| 1 | Representative(s) Hukill offered the following: |
| 2 |
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| 3 | Amendment (with and title amendment) |
| 4 | Between lines 373 and 374, insert: |
| 5 | Section 7. Paragraph (d) of subsection (2), subsections |
| 6 | (3) and (7), and paragraph (a) of subsection (9) of section |
| 7 | 689.071, Florida Statutes, as amended by section 21 of chapter |
| 8 | 2006-217, Laws of Florida, are amended to read: |
| 9 | 689.071 Florida Land Trust Act.-- |
| 10 | (2) DEFINITIONS.--As used in this section, the term: |
| 11 | (d) "Land trust" is not the creation of an entity, but |
| 12 | means any express written agreement or arrangement by which a |
| 13 | use, confidence, or trust is declared of any land, or of any |
| 14 | charge upon land, for the use or benefit of any beneficiary, |
| 15 | under which the title to real property, both legal and |
| 16 | equitable, is vested in a trustee by a recorded instrument that |
| 17 | confers on the trustee the power and authority prescribed in |
| 18 | subsection (3). The recorded instrument does not itself create |
| 19 | an entity, regardless of whether the relationship among the |
| 20 | beneficiaries and the trustee is deemed to be an entity under |
| 21 | other applicable law held by a trustee, subject only to the |
| 22 | execution of the trust, which may be enforced by the |
| 23 | beneficiaries. |
| 24 | (3) OWNERSHIP VESTS IN TRUSTEE.--Every conveyance, deed, |
| 25 | mortgage, lease assignment, or other instrument heretofore or |
| 26 | hereafter made, hereinafter referred to as the "the recorded |
| 27 | instrument," transferring any interest in real property in this |
| 28 | state, including, but not limited to, a leasehold or mortgagee |
| 29 | interest, to any person or any corporation, bank, trust company, |
| 30 | or other entity duly formed under the laws of its state of |
| 31 | qualification, in which recorded instrument the person, |
| 32 | corporation, bank, trust company, or other entity is designated |
| 33 | "trustee," or "as trustee," without therein naming the |
| 34 | beneficiaries of such trust, whether or not reference is made in |
| 35 | the recorded instrument to the beneficiaries of such trust or to |
| 36 | any separate collateral unrecorded declarations or agreements, |
| 37 | is effective to vest, and is hereby declared to have vested, in |
| 38 | such trustee both legal and equitable title, and full rights of |
| 39 | ownership, over the real property or interest therein, with full |
| 40 | power and authority as granted and provided in the recorded |
| 41 | instrument to deal in and with the property or interest therein |
| 42 | or any part thereof; provided, the recorded instrument confers |
| 43 | on the trustee the power and authority either to protect, to |
| 44 | conserve, and to sell, or to lease, or to encumber, or otherwise |
| 45 | to manage and dispose of the real property described in the |
| 46 | recorded instrument. |
| 47 | (7) TRUSTEE LIABILITY.--In addition to any other |
| 48 | limitation on personal liability existing pursuant to statute or |
| 49 | otherwise, the provisions of ss. 736.08125 and 736.1013 s. |
| 50 | 736.1013 apply to the trustee of a land trust created pursuant |
| 51 | to this section. |
| 52 | (9) SUCCESSOR TRUSTEE.-- |
| 53 | (a) The provisions of s. 736.0705 s. 737.309 relating to |
| 54 | the resignation of a trustee do not apply to the appointment of |
| 55 | a successor trustee under this section. |
| 56 | Section 8. Subsection (35) of section 731.201, Florida |
| 57 | Statutes, as amended by section 29 of chapter 2006-217, Laws of |
| 58 | Florida, is amended to read: |
| 59 | 731.201 General definitions.--Subject to additional |
| 60 | definitions in subsequent chapters that are applicable to |
| 61 | specific chapters or parts, and unless the context otherwise |
| 62 | requires, in this code, in s. 409.9101, and in chapters 736, |
| 63 | 738, 739, and 744, the term: |
| 64 | (35) "Trust" means an express trust, private or |
