| 1 | A bill to be entitled |
| 2 | An act relating to administration of estates; amending s. |
| 3 | 731.201, F.S.; revising definitions; amending s. 732.108, |
| 4 | F.S.; providing for nonapplication of certain limitations |
| 5 | of actions provisions to certain paternity determinations; |
| 6 | amending s. 732.2025, F.S.; revising a definition; |
| 7 | amending s. 732.2045, F.S.; expanding an exclusion from |
| 8 | application of certain provisions of law; amending s. |
| 9 | 732.2075, F.S.; revising provisions for satisfaction of an |
| 10 | elective share; providing additional requirements; |
| 11 | amending s. 732.2085, F.S.; correcting a cross-reference; |
| 12 | amending s. 732.2135, F.S.; revising criteria for time of |
| 13 | an election; providing for award of attorney fees and |
| 14 | costs for elections made in bad faith; amending s. |
| 15 | 732.402, F.S.; revising criteria for certain household |
| 16 | items, motor vehicles, and tuition programs as exempt |
| 17 | property; amending s. 733.201, F.S.; revising a criterion |
| 18 | for proof of wills to conform; amending s. 733.504, F.S.; |
| 19 | revising a criterion for removal of a personal |
| 20 | representative to conform; amending s. 733.602, F.S.; |
| 21 | removing a cross-reference; amending s. 735.203, F.S.; |
| 22 | revising requirements for a petition for summary |
| 23 | administration; amending s. 739.102, F.S.; revising a |
| 24 | definition; amending s. 739.104, F.S.; excluding from |
| 25 | court approval certain disclaimers of interests in |
| 26 | property; amending s. 739.201, F.S.; providing an |
| 27 | additional rule applicable to disclaimers of interests in |
| 28 | property ;amending s. 739.207, F.S.; limiting a criterion |
| 29 | for effectiveness of a disclaimer of power held in a |
| 30 | fiduciary capacity; amending s. 739.402, F.S.; correcting |
| 31 | terminology; amending s. 739.501, F.S.; preserving |
| 32 | application of certain provisions to effectiveness of |
| 33 | certain disclaimers or transfers; amending ss. 660.417, |
| 34 | 736.0802, and 895.02, F.S.; correcting cross-references to |
| 35 | conform; providing an effective date. |
| 36 |
|
| 37 | Be It Enacted by the Legislature of the State of Florida: |
| 38 |
|
| 39 | Section 1. Subsection (21) of section 731.201, Florida |
| 40 | Statutes, is amended, subsections (25) through (39) of that |
| 41 | section are renumbered as subsections (26) through (40), |
| 42 | respectively, and a new subsection (25) is added to that |
| 43 | section, to read: |
| 44 | 731.201 General definitions.--Subject to additional |
| 45 | definitions in subsequent chapters that are applicable to |
| 46 | specific chapters or parts, and unless the context otherwise |
| 47 | requires, in this code, in s. 409.9101, and in chapters 736, |
| 48 | 738, 739, and 744, the term: |
| 49 | (21) "Incapacitated" "Incompetent" means a judicial |
| 50 | determination that a person lacks the capacity to manage at |
| 51 | least some of the person's property or to meet at least some of |
| 52 | the person's essential health and safety requirements. A minor |
| 53 | shall be treated as being incapacitated or a person adjudicated |
| 54 | incompetent. |
| 55 | (25) "Minor" means a person under 18 years of age whose |
| 56 | disabilities have not been removed by marriage or otherwise. |
| 57 | Section 2. Paragraph (b) of subsection (2) of section |
| 58 | 732.108, Florida Statutes, is amended to read: |
| 59 | 732.108 Adopted persons and persons born out of wedlock.-- |
| 60 | (2) For the purpose of intestate succession in cases not |
| 61 | covered by subsection (1), a person born out of wedlock is a |
| 62 | descendant of his or her mother and is one of the natural |
| 63 | kindred of all members of the mother's family. The person is |
| 64 | also a descendant of his or her father and is one of the natural |
| 65 | kindred of all members of the father's family, if: |
| 66 | (b) The paternity of the father is established by an |
| 67 | adjudication before or after the death of the father. Chapter 95 |
| 68 | shall not apply in determining heirs in a probate proceeding |
| 69 | under this paragraph. |
| 70 | Section 3. Subsection (10) of section 732.2025, Florida |
| 71 | Statutes, is amended to read: |
| 72 | 732.2025 Definitions.--As used in ss. 732.2025-732.2155, |
| 73 | the term: |
| 74 | (10) "Transfer in satisfaction of the elective share" |
| 75 | means an irrevocable transfer by the decedent during life to an |
