Florida Senate - 2017                        COMMITTEE AMENDMENT
       Bill No. CS for CS for SB 206
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/25/2017           .                                
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       The Committee on Rules (Passidomo) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 456 - 474
    4  and insert:
    5         Section 11. Subsection (11) of section 736.0103, Florida
    6  Statutes, is amended to read:
    7         736.0103 Definitions.—Unless the context otherwise
    8  requires, in this code:
    9         (11) “Interests of the beneficiaries” means the beneficial
   10  interests intended by the settlor as provided in the terms of a
   11  the trust.
   12         Section 12. Paragraph (c) of subsection (2) of section
   13  736.0105, Florida Statutes, is amended to read:
   14         736.0105 Default and mandatory rules.—
   15         (2) The terms of a trust prevail over any provision of this
   16  code except:
   17         (c) The requirement that a trust and its terms be for the
   18  benefit of the trust’s beneficiaries, and that the trust have a
   19  purpose that is lawful, not contrary to public policy, and
   20  possible to achieve.
   21         Section 13. Subsections (1) and (3) of section 736.0109,
   22  Florida Statutes, are amended to read:
   23         736.0109 Methods and waiver of notice.—
   24         (1) Notice to a person under this code or the sending of a
   25  document to a person under this code must be accomplished in a
   26  manner reasonably suitable under the circumstances and likely to
   27  result in receipt of the notice or document. Permissible methods
   28  of notice or for sending a document include first-class mail,
   29  personal delivery, delivery to the person’s last known place of
   30  residence or place of business, or a properly directed facsimile
   31  or other electronic message, or posting to a secure electronic
   32  account or website in accordance with subsection (3).
   33         (3) A document that is sent solely by posting to an
   34  electronic account or website is not deemed sent for purposes of
   35  this section unless the sender complies with this subsection.
   36  The sender has the burden of proving compliance with this
   37  subsection In addition to the methods listed in subsection (1)
   38  for sending a document, a sender may post a document to a secure
   39  electronic account or website where the document can be
   40  accessed.
   41         (a) Before a document may be posted to an electronic
   42  account or website, The recipient must sign a separate written
   43  authorization solely for the purpose of authorizing the sender
   44  to post documents on an electronic account or website before
   45  such posting. The written authorization must:
   46         1. Specifically indicate whether a trust accounting, trust
   47  disclosure document, or limitation notice, as those terms are
   48  defined in s. 736.1008(4), will be posted in this manner, and
   49  generally enumerate the other types of documents that may be
   50  posted in this manner.
   51         2. Contain specific instructions for accessing the
   52  electronic account or website, including the security procedures
   53  required to access the electronic account or website, such as a
   54  username and password.
   55         3. Advise the recipient that a separate notice will be sent
   56  when a document is posted to the electronic account or website
   57  and the manner in which the separate notice will be sent.
   58         4. Advise the recipient that the authorization to receive
   59  documents by electronic posting may be amended or revoked at any
   60  time and include specific instructions for revoking or amending
   61  the authorization, including the address designated for the
   62  purpose of receiving notice of the revocation or amendment.
   63         5. Advise the recipient that posting a document on the
   64  electronic account or website may commence a limitations period
   65  as short as 6 months even if the recipient never actually
   66  accesses the electronic account, electronic website, or the
   67  document.
   68         (b) Once the recipient signs the written authorization, the
   69  sender must provide a separate notice to the recipient when a
   70  document is posted to the electronic account or website. As used
   71  in this subsection, the term “separate notice” means a notice
   72  sent to the recipient by means other than electronic posting,
   73  which identifies each document posted to the electronic account
   74  or website and provides instructions for accessing the posted
   75  document. The separate notice requirement is deemed satisfied if
   76  the recipient accesses the document on the electronic account or
   77  website.
   78         (c) A document sent by electronic posting is deemed
   79  received by the recipient on the earlier of the date on which
   80  that the separate notice is received or the date on which that
   81  the recipient accesses the document on the electronic account or
   82  website.
   83         (d) At least annually after a recipient signs a written
   84  authorization, a sender shall send a notice advising recipients
   85  who have authorized one or more documents to be posted to an
   86  electronic account or website that such posting may commence a
   87  limitations period as short as 6 months even if the recipient
   88  never accesses the electronic account or website or the document
   89  and that authority to receive documents by electronic posting
   90  may be amended or revoked at any time. This notice must be given
   91  by means other than electronic posting and may not be
   92  accompanied by any other written communication. Failure to
   93  provide such notice within 380 days after the last notice is
   94  deemed to automatically revoke the authorization to receive
   95  documents in the manner permitted under this subsection 380 days
   96  after the last notice is sent.
   97         (e) The notice required in paragraph (d) may be in
   98  substantially the following form: “You have authorized the
   99  receipt of documents through posting to an electronic account or
  100  website on which where the documents can be accessed. This
  101  notice is being sent to advise you that a limitations period,
  102  which may be as short as 6 months, may be running as to matters
  103  disclosed in a trust accounting or other written report of a
  104  trustee posted to the electronic account or website even if you
  105  never actually access the electronic account or website or the
  106  documents. You may amend or revoke the authorization to receive
  107  documents by electronic posting at any time. If you have any
  108  questions, please consult your attorney.”
