CS/HB 325

1	A bill to be entitled
2	An act relating to estates; creating s. 90.5021, F.S.;
3	providing a fiduciary lawyer-client privilege; providing
4	that the section is inapplicable to a specified crime or
5	fraud exception to lawyer-client privilege; amending s.
6	732.102, F.S.; revising provisions relating to the
7	intestate share of a surviving spouse; creating s.
8	732.615, F.S.; providing a right to reform the terms of a
9	will to correct mistakes; creating s. 732.616, F.S.;
10	providing a right to modify the terms of a will to achieve
11	tax objectives; creating s. 733.1061, F.S.; providing for
12	a court to award fees and costs in reformation and
13	modification proceedings either against a party's share in
14	the estate or in the form of a personal judgment against a
15	party individually; amending s. 732.5165, F.S.; clarifying
16	that a revocation of a will is subject to challenge on the
17	grounds of fraud, duress, mistake, or undue influence;
18	amending s. 732.518, F.S.; specifying that a challenge to
19	the revocation of a will may not be commenced before the
20	testator's death; amending s. 733.212, F.S.; providing for
21	notice of fiduciary lawyer-client privilege in a notice of
22	administration; amending s. 736.0207, F.S.; clarifying
23	when a challenge to the revocation of a revocable trust
24	may be brought; amending s. 736.0406, F.S.; providing that
25	the creation of a trust amendment or trust restatement and
26	the revocation of a trust are subject to challenge on the
27	grounds of fraud, duress, mistake, or undue influence;
28	amending s. 736.0813, F.S.; providing for notice of
29	fiduciary lawyer-client privilege by a trustee; amending
30	s. 744.441, F.S.; limiting the circumstances under which a
31	guardian of an incapacitated person may bring a challenge
32	to a settlor's revocation of a revocable trust; amending
33	s. 736.0201, F.S.; clarifying that certain payments by a
34	trustee from trust assets are not taxation of attorney's
35	fees and costs subject to a specified Rule of Civil
36	Procedure; providing effective dates.
37
38	Be It Enacted by the Legislature of the State of Florida:
39
40	Section 1.  Section 90.5021, Florida Statutes, is created
41	to read:
42	90.5021  Fiduciary lawyer-client privilege.-
43	(1)  For the purpose of this section, a client acts as a
44	fiduciary when serving as a personal representative or a trustee
45	as defined in ss. 731.201 and 736.0103, an administrator ad
46	litem as described in s. 733.308, a curator as described in s.
47	733.501, a guardian or guardian ad litem as defined in s.
48	744.102, a conservator as defined in s. 710.102, or an attorney
49	in fact as described in chapter 709.
50	(2)  A communication between a lawyer and a client acting
51	as a fiduciary is privileged and protected from disclosure under
52	s. 90.502 to the same extent as if the client were not acting as
53	a fiduciary. In applying s. 90.502 to a communication under this
54	section, only the person or entity acting as a fiduciary is
55	considered a client of the lawyer.
56	(3)  This section does not affect the crime or fraud
57	exception to the lawyer-client privilege provided in s.
58	90.502(4)(a).
59	Section 2.  Effective October 1, 2011, subsections (2) and
60	(3) of section 732.102, Florida Statutes, are amended, and
61	subsection (4) is added to that section, to read:
62	732.102  Spouse's share of intestate estate.-The intestate
63	share of the surviving spouse is:
64	(2)  If the decedent is survived by one or more descendants
65	there are surviving descendants of the decedent, all of whom are
66	also lineal descendants of the surviving spouse, and the
67	surviving spouse has no other descendant, the entire intestate
68	estate the first $60,000 of the intestate estate, plus one-half
69	of the balance of the intestate estate. Property allocated to
70	the surviving spouse to satisfy the $60,000 shall be valued at
71	the fair market value on the date of distribution.
72	(3)  If there are one or more surviving descendants of the
73	decedent who, one or more of whom are not lineal descendants of
74	the surviving spouse, one-half of the intestate estate.
