Florida Senate - 2014                                     SB 998
       
       
        
       By Senator Hukill
       
       
       
       
       
       8-01029B-14                                            2014998__
    1                        A bill to be entitled                      
    2         An act relating to estates; amending s. 733.107, F.S.;
    3         clarifying circumstances under which a burden of proof
    4         shifts in cases involving undue influence; providing
    5         for retroactive application; amending s. 733.808,
    6         F.S.; requiring that a directive to apply certain
    7         death benefits for the payment of claims and
    8         administration expenses be specified in certain
    9         instruments; providing for retroactive application;
   10         amending s. 736.0207, F.S.; establishing which party
   11         bears the burden of proof in an action to contest the
   12         validity or revocation of a trust; providing for
   13         applicability; amending s. 736.05053, F.S.; requiring
   14         a specific directive for certain assets and death
   15         benefits to be used to pay estate expenses; providing
   16         for retroactive application; amending s. 736.1106,
   17         F.S.; providing for the vesting of outright devises in
   18         certain trust documents; providing for applicability;
   19         providing an effective date.
   20          
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Section 733.107, Florida Statutes, is amended to
   24  read:
   25         733.107 Burden of proof in contests; presumption of undue
   26  influence.—
   27         (1) In all proceedings contesting the validity of a will,
   28  the burden shall be upon the proponent of the will to establish
   29  prima facie its formal execution and attestation. A self-proving
   30  affidavit executed in accordance with s. 732.503 or an oath of
   31  an attesting witness executed as required in s. 733.201(2) is
   32  admissible and establishes prima facie the formal execution and
   33  attestation of the will. Thereafter, the contestant shall have
   34  the burden of establishing the grounds on which the probate of
   35  the will is opposed or revocation is sought.
   36         (2) In any transaction or event to which the presumption of
   37  undue influence applies, the presumption of undue influence
   38  implements public policy against abuse of fiduciary or
   39  confidential relationships and is therefore a presumption
   40  shifting the burden of proof under ss. 90.301-90.304.
   41         Section 2. The changes made by this act to s. 733.107,
   42  Florida Statutes, are intended to clarify existing law, are
   43  remedial in nature, and shall apply retroactively to all
   44  proceedings pending on or before this act becomes a law and all
   45  cases commenced on or after the effective date.
   46         Section 3. Subsection (4) of section 733.808, Florida
   47  Statutes, is amended to read:
   48         733.808 Death benefits; disposition of proceeds.—
   49         (4) Unless the trust agreement, declaration of trust, or
   50  will expressly refers to this subsection and directs that it
   51  does not apply, death benefits payable as provided in subsection
   52  (1), subsection (2), or subsection (3), unless paid to a
   53  personal representative under the provisions of subsection (3),
   54  shall not be deemed to be part of the decedent’s estate, and
   55  shall not be subject to any obligation to pay the expenses of
   56  the administration and obligations of the decedent’s estate or
   57  for contribution required from a trust under s. 733.607(2) to
   58  any greater extent than if the proceeds were payable directly to
   59  the beneficiaries named in the trust.
   60         Section 4. The changes made by this act to s. 733.808,
   61  Florida Statutes, are intended to clarify existing law, are
   62  remedial in nature, and apply retroactively without regard to
   63  the date of the decedent’s death.
   64         Section 5. Section 736.0207, Florida Statutes, is amended
   65  to read:
   66         736.0207 Trust contests.—
   67         (1) In an action to contest the validity or revocation of
   68  all or part of a trust, the contestant has the burden of
   69  establishing the grounds for invalidity.
   70         (2) An action to contest the validity of all or part of a
   71  revocable trust, or the revocation of part of a revocable trust,
   72  may not be commenced until the trust becomes irrevocable by its
   73  terms or by the settlor’s death. If all of a revocable trust has
   74  been revoked, an action to contest the revocation may not be
   75  commenced until after the settlor’s death. This section does not
   76  prohibit such action by the guardian of the property of an
   77  incapacitated settlor.
   78         Section 6. The changes made by this act to s. 736.0207,
   79  Florida Statutes, apply to all cases commenced on or after the
   80  effective date.
   81         Section 7. Subsection (1) of section 736.05053, Florida
   82  Statutes, is amended to read:
   83         736.05053 Trustee’s duty to pay expenses and obligations of
   84  settlor’s estate.—
   85         (1) A trustee of a trust described in s. 733.707(3) shall
   86  pay to the personal representative of a settlor’s estate any
   87  amounts that the personal representative certifies in writing to
   88  the trustee are required to pay the expenses of the
   89  administration and obligations of the settlor’s estate. Payments
   90  made by a trustee, unless otherwise provided in the trust
   91  instrument, must be charged as expenses of the trust without a
   92  contribution from anyone. The interests of all beneficiaries of
   93  such a trust are subject to the provisions of this subsection;
   94  however, the payments must be made from assets, property, or the
   95  proceeds of the assets or property that are included in the
   96  settlor’s gross estate for federal estate tax purposes and may
   97  not be made from, other than assets proscribed in s. 733.707(3),
   98  or death benefits described in s. 733.808(4) unless the trust
   99  instrument expressly refers to s. 733.808(4) and directs that it
  100  does not apply that are included in the settlor’s gross estate
  101  for federal estate tax purposes.
  102         Section 8. The changes made by this act to s. 736.05053,
  103  Florida Statutes, are intended to clarify existing law, are
  104  remedial in nature, and apply retroactively without regard to
  105  the date of the settlor’s death.
  106         Section 9. Present subsection (5) of section 736.1106,
  107  Florida Statutes, is renumbered as subsection (6) and amended,
  108  and a new subsection (5) is added to that section, to read:
  109         736.1106 Antilapse; survivorship with respect to future
  110  interests under terms of inter vivos and testamentary trusts;
  111  substitute takers.—
  112         (5) Unless a contrary intent appears in the trust
  113  instrument, subsections (2)-(4) do not apply to an outright
  114  devise that vests upon the death of the settlor unless the
  115  beneficiary is a grandparent, or a lineal descendant of a
  116  grandparent, of the settlor or testator and the beneficiary:
  117         (a) Is dead at the time of the execution of the revocable
  118  trust or will;
  119         (b) Fails to survive the settlor or testator; or
  120         (c) Is required by the inter vivos trust or by operation of
  121  law to be treated as having predeceased the settlor or testator.
  122  
  123  A devise in a revocable trust or a testamentary trust that is to
  124  take effect at the death of the settlor or testator does not
  125  vest until the death of the settlor or testator.
  126         (6)(5) Subsections (1)-(4) apply to all trusts other than
  127  trusts that were irrevocable before the effective date of this
  128  code. Sections 732.603, 732.604, and 737.6035, as they exist on
  129  June 30, 2007, continue to apply to other trusts executed on or
  130  after June 12, 2003. Subsection (5) applies to those trusts that
  131  become irrevocable after June 30, 2014.
  132         Section 10. This act shall take effect upon becoming a law.