  109         (f) A sender may rely on the recipient’s authorization
  110  until the recipient amends or revokes the authorization by
  111  sending a notice to the address designated for that purpose in
  112  the authorization or in the manner specified on the electronic
  113  account or website. The recipient, at any time, may amend or
  114  revoke an authorization to have documents posted on the
  115  electronic account or website.
  116         (g) If a document is provided to a recipient solely through
  117  electronic posting pursuant to this subsection, the recipient
  118  must be able to access and print or download the document until
  119  the earlier of remain accessible to the recipient on the
  120  electronic account or website for at least 4 years after the
  121  date that the document is deemed received by the recipient or
  122  the date upon which the recipient’s access to the electronic
  123  account or website is terminated for any reason.
  124         1. If the recipient’s access to the electronic account or
  125  website is terminated for any reason, such termination does not
  126  invalidate the notice or sending of any document previously
  127  posted on the electronic account or website in accordance with
  128  this subsection, but may toll the applicable limitations period
  129  as provided in subparagraph 2.
  130         2. If the recipient’s access to the electronic account or
  131  website is terminated by the sender sooner than 4 years after
  132  the date on which the document was received by the recipient,
  133  any applicable limitations period set forth in s. 736.1008(1) or
  134  (2) which is still running is tolled for any information
  135  adequately disclosed in a document sent solely by electronic
  136  posting, from the date on which the recipient’s access to the
  137  electronic account or website was terminated by the sender until
  138  45 days after the date on which the sender provides one of the
  139  following to the recipient by means other than electronic
  140  posting:
  141         a. Notice of such termination and notification to the
  142  recipient that he or she may request that any documents sent
  143  during the prior 4 years solely through electronic posting be
  144  provided to him or her by other means at no cost; or
  145         b.Notice of such termination and notification to the
  146  recipient that his or her access to the electronic account or
  147  website has been restored.
  148  
  149  Any applicable limitations period is further tolled from the
  150  date on which any request is made pursuant to sub-subparagraph
  151  2.a. until 20 days after the date on which the requested
  152  documents are provided to the recipient by means other than
  153  electronic posting The electronic account or website must allow
  154  the recipient to download or print the document. This subsection
  155  does not affect or alter the duties of a trustee to keep clear,
  156  distinct, and accurate records pursuant to s. 736.0810 or affect
  157  or alter the time periods for which the trustee must maintain
  158  those records.
  159         (h) For purposes of this subsection, access to an
  160  electronic account or website is terminated by the sender when
  161  the sender unilaterally terminates the recipient’s ability to
  162  access the electronic website or account or download or print
  163  any document posted on such website or account. Access is not
  164  terminated by the sender when access is terminated by an action
  165  of the recipient or by an action of the sender in response to
  166  the recipient’s request to terminate access. The recipient’s
  167  revocation of authorization pursuant to paragraph (f) is not
  168  considered a request to terminate access To be effective, the
  169  posting of a document to an electronic account or website must
  170  be done in accordance with this subsection. The sender has the
  171  burden of establishing compliance with this subsection.
  172         (i) This subsection does not affect or alter the duties of
  173  a trustee to keep clear, distinct, and accurate records pursuant
  174  to s. 736.0810 or affect or alter the time periods for which the
  175  trustee must maintain such records preclude the sending of a
  176  document by other means.
  177         (j) This subsection governs the posting of a document
  178  solely for the purpose of giving notice under this code or the
  179  sending of a document to a person under this code and does not
  180  prohibit or otherwise apply to the posting of a document to an
  181  electronic account or website for any other purpose or preclude
  182  the sending of a document by any other means.
  183         Section 14. Subsection (3) of section 736.0110, Florida
  184  Statutes, is amended to read:
  185         736.0110 Others treated as qualified beneficiaries.—
  186         (3) The Attorney General may assert the rights of a
  187  qualified beneficiary with respect to a charitable trust having
  188  its principal place of administration in this state. The
  189  Attorney General has standing to assert such rights in any
  190  judicial proceedings.
  191         Section 15. Paragraph (b) of subsection (2) of section
  192  736.0403, Florida Statutes, is amended to read:
  193         736.0403 Trusts created in other jurisdictions; formalities
  194  required for revocable trusts.—
  195         (2) Notwithstanding subsection (1):
  196         (b) The testamentary aspects of a revocable trust, executed
  197  by a settlor who is a domiciliary of this state at the time of
  198  execution, are invalid unless the trust instrument is executed
  199  by the settlor with the formalities required for the execution
  200  of a will under s. 732.502 or an electronic will under s.