75	(4)  If there are one or more surviving descendants of the
76	decedent, all of whom are also descendants of the surviving
77	spouse, and the surviving spouse has one or more descendants who
78	are not descendants of the decedent, one-half of the intestate
79	estate.
80	Section 3.  Effective July 1, 2011, section 732.615,
81	Florida Statutes, is created to read:
82	732.615  Reformation to correct mistakes.-Upon application
83	of any interested person, the court may reform the terms of a
84	will, even if unambiguous, to conform the terms to the
85	testator's intent if it is proved by clear and convincing
86	evidence that both the accomplishment of the testator's intent
87	and the terms of the will were affected by a mistake of fact or
88	law, whether in expression or inducement. In determining the
89	testator's original intent, the court may consider evidence
90	relevant to the testator's intent even though the evidence
91	contradicts an apparent plain meaning of the will.
92	Section 4.  Effective July 1, 2011, section 732.616,
93	Florida Statutes, is created to read:
94	732.616  Modification to achieve testator's tax
95	objectives.-Upon application of any interested person, to
96	achieve the testator's tax objectives the court may modify the
97	terms of a will in a manner that is not contrary to the
98	testator's probable intent. The court may provide that the
99	modification has retroactive effect.
100	Section 5.  Effective July 1, 2011, section 733.1061,
101	Florida Statutes, is created to read:
102	733.1061  Fees and costs; will reformation and
103	modification.-
104	(1)  In a proceeding arising under s. 732.615 or s.
105	732.616, the court shall award taxable costs as in chancery
106	actions, including attorney's fees and guardian ad litem fees.
107	(2)  When awarding taxable costs, including attorney's fees
108	and guardian ad litem fees, under this section, the court in its
109	discretion may direct payment from a party's interest, if any,
110	in the estate or enter a judgment which may be satisfied from
111	other property of the party, or both.
112	Section 6.  Section 732.5165, Florida Statutes, is amended
113	to read:
114	732.5165  Effect of fraud, duress, mistake, and undue
115	influence.-A will is void if the execution is procured by fraud,
116	duress, mistake, or undue influence. Any part of the will is
117	void if so procured, but the remainder of the will not so
118	procured shall be valid if it is not invalid for other reasons.
119	If the revocation of a will, or any part thereof, is procured by
120	fraud, duress, mistake, or undue influence, such revocation is
121	void.
122	Section 7.  Section 732.518, Florida Statutes, is amended
123	to read:
124	732.518  Will contests.-An action to contest the validity
125	of all or part of a will or the revocation of all or part of a
126	will may not be commenced before the death of the testator.
127	Section 8.  Paragraph (b) of subsection (2) of section
128	733.212, Florida Statutes, is amended to read:
129	733.212  Notice of administration; filing of objections.-
130	(2)  The notice shall state:
131	(b)  The name and address of the personal representative
132	and the name and address of the personal representative's
133	attorney, and that the fiduciary lawyer-client privilege in s.
134	90.5021 applies with respect to the personal representative and
135	any attorney employed by the personal representative.
136	Section 9.  Section 736.0207, Florida Statutes, is amended
137	to read:
138	736.0207  Trust contests.-An action to contest the validity
139	of all or part of a revocable trust, or the revocation of part
140	of a revocable trust, may not be commenced until the trust
141	becomes irrevocable by its terms or by the settlor's death. If
142	all of a revocable trust has been revoked, an action to contest
143	the revocation may not be commenced until after the settlor's
144	death., except This section does not prohibit such action by the
145	guardian of the property of an incapacitated settlor.
146	Section 10.  Section 736.0406, Florida Statutes, is amended
147	to read:
148	736.0406  Effect of fraud, duress, mistake, or undue
149	influence.-A trust is void If the creation, amendment, or
150	restatement of a the trust is procured by fraud, duress,
151	mistake, or undue influence, the trust or. any part so procured
152	of the trust is void. if procured by such means, but The
153	remainder of the trust not procured by such means is valid if
154	the remainder is not invalid for other reasons. If the
155	revocation of a trust, or any part thereof, is procured by
156	fraud, duress, mistake, or undue influence, such revocation is
157	void.
