1 | A bill to be entitled |
2 | An act relating to trust administration; amending s. |
3 | 733.607, F.S.; limiting a personal representative's |
4 | entitlement to payment from a trust of certain estate |
5 | expenses and obligations; specifying application of |
6 | certain criteria in making certain payments from a trust; |
7 | amending s. 733.707, F.S.; specifying application of |
8 | additional provisions to liability for certain estate |
9 | expense and obligation payments from a trust; amending s. |
10 | 736.0206, F.S.; deleting certain notice requirements |
11 | relating to court review of a trustee's employment of |
12 | certain persons; authorizing the award of expert witness |
13 | fees from trust assets rather than requiring the award of |
14 | such fees; providing a limitation; amending s. 736.0505, |
15 | F.S.; revising a value criterion for determining the |
16 | extent of treating the holder of a power of withdrawal as |
17 | the settlor of a trust; providing criteria for determining |
18 | who contributed certain trust assets under certain |
19 | circumstances; amending s. 736.05053, F.S.; requiring |
20 | application of priorities for pro rata abatement of |
21 | nonresiduary trust dispositions together with nonresiduary |
22 | devises; amending s. 736.1007, F.S.; deleting authority |
23 | for a court to determine an attorney's compensation; |
24 | deleting certain expert testimony and fee payment |
25 | provisions; deleting requirements for certain court |
26 | compensation determination proceedings to be part of a |
27 | trust administration process and for court determination |
28 | and payment of certain estate costs and fees from trust |
29 | assets; providing an effective date. |
30 |
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31 | Be It Enacted by the Legislature of the State of Florida: |
32 |
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33 | Section 1. Subsection (2) of section 733.607, Florida |
34 | Statutes, is amended to read: |
35 | 733.607 Possession of estate.- |
36 | (2) If, after providing for statutory entitlements and all |
37 | devises other than residuary devises, the assets of the |
38 | decedent's estate are insufficient to pay the expenses of the |
39 | administration and obligations of the decedent's estate, the |
40 | personal representative is entitled to payment from the trustee |
41 | of a trust described in s. 733.707(3), in the amount the |
42 | personal representative certifies in writing to be required to |
43 | satisfy the insufficiency, subject to the exclusions and |
44 | preferences under s. 736.05053. The provisions of s. 733.805 |
45 | shall apply in determining the amount of any payment required by |
46 | this section. |
47 | Section 2. Subsection (3) of section 733.707, Florida |
48 | Statutes, is amended to read: |
49 | 733.707 Order of payment of expenses and obligations.- |
50 | (3) Any portion of a trust with respect to which a |
51 | decedent who is the grantor has at the decedent's death a right |
52 | of revocation, as defined in paragraph (e), either alone or in |
53 | conjunction with any other person, is liable for the expenses of |
54 | the administration and obligations of the decedent's estate to |
55 | the extent the decedent's estate is insufficient to pay them as |
56 | provided in ss. s. 733.607(2) and 736.05053. |
57 | (a) For purposes of this subsection, any trusts |
58 | established as part of, and all payments from, either an |
59 | employee annuity described in s. 403 of the Internal Revenue |
60 | Code of 1986, as amended, an Individual Retirement Account, as |
61 | described in s. 408 of the Internal Revenue Code of 1986, as |
62 | amended, a Keogh (HR-10) Plan, or a retirement or other plan |
63 | established by a corporation which is qualified under s. 401 of |
64 | the Internal Revenue Code of 1986, as amended, shall not be |
65 | considered a trust over which the decedent has a right of |
66 | revocation. |
67 | (b) For purposes of this subsection, any trust described |
68 | in s. 664 of the Internal Revenue Code of 1986, as amended, |
69 | shall not be considered a trust over which the decedent has a |
70 | right of revocation. |
71 | (c) This subsection shall not impair any rights an |
72 | individual has under a qualified domestic relations order as |
73 | that term is defined in s. 414(p) of the Internal Revenue Code |
74 | of 1986, as amended. |
75 | (d) For purposes of this subsection, property held or |
76 | received by a trust to the extent that the property would not |
77 | have been subject to claims against the decedent's estate if it |
78 | had been paid directly to a trust created under the decedent's |
79 | will or other than to the decedent's estate, or assets received |
80 | from any trust other than a trust described in this subsection, |
81 | shall not be deemed assets of the trust available to the |
82 | decedent's estate. |
83 | (e) For purposes of this subsection, a "right of |
84 | revocation" is a power retained by the decedent, held in any |
85 | capacity, to: |
86 | 1. Amend or revoke the trust and revest the principal of |
87 | the trust in the decedent; or |
88 | 2. Withdraw or appoint the principal of the trust to or |
89 | for the decedent's benefit. |
90 | Section 3. Subsections (1), (5), (6), and (7) of section |
91 | 736.0206, Florida Statutes, are amended to read: |
92 | 736.0206 Proceedings for review of employment of agents |
93 | and review of compensation of trustee and employees of trust.- |
94 | (1) After notice to all interested persons, The court may |
95 | review the propriety of the employment by a trustee of any |
96 | person, including any attorney, auditor, investment adviser, or |