  201  732.523 which is self-proved; however, the qualified custodian
  202  of the trust instrument may not also be a trustee of the trust
  203  in this state. For purposes of this subsection, the term
  204  “testamentary aspects” means those provisions of the trust
  205  instrument that dispose of the trust property on or after the
  206  death of the settlor other than to the settlor’s estate.
  207         Section 16. Section 736.0404, Florida Statutes, is amended
  208  to read:
  209         736.0404 Trust purposes.—A trust may be created only to the
  210  extent the purposes of the trust are lawful, not contrary to
  211  public policy, and possible to achieve. A trust and its terms
  212  must be for the benefit of its beneficiaries.
  213         Section 17. Effective upon becoming a law, section
  214  736.04117, Florida Statutes, is amended to read:
  215         736.04117 Trustee’s power to invade principal in trust.—
  216         (1) DEFINITIONS.—As used in this section, the term:
  217         (a) “Absolute power” means Unless the trust instrument
  218  expressly provides otherwise, a trustee who has absolute power
  219  under the terms of a trust to invade the principal of the trust,
  220  referred to in this section as the “first trust,” to make
  221  distributions to or for the benefit of one or more persons may
  222  instead exercise the power by appointing all or part of the
  223  principal of the trust subject to the power in favor of a
  224  trustee of another trust, referred to in this section as the
  225  “second trust,” for the current benefit of one or more of such
  226  persons under the same trust instrument or under a different
  227  trust instrument; provided:
  228         1. The beneficiaries of the second trust may include only
  229  beneficiaries of the first trust;
  230         2. The second trust may not reduce any fixed income,
  231  annuity, or unitrust interest in the assets of the first trust;
  232  and
  233         3. If any contribution to the first trust qualified for a
  234  marital or charitable deduction for federal income, gift, or
  235  estate tax purposes under the Internal Revenue Code of 1986, as
  236  amended, the second trust shall not contain any provision which,
  237  if included in the first trust, would have prevented the first
  238  trust from qualifying for such a deduction or would have reduced
  239  the amount of such deduction.
  240         (b) For purposes of this subsection, an absolute power to
  241  invade principal shall include a power to invade principal that
  242  is not limited to specific or ascertainable purposes, such as
  243  health, education, maintenance, and support, regardless of
  244  whether or not the term “absolute” is used. A power to invade
  245  principal for purposes such as best interests, welfare, comfort,
  246  or happiness constitutes shall constitute an absolute power not
  247  limited to specific or ascertainable purposes.
  248         (b)“Authorized trustee” means a trustee, other than the
  249  settlor or a beneficiary, who has the power to invade the
  250  principal of a trust.
  251         (c)“Beneficiary with a disability” means a beneficiary of
  252  the first trust who the authorized trustee believes may qualify
  253  for governmental benefits based on disability, regardless of
  254  whether the beneficiary currently receives those benefits or has
  255  been adjudicated incapacitated.
  256         (d)“Current beneficiary” means a beneficiary who, on the
  257  date his or her qualification is determined, is a distributee or
  258  permissible distributee of trust income or principal. The term
  259  includes the holder of a presently exercisable general power of
  260  appointment but does not include a person who is a beneficiary
  261  only because he or she holds another power of appointment.
  262         (e)“Governmental benefits” means financial aid or services
  263  from any state, federal, or other public agency.
  264         (f)“Internal Revenue Code” means the Internal Revenue Code
  265  of 1986, as amended.
  266         (g)“Power of appointment” has the same meaning as provided
  267  in s. 731.201(30).
  268         (h)“Presently exercisable general power of appointment”
  269  means a power of appointment exercisable by the powerholder at
  270  the relevant time. The term:
  271         1. Includes a power of appointment that is exercisable only
  272  after the occurrence of a specified event or that is subject to
  273  a specified restriction, but only after the event has occurred
  274  or the restriction has been satisfied.
  275         2.Does not include a power exercisable only upon the
  276  powerholder’s death.
  277         (i)“Substantially similar” means that there is no material
  278  change in a beneficiary’s beneficial interests or in the power
  279  to make distributions and that the power to make a distribution
  280  under a second trust for the benefit of a beneficiary who is an
  281  individual is substantially similar to the power under the first
  282  trust to make a distribution directly to the beneficiary. A
  283  distribution is deemed to be for the benefit of a beneficiary
  284  if:
  285         1. The distribution is applied for the benefit of a
  286  beneficiary;
  287         2. The beneficiary is under a legal disability or the
  288  trustee reasonably believes the beneficiary is incapacitated,
  289  and the distribution is made as permitted under this code; or
  290         3. The distribution is made as permitted under the terms of
  291  the first trust instrument and the second trust instrument for
  292  the benefit of the beneficiary.
  293         (j) “Supplemental needs trust” means a trust that the
  294  authorized trustee believes would not be considered a resource
  295  for purposes of determining whether the beneficiary who has a
  296  disability is eligible for governmental benefits.