| 76 | elective share trust. |
| 77 | Section 4. Paragraph (f) of subsection (1) of section |
| 78 | 732.2045, Florida Statutes, is amended to read: |
| 79 | 732.2045 Exclusions and overlapping application.-- |
| 80 | (1) EXCLUSIONS.--Section 732.2035 does not apply to: |
| 81 | (f) The decedent's one-half of the property to which ss. |
| 82 | 732.216-732.228, or any similar provisions of law of another |
| 83 | state, apply and real property that is community property under |
| 84 | the laws of the jurisdiction where it is located. |
| 85 | Section 5. Section 732.2075, Florida Statutes, is amended |
| 86 | to read: |
| 87 | 732.2075 Sources from which elective share payable; |
| 88 | abatement.-- |
| 89 | (1) Unless otherwise provided in the decedent's will or, |
| 90 | in the absence of a provision in the decedent's will, in a trust |
| 91 | referred to in the decedent's will, the following are applied |
| 92 | first to satisfy the elective share: |
| 93 | (a) Property interests included in the elective estate |
| 94 | that pass or have passed to or for the benefit of the surviving |
| 95 | spouse, including interests that are contingent upon making the |
| 96 | election, but only to the extent that such contingent interests |
| 97 | do not diminish other property interests that would be applied |
| 98 | to satisfy the elective share in the absence of the contingent |
| 99 | interests. To the extent paid to or for the benefit of the |
| 100 | surviving spouse, the proceeds of any term or other policy of |
| 101 | insurance on the decedent's life if, at the time of decedent's |
| 102 | death, the policy was owned by any person other than the |
| 103 | surviving spouse. |
| 104 | (b) To the extent paid to or for the benefit of the |
| 105 | surviving spouse, amounts payable under any plan or arrangement |
| 106 | described in s. 732.2035(7). |
| 107 | (c) To the extent paid to or for the benefit of the |
| 108 | surviving spouse, the decedent's one-half of any property |
| 109 | described in s. 732.2045(1)(f). |
| 110 | (d) To the extent paid to or for the benefit of the |
| 111 | surviving spouse, the proceeds of any term or other policy of |
| 112 | insurance on the decedent's life if, at the time of decedent's |
| 113 | death, the policy was owned by any person other than the |
| 114 | surviving spouse. |
| 115 | (e)(d) Property held for the benefit of the surviving |
| 116 | spouse in a qualifying special needs trust. |
| 117 | (e) Property interests included in the elective estate |
| 118 | that pass or have passed to or for the benefit of the surviving |
| 119 | spouse, including interests that are contingent upon making the |
| 120 | election, but only to the extent that such contingent interests |
| 121 | do not diminish other property interests that would be applied |
| 122 | to satisfy the elective share in the absence of the contingent |
| 123 | interests. |
| 124 | (f) Property interests that would have satisfied the |
| 125 | elective share under any preceding paragraph of this subsection |
| 126 | but were disclaimed. |
| 127 | (2) If, after the application of subsection (1), the |
| 128 | elective share is not fully satisfied, the unsatisfied balance |
| 129 | shall be allocated entirely to one class of apportioned among |
| 130 | the direct recipients of the remaining elective estate and |
| 131 | apportioned among those recipients, and if the elective share |
| 132 | amount is not fully satisfied, to the next class of direct |
| 133 | recipients, in the following order of priority, until the |
| 134 | elective share amount is satisfied: |
| 135 | (a) Class 1.--The decedent's probate estate and revocable |
| 136 | trusts. |
| 137 | (b) Class 2.--Recipients of property interests, other than |
| 138 | protected charitable interests, included in the elective estate |
| 139 | under s. 732.2035(2), (3), or (6) and, to the extent the |
| 140 | decedent had at the time of death the power to designate the |
| 141 | recipient of the property, property interests, other than |
| 142 | protected charitable interests, included under s. 732.2035(5) |
| 143 | and (7). |
| 144 | (c) Class 3.--Recipients of all other property interests, |
| 145 | other than protected charitable interests, included in the |
| 146 | elective estate. |
| 147 | (d) Class 4.--Recipients of protected charitable lead |
| 148 | interests, but only to the extent and at such times that |
| 149 | contribution is permitted without disqualifying the charitable |
