CS/HB 965

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 certain
4	interests as beneficial interests; providing construction;
5	amending s. 736.0105, F.S.; providing an additional
6	limitation on terms of a trust prevailing over provisions
7	of the Florida Trust Code; amending s. 736.0302, F.S.;
8	revising representation authority for holders of a power
9	of appointment; providing a definition; amending s.
10	736.0306, F.S.; authorizing trust instruments to authorize
11	certain persons to designate one or more persons to
12	represent and bind a beneficiary and receive certain
13	information; amending s. 736.0703, F.S.; authorizing a
14	cotrustee to delegate investment decisions to a cotrustee;
15	revising provisions for absence of liability of excluded
16	trustees under certain circumstances; amending s.
17	736.0807, F.S.; providing that a cotrustee who has
18	delegated investment functions is not liable for
19	investment decisions; amending s. 736.1106, F.S.; revising
20	a definition applicable to antilapse of a trust
21	distribution; providing an effective date.
22
23	Be It Enacted by the Legislature of the State of Florida:
24
25	Section 1.  Subsection (4) of section 736.0103, Florida
26	Statutes, is amended to read:
27	736.0103  Definitions.--Unless the context otherwise
28	requires, in this code:
29	(4)  "Beneficiary" means a person who:
30	(a)  has a present or future beneficial interest in a
31	trust, vested or contingent,; or who
32	(b)  holds a power of appointment over trust property in a
33	capacity other than that of trustee. An interest as a
34	permissible appointee of a power of appointment, held by a
35	person in a capacity other than that of trustee, is not a
36	beneficial interest for purposes of this subsection. Upon an
37	irrevocable exercise of a power of appointment, the interest of
38	a person in whose favor the appointment is made shall be
39	considered a present or future beneficial interest in a trust in
40	the same manner as if the interest had been included in the
41	trust instrument.
42	Section 2.  Paragraph (f) of subsection (2) of section
43	736.0105, Florida Statutes, is amended to read:
44	736.0105  Default and mandatory rules.--
45	(2)  The terms of a trust prevail over any provision of
46	this code except:
47	(f)  The requirements under s. 736.0108(1) for the
48	designation of a principal place of administration of the trust
49	and the requirements under s. 736.0107 for the designation of a
50	jurisdiction the law of which determines the meaning and effect
51	of the terms of a trust.
52	Section 3.  Section 736.0302, Florida Statutes, is amended
53	to read:
54	736.0302  Representation by holder of power of
55	appointment.--
56	(1)  The holder of a power of appointment may represent and
57	bind persons whose interests, as permissible appointees, takers
58	in default, or otherwise, are subject to the power.
59	(2)  The takers in default of the exercise of a power of
60	appointment may represent and bind persons whose interests, as
61	permissible appointees, are subject to the power.
62	(3)(2)  Subsection (1) does not apply to:
63	(a)  Any matter determined by the court to involve fraud or
64	bad faith by the trustee;
65	(b)  A power of a trustee to distribute trust property; or
66	(b)(c)  A power of appointment held by a person while the
67	person is the sole trustee.
68	(4)  As used in this section, the term "power of
69	appointment" does not include a power of a trustee to make
70	discretionary distributions of trust property.
71	Section 4.  Subsection (1) of section 736.0306, Florida
72	Statutes, is amended to read:
73	736.0306  Designated representative.--
74	(1)  If specifically nominated authorized in the trust
75	instrument, one or more persons may be designated to represent
76	and bind a beneficiary and receive any notice, information,
77	accounting, or report. The trust instrument may also authorize
78	any person or persons, other than a trustee of the trust, to
79	designate one or more persons to represent and bind a
80	beneficiary and receive any notice, information, accounting, or
81	report.
82	Section 5.  Subsections (5) and (9) of section 736.0703,
83	Florida Statutes, are amended to read:
84	736.0703  Cotrustees.--
85	(5)  A cotrustee may not delegate to another cotrustee the
86	performance of a function the settlor reasonably expected the
87	cotrustees to perform jointly, except that a cotrustee may
88	delegate investment functions to a cotrustee pursuant to and in
89	compliance with s. 518.112. A cotrustee may revoke a delegation
90	previously made.
91	(9)  If the terms of a trust instrument provide for the
92	appointment of more than one trustee but confer upon one or more
93	of the trustees, to the exclusion of the others, the power to
94	direct or prevent specified actions of the trustees, the
95	excluded trustees shall act in accordance with the exercise of
96	the power. Except in cases of willful misconduct on the part of
97	the directed trustee with the authority to direct or prevent
98	actions of the trustees of which the excluded trustee has actual
99	knowledge, an excluded trustee is not liable, individually or as
100	a fiduciary, for any consequence that results from compliance
101	with the exercise of the power, regardless of the information
102	available to the excluded trustees. The excluded trustees are
103	relieved of any obligation to review, inquire, investigate, or
104	make recommendations or evaluations with respect to the exercise
105	of the power. The trustee or trustees having the power to direct
106	or prevent actions of the trustees shall be liable to the
107	beneficiaries with respect to the exercise of the power as if
108	the excluded trustees were not in office and shall have the
109	exclusive obligation to account to and to defend any action
110	brought by the beneficiaries with respect to the exercise of the
111	power.
112	Section 6.  Subsections (1) and (3) of section 736.0807,
113	Florida Statutes, are amended to read:
114	736.0807  Delegation by trustee.--
115	(1)  A trustee may delegate duties and powers that a
116	prudent trustee of comparable skills could properly delegate
117	under the circumstances, including investment functions pursuant
118	to s. 518.112. The trustee shall exercise reasonable care,
119	skill, and caution in:
120	(a)  Selecting an agent.
121	(b)  Establishing the scope and terms of the delegation,
122	consistent with the purposes and terms of the trust.
123	(c)  Reviewing the agent's actions periodically, in order
124	to monitor the agent's performance and compliance with the terms
125	of the delegation.
126	(3)  A trustee who complies with subsection (1) and, when
127	investment functions are delegated, s. 518.112 is not liable to
128	the beneficiaries or to the trust for an action of the agent to
129	whom the function was delegated.
130	Section 7.  Paragraph (b) of subsection (1) of section
131	736.1106, Florida Statutes, is amended to read:
132	736.1106  Antilapse; survivorship with respect to future
133	interests under terms of inter vivos and testamentary trusts;
134	substitute takers.--
135	(1)  As used in this section, the term:
136	(b)  "Distribution date," with respect to a future
137	interest, means the time when the future interest is to take
138	effect in possession or enjoyment. The distribution date need
139	not occur at the beginning or end of a calendar day, but can
140	occur at a time during the course of a day. The distribution
141	date refers to the time that the right to possession or
142	enjoyment arises and is not necessarily the time that any
143	benefit of the right is realized.
144	Section 8.  This act shall take effect July 1, 2009.

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