  297         (k)“Vested interest” means a current unconditional right
  298  to receive a mandatory distribution of income, a specified
  299  dollar amount, or a percentage of value of a trust, or a current
  300  unconditional right to withdraw income, a specified dollar
  301  amount, or a percentage of value of a trust, which right is not
  302  subject to the occurrence of a specified event, the passage of a
  303  specified time, or the exercise of discretion.
  304         1.The term includes a presently exercisable general power
  305  of appointment.
  306         2. The term does not include a beneficiary’s interest in a
  307  trust if the trustee has discretion to make a distribution of
  308  trust property to a person other than such beneficiary.
  309         (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  310  AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.—
  311         (a) Unless a trust instrument expressly provides otherwise,
  312  an authorized trustee who has absolute power under the terms of
  313  the trust to invade its principal, referred to in this section
  314  as the “first trust,” to make current distributions to or for
  315  the benefit of one or more beneficiaries may instead exercise
  316  such power by appointing all or part of the principal of the
  317  trust subject to such power in favor of a trustee of one or more
  318  other trusts, whether created under the same trust instrument as
  319  the first trust or a different trust instrument, including a
  320  trust instrument created for the purposes of exercising the
  321  power granted by this section, each referred to in this section
  322  as the “second trust,” for the current benefit of one or more of
  323  such beneficiaries only if:
  324         1.The beneficiaries of the second trust include only
  325  beneficiaries of the first trust; and
  326         2.The second trust does not reduce any vested interest.
  327         (b) In an exercise of absolute power, the second trust may:
  328         1.Retain a power of appointment granted in the first
  329  trust;
  330         2.Omit a power of appointment granted in the first trust,
  331  other than a presently exercisable general power of appointment;
  332         3.Create or modify a power of appointment if the
  333  powerholder is a current beneficiary of the first trust;
  334         4.Create or modify a power of appointment if the
  335  powerholder is a beneficiary of the first trust who is not a
  336  current beneficiary, but the exercise of the power of
  337  appointment may take effect only after the powerholder becomes,
  338  or would have become if then living, a current beneficiary of
  339  the first trust; and
  340         5.Extend the term of the second trust beyond the term of
  341  the first trust.
  342         (c) The class of permissible appointees in favor of which a
  343  created or modified power of appointment may be exercised may
  344  differ from the class identified in the first trust.
  345         (3)DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  346  AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE.
  347  Unless the trust instrument expressly provides otherwise, an
  348  authorized trustee who has a power, other than an absolute
  349  power, under the terms of a first trust to invade principal to
  350  make current distributions to or for the benefit of one or more
  351  beneficiaries may instead exercise such power by appointing all
  352  or part of the principal of the first trust subject to such
  353  power in favor of a trustee of one or more second trusts. If the
  354  authorized trustee exercises such power:
  355         (a)The second trusts, in the aggregate, shall grant each
  356  beneficiary of the first trust beneficial interests in the
  357  second trusts which are substantially similar to the beneficial
  358  interests of the beneficiary in the first trust.
  359         (b)If the first trust grants a power of appointment to a
  360  beneficiary of the first trust, the second trust shall grant
  361  such power of appointment in the second trust to such
  362  beneficiary, and the class of permissible appointees shall be
  363  the same as in the first trust.
  364         (c)If the first trust does not grant a power of
  365  appointment to a beneficiary of the first trust, then the second
  366  trust may not grant a power of appointment in the second trust
  367  to such beneficiary.
  368         (d)Notwithstanding paragraphs (a), (b), and (c), the term
  369  of the second trust may extend beyond the term of the first
  370  trust, and, for any period after the first trust would have
  371  otherwise terminated, in whole or in part, under the provisions
  372  of the first trust, the trust instrument of the second trust
  373  may, with respect to property subject to such extended term:
  374         1.Include language providing the trustee with the absolute
  375  power to invade the principal of the second trust during such
  376  extended term; and
  377         2.Create a power of appointment, if the powerholder is a
  378  current beneficiary of the first trust, or expand the class of
  379  permissible appointees in favor of which a power of appointment
  380  may be exercised.
  381         (4)DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS
  382  TRUST.—
  383         (a)Notwithstanding subsections (2) and (3), unless the
  384  trust instrument expressly provides otherwise, an authorized
  385  trustee who has the power under the terms of a first trust to
  386  invade the principal of the first trust to make current
  387  distributions to or for the benefit of a beneficiary with a
  388  disability may instead exercise such power by appointing all or
  389  part of the principal of the first trust in favor of a trustee
  390  of a second trust that is a supplemental needs trust if:
  391         1.The supplemental needs trust benefits the beneficiary
  392  with a disability;
  393         2.The beneficiaries of the second trust include only
  394  beneficiaries of the first trust; and
  395         3.The authorized trustee determines that the exercise of
  396  such power will further the purposes of the first trust.
  397         (b)Except as affected by any change to the interests of
  398  the beneficiary with a disability, the second trusts, in the
  399  aggregate, shall grant each other beneficiary of the first trust
  400  beneficial interests in the second trusts which are
  401  substantially similar to such beneficiary’s beneficial interests
  402  in the first trust.