| 150 | interest in that property for a deduction under the United |
| 151 | States gift tax laws. |
| 152 |
|
| 153 | For purposes of this subsection, a protected charitable interest |
| 154 | is any interest for which a charitable deduction with respect to |
| 155 | the transfer of the property was allowed or allowable to the |
| 156 | decedent or the decedent's spouse under the United States gift |
| 157 | or income tax laws. A protected charitable lead interest is a |
| 158 | protected charitable interest where one or more deductible |
| 159 | interests in charity precede some other nondeductible interest |
| 160 | or interests in the property. |
| 161 | (3) If, after the application of subsections (1) and (2), |
| 162 | the elective share amount is not fully satisfied, the additional |
| 163 | amount due to the surviving spouse shall be determined and |
| 164 | satisfied as follows: |
| 165 | (a) The remaining unsatisfied balance shall be satisfied |
| 166 | from property described in paragraphs (1)(a) and (b) which |
| 167 | passes or which has passed in a trust in which the surviving |
| 168 | spouse has a beneficial interest, other than an elective share |
| 169 | trust or a qualified special needs trust. |
| 170 | (b) In determining the amount of the remaining unsatisfied |
| 171 | balance, the effect, if any, of any change caused by the |
| 172 | operation of this subsection in the value of the spouse's |
| 173 | beneficial interests in property described in paragraphs (1)(a) |
| 174 | and (b) shall be taken into account, including, if necessary, |
| 175 | further recalculations of the value of those beneficial |
| 176 | interests. |
| 177 | (c) If there is more than one trust to which this |
| 178 | subsection could apply, unless otherwise provided in the |
| 179 | decedent's will or, in the absence of a provision in the |
| 180 | decedent's will, in a trust referred to in the decedent's will, |
| 181 | the unsatisfied balance shall be apportioned pro rata to all |
| 182 | such trusts in proportion to the value, as determined under s. |
| 183 | 732.2095(2)(d), of the surviving spouse's beneficial interests |
| 184 | in the trusts. |
| 185 | (4) If, after the application of subsections (1), (2), and |
| 186 | (3), the elective share is not fully satisfied, any remaining |
| 187 | unsatisfied balance shall be satisfied from direct recipients of |
| 188 | protected charitable lead interests, but only to the extent and |
| 189 | at such times that contribution is permitted without |
| 190 | disqualifying the charitable interest in that property for a |
| 191 | deduction under the United States gift tax laws. For purposes of |
| 192 | this subsection, a protected charitable lead interest is a |
| 193 | protected charitable interest as defined in subsection (2) in |
| 194 | which one or more deductible interests in charity precede some |
| 195 | other nondeductible interest or interests in the property. |
| 196 | (5)(3) The contribution required of the decedent's probate |
| 197 | estate and revocable trusts may be made in cash or in kind. In |
| 198 | the application of this subsection, subsections (6) (4) and (7) |
| 199 | (5) are to be applied to charge contribution for the elective |
| 200 | share to the beneficiaries of the probate estate and revocable |
| 201 | trusts as if all beneficiaries were taking under a common |
| 202 | governing instrument. |
| 203 | (6)(4) Unless otherwise provided in the decedent's will |
| 204 | or, in the absence of a provision in the decedent's will, in a |
| 205 | trust referred to in the decedent's will, any amount to be |
| 206 | satisfied from the decedent's probate estate, other than from |
| 207 | property passing to an inter vivos trust, shall be paid from the |
| 208 | assets of the probate estate in the order prescribed in s. |
| 209 | 733.805. |
| 210 | (7)(5) Unless otherwise provided in the trust instrument |
| 211 | or, in the decedent's will if there is no provision in the trust |
| 212 | instrument, any amount to be satisfied from trust property shall |
| 213 | be paid from the assets of the trust in the order provided for |
| 214 | claims under s. 736.05053(2) and (3). A direction in the |
| 215 | decedent's will is effective only for revocable trusts. |
| 216 | Section 6. Paragraph (a) of subsection (1) of section |
| 217 | 732.2085, Florida Statutes, is amended to read: |
| 218 | 732.2085 Liability of direct recipients and |