| 65 | charitable, with additions to it, wherever and however created. |
| 66 | It also includes a trust created or determined by a judgment or |
| 67 | decree under which the trust is to be administered in the manner |
| 68 | of an express trust. "Trust" excludes other constructive trusts, |
| 69 | and it excludes resulting trusts; conservatorships; custodial |
| 70 | arrangements pursuant to the Florida Uniform Transfers to Minors |
| 71 | Act; business trusts providing for certificates to be issued to |
| 72 | beneficiaries; common trust funds; land trusts under s. 689.071, |
| 73 | except to the extent provided in s. 689.071(7) 689.05; trusts |
| 74 | created by the form of the account or by the deposit agreement |
| 75 | at a financial institution; voting trusts; security |
| 76 | arrangements; liquidation trusts; trusts for the primary purpose |
| 77 | of paying debts, dividends, interest, salaries, wages, profits, |
| 78 | pensions, or employee benefits of any kind; and any arrangement |
| 79 | under which a person is nominee or escrowee for another. |
| 80 | Section 9. Section 731.303, Florida Statutes, as amended |
| 81 | by section 30 of chapter 2006-217, Laws of Florida, is amended |
| 82 | to read: |
| 83 | 731.303 Representation.--In the administration of or in |
| 84 | judicial proceedings involving estates of decedents or trusts, |
| 85 | the following apply: |
| 86 | (1) Persons are bound by orders binding others in the |
| 87 | following cases: |
| 88 | (a)1. Orders binding the sole holder or all coholders of a |
| 89 | power of revocation or a general, special, or limited power of |
| 90 | appointment, including one in the form of a power of amendment |
| 91 | or revocation to the extent that the power has not become |
| 92 | unexercisable in fact, bind all persons to the extent that their |
| 93 | interests, as persons who may take by virtue of the exercise or |
| 94 | nonexercise of the power, are subject to the power. |
| 95 | 2. Subparagraph 1. does not apply to: |
| 96 | a. Any matter determined by the court to involve fraud or |
| 97 | bad faith by the trustee; |
| 98 | b. A power of a trustee to distribute trust property; or |
| 99 | c. A power of appointment held by a person while the |
| 100 | person is the sole trustee. |
| 101 | (b) To the extent there is no conflict of interest between |
| 102 | them or among the persons represented: |
| 103 | 1. Orders binding a guardian of the property bind the |
| 104 | ward. |
| 105 | 2. Orders binding a trustee bind beneficiaries of the |
| 106 | trust in proceedings to probate a will, in establishing or |
| 107 | adding to a trust, in reviewing the acts or accounts of a prior |
| 108 | fiduciary, and in proceedings involving creditors or other third |
| 109 | parties. However, for purposes of this section, a conflict of |
| 110 | interest shall be deemed to exist when each trustee of a trust |
| 111 | that is a beneficiary of the estate is also a personal |
| 112 | representative of the estate. |
| 113 | 3. Orders binding a personal representative bind persons |
| 114 | interested in the undistributed assets of a decedent's estate, |
| 115 | in actions or proceedings by or against the estate. |
| 116 | (c) An unborn or unascertained person, or a minor or any |
| 117 | other person under a legal disability, who is not otherwise |
| 118 | represented is bound by an order to the extent that person's |
| 119 | interest is represented by another party having the same or |
| 120 | greater quality of interest in the proceeding. |
| 121 | (2) Orders binding a guardian of the person shall not bind |
| 122 | the ward. |
| 123 | (3) In proceedings involving the administration of estates |
| 124 | or trusts, notice is required as follows: |
| 125 | (a) Notice as prescribed by law shall be given to every |
| 126 | interested person, or to one who can bind the interested person |
| 127 | as described in paragraph (1)(a) or paragraph (1)(b). Notice may |
| 128 | be given both to the interested person and to another who can |
| 129 | bind him or her. |