  403         (5)PROHIBITED DISTRIBUTIONS.—
  404         (a)An authorized trustee may not distribute the principal
  405  of a trust under this section in a manner that would prevent a
  406  contribution to that trust from qualifying for, or that would
  407  reduce the exclusion, deduction, or other federal tax benefit
  408  that was originally claimed or could have been claimed for, that
  409  contribution, including:
  410         1. The exclusions under s. 2503(b) or s. 2503(c) of the
  411  Internal Revenue Code;
  412         2. A marital deduction under s. 2056, s. 2056A, or s. 2523
  413  of the Internal Revenue Code;
  414         3. A charitable deduction under s. 170(a), s. 642(c), s.
  415  2055(a), or s. 2522(a) of the Internal Revenue Code;
  416         4. Direct skip treatment under s. 2642(c) of the Internal
  417  Revenue Code; or
  418         5. Any other tax benefit for income, gift, estate, or
  419  generation-skipping transfer tax purposes under the Internal
  420  Revenue Code.
  421         (b)If S corporation stock is held in the first trust, an
  422  authorized trustee may not distribute all or part of that stock
  423  to a second trust that is not a permitted shareholder under s.
  424  1361(c)(2) of the Internal Revenue Code. If the first trust
  425  holds stock in an S corporation and is, or but for provisions of
  426  paragraphs (a), (c), and (d) would be, a qualified subchapter S
  427  trust within the meaning of s. 1361(d) of the Internal Revenue
  428  Code, the second trust instrument may not include or omit a term
  429  that prevents it from qualifying as a qualified subchapter S
  430  trust.
  431         (c)Except as provided in paragraphs (a), (b), and (d), an
  432  authorized trustee may distribute the principal of a first trust
  433  to a second trust regardless of whether the settlor is treated
  434  as the owner of either trust under ss. 671-679 of the Internal
  435  Revenue Code; however, if the settlor is not treated as the
  436  owner of the first trust, he or she may not be treated as the
  437  owner of the second trust unless he or she at all times has the
  438  power to cause the second trust to cease being treated as if it
  439  were owned by the settlor.
  440         (d)If an interest in property which is subject to the
  441  minimum distribution rules of s. 401(a)(9) of the Internal
  442  Revenue Code is held in trust, an authorized trustee may not
  443  distribute such an interest to a second trust under subsection
  444  (2), subsection (3), or subsection (4) if the distribution would
  445  shorten the otherwise applicable maximum distribution period.
  446         (6)EXERCISE BY WRITING.The exercise of a power to invade
  447  principal under subsection (2), subsection (3), or subsection
  448  (4) must The exercise of a power to invade principal under
  449  subsection (1) shall be by a written an instrument in writing,
  450  signed and acknowledged by the authorized trustee, and filed
  451  with the records of the first trust.
  452         (7)(3)RESTRICTIONS ON EXERCISE OF POWER.—The exercise of a
  453  power to invade principal under subsection (2), subsection (3),
  454  or subsection (4):
  455         (a)Is (1) shall be considered the exercise of a power of
  456  appointment, excluding other than a power to appoint to the
  457  authorized trustee, the authorized trustee’s creditors, the
  458  authorized trustee’s estate, or the creditors of the authorized
  459  trustee’s estate.
  460         (b)Is, and Shall be subject to the provisions of s.
  461  689.225 covering the time at which the permissible period of the
  462  rule against perpetuities begins and the law that determines the
  463  permissible period of the rule against perpetuities of the first
  464  trust.
  465         (c) May be to a second trust created or administered under
  466  the law of any jurisdiction.
  467         (d) May not:
  468         1. Increase the authorized trustee’s compensation beyond
  469  the compensation specified in the first trust instrument; or
  470         2. Relieve the authorized trustee from liability for breach
  471  of trust or provide for indemnification of the authorized
  472  trustee for any liability or claim to a greater extent than the
  473  first trust instrument; however, the exercise of the power may
  474  divide and reallocate fiduciary powers among fiduciaries and
  475  relieve a fiduciary from liability for an act or failure to act
  476  of another fiduciary as otherwise allowed under law or common
  477  law.
  478         (8) NOTICE.—
  479         (a)(4) The authorized trustee shall provide written
  480  notification of the manner in which he or she intends to
  481  exercise his or her power to invade principal to notify all
  482  qualified beneficiaries of the following parties first trust, in
  483  writing, at least 60 days before prior to the effective date of
  484  the authorized trustee’s exercise of such power the trustee’s
  485  power to invade principal pursuant to subsection (2), subsection
  486  (3), or subsection (4): (1), of the manner in which the trustee
  487  intends to exercise the power.
  488         1. All qualified beneficiaries of the first trust;
  489         2.If paragraph (5)(c) applies, the settlor of the first
  490  trust;
  491         3.All trustees of the first trust; and
  492         4.Any person who has the power to remove or replace the
  493  authorized trustee of the first trust.