| 219 | beneficiaries.-- |
| 220 | (1) Only direct recipients of property included in the |
| 221 | elective estate and the beneficiaries of the decedent's probate |
| 222 | estate or of any trust that is a direct recipient, are liable to |
| 223 | contribute toward satisfaction of the elective share. |
| 224 | (a) Within each of the classes described in s. |
| 225 | 732.2075(2)(b) and, (c), and (d), each direct recipient is |
| 226 | liable in an amount equal to the value, as determined under s. |
| 227 | 732.2055, of the proportional part of the liability for all |
| 228 | members of the class. |
| 229 | Section 7. Subsection (3) of section 732.2135, Florida |
| 230 | Statutes, is amended, and subsection (5) is added to that |
| 231 | section, to read: |
| 232 | 732.2135 Time of election; extensions; withdrawal.-- |
| 233 | (3) The surviving spouse or an attorney in fact, guardian |
| 234 | of the property, or personal representative of the surviving |
| 235 | spouse may withdraw an election at any time within on or before |
| 236 | the earlier of the date that is 8 months after the date of the |
| 237 | decedent's death and before the court's or the date of a court |
| 238 | order of contribution. If an election is withdrawn, the court |
| 239 | may assess attorney's fees and costs against the surviving |
| 240 | spouse or the surviving spouse's estate. |
| 241 | (5) If the court determines that an election is made or |
| 242 | pursued in bad faith, the court may assess attorney's fees and |
| 243 | costs against the surviving spouse or the surviving spouse's |
| 244 | estate. |
| 245 | Section 8. Subsection (2) of section 732.402, Florida |
| 246 | Statutes, is amended to read: |
| 247 | 732.402 Exempt property.-- |
| 248 | (2) Exempt property shall consist of: |
| 249 | (a) Household furniture, furnishings, and appliances in |
| 250 | the decedent's usual place of abode up to a net value of $20,000 |
| 251 | $10,000 as of the date of death. |
| 252 | (b) Two motor vehicles as defined in s. 316.003(21), which |
| 253 | do not, individually as to either such motor vehicle, have a |
| 254 | gross vehicle weight in excess of 15,000 pounds, All automobiles |
| 255 | held in the decedent's name and regularly used by the decedent |
| 256 | or members of the decedent's immediate family as their personal |
| 257 | motor vehicles automobiles. |
| 258 | (c) All qualified tuition programs authorized by s. 529 of |
| 259 | the Internal Revenue Code of 1986, as amended, including, but |
| 260 | not limited to, the Florida Prepaid College Trust Fund advance |
| 261 | payment contracts under s. 1009.98 and the Florida Prepaid |
| 262 | College Trust Fund participation agreements under s. 1009.981 |
| 263 | Stanley G. Tate Florida Prepaid College Program contracts |
| 264 | purchased and Florida College Savings agreements established |
| 265 | under part IV of chapter 1009. |
| 266 | (d) All benefits paid pursuant to s. 112.1915. |
| 267 | Section 9. Subsection (3) of section 733.201, Florida |
| 268 | Statutes, is amended to read: |
| 269 | 733.201 Proof of wills.-- |
| 270 | (3) If it appears to the court that the attesting |
| 271 | witnesses cannot be found or that they have become incapacitated |
| 272 | incompetent after the execution of the will or their testimony |
| 273 | cannot be obtained within a reasonable time, a will may be |
| 274 | admitted to probate upon the oath of the personal representative |
| 275 | nominated by the will as provided in subsection (2), whether or |
| 276 | not the nominated personal representative is interested in the |
| 277 | estate, or upon the oath of any person having no interest in the |
| 278 | estate under the will stating that the person believes the |
| 279 | writing exhibited to be the true last will of the decedent. |
| 280 | Section 10. Subsection (1) of section 733.504, Florida |
| 281 | Statutes, is amended to read: |
| 282 | 733.504 Removal of personal representative; causes for |
| 283 | removal.--A personal representative may be removed and the |
| 284 | letters revoked for any of the following causes, and the removal |
| 285 | shall be in addition to any penalties prescribed by law: |
| 286 | (1) Adjudication that the personal representative is |
| 287 | incapacitated of incompetency. |
| 288 | Section 11. Subsection (1) of section 733.602, Florida |
| 289 | Statutes, is amended to read: |
| 290 | 733.602 General duties.-- |
| 291 | (1) A personal representative is a fiduciary who shall |
