Florida Senate - 2009                                    SB 1958
       
       
       
       By Senator Gelber
       
       
       
       
       35-00702A-09                                          20091958__
    1                        A bill to be entitled                      
    2         An act relating to trust administration; amending s.
    3         736.0103, F.S.; revising a definition to exclude
    4         certain interests as beneficial interests; providing
    5         construction; amending s. 736.0105, F.S.; providing an
    6         additional limitation on terms of a trust prevailing
    7         over provisions of the Florida Trust Code; amending s.
    8         736.0302, F.S.; revising representation authority for
    9         holders of a power of appointment; providing a
   10         definition; amending s. 736.0306, F.S.; authorizing
   11         trust instruments to authorize certain persons to
   12         designate one or more persons to represent and bind a
   13         beneficiary and receive certain information; amending
   14         s. 736.0703, F.S.; revising provisions for absence of
   15         liability of excluded trustees under certain
   16         circumstances; amending s. 736.0813, F.S.; specifying
   17         additional requirements for provision of a complete
   18         copy of a trust instrument; providing an effective
   19         date.
   20         
   21  Be It Enacted by the Legislature of the State of Florida:
   22         
   23         Section 1. Paragraph (b) of subsection (4) of section
   24  736.0103, Florida Statutes, is amended to read:
   25         736.0103 Definitions.—Unless the context otherwise
   26  requires, in this code:
   27         (4) “Beneficiary” means a person who:
   28         (b) Holds a power of appointment over trust property in a
   29  capacity other than that of trustee. An interest as a
   30  permissible appointee of a power of appointment, held by a
   31  person in a capacity other than that of trustee, is not a
   32  beneficial interest for purposes of this paragraph. Upon an
   33  irrevocable exercise of a power of appointment, the interest of
   34  a person in whose favor the appointment is made shall be
   35  considered a present or future beneficial interest in a trust in
   36  the same manner as if the interest had been included in the
   37  trust instrument.
   38         Section 2. Paragraph (f) of subsection (2) of section
   39  736.0105, Florida Statutes, is amended to read:
   40         736.0105 Default and mandatory rules.—
   41         (2) The terms of a trust prevail over any provision of this
   42  code except:
   43         (f) The requirements under s. 736.0108(1) for the
   44  designation of a principal place of administration of the trust
   45  and the requirements under s. 736.0107 for the designation of a
   46  jurisdiction the law of which determines the meaning and effect
   47  of the terms of a trust.
   48         Section 3. Section 736.0302, Florida Statutes, is amended
   49  to read:
   50         736.0302 Representation by holder of power of appointment.—
   51         (1) The holder of a power of appointment may represent and
   52  bind persons whose interests, as permissible appointees, takers
   53  in default, or otherwise, are subject to the power.
   54         (2)The takers in default of the exercise of a power of
   55  appointment may represent and bind persons whose interests, as
   56  permissible appointees, are subject to the power.
   57         (3)(2) Subsection (1) does not apply to:
   58         (a) Any matter determined by the court to involve fraud or
   59  bad faith by the trustee;
   60         (b)A power of a trustee to distribute trust property; or
   61         (b)(c) A power of appointment held by a person while the
   62  person is the sole trustee.
   63         (4)As used in this section, the term “power of
   64  appointment” does not include a power of a trustee to make
   65  discretionary distributions of trust property.
   66         Section 4. Subsection (1) of section 736.0306, Florida
   67  Statutes, is amended to read:
   68         736.0306 Designated representative.—
   69         (1) If specifically nominated authorized in the trust
   70  instrument, one or more persons may be designated to represent
   71  and bind a beneficiary and receive any notice, information,
   72  accounting, or report. The trust instrument may also authorize
   73  any person or persons, other than a trustee of the trust, to
   74  designate one or more persons to represent and bind a
   75  beneficiary and receive any notice, information, accounting, or
   76  report.
   77         Section 5. Subsection (9) of section 736.0703, Florida
   78  Statutes, is amended to read:
   79         736.0703 Cotrustees.—
   80         (9) If the terms of a trust instrument provide for the
   81  appointment of more than one trustee but confer upon one or more
   82  of the trustees, to the exclusion of the others, the power to
   83  direct or prevent specified actions of the trustees, the
   84  excluded trustees shall act in accordance with the exercise of
   85  the power. Except in cases of willful misconduct on the part of
   86  the directed trustee with the authority to direct or prevent
   87  actions of the trustees of which the excluded trustee has actual
   88  knowledge, an excluded trustee is not liable, individually or as
   89  a fiduciary, for any consequence that results from compliance
   90  with the exercise of the power, regardless of the information
   91  available to the excluded trustees. The excluded trustees are
   92  relieved of any obligation to review, inquire, investigate, or
   93  make recommendations or evaluations with respect to the exercise
   94  of the power. The trustee or trustees having the power to direct
   95  or prevent actions of the trustees shall be liable to the
   96  beneficiaries with respect to the exercise of the power as if
   97  the excluded trustees were not in office and shall have the
   98  exclusive obligation to account to and to defend any action
   99  brought by the beneficiaries with respect to the exercise of the
  100  power.
  101         Section 6. Paragraph (c) of subsection (1) of section
  102  736.0813, Florida Statutes, is amended to read:
  103         736.0813 Duty to inform and account.—The trustee shall keep
  104  the qualified beneficiaries of the trust reasonably informed of
  105  the trust and its administration.
  106         (1) The trustee’s duty to inform and account includes, but
  107  is not limited to, the following:
  108         (c) Upon reasonable request, the trustee shall provide a
  109  qualified beneficiary with a complete copy of the trust
  110  instrument, which means a complete copy of the original trust
  111  instrument including all restatements of and amendments to the
  112  original trust instrument, whether or not any such restatements
  113  or amendments contain current terms of the trust.
  114  Paragraphs (a) and (b) do not apply to an irrevocable trust
  115  created before the effective date of this code, or to a
  116  revocable trust that becomes irrevocable before the effective
  117  date of this code. Paragraph (a) does not apply to a trustee who
  118  accepts a trusteeship before the effective date of this code.
  119         Section 7. This act shall take effect July 1, 2009.