97 | other specialized agent or assistant, and the reasonableness of |
98 | any compensation paid to that person or to the trustee. |
99 | (5) The court may determine reasonable compensation for a |
100 | trustee or any person employed by a trustee without receiving |
101 | expert testimony. Any party may offer expert testimony after |
102 | notice to interested persons. If expert testimony is offered, a |
103 | reasonable expert witness fee may shall be awarded by the court |
104 | and paid from the assets of the trust unless the court finds |
105 | that the expert testimony did not assist the court. The court |
106 | shall direct from which part of the trust assets the fee shall |
107 | be paid. |
108 | (6) Persons given notice as provided in this section shall |
109 | be bound by all orders entered on the complaint. |
110 | (6)(7) In a proceeding pursuant to subsection (2), the |
111 | petitioner may serve formal notice as provided in the Florida |
112 | Probate Rules, and such notice shall be sufficient for the court |
113 | to acquire jurisdiction over the person receiving the notice to |
114 | the extent of the person's interest in the trust. |
115 | Section 4. Paragraph (b) of subsection (2) of section |
116 | 736.0505, Florida Statutes, is amended, and subsection (3) is |
117 | added to that section, to read: |
118 | 736.0505 Creditors' claims against settlor.- |
119 | (2) For purposes of this section: |
120 | (b) Upon the lapse, release, or waiver of the power, the |
121 | holder is treated as the settlor of the trust only to the extent |
122 | the value of the property affected by the lapse, release, or |
123 | waiver exceeds the greater of the amount specified in: |
124 | 1. Section 2041(b)(2) or s. 2514(e); or |
125 | 2. Section 2503(b) and, if the donor was married at the |
126 | time of the transfer to which the power of withdrawal applies, |
127 | twice the amount specified in s. 2503(b), |
128 |
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129 | of the Internal Revenue Code of 1986, as amended. |
130 | (3) Subject to the provisions of s. 726.105, for purposes |
131 | of this section, the assets in: |
132 | (a) A trust described in s. 2523(e) of the Internal |
133 | Revenue Code of 1986, as amended, or a trust for which the |
134 | election described in s. 2523(f) of the Internal Revenue Code of |
135 | 1986, as amended, has been made; and |
136 | (b) Another trust, to the extent that the assets in the |
137 | other trust are attributable to a trust described in paragraph |
138 | (a), |
139 | |
140 | shall, after the death of the settlor's spouse, be deemed to |
141 | have been contributed by the settlor's spouse and not by the |
142 | settlor. |
143 | Section 5. Subsection (5) is added to section 736.05053, |
144 | Florida Statutes, to read: |
145 | 736.05053 Trustee's duty to pay expenses and obligations |
146 | of settlor's estate.- |
147 | (5) Nonresiduary trust dispositions shall abate pro rata |
148 | with nonresiduary devises pursuant to the priorities specified |
149 | in this section and s. 733.805, determined as if the |
150 | beneficiaries of the will and trust, other than the estate or |
151 | trust itself, were taking under a common instrument. |
152 | Section 6. Subsections (7) through (10) of section |
153 | 736.1007, Florida Statutes, are amended to read: |
154 | 736.1007 Trustee's attorney's fees.- |
155 | (7) The court may determine reasonable attorney's |
156 | compensation without receiving expert testimony. Any party may |
157 | offer expert testimony after notice to interested persons. If |
158 | expert testimony is offered, an expert witness fee may be |
159 | awarded by the court and paid from the assets of the trust. The |
160 | court shall direct from what part of the trust the fee is to be |
161 | paid. |
162 | (7)(8) If a separate written agreement regarding |
163 | compensation exists between the attorney and the settlor, the |
164 | attorney shall furnish a copy to the trustee prior to |
165 | commencement of employment and, if employed, shall promptly file |
166 | and serve a copy on all interested persons. A separate agreement |
167 | or a provision in the trust suggesting or directing the trustee |
168 | to retain a specific attorney does not obligate the trustee to |
169 | employ the attorney or obligate the attorney to accept the |
170 | representation but, if the attorney who is a party to the |
171 | agreement or who drafted the trust is employed, the compensation |
172 | paid shall not exceed the compensation provided in the |
173 | agreement. |
174 | (9) Court proceedings to determine compensation, if |
175 | required, are a part of the trust administration process, and |
176 | the costs, including fees for the trustee's attorney, shall be |
177 | determined by the court and paid from the assets of the trust |
178 | unless the court finds the attorney's fees request to be |
179 | substantially unreasonable. The court shall direct from what |
180 | part of the trust the fees are to be paid. |
181 | (8)(10) As used in this section, the term "initial trust |
182 | administration" means administration of a revocable trust during |
183 | the period that begins with the death of the settlor and ends on |
184 | the final distribution of trust assets outright or to continuing |
185 | trusts created under the trust agreement but, if an estate tax |
186 | return is required, not until after issuance of an estate tax |
187 | closing letter or other evidence of termination of the estate |
188 | tax proceeding. This initial period is not intended to include |
189 | continued regular administration of the trust. |
190 | Section 7. This act shall take effect July 1, 2010. |