| 292 | observe the standards of care applicable to trustees as |
| 293 | described by part VII of chapter 736. A personal representative |
| 294 | is under a duty to settle and distribute the estate of the |
| 295 | decedent in accordance with the terms of the decedent's will and |
| 296 | this code as expeditiously and efficiently as is consistent with |
| 297 | the best interests of the estate. A personal representative |
| 298 | shall use the authority conferred by this code, the authority in |
| 299 | the will, if any, and the authority of any order of the court, |
| 300 | for the best interests of interested persons, including |
| 301 | creditors. |
| 302 | Section 12. Section 735.203, Florida Statutes, is amended |
| 303 | to read: |
| 304 | 735.203 Petition for summary administration.-- |
| 305 | (1) A petition for summary administration may be filed by |
| 306 | any beneficiary or person nominated as personal representative |
| 307 | in the decedent's will offered for probate. The petition must be |
| 308 | signed and verified by the surviving spouse, if any, and any |
| 309 | beneficiaries except that the joinder in a petition for summary |
| 310 | administration is not required of a beneficiary who will receive |
| 311 | full distributive share under the proposed distribution. Any |
| 312 | beneficiary not joining shall be served by formal notice with |
| 313 | the petition. |
| 314 | (2) If a person named in subsection (1) has died, is |
| 315 | incapacitated, or is a minor, or has conveyed or transferred all |
| 316 | interest in the property of the estate, then, as to that person, |
| 317 | the petition must be signed and verified certified by: |
| 318 | (a) The personal representative, if any, of a deceased |
| 319 | person or, if none, the surviving spouse, if any, and the |
| 320 | beneficiaries; |
| 321 | (b) The guardian of an incapacitated person or a minor; or |
| 322 | (c) The grantee or transferee of any of them shall be |
| 323 | authorized to sign and verify the petition instead of the |
| 324 | beneficiary or surviving spouse. |
| 325 | (3) If each trustee of a trust that is a beneficiary of |
| 326 | the estate of the deceased person is also a petitioner, each |
| 327 | qualified beneficiary of the trust as defined in s. 736.0103 |
| 328 | shall be served by formal notice with the petition for summary |
| 329 | administration unless joinder in, or consent to, the petition is |
| 330 | obtained from each qualified beneficiary of the trust. The |
| 331 | joinder in, or consent to, a petition for summary administration |
| 332 | is not required of a beneficiary who will receive full |
| 333 | distributive share under the proposed distribution. Any |
| 334 | beneficiary not joining or consenting shall receive formal |
| 335 | notice of the petition. |
| 336 | Section 13. Subsection (8) of section 739.102, Florida |
| 337 | Statutes, is amended to read: |
| 338 | 739.102 Definitions.--As used in this chapter, the term: |
| 339 | (8) "Insolvent" means, solely for purposes of this |
| 340 | chapter, that the sum of a person's debts is greater than all of |
| 341 | the person's assets at fair valuation and that. A person is |
| 342 | presumed to be "insolvent" if the person is generally not paying |
| 343 | his or her debts as they become due. For purposes of this |
| 344 | subsection, the term "assets" has the same meaning as that |
| 345 | provided in s. 726.102. |
| 346 | Section 14. Subsection (2) of section 739.104, Florida |
| 347 | Statutes, is amended to read: |
| 348 | 739.104 Power to disclaim; general requirements; when |
| 349 | irrevocable.-- |
| 350 | (2) With court approval, a fiduciary may disclaim, in |
| 351 | whole or part, any interest in or power over property, including |
| 352 | a power of appointment, except that a disclaimer of a power |
| 353 | arising under s. 739.201(4) does not require court approval. |
| 354 | Without court approval, a fiduciary may disclaim, in whole or in |
| 355 | part, any interest in or power over property, including a power |
| 356 | of appointment, if and to the extent that the instrument |
| 357 | creating the fiduciary relationship explicitly grants the |
| 358 | fiduciary the right to disclaim. In the absence of a court- |
| 359 | appointed guardian, notwithstanding anything in chapter 744 to |
| 360 | the contrary, without court approval, a natural guardian under |
| 361 | s. 744.301 may disclaim on behalf of a minor child of the |
