1 | A bill to be entitled |
2 | An act relating to trust administration; amending s. |
3 | 736.0703, F.S.; providing exceptions to duties and |
4 | liabilities of cotrustees for excluded cotrustees under |
5 | certain circumstances; relieving excluded cotrustees from |
6 | specified liabilities and obligations under certain |
7 | circumstances; providing for liabilities and obligations |
8 | of included cotrustees; amending s. 736.0802, F.S.; |
9 | providing an exception for trustee payments of costs and |
10 | attorney's fees from trust assets except pursuant to court |
11 | order under certain circumstances; requiring trustees to |
12 | provide certain notice to beneficiaries; providing notice |
13 | requirements; providing requirements for obtaining such a |
14 | court order; specifying remedies; providing for specified |
15 | refunds and sanctions; preserving certain court remedies; |
16 | amending s. 736.1008, F.S.; specifying periods of repose |
17 | barring claims by a beneficiary against a trustee; |
18 | providing construction; providing an effective date. |
19 |
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20 | Be It Enacted by the Legislature of the State of Florida: |
21 |
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22 | Section 1. Subsection (7) of section 736.0703, Florida |
23 | Statutes, is amended, and subsection (9) is added to that |
24 | section, to read: |
25 | 736.0703 Cotrustees.-- |
26 | (7) Except as otherwise provided in subsection (9), each |
27 | cotrustee shall exercise reasonable care to: |
28 | (a) Prevent a cotrustee from committing a breach of trust. |
29 | (b) Compel a cotrustee to redress a breach of trust. |
30 | (9) If the terms of a trust instrument provide for the |
31 | appointment of more than one trustee but confer upon one or more |
32 | of the trustees, to the exclusion of the others, the power to |
33 | direct or prevent specified actions of the trustees, the |
34 | excluded trustees shall act in accordance with the exercise of |
35 | the power. Except in cases of willful misconduct on the part of |
36 | the directed trustee of which the excluded trustee has actual |
37 | knowledge, an excluded trustee is not liable, individually or as |
38 | a fiduciary, for any consequence that results from compliance |
39 | with the exercise of the power, regardless of the information |
40 | available to the excluded trustees. The excluded trustees are |
41 | relieved of any obligation to review, inquire, investigate, or |
42 | make recommendations or evaluations with respect to the exercise |
43 | of the power. The trustee or trustees having the power to direct |
44 | or prevent actions of the trustees shall be liable to the |
45 | beneficiaries with respect to the exercise of the power as if |
46 | the excluded trustees were not in office and shall have the |
47 | exclusive obligation to account to and to defend any action |
48 | brought by the beneficiaries with respect to the exercise of the |
49 | power. |
50 | Section 2. Subsection (10) of section 736.0802, Florida |
51 | Statutes, is amended to read: |
52 | 736.0802 Duty of loyalty.-- |
53 | (10) Payment of costs or attorney's fees incurred in any |
54 | trust proceeding from the assets of the trust may be made by the |
55 | trustee without the approval of any person and without court |
56 | authorization, unless the court orders otherwise as provided in |
57 | paragraph (b) except that court authorization shall be required |
58 | if an action has been filed or defense asserted against the |
59 | trustee based upon a breach of trust. Court authorization is not |
60 | required if the action or defense is later withdrawn or |
61 | dismissed by the party that is alleging a breach of trust or |
62 | resolved without a determination by the court that the trustee |
63 | has committed a breach of trust. |
64 | (a) If a claim or defense based upon a breach of trust is |
65 | made against a trustee in a proceeding, the trustee shall |
66 | provide written notice to each qualified beneficiary of the |
67 | trust whose share of the trust may be affected by the payment of |
68 | attorney's fees and costs of the intention to pay costs or |
69 | attorney's fees incurred in the proceeding from the trust prior |
70 | to making payment. The written notice shall be delivered by |
71 | sending a copy by any commercial delivery service requiring a |
72 | signed receipt, by any form of mail requiring a signed receipt, |
73 | or as provided in the Florida Rules of Civil Procedure for |
74 | service of process. The written notice shall inform each |
75 | qualified beneficiary of the trust whose share of the trust may |
76 | be affected by the payment of attorney's fees and costs of the |
77 | right to apply to the court for an order prohibiting the trustee |
78 | from paying attorney's fees or costs from trust assets. If a |
79 | trustee is served with a motion for an order prohibiting the |
80 | trustee from paying attorney's fees or costs in the proceeding |
81 | and the trustee pays attorney's fees or costs before an order is |
82 | entered on the motion, the trustee and the trustee's attorneys |
83 | who have been paid attorney's fees or costs from trust assets to |
84 | defend against the claim or defense are subject to the remedies |
85 | in paragraphs (b) and (c). |
86 | (b) If a claim or defense based upon breach of trust is |
87 | made against a trustee in a proceeding, a party must obtain a |
88 | court order to prohibit the trustee from paying costs or |
89 | attorney's fees from trust assets. To obtain an order |
