Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 648
       
       
       
       
       
       
                                Barcode 587788                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/22/2011           .                                
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       The Committee on Banking and Insurance (Bennett) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Before line 36
    4  insert:
    5         Section 1. Section 90.5021, Florida Statutes, is created to
    6  read:
    7         90.5021 Fiduciary lawyer-client privilege.—
    8         (1) For the purpose of this section, a client acts as a
    9  fiduciary when serving as a personal representative or a trustee
   10  as defined in ss. 731.201 and 736.0103, an administrator ad
   11  litem as defined in s. 733.308, a curator as described in s.
   12  733.501, a guardian or guardian ad litem as defined in s.
   13  744.102, a conservator as defined in s. 710.102, or an attorney
   14  in fact as described in chapter 709.
   15         (2) A communication between a lawyer and a client acting as
   16  a fiduciary is privileged and protected from disclosure under s.
   17  90.502 to the same extent as if the client were not acting as a
   18  fiduciary. In applying s. 90.502 to a communication under this
   19  section, only the person or entity acting as a fiduciary is
   20  considered a client of the lawyer.
   21         (3) This section does not affect the exception to the
   22  lawyer-client privilege which is provided for crime or fraud as
   23  set forth in s. 90.502(4)(a).
   24  
   25         Between lines 103 and 104
   26  insert:
   27         Section 7. Paragraph (b) of subsection (2) of section
   28  733.212, Florida Statutes, is amended to read:
   29         733.212 Notice of administration; filing of objections.—
   30         (2) The notice shall state:
   31         (b) The name and address of the personal representative and
   32  the name and address of the personal representative’s attorney,
   33  and that the fiduciary lawyer-client privilege in s. 90.5021
   34  applies with respect to the personal representative and any
   35  attorney employed by the personal representative.
   36  
   37         Between lines 125 and 126
   38  insert:
   39         Section 9. Paragraphs (a) and (b) of subsection (1) of
   40  section 736.0813, Florida Statutes, are amended to read:
   41         736.0813 Duty to inform and account.—The trustee shall keep
   42  the qualified beneficiaries of the trust reasonably informed of
   43  the trust and its administration.
   44         (1) The trustee’s duty to inform and account includes, but
   45  is not limited to, the following:
   46         (a) Within 60 days after acceptance of the trust, the
   47  trustee shall give notice to the qualified beneficiaries of the
   48  acceptance of the trust, and the full name and address of the
   49  trustee, and that the fiduciary lawyer-client privilege in s.
   50  90.5021 applies with respect to the trustee and any attorney
   51  employed by the trustee.
   52         (b) Within 60 days after the date the trustee acquires
   53  knowledge of the creation of an irrevocable trust, or the date
   54  the trustee acquires knowledge that a formerly revocable trust
   55  has become irrevocable, whether by the death of the settlor or
   56  otherwise, the trustee shall give notice to the qualified
   57  beneficiaries of the trust’s existence, the identity of the
   58  settlor or settlors, the right to request a copy of the trust
   59  instrument, and the right to accountings under this section, and
   60  that the fiduciary lawyer-client privilege in s. 90.5021 applies
   61  with respect to the trustee and any attorney employed by the
   62  trustee.
   63  
   64  Paragraphs (a) and (b) do not apply to an irrevocable trust
   65  created before the effective date of this code, or to a
   66  revocable trust that becomes irrevocable before the effective
   67  date of this code. Paragraph (a) does not apply to a trustee who
   68  accepts a trusteeship before the effective date of this code.
   69  
   70  ================= T I T L E  A M E N D M E N T ================
   71         And the title is amended as follows:
   72         Delete lines 2 - 24
   73  and insert:
   74         An act relating to estates; creating s. 90.5021, F.S.;
   75         creating a fiduciary lawyer-client privilege;
   76         providing that the lawyer-client privilege applies to
   77         the communications between a lawyer and a client that
   78         is a fiduciary; providing that the act does not affect
   79         the crime or fraud exception to the lawyer-client
   80         privilege; amending s. 732.102, F.S.; revising
   81         provisions relating to the intestate share of a
   82         surviving spouse; creating s. 732.615, F.S.; providing
   83         a right to reform the terms of a will to correct
   84         mistakes; creating s. 732.616, F.S.; providing a right
   85         to modify the terms of a will to achieve tax
   86         objectives; creating s. 733.1061, F.S.; providing for
   87         a court to award fees and costs in reformation and
   88         modification proceedings either against a party’s
   89         share in the estate or in the form of a personal
   90         judgment against a party individually; amending s.
   91         732.5165, F.S.; clarifying that a revocation of a will
   92         is subject to challenge on the grounds of fraud,
   93         duress, mistake, or undue influence; amending s.
   94         732.518, F.S.; specifying that a challenge to the
   95         revocation of a will may not be commenced before the
   96         testator’s death; amending s. 733.212, F.S.; requiring
   97         a notice of administration to state that the fiduciary
   98         lawyer-client privilege applies with respect to the
   99         personal representative and his or her attorney;
  100         amending s. 736.0207, F.S.; clarifying when a
  101         challenge to the revocation of a revocable trust may
  102         be brought; amending s. 736.0406, F.S.; providing that
  103         the creation of a trust amendment or trust restatement
  104         and the revocation of a trust are subject to challenge
  105         on the grounds of fraud, duress, mistake, or undue
  106         influence; amending s. 736.0813, F.S.; providing that
  107         the fiduciary lawyer-client privilege applies to
  108         communications between a trustee and an attorney
  109         employed by the trustee; amending s. 744.441,