| 362 | natural guardian, in whole or in part, any interest in or power |
| 363 | over property, including a power of appointment, which the minor |
| 364 | child is to receive solely as a result of another disclaimer, |
| 365 | but only if the disclaimed interest or power does not pass to or |
| 366 | for the benefit of the natural guardian as a result of the |
| 367 | disclaimer. |
| 368 | Section 15. Subsection (4) is added to section 739.201, |
| 369 | Florida Statutes, to read: |
| 370 | 739.201 Disclaimer of interest in property.--Except for a |
| 371 | disclaimer governed by s. 739.202, s. 739.203, or s. 739.204, |
| 372 | the following rules apply to a disclaimer of an interest in |
| 373 | property: |
| 374 | (4) In the case of a disclaimer of property over which the |
| 375 | disclaimant has a power, in a fiduciary or nonfiduciary |
| 376 | capacity, to direct the beneficial enjoyment of the disclaimed |
| 377 | property, unless the disclaimer specifically provides to the |
| 378 | contrary with reference to this subsection, the disclaimant |
| 379 | shall also be deemed to have disclaimed that power unless the |
| 380 | power is limited by an ascertainable standard, as defined in s. |
| 381 | 736.0103, as in effect when the disclaimer becomes irrevocable. |
| 382 | Section 16. Subsection (3) of section 739.207, Florida |
| 383 | Statutes, is amended to read: |
| 384 | 739.207 Disclaimer of power held in fiduciary capacity.-- |
| 385 | (3) A disclaimer under this section is effective as to |
| 386 | another fiduciary if the disclaimer so provides and the |
| 387 | fiduciary disclaiming has the authority to bind the estate, |
| 388 | trust, or other person for whom the fiduciary is acting, except |
| 389 | that a disclaimer of a fiduciary power arising under s. |
| 390 | 739.201(4) shall bind only the disclaiming fiduciary. |
| 391 | Section 17. Subsection (2) of section 739.402, Florida |
| 392 | Statutes, is amended to read: |
| 393 | 739.402 When disclaimer is barred or limited.-- |
| 394 | (2) A disclaimer of an interest in property is barred if |
| 395 | any of the following events occur before the disclaimer becomes |
| 396 | effective: |
| 397 | (a) The disclaimant disclaimer accepts the interest sought |
| 398 | to be disclaimed; |
| 399 | (b) The disclaimant voluntarily assigns, conveys, |
| 400 | encumbers, pledges, or transfers the interest sought to be |
| 401 | disclaimed or contracts to do so; |
| 402 | (c) The interest sought to be disclaimed is sold pursuant |
| 403 | to a judicial sale; or |
| 404 | (d) The disclaimant is insolvent when the disclaimer |
| 405 | becomes irrevocable. |
| 406 | Section 18. Section 739.501, Florida Statutes, is amended |
| 407 | to read: |
| 408 | 739.501 Tax-qualified disclaimer.--Notwithstanding any |
| 409 | other provision of this chapter other than s. 739.402, if, as a |
| 410 | result of a disclaimer or transfer, the disclaimed or |
| 411 | transferred interest is treated pursuant to the provisions of s. |
| 412 | 2518 of the Internal Revenue Code of 1986 as never having been |
| 413 | transferred to the disclaimant, the disclaimer or transfer is |
| 414 | effective as a disclaimer under this chapter. |
| 415 | Section 19. Paragraph (b) of subsection (3) of section |
| 416 | 660.417, Florida Statutes, is amended to read: |
| 417 | 660.417 Investment of fiduciary funds in investment |
| 418 | instruments; permissible activity under certain circumstances; |
| 419 | limitations.-- |
| 420 | (3) The fact that such bank or trust company or an |
| 421 | affiliate of the bank or trust company owns or controls |
| 422 | investment instruments shall not preclude the bank or trust |
| 423 | company acting as a fiduciary from investing or reinvesting in |
| 424 | such investment instruments, provided such investment |
| 425 | instruments: |
| 426 | (b) When sold to accounts for which the bank or trust |
| 427 | company is acting as a trustee of a trust as defined in s. |
| 428 | 731.201(37): |
| 429 | 1. Are available for sale to accounts of other customers; |
| 430 | and |
| 431 | 2. If sold to other customers, are not sold to the trust |
| 432 | accounts upon terms that are less favorable to the buyer than |
| 433 | the terms upon which they are normally sold to the other |
| 434 | customers. |
| 435 | Section 20. Paragraph (f) of subsection (5) of section |
| 436 | 736.0802, Florida Statutes, is amended to read: |
| 437 | 736.0802 Duty of loyalty.-- |
| 438 | (5) |
