HB 435

1
A bill to be entitled
2An act relating to trust administration; amending s.
3736.0703, F.S.; providing exceptions to duties and
4liabilities of cotrustees for excluded cotrustees under
5certain circumstances; providing for liabilities and
6obligations of included cotrustees; amending s. 736.0802,
7F.S.; providing an exception for trustee payments of costs
8and attorney's fees from trust assets except pursuant to
9court order under certain circumstances; providing
10requirements for obtaining such a court order; preserving
11certain court remedies; amending s. 736.1008, F.S.;
12specifying periods of repose barring claims by a
13beneficiary against a trustee; providing construction;
14providing an effective date.
15
16Be It Enacted by the Legislature of the State of Florida:
17
18     Section 1.  Subsection(7) of section 736.0703, Florida
19Statutes, is amended, and subsection (9) is added to that
20section, to read:
21     736.0703  Cotrustees.--
22     (7)  Except as otherwise provided in subsection (9), each
23cotrustee shall exercise reasonable care to:
24     (a)  Prevent a cotrustee from committing a breach of trust.
25     (b)  Compel a cotrustee to redress a breach of trust.
26     (9)  If the terms of a trust instrument provide for the
27appointment of more than one trustee but confer upon one or more
28of the trustees, to the exclusion of the others, the power to
29direct or prevent specified actions of the trustees, the
30excluded trustees shall act in accordance with the exercise of
31the power. An excluded trustee is not liable, individually or as
32a fiduciary, for any consequence that results from compliance
33with the exercise of the power, regardless of the information
34available to the excluded trustees. The excluded trustees are
35relieved of any obligation to review, inquire, investigate, or
36make recommendations or evaluations with respect to the exercise
37of the power. The trustee or trustees having the power to direct
38or prevent actions of the trustees shall be liable to the
39beneficiaries with respect to the exercise of the power as if
40the excluded trustees were not in office and shall have the
41exclusive obligation to account to and to defend any action
42brought by the beneficiaries with respect to the exercise of the
43power.
44     Section 2.  Subsection (10) of section 736.0802, Florida
45Statutes, is amended to read:
46     736.0802  Duty of loyalty.--
47     (10)  Payment of costs or attorney's fees incurred in any
48trust proceeding from the assets of the trust may be made by the
49trustee without the approval of any person and without court
50authorization, unless the court orders otherwise as provided in
51paragraph (a). except that court authorization shall be required
52if an action has been filed
53     (a)  If a claim or defense asserted against the trustee
54based upon a breach of trust is made against the trustee in a
55trust proceeding, a party must obtain a court order to prohibit
56the trustee from paying costs or attorney's fees from trust
57assets. To obtain an order prohibiting payment of costs or
58attorney's fees from trust assets, a party must make a
59reasonable showing by evidence in the record or by proffering
60evidence that provides a reasonable basis for a court to
61conclude that there has been a breach of trust. The trustee may
62proffer evidence to rebut the evidence submitted by a party.
63     (b)  Nothing in this subsection is intended to restrict the
64remedies a court may employ to remedy a breach of trust,
65including, but not limited to, ordering appropriate refunds.
66Court authorization is not required if the action or defense is
67later withdrawn or dismissed by the party that is alleging a
68breach of trust or resolved without a determination by the court
69that the trustee has committed a breach of trust.
70     Section 3.  Subsection (3) of section 736.1008, Florida
71Statutes, is amended, subsection (6) of that section is
72renumbered as subsection (7), and new subsection (6) is added to
73that section, to read:
74     736.1008  Limitations on proceedings against trustees.--
75     (3)  When a trustee has not issued a final trust accounting
76or has not given written notice to the beneficiary of the
77availability of the trust records for examination and that
78claims with respect to matters not adequately disclosed may be
79barred, a claim against the trustee for breach of trust based on
80a matter not adequately disclosed in a trust disclosure document
81accrues when the beneficiary has actual knowledge of the facts
82upon which the claim is based and the trustee's repudiation of
83the trust or adverse possession of trust assets, and is barred
84as provided in chapter 95.
85     (6)(a)  Notwithstanding subsections (1), (2), and (3), all
86claims by a beneficiary against a trustee are barred upon the
87later of:
88     1.  Ten years after the date the trust terminates, the
89trustee resigns, or the fiduciary relationship between the
90trustee and the beneficiary otherwise ends; or
91     2.  Twenty years after the date of the act or omission of
92the trustee that is complained of.
93     (b)  For purposes of this subsection, the failure of the
94trustee to take corrective action shall not be construed as a
95separate act or omission and shall not be construed to extend
96the period of repose established by this subsection.
97     Section 4.  This act shall take effect July 1, 2008.


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