
214subsection, the remedies provided in this subsection apply to a
215claim by a beneficiary's child, spouse, former spouse, or a
216judgment creditor described in paragraph (2)(a) or paragraph
217(2)(b) only as a last resort upon an initial showing that
218traditional methods of enforcing the claim are insufficient.
219     Section 7.  Section 736.0504, Florida Statutes, is amended
220to read:
221     736.0504  Discretionary trusts; effect of standard.--
222     (1)  As used in this section, the term "discretionary
223distribution" means a distribution that is subject to the
224trustee's discretion whether or not the discretion is expressed
225in the form of a standard of distribution and whether or not the
226trustee has abused the discretion.
227     (2)  Whether or not a trust contains a spendthrift
228provision, if a trustee may make discretionary distributions to
229or for the benefit of a beneficiary, a creditor of the
230beneficiary, including a creditor as described in s.
231736.0503(2), may not:
232     (a)  Compel a distribution that is subject to the trustee's
233discretion; or
234     (b)  Attach or otherwise reach the interest, if any, which
235the beneficiary might have as a result of the trustee's
236authority to make discretionary distributions to or for the
237benefit of the beneficiary. Whether or not a trust contains a
238spendthrift provision, a creditor of a beneficiary may not
239compel a distribution that is subject to the trustee's
240discretion, even if:
241     (a)  The discretion is expressed in the form of a standard
242of distribution; or
243     (b)  The trustee has abused the discretion.
244     (3)(2)  If the trustee's discretion to make distributions
245for the trustee's own benefit is limited by an ascertainable
246standard, a creditor may not reach or compel distribution of the
247beneficial interest except to the extent the interest would be
248subject to the creditor's claim were the beneficiary not acting
249as trustee.
250     (4)(3)  This section does not limit the right of a
251beneficiary to maintain a judicial proceeding against a trustee
252for an abuse of discretion or failure to comply with a standard
253for distribution.
254     Section 8.  Subsection (5) of section 736.0813, Florida
255Statutes, is amended to read:
256     736.0813  Duty to inform and account.--The trustee shall
257keep the qualified beneficiaries of the trust reasonably
258informed of the trust and its administration.
259     (5)  This section applies to trust accountings rendered for
260accounting periods beginning on or after July 1, 2007 January 1,
2612008.
262     Section 9.  Subsection (6) of section 736.1008, Florida
263Statutes, is amended to read:
264     736.1008  Limitations on proceedings against trustees.--
265     (6)  This section applies to trust accountings for
266accounting periods beginning on or after July 1, 2007 January 1,
2672008, and to written reports, other than trust accountings,
268received by a beneficiary on or after July 1, 2007 January 1,
2692008.
270     Section 10.  Subsection (2) of section 736.1011, Florida
271Statutes, is amended to read:
272     736.1011  Exculpation of trustee.--
273     (2)  An exculpatory term drafted or caused to be drafted by
274the trustee is invalid as an abuse of a fiduciary or
275confidential relationship unless:
276     (a)  The trustee proves that the exculpatory term is fair
277under the circumstances; and that
278     (b)  The term's existence and contents were adequately
279communicated directly to the settlor. This paragraph applies
280only to trusts created on or after July 1, 2007.
281     Section 11.  Subsection (5) of section 736.1106, Florida
282Statutes, is amended to read:
283     736.1106  Antilapse; survivorship with respect to future
284interests under terms of inter vivos and testamentary trusts;
285substitute takers.--
286     (5)  Subsections (1) through (4) apply This section applies
287to all trusts other than trusts that were irrevocable before the
288effective date of this code. Sections 732.603, 732.604, and
289737.6035, as they exist on June 30, 2007, continue to apply to
290other trusts executed on or after June 12, 2003.
291     Section 12.  Paragraph (a) of subsection (4) of section
292736.1204, Florida Statutes, is amended to read:
293     736.1204  Powers and duties of trustee of a private
294foundation trust or a split interest trust.--
295     (4)  Paragraphs (3)(b) and (c) shall not apply to a split
296interest trust if:
297     (a)  All the income interest from income, and none of the
298remainder interest, of the trust is devoted solely to one or
299more of the purposes described in s. 170(c)(2)(B) of the
300Internal Revenue Code, and all amounts in the trust for which a
301deduction was allowed under s. 170, s. 545(b)(2), s. 556(b)(2),
302s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of the Internal
303Revenue Code have an aggregate fair market value of not more
304than 60 percent of the aggregate fair market value of all
305amounts in the trust; or
306     Section 13.  Section 736.1209, Florida Statutes, is amended
307to read:
308     736.1209  Election to come under this part.--With the
309consent of that organization or organizations, a trustee of a
310trust for the benefit of a public charitable organization or
311organizations may come under s. 736.1208(5) s. 736.0838(5) by
312filing with the state attorney an election, accompanied by the
313proof of required consent. Thereafter the trust shall be subject
314to s. 736.1208(5).
315     Section 14.  Paragraph (g) of subsection (2) of section
316736.1001, 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
319occur, the court may:
320     (g)  Remove the trustee as provided in s. 736.0706 s.
321736.706;
322     Section 15.  This act shall take effect July 1, 2007.


CODING: Words stricken are deletions; words underlined are additions.