  494         (b)The authorized A copy of the proposed instrument
  495  exercising the power shall satisfy the trustee’s notice
  496  obligation to provide notice under this subsection is satisfied
  497  when he or she provides copies of the proposed instrument
  498  exercising the power, the trust instrument of the first trust,
  499  and the proposed trust instrument of the second trust.
  500         (c) If all of those required to be notified qualified
  501  beneficiaries waive the notice period by signed written
  502  instrument delivered to the authorized trustee, the authorized
  503  trustee’s power to invade principal shall be exercisable
  504  immediately.
  505         (d) The authorized trustee’s notice under this subsection
  506  does shall not limit the right of any beneficiary to object to
  507  the exercise of the authorized trustee’s power to invade
  508  principal except as otherwise provided in other applicable
  509  provisions of this code.
  510         (9)(5)INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER
  511  PROHIBITION.—The exercise of the power to invade principal under
  512  subsection (2), subsection (3), or subsection (4) (1) is not
  513  prohibited by a spendthrift clause or by a provision in the
  514  trust instrument that prohibits amendment or revocation of the
  515  trust.
  516         (10)(6)NO DUTY TO EXERCISE.—Nothing in this section is
  517  intended to create or imply a duty to exercise a power to invade
  518  principal, and no inference of impropriety may shall be made as
  519  a result of an authorized trustee’s failure to exercise a
  520  trustee not exercising the power to invade principal conferred
  521  under subsections (2), (3), and (4) subsection (1).
  522         (11)(7)NO ABRIDGEMENT OF COMMON LAW RIGHTS.—The provisions
  523  of This section may shall not be construed to abridge the right
  524  of any trustee who has a power of invasion to appoint property
  525  in further trust that arises under the terms of the first trust
  526  or under any other section of this code or under another
  527  provision of law or under common law.
  528         Section 18. Subsection (1) of section 736.0708, Florida
  529  Statutes, is amended to read:
  530         736.0708 Compensation of trustee.—
  531         (1) If the terms of a trust do not specify a the trustee’s
  532  compensation, the a trustee, including each cotrustee, is
  533  entitled to compensation that is reasonable under the
  534  circumstances. In the aggregate, the reasonable compensation for
  535  multiple trustees may be greater than for a single trustee.
  536         Section 19. Subsection (3) of section 736.08135, Florida
  537  Statutes, is amended to read:
  538         736.08135 Trust accountings.—
  539         (3) Subsections (1) and (2) govern the form and content of
  540  This section applies to all trust accountings rendered for any
  541  accounting periods beginning on or after January 1, 2003, and
  542  all trust accountings rendered on or after July 1, 2017. This
  543  subsection does not affect the beginning period from which a
  544  trustee is required to render a trust accounting.
  545         Section 20. Subsection (3) of section 736.1008, Florida
  546  Statutes, is amended to read:
  547         736.1008 Limitations on proceedings against trustees.—
  548         (3) When a trustee has not issued a final trust accounting
  549  or has not given written notice to the beneficiary of the
  550  availability of the trust records for examination and that
  551  claims with respect to matters not adequately disclosed may be
  552  barred, a claim against the trustee for breach of trust based on
  553  a matter not adequately disclosed in a trust disclosure document
  554  is barred as provided in chapter 95 and accrues when the
  555  beneficiary has actual knowledge of:
  556         (a) The facts upon which the claim is based, if such actual
  557  knowledge is established by clear and convincing evidence; or
  558         (b) The trustee’s repudiation of the trust or adverse
  559  possession of trust assets.
  560  
  561  Paragraph (a) applies to claims based upon acts or omissions
  562  occurring on or after July 1, 2008. A beneficiary’s actual
  563  knowledge that he or she has not received a trust accounting
  564  does not cause a claim to accrue against the trustee for breach
  565  of trust based upon the failure to provide a trust accounting
  566  required by s. 736.0813 or former s. 737.303 and does not
  567  commence the running of any period of limitations or laches for
  568  such a claim, and paragraph (a) and chapter 95 do not bar any
  569  such claim.
  570         Section 21. The changes to ss. 736.08135 and 736.1008,
  571  Florida Statutes, made by this act are intended to clarify
  572  existing law, are remedial in nature, and apply retroactively to
  573  all cases pending or commenced on or after July 1, 2017.
  574         Section 22. Present subsections (2), (3), and (4) of
  575  section 736.1201, Florida Statutes, are redesignated as
  576  subsections (3), (4), and (5), respectively, present subsection
  577  (5) of that section is amended, and a new subsection (2) is
  578  added to that section, to read:
  579         736.1201 Definitions.—As used in this part:
  580         (2) “Delivery of notice” means delivery of a written notice
  581  required under this part using any commercial delivery service
  582  requiring a signed receipt or by any form of mail requiring a
  583  signed receipt.
  584         (5) “State attorney” means the state attorney for the
  585  judicial circuit of the principal place of administration of the
  586  trust pursuant to s. 736.0108.