90 | prohibiting payment of costs or attorney's fees from trust |
91 | assets, a party must make a reasonable showing by evidence in |
92 | the record or by proffering evidence that provides a reasonable |
93 | basis for a court to conclude that there has been a breach of |
94 | trust. The trustee may proffer evidence to rebut the evidence |
95 | submitted by a party. The court in its discretion may defer |
96 | ruling on the motion, pending discovery to be taken by the |
97 | parties. If the court finds that there is a reasonable basis to |
98 | conclude that there has been a breach of trust, unless the court |
99 | finds good cause, the court shall enter an order prohibiting the |
100 | payment of further attorney's fees and costs from the assets of |
101 | the trust and shall order attorney's fees or costs previously |
102 | paid from assets of the trust to be refunded. An order entered |
103 | under this paragraph shall not limit a trustee's right to seek |
104 | an order permitting the payment of some or all of the attorney's |
105 | fees or costs incurred in the proceeding from trust assets, |
106 | including any fees required to be refunded, after the claim or |
107 | defense is finally determined by the court. If a claim or |
108 | defense based upon a breach of trust is withdrawn, dismissed, or |
109 | resolved without a determination by the court that the trustee |
110 | committed a breach of trust after the entry of an order |
111 | prohibiting payment of attorney's fees and costs pursuant to |
112 | this paragraph, the trustee may pay costs or attorneys' fees |
113 | incurred in the proceeding from the assets of the trust without |
114 | further court authorization. |
115 | (c) If the court orders a refund under paragraph (b), the |
116 | court may enter such sanctions as are appropriate if a refund is |
117 | not made as directed by the court, including, but not limited |
118 | to, striking defenses or pleadings filed by the trustee. Nothing |
119 | in this subsection limits other remedies and sanctions the court |
120 | may employ for the failure to refund timely. |
121 | (d) Nothing in this subsection limits the power of the |
122 | court to review fees and costs or the right of any interested |
123 | persons to challenge fees and costs after payment, after an |
124 | accounting, or after conclusion of the litigation. |
125 | (e) Notice under paragraph (a) is not required if the |
126 | action or defense is later withdrawn or dismissed by the party |
127 | that is alleging a breach of trust or resolved without a |
128 | determination by the court that the trustee has committed a |
129 | breach of trust. |
130 | Section 3. Subsection (3) of section 736.1008, Florida |
131 | Statutes, is amended, subsection (6) of that section is |
132 | renumbered as subsection (7), and new subsection (6) is added to |
133 | that section, to read: |
134 | 736.1008 Limitations on proceedings against trustees.-- |
135 | (3) When a trustee has not issued a final trust accounting |
136 | or has not given written notice to the beneficiary of the |
137 | availability of the trust records for examination and that |
138 | claims with respect to matters not adequately disclosed may be |
139 | barred, a claim against the trustee for breach of trust based on |
140 | a matter not adequately disclosed in a trust disclosure document |
141 | is barred as provided in chapter 95 and accrues when the |
142 | beneficiary has actual knowledge of: |
143 | (a) The facts upon which the claim is based if such actual |
144 | knowledge is established by clear and convincing evidence; or |
145 | (b) The trustee's repudiation of the trust or adverse |
146 | possession of trust assets, and is barred as provided in chapter |
147 | 95. |
148 |
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149 | Paragraph (a) applies to claims based upon acts or omissions |
150 | occurring on or after July 1, 2008. |
151 | (6)(a) Notwithstanding subsections (1), (2), and (3), all |
152 | claims by a beneficiary against a trustee are barred: |
153 | 1. Upon the later of: |
154 | a. Ten years after the date the trust terminates, the |
155 | trustee resigns, or the fiduciary relationship between the |
156 | trustee and the beneficiary otherwise ends if the beneficiary |
157 | had actual knowledge of the existence of the trust and the |
158 | beneficiary's status as a beneficiary throughout the 10-year |
159 | period; or |
160 | b. Twenty years after the date of the act or omission of |
161 | the trustee that is complained of if the beneficiary had actual |
162 | knowledge of the existence of the trust and the beneficiary's |
163 | status as a beneficiary throughout the 20-year period; or |
164 | 2. Forty years after the date the trust terminates, the |
165 | trustee resigns, or the fiduciary relationship between the |
166 | trustee and the beneficiary otherwise ends. |
167 | (b) When a beneficiary shows by clear and convincing |
168 | evidence that a trustee actively concealed facts supporting a |
169 | cause of action, any existing applicable statute of repose shall |
170 | be extended by 30 years. |
171 | (c) For purposes of sub-subparagraph (a)1.b., the failure |
172 | of the trustee to take corrective action is not a separate act |
173 | or omission and does not extend the period of repose established |
174 | by this subsection. |
175 | (d) This subsection applies to claims based upon acts or |
176 | omissions occurring on or after July 1, 2008. |
177 | Section 4. This act shall take effect July 1, 2008. |