158	Section 11.  Paragraphs (a) and (b) of subsection (1) of
159	section 736.0813, Florida Statutes, are amended to read:
160	736.0813  Duty to inform and account.-The trustee shall
161	keep the qualified beneficiaries of the trust reasonably
162	informed of the trust and its administration.
163	(1)  The trustee's duty to inform and account includes, but
164	is not limited to, the following:
165	(a)  Within 60 days after acceptance of the trust, the
166	trustee shall give notice to the qualified beneficiaries of the
167	acceptance of the trust, and the full name and address of the
168	trustee, and that the fiduciary lawyer-client privilege in s.
169	90.5021 applies with respect to the trustee and any attorney
170	employed by the trustee.
171	(b)  Within 60 days after the date the trustee acquires
172	knowledge of the creation of an irrevocable trust, or the date
173	the trustee acquires knowledge that a formerly revocable trust
174	has become irrevocable, whether by the death of the settlor or
175	otherwise, the trustee shall give notice to the qualified
176	beneficiaries of the trust's existence, the identity of the
177	settlor or settlors, the right to request a copy of the trust
178	instrument, and the right to accountings under this section, and
179	that the fiduciary lawyer-client privilege in s. 90.5021 applies
180	with respect to the trustee and any attorney employed by the
181	trustee.
182
183	Paragraphs (a) and (b) do not apply to an irrevocable trust
184	created before the effective date of this code, or to a
185	revocable trust that becomes irrevocable before the effective
186	date of this code. Paragraph (a) does not apply to a trustee who
187	accepts a trusteeship before the effective date of this code.
188	Section 12.  Subsection (11) of section 744.441, Florida
189	Statutes, is amended to read:
190	744.441  Powers of guardian upon court approval.-After
191	obtaining approval of the court pursuant to a petition for
192	authorization to act, a plenary guardian of the property, or a
193	limited guardian of the property within the powers granted by
194	the order appointing the guardian or an approved annual or
195	amended guardianship report, may:
196	(11)  Prosecute or defend claims or proceedings in any
197	jurisdiction for the protection of the estate and of the
198	guardian in the performance of his or her duties. Before
199	authorizing a guardian to bring an action described in s.
200	736.0207, the court shall first find that the action appears to
201	be in the ward's best interests during the ward's probable
202	lifetime. There shall be a rebuttable presumption that an action
203	challenging the ward's revocation of all or part of a trust is
204	not in the ward's best interests if the revocation relates
205	solely to a devise. This subsection does not preclude a
206	challenge after the ward's death. If the court denies a request
207	that a guardian be authorized to bring an action described in s.
208	736.0207, the court shall review the continued need for a
209	guardian and the extent of the need for delegation of the ward's
210	rights.
211	Section 13.  Subsection (1) of section 736.0201, Florida
212	Statutes, is amended, and subsection (6) is added to that
213	section, to read:
214	736.0201  Role of court in trust proceedings.-
215	(1)  Except as provided in subsections subsection (5) and
216	(6) and s. 736.0206, judicial proceedings concerning trusts
217	shall be commenced by filing a complaint and shall be governed
218	by the Florida Rules of Civil Procedure.
219	(6)  Rule 1.525, Florida Rules of Civil Procedure, shall
220	apply to judicial proceedings concerning trusts, except that the
221	following do not constitute taxation of costs or attorney's fees
222	even if the payment is for services rendered or costs incurred
223	in a judicial proceeding:
224	(a)  A trustee's payment of compensation or reimbursement
225	of costs to persons employed by the trustee from assets of the
226	trust.
227	(b)  A determination by the court directing from what part
228	of the trust fees or costs shall be paid, unless the
229	determination is made under s. 736.1004 in an action for breach
230	of fiduciary duty or challenging the exercise of, or failure to
231	exercise, a trustee's powers.
232	Section 14.  Except as otherwise expressly provided in this
233	act, this act shall take effect upon becoming a law and shall
234	apply to all proceedings pending before such date and all cases
235	commenced on or after the effective date.

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