  587         Section 23. Section 736.1205, Florida Statutes, is amended
  588  to read:
  589         736.1205 Notice that this part does not apply.—In the case
  590  of a power to make distributions, if the trustee determines that
  591  the governing instrument contains provisions that are more
  592  restrictive than s. 736.1204(2), or if the trust contains other
  593  powers, inconsistent with the provisions of s. 736.1204(3) that
  594  specifically direct acts by the trustee, the trustee shall
  595  notify the state Attorney General by delivery of notice when the
  596  trust becomes subject to this part. Section 736.1204 does not
  597  apply to any trust for which notice has been given pursuant to
  598  this section unless the trust is amended to comply with the
  599  terms of this part.
  600         Section 24. Sections 1 through 10 and section 15 of this
  601  act apply to electronic wills executed on or after July 1, 2017.
  602         Section 25. Subsection (2) of section 736.1206, Florida
  603  Statutes, is amended to read:
  604         736.1206 Power to amend trust instrument.—
  605         (2) In the case of a charitable trust that is not subject
  606  to the provisions of subsection (1), the trustee may amend the
  607  governing instrument to comply with the provisions of s.
  608  736.1204(2) after delivery of notice to, and with the consent
  609  of, the state Attorney General.
  610         Section 26. Section 736.1207, Florida Statutes, is amended
  611  to read:
  612         736.1207 Power of court to permit deviation.—This part does
  613  not affect the power of a court to relieve a trustee from any
  614  restrictions on the powers and duties that are placed on the
  615  trustee by the governing instrument or applicable law for cause
  616  shown and on complaint of the trustee, the state Attorney
  617  General, or an affected beneficiary and notice to the affected
  618  parties.
  619         Section 27. Paragraph (b) of subsection (4) of section
  620  736.1208, Florida Statutes, is amended to read:
  621         736.1208 Release; property and persons affected; manner of
  622  effecting.—
  623         (4) Delivery of a release shall be accomplished as follows:
  624         (b) If the release is accomplished by reducing the class of
  625  permissible charitable organizations, by delivery of notice a
  626  copy of the release to the state Attorney General, including a
  627  copy of the release.
  628         Section 28. Section 736.1209, Florida Statutes, is amended
  629  to read:
  630         736.1209 Election to come under this part.—With the consent
  631  of that organization or organizations, a trustee of a trust for
  632  the benefit of a public charitable organization or organizations
  633  may come under s. 736.1208(5) by delivery of notice to filing
  634  with the state Attorney General of the an election, accompanied
  635  by the proof of required consent. Thereafter the trust shall be
  636  subject to s. 736.1208(5).
  637         Section 29. Except as otherwise provided in this act and
  638  except for this section, which shall take effect upon becoming a
  639  law, this act shall take effect July 1, 2017.
  640  
  641  ================= T I T L E  A M E N D M E N T ================
  642  And the title is amended as follows:
  643         Delete lines 2 - 66
  644  and insert:
  645         An act relating to wills and trusts; amending s.
  646         731.201, F.S.; revising the definition of the term
  647         “will” to include electronic wills; amending s.
  648         732.506, F.S.; excluding electronic wills from
  649         specified methods to revoke a will; creating s.
  650         732.521, F.S.; providing a short title; creating s.
  651         732.522, F.S.; defining terms; creating s. 732.523,
  652         F.S.; specifying requirements that must be satisfied
  653         in the execution of electronic wills; creating s.
  654         732.524, F.S.; providing requirements for self-proof
  655         of electronic wills; creating s. 732.525, F.S.;
  656         specifying the circumstances under which a person is
  657         deemed to be in the presence of or appearing before
  658         another person; providing that an electronic record
  659         satisfies the requirement that a record be in writing;
  660         providing that an electronic signature satisfies the
  661         requirement that a document be signed; providing
  662         requirements for certain documents to be deemed
  663         executed in this state; creating s. 732.526, F.S.;
  664         authorizing an electronic will of a nonresident of
  665         this state which is properly executed in this or
  666         another state to be offered for and admitted to
  667         probate in this state; providing the venue for the
  668         probate of such electronic will; creating s. 732.527,
  669         F.S.; specifying requirements for service as a
  670         qualified custodian; requiring qualified custodians to
  671         provide access to or information concerning the
  672         electronic will, or the electronic record containing
  673         the electronic will, only to specified persons or as
  674         directed by a court; authorizing a qualified custodian
  675         to destroy the electronic record of an electronic will
  676         after a certain date; providing conditions under which
  677         a qualified custodian may cease serving as a qualified
  678         custodian; requiring a qualified custodian to cease
  679         serving in such capacity upon the written request of
  680         the testator; requiring that a successor qualified
  681         custodian agree in writing to serve in that capacity
  682         for an electronic will before succeeding to office;
  683         specifying what constitutes an affidavit of a
  684         qualified custodian; requiring a qualified custodian
  685         to deliver certain documents upon request from the
  686         testator; prohibiting a qualified custodian from
  687         charging the testator a fee for such documents under
  688         certain circumstances; providing that a qualified
  689         custodian is liable for certain damages under certain
  690         circumstances; prohibiting a qualified custodian from
  691         terminating or suspending access to, or downloads of,
  692         an electronic will by the testator; requiring a
  693         qualified custodian to deposit an electronic will with
  694         the court upon receiving information that the testator
  695         is dead; prohibiting a qualified custodian from
  696         charging a fee for certain actions taken upon the
  697         death of the testator; requiring a qualified custodian
  698         to keep certain information confidential; amending s.