| 130 | (b) Notice is given to unborn or unascertained persons who |
| 131 | are not represented pursuant to paragraph (1)(a) or paragraph |
| 132 | (1)(b) by giving notice to all known persons whose interests in |
| 133 | the proceedings are the same as, or of a greater quality than, |
| 134 | those of the unborn or unascertained persons. |
| 135 | (4) If the court determines that representation of the |
| 136 | interest would otherwise be inadequate, the court may, at any |
| 137 | time, appoint a guardian ad litem to represent the interests of |
| 138 | an incapacitated person, an unborn or unascertained person, a |
| 139 | minor or any other person otherwise under a legal disability, or |
| 140 | a person whose identity or address is unknown. If not precluded |
| 141 | by conflict of interest, a guardian ad litem may be appointed to |
| 142 | represent several persons or interests. |
| 143 | (5) The holder of a power of appointment over property not |
| 144 | held in trust may represent and bind persons whose interests, as |
| 145 | permissible appointees, takers in default, or otherwise, are |
| 146 | subject to the power. Representation under this subsection does |
| 147 | not apply to: |
| 148 | (a) Any matter determined by the court to involve fraud or |
| 149 | bad faith by the trustee; |
| 150 | (b) A power of a trustee to distribute trust property; or |
| 151 | (c) A power of appointment held by a person while the |
| 152 | person is the sole trustee. |
| 153 | Section 10. Section 736.0102, Florida Statutes, is amended |
| 154 | to read: |
| 155 | 736.0102 Scope.--This code applies to express trusts, |
| 156 | charitable or noncharitable, and trusts created pursuant to a |
| 157 | law, judgment, or decree that requires the trust to be |
| 158 | administered in the manner of an express trust. This code does |
| 159 | not apply to constructive or resulting trusts; conservatorships; |
| 160 | custodial arrangements pursuant to the Florida Uniform Transfers |
| 161 | to Minors Act; business trusts providing for certificates to be |
| 162 | issued to beneficiaries; common trust funds; land trusts under |
| 163 | s. 689.071, except to the extent provided in s. 689.071(7) s. |
| 164 | 689.05; trusts created by the form of the account or by the |
| 165 | deposit agreement at a financial institution; voting trusts; |
| 166 | security arrangements; liquidation trusts; trusts for the |
| 167 | primary purpose of paying debts, dividends, interest, salaries, |
| 168 | wages, profits, pensions, or employee benefits of any kind; and |
| 169 | any arrangement under which a person is nominee or escrowee for |
| 170 | another. |
| 171 | Section 11. Section 736.0501, Florida Statutes, is amended |
| 172 | to read: |
| 173 | 736.0501 Rights of beneficiary's creditor or |
| 174 | assignee.--Except as provided in s. 736.0504, to the extent a |
| 175 | beneficiary's interest is not subject to a spendthrift |
| 176 | provision, the court may authorize a creditor or assignee of the |
| 177 | beneficiary to reach the beneficiary's interest by attachment of |
| 178 | present or future distributions to or for the benefit of the |
| 179 | beneficiary or by other means. The court may limit the award to |
| 180 | such relief as is appropriate under the circumstances. |
| 181 | Section 12. Subsection (1) of section 736.0502, Florida |
| 182 | Statutes, is amended to read: |
| 183 | 736.0502 Spendthrift provision.-- |
| 184 | (1) A spendthrift provision is valid only if the provision |
| 185 | restrains both voluntary and involuntary transfer of a |
| 186 | beneficiary's interest. This subsection does not apply to any |
| 187 | trust the terms of which are included in an instrument executed |
| 188 | before in existence on the effective date of this code. |
| 189 | Section 13. Subsection (3) of section 736.0503, Florida |
| 190 | Statutes, is amended to read: |
| 191 | 736.0503 Exceptions to spendthrift provision.-- |
| 192 | (3) Except as otherwise provided in this subsection and in |
| 193 | s. 736.0504, a claimant against which a spendthrift provision |