| 439 | (f)1. The trustee of a trust as defined described in s. |
| 440 | 731.201(37) may request authority to invest in investment |
| 441 | instruments described in this subsection other than a qualified |
| 442 | investment instrument, by providing to all qualified |
| 443 | beneficiaries a written request containing the following: |
| 444 | a. The name, telephone number, street address, and mailing |
| 445 | address of the trustee and of any individuals who may be |
| 446 | contacted for further information. |
| 447 | b. A statement that the investment or investments cannot |
| 448 | be made without the consent of a majority of each class of the |
| 449 | qualified beneficiaries. |
| 450 | c. A statement that, if a majority of each class of |
| 451 | qualified beneficiaries consent, the trustee will have the right |
| 452 | to make investments in investment instruments, as defined in s. |
| 453 | 660.25(6), which are owned or controlled by the trustee or its |
| 454 | affiliate, or from which the trustee or its affiliate receives |
| 455 | compensation for providing services in a capacity other than as |
| 456 | trustee, that such investment instruments may include investment |
| 457 | instruments sold primarily to trust accounts, and that the |
| 458 | trustee or its affiliate may receive fees in addition to the |
| 459 | trustee's compensation for administering the trust. |
| 460 | d. A statement that the consent may be withdrawn |
| 461 | prospectively at any time by written notice given by a majority |
| 462 | of any class of the qualified beneficiaries. |
| 463 |
|
| 464 | A statement by the trustee is not delivered if the statement is |
| 465 | accompanied by another written communication other than a |
| 466 | written communication by the trustee that refers only to the |
| 467 | statement. |
| 468 | 2. For purposes of paragraph (e) and this paragraph: |
| 469 | a. "Majority of the qualified beneficiaries" means: |
| 470 | (I) If at the time the determination is made there are one |
| 471 | or more beneficiaries as described in s. 736.0103(14)(c), at |
| 472 | least a majority in interest of the beneficiaries described in |
| 473 | s. 736.0103(14)(a), at least a majority in interest of the |
| 474 | beneficiaries described in s. 736.0103(14)(b), and at least a |
| 475 | majority in interest of the beneficiaries described in s. |
| 476 | 736.0103(14)(c), if the interests of the beneficiaries are |
| 477 | reasonably ascertainable; otherwise, a majority in number of |
| 478 | each such class; or |
| 479 | (II) If there is no beneficiary as described in s. |
| 480 | 736.0103(14)(c), at least a majority in interest of the |
| 481 | beneficiaries described in s. 736.0103(14)(a) and at least a |
| 482 | majority in interest of the beneficiaries described in s. |
| 483 | 736.0103(14)(b), if the interests of the beneficiaries are |
| 484 | reasonably ascertainable; otherwise, a majority in number of |
| 485 | each such class. |
| 486 | b. "Qualified investment instrument" means a mutual fund, |
| 487 | common trust fund, or money market fund described in and |
| 488 | governed by s. 736.0816(3). |
| 489 | c. An irrevocable trust is created upon execution of the |
| 490 | trust instrument. If a trust that was revocable when created |
| 491 | thereafter becomes irrevocable, the irrevocable trust is created |
| 492 | when the right of revocation terminates. |
| 493 | Section 21. Subsection (10) of section 895.02, Florida |
| 494 | Statutes, is amended to read: |
| 495 | 895.02 Definitions.--As used in ss. 895.01-895.08, the |
| 496 | term: |
| 497 | (10) "Trustee" means any of the following: |
| 498 | (a) Any person acting as trustee pursuant to a trust |
| 499 | established under s. 689.07 or s. 689.071 in which the trustee |
| 500 | holds legal or record title to real property. |
| 501 | (b) Any person who holds legal or record title to real |
| 502 | property in which any other person has a beneficial interest. |
| 503 | (c) Any successor trustee or trustees to any or all of the |
| 504 | foregoing persons. |
| 505 |
|
| 506 | However, the term "trustee" does not include any person |
| 507 | appointed or acting as a personal representative as defined in |
| 508 | s. 731.201(27) or appointed or acting as a trustee of any |
| 509 | testamentary trust or as a trustee of any indenture of trust |
| 510 | under which any bonds have been or are to be issued. |
| 511 | Section 22. This act shall take effect July 1, 2009. |