  699         733.201, F.S.; providing for the proof of electronic
  700         wills; providing requirements for admitting an
  701         electronic will that is not self-proved into probate;
  702         providing that a paper copy of an electronic will
  703         constitutes an “original” of the electronic will
  704         subject to certain conditions; amending s. 736.0103,
  705         F.S.; redefining the term “interests of the
  706         beneficiaries”; amending s. 736.0105, F.S.; deleting a
  707         requirement that a trust be for the benefit of the
  708         trust’s beneficiaries; amending s. 736.0109, F.S.;
  709         revising provisions relating to notice or sending of
  710         electronic trust documents; providing requirements for
  711         such documents to be deemed sent; requiring a certain
  712         authorization to specify documents subject to
  713         electronic posting; revising requirements for a
  714         recipient to electronically access such documents;
  715         prohibiting the termination of a recipient’s
  716         electronic access to such documents from invalidating
  717         certain notice or sending of electronic trust
  718         documents; tolling specified limitations periods under
  719         certain circumstances; providing requirements for
  720         electronic access to such documents to be deemed
  721         terminated by a sender; providing applicability;
  722         amending s. 736.0110, F.S.; providing that the
  723         Attorney General has standing to assert certain rights
  724         in certain proceedings; amending s. 736.0403, F.S.;
  725         providing that, for purposes of establishing the
  726         validity of the testamentary aspects of a revocable
  727         trust, the qualified custodian of the trust instrument
  728         may not also be a trustee of the trust; amending s.
  729         736.0404, F.S.; deleting a restriction on the purpose
  730         for which a trust is created; amending s. 736.04117,
  731         F.S.; defining and redefining terms; authorizing an
  732         authorized trustee to appoint all or part of the
  733         principal of a trust to a second trust under certain
  734         circumstances; providing requirements for the second
  735         trust and its beneficiaries; providing that the second
  736         trust may retain, omit, or create specified powers;
  737         authorizing the term of the second trust to extend
  738         beyond the term of the first trust; providing
  739         requirements for distributions to a second trust when
  740         the authorized trustee does not have absolute power;
  741         providing requirements for such second trust;
  742         providing requirements for grants of power by the
  743         second trust; authorizing a second trust created by an
  744         authorized trustee without absolute power to grant
  745         absolute power to the second trust’s trustee;
  746         authorizing an authorized trustee to appoint the
  747         principal of a first trust to a supplemental needs
  748         trust under certain circumstances; providing
  749         requirements for such supplemental needs trust;
  750         prohibiting an authorized trustee from distributing
  751         the principal of a trust in a manner that would reduce
  752         specified tax benefits; prohibiting the distribution
  753         of S corporation stock from a first trust to a second
  754         trust under certain circumstances; prohibiting a
  755         settlor from being treated as the owner of a second
  756         trust if he or she was not treated as the owner of the
  757         first trust; prohibiting an authorized trustee from
  758         distributing a trust’s interest in property to a
  759         second trust if it is subject to specified rules of
  760         the Internal Revenue Code; prohibiting the exercise of
  761         power to invade a trust’s principal to increase an
  762         authorized trustee’s compensation or relieve him or
  763         her from certain liability; specifying who an
  764         authorized trustee must notify when he or she
  765         exercises his or her power to invade the trust’s
  766         principal; specifying the documents that the
  767         authorized trustee must provide with such notice;
  768         amending s. 736.0708, F.S.; providing that a cotrustee
  769         is entitled to reasonable compensation when the trust
  770         does not specify compensation; providing that
  771         reasonable compensation may be greater for multiple
  772         trustees than for a single trustee; amending s.
  773         736.08135, F.S.; revising applicability; amending s.
  774         736.1008, F.S.; clarifying that certain knowledge by a
  775         beneficiary does not cause a claim to accrue for
  776         breach of trust or commence the running of a period of
  777         limitations or laches; providing legislative intent;
  778         providing for retroactive application; amending s.
  779         736.1201, F.S.; defining the term “delivery of
  780         notice”; conforming a provision to changes made by the
  781         act; amending s. 736.1205, F.S.; requiring an
  782         authorized trustee to provide certain notice to the
  783         Attorney General rather than the state attorney;
  784         providing applicability; amending ss. 736.1206,
  785         736.1207, 736.1208, and 736.1209, F.S.; conforming
  786         provisions to changes made by the act; providing
  787         effective dates.