| 194 | may not be enforced may obtain from a court, or pursuant to the |
| 195 | Uniform Interstate Family Support Act, an order attaching |
| 196 | present or future distributions to or for the benefit of the |
| 197 | beneficiary. The court may limit the award to such relief as is |
| 198 | appropriate under the circumstances. Notwithstanding this |
| 199 | subsection, the remedies provided in this subsection apply to a |
| 200 | claim by a beneficiary's child, spouse, former spouse, or a |
| 201 | judgment creditor described in paragraph (2)(a) or paragraph |
| 202 | (2)(b) only as a last resort upon an initial showing that |
| 203 | traditional methods of enforcing the claim are insufficient. |
| 204 | Section 14. Section 736.0504, Florida Statutes, is amended |
| 205 | to read: |
| 206 | 736.0504 Discretionary trusts; effect of standard.-- |
| 207 | (1) As used in this section, the term "discretionary |
| 208 | distribution" means a distribution that is subject to the |
| 209 | trustee's discretion whether or not the discretion is expressed |
| 210 | in the form of a standard of distribution and whether or not the |
| 211 | trustee has abused the discretion. |
| 212 | (2) Whether or not a trust contains a spendthrift |
| 213 | provision, if a trustee may make discretionary distributions to |
| 214 | or for the benefit of a beneficiary, a creditor of the |
| 215 | beneficiary, including a creditor as described in s. |
| 216 | 736.0503(2), may not: |
| 217 | (a) Compel a distribution that is subject to the trustee's |
| 218 | discretion; or |
| 219 | (b) Attach or otherwise reach the interest, if any, which |
| 220 | the beneficiary might have as a result of the trustee's |
| 221 | authority to make discretionary distributions to or for the |
| 222 | benefit of the beneficiary. Whether or not a trust contains a |
| 223 | spendthrift provision, a creditor of a beneficiary may not |
| 224 | compel a distribution that is subject to the trustee's |
| 225 | discretion, even if: |
| 226 | (a) The discretion is expressed in the form of a standard |
| 227 | of distribution; or |
| 228 | (b) The trustee has abused the discretion. |
| 229 | (3)(2) If the trustee's discretion to make distributions |
| 230 | for the trustee's own benefit is limited by an ascertainable |
| 231 | standard, a creditor may not reach or compel distribution of the |
| 232 | beneficial interest except to the extent the interest would be |
| 233 | subject to the creditor's claim were the beneficiary not acting |
| 234 | as trustee. |
| 235 | (4)(3) This section does not limit the right of a |
| 236 | beneficiary to maintain a judicial proceeding against a trustee |
| 237 | for an abuse of discretion or failure to comply with a standard |
| 238 | for distribution. |
| 239 | Section 15. Subsection (5) of section 736.0813, Florida |
| 240 | Statutes, is amended to read: |
| 241 | 736.0813 Duty to inform and account.--The trustee shall |
| 242 | keep the qualified beneficiaries of the trust reasonably |
| 243 | informed of the trust and its administration. |
| 244 | (5) This section applies to trust accountings rendered for |
| 245 | accounting periods beginning on or after July 1, 2007 January 1, |
| 246 | 2008. |
| 247 | Section 16. Subsection (5) of section 736.1106, Florida |
| 248 | Statutes, is amended to read: |
| 249 | 736.1106 Antilapse; survivorship with respect to future |
| 250 | interests under terms of inter vivos and testamentary trusts; |
| 251 | substitute takers.-- |
| 252 | (5) Subsections (1) through (4) apply This section applies |
| 253 | to all trusts other than trusts that were irrevocable before the |
| 254 | effective date of this code. Sections 732.603, 732.604, and |
| 255 | 737.6035, as they exist on June 30, 2007, continue to apply to |
| 256 | other trusts executed on or after June 12, 2003. |
| 257 | Section 17. Paragraph (a) of subsection (4) of section |
| 258 | 736.1204, Florida Statutes, is amended to read: |
| 259 | 736.1204 Powers and duties of trustee of a private |
| 260 | foundation trust or a split interest trust.-- |
| 261 | (4) Paragraphs (3)(b) and (c) shall not apply to a split |
| 262 | interest trust if: |
| 263 | (a) All the income interest from income, and none of the |
| 264 | remainder interest, of the trust is devoted solely to one or |
| 265 | more of the purposes described in s. 170(c)(2)(B) of the |
| 266 | Internal Revenue Code, and all amounts in the trust for which a |
| 267 | deduction was allowed under s. 170, s. 545(b)(2), s. 556(b)(2), |
| 268 | s. 642(c), s. 2055, s. 2106(a)(2), or s. 2522 of the Internal |
| 269 | Revenue Code have an aggregate fair market value of not more |
| 270 | than 60 percent of the aggregate fair market value of all |
| 271 | amounts in the trust; or |
| 272 | Section 18. Section 736.1209, Florida Statutes, is amended |
| 273 | to read: |
| 274 | 736.1209 Election to come under this part.--With the |
| 275 | consent of that organization or organizations, a trustee of a |
| 276 | trust for the benefit of a public charitable organization or |
| 277 | organizations may come under s. 736.1208(5) s. 736.0838(5) by |
| 278 | filing with the state attorney an election, accompanied by the |
| 279 | proof of required consent. Thereafter the trust shall be subject |
| 280 | to s. 736.1208(5). |
| 281 | Section 19. Paragraph (g) of subsection (2) of section |
| 282 | 736.1001, Florida Statutes, is amended to read: |
| 283 | 736.1001 Remedies for breach of trust.-- |
| 284 | (2) To remedy a breach of trust that has occurred or may |
| 285 | occur, the court may: |
| 286 | (g) Remove the trustee as provided in s. 736.0706 s. |
| 287 | 736.706; |
| 288 |
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| 289 | ======= T I T L E A M E N D M E N T ======= |
| 290 | Remove line(s) 21 and insert: |
| 291 | instrument; amending s. 689.071, F.S.; limiting the definition |
| 292 | of the term "land trust" to an arrangement in which title to |
| 293 | real property is vested in a trustee by a recorded instrument |
| 294 | that confers certain authority as prescribed by state law; |
| 295 | providing that such a recorded instrument does not itself create |
| 296 | an entity; providing that a recorded instrument is effective |
| 297 | regardless of whether it refers to beneficiaries of the trust; |
| 298 | providing that a recorded instrument vests both legal and |
| 299 | equitable title to real property or the interest therein in the |
| 300 | trustee; conforming cross-references; amending s. 731.201, F.S.; |
| 301 | revising a definition; amending s. 731.303, F.S.; excluding |
| 302 | trusts from guidelines regarding administration and judicial |
| 303 | proceedings; amending s. 736.0102, F.S.; conforming a cross- |
| 304 | reference; amending s. 736.0501, F.S.; limiting the ability of |
| 305 | creditors or assignees of a beneficiary to reach the |
| 306 | beneficiary's interest in a trust; amending s. 736.0502, F.S.; |
| 307 | clarifying the application of restrictions on transferring a |
| 308 | beneficiary's interest under a spendthrift provision; amending |
| 309 | s. 736.0503, F.S.; providing an exception to a provision |
| 310 | authorizing the attachment of trust distributions; amending s. |
| 311 | 736.0504, F.S.; defining the term "discretionary distribution"; |
| 312 | prohibiting certain creditors from compelling distributions or |
| 313 | attaching a beneficiary's interest or expectancy; amending s. |
| 314 | 736.0813, F.S.; conforming a date of applicability of the |
| 315 | accounting provision and corresponding limitations to the |
| 316 | effective date of the code; amending s. 736.1106, F.S.; |
| 317 | providing that certain antilapse provisions continue to apply to |
| 318 | irrevocable trusts created between June 12, 2003, and July 1, |
| 319 | 2007; amending s. 736.1204, F.S.; clarifying the use of income |
| 320 | interest of a trust; amending ss. 736.1209 and 736.1001, F.S., |
| 321 | relating to the release of power by a trustee and removal of a |
| 322 | trustee; conforming cross-references; providing an effective |
| 323 | date. |