Florida Senate - 2018                                     SB 478
       
       
        
       By Senator Hukill
       
       
       
       
       
       14-00174B-18                                           2018478__
    1                        A bill to be entitled                      
    2         An act relating to trusts; amending s. 736.0103, F.S.;
    3         redefining the term “interests of the beneficiaries”;
    4         amending s. 736.0105, F.S.; deleting a requirement
    5         that a trust and its terms be for the benefit of the
    6         trust’s beneficiaries; amending s. 736.0109, F.S.;
    7         revising provisions relating to notice or sending of
    8         trust documents to include posting on a secure
    9         electronic account or website; providing requirements
   10         for such documents to be deemed sent; requiring a
   11         certain authorization to specify documents subject to
   12         electronic posting; revising requirements for a
   13         recipient to electronically access such documents;
   14         prohibiting the termination of a recipient’s
   15         electronic access to such documents from invalidating
   16         certain notice or sending of electronic trust
   17         documents; tolling specified limitations periods under
   18         certain circumstances; providing requirements for
   19         electronic access to such documents to be deemed
   20         terminated by a sender; providing construction;
   21         providing applicability; amending s. 736.0404, F.S.;
   22         deleting a restriction on the purpose for which a
   23         trust is created; amending s. 736.04117, F.S.;
   24         defining and redefining terms; authorizing an
   25         authorized trustee to appoint all or part of the
   26         principal of a trust to a second trust under certain
   27         circumstances; providing requirements for the second
   28         trust and its beneficiaries; authorizing the second
   29         trust to retain, omit, or create or modify specified
   30         powers; authorizing the term of the second trust to
   31         extend beyond the term of the first trust; authorizing
   32         the class of permissible appointees to the second
   33         trust to differ from the class identified in the first
   34         trust under certain circumstances; providing
   35         requirements for distributions to a second trust when
   36         the authorized trustee does not have absolute power;
   37         providing requirements for such second trust;
   38         providing requirements for grants of power of
   39         appointment by the second trust; authorizing a second
   40         trust created by an authorized trustee without
   41         absolute power to grant specified powers under certain
   42         circumstances; authorizing an authorized trustee to
   43         appoint the principal of a first trust to a
   44         supplemental needs trust under certain circumstances;
   45         providing requirements for such supplemental needs
   46         trust; prohibiting an authorized trustee from
   47         distributing the principal of a trust in a manner that
   48         would reduce specified tax benefits; prohibiting the
   49         distribution of S corporation stock from a first trust
   50         to a second trust under certain circumstances;
   51         prohibiting a settlor from being treated as the owner
   52         of a second trust if he or she was not treated as the
   53         owner of the first trust; prohibiting an authorized
   54         trustee from distributing a trust’s interest in
   55         property to a second trust if the interest is subject
   56         to specified rules of the Internal Revenue Code;
   57         authorizing the exercise of power to invade a trust’s
   58         principal to apply to a second trust created or
   59         administered under the law of any jurisdiction;
   60         prohibiting the exercise of power to invade a trust’s
   61         principal to increase an authorized trustee’s
   62         compensation or relieve him or her from certain
   63         liability; specifying who an authorized trustee must
   64         notify when he or she exercises his or her power to
   65         invade the trust’s principal; specifying the documents
   66         that the authorized trustee must provide with such
   67         notice; amending s. 736.08135, F.S.; revising
   68         applicability; amending s. 736.1008, F.S.; clarifying
   69         that certain knowledge by a beneficiary does not cause
   70         a claim to accrue for breach of trust or commence the
   71         running of a period of limitations or laches;
   72         providing legislative intent; providing retroactive
   73         application; providing effective dates.
   74          
   75  Be It Enacted by the Legislature of the State of Florida:
   76  
   77         Section 1. Subsection (11) of section 736.0103, Florida
   78  Statutes, is amended to read:
   79         736.0103 Definitions.—Unless the context otherwise
   80  requires, in this code:
   81         (11) “Interests of the beneficiaries” means the beneficial
   82  interests intended by the settlor as provided in the terms of a
   83  the trust.
   84         Section 2. Paragraph (c) of subsection (2) of section
   85  736.0105, Florida Statutes, is amended to read:
   86         736.0105 Default and mandatory rules.—
   87         (2) The terms of a trust prevail over any provision of this
   88  code except:
   89         (c) The requirement that a trust and its terms be for the
   90  benefit of the trust’s beneficiaries, and that the trust have a
   91  purpose that is lawful, not contrary to public policy, and
   92  possible to achieve.
   93         Section 3. Subsections (1) and (3) of section 736.0109,
   94  Florida Statutes, are amended to read:
   95         736.0109 Methods and waiver of notice.—
   96         (1) Notice to a person under this code or the sending of a
   97  document to a person under this code must be accomplished in a
   98  manner reasonably suitable under the circumstances and likely to
   99  result in receipt of the notice or document. Permissible methods
  100  of notice or for sending a document include first-class mail,
  101  personal delivery, delivery to the person’s last known place of
  102  residence or place of business, or a properly directed facsimile
  103  or other electronic message, or posting on a secure electronic
  104  account or website in accordance with subsection (3).
  105         (3) A document that is sent solely by posting on an
  106  electronic account or website is not deemed sent for purposes of
  107  this section unless the sender complies with this subsection.
  108  The sender has the burden of proving compliance with this
  109  subsection In addition to the methods listed in subsection (1)
  110  for sending a document, a sender may post a document to a secure
  111  electronic account or website where the document can be
  112  accessed.
  113         (a) Before a document may be posted to an electronic
  114  account or website, The recipient must sign a separate written
  115  authorization solely for the purpose of authorizing the sender
  116  to post documents on an electronic account or website before
  117  such posting. The written authorization must:
  118         1. Specifically indicate whether a trust accounting, trust
  119  disclosure document, or limitation notice, as those terms are
  120  defined in s. 736.1008(4), will be posted in this manner, and
  121  generally enumerate the other types of documents that may be
  122  posted in this manner.
  123         2. Contain specific instructions for accessing the
  124  electronic account or website, including the security procedures
  125  required to access the electronic account or website, such as a
  126  username and password.
  127         3. Advise the recipient that a separate notice will be sent
  128  when a document is posted on to the electronic account or
  129  website and the manner in which the separate notice will be
  130  sent.
  131         4. Advise the recipient that the authorization to receive
  132  documents by electronic posting may be amended or revoked at any
  133  time and include specific instructions for revoking or amending
  134  the authorization, including the address designated for the
  135  purpose of receiving notice of the revocation or amendment.
  136         5. Advise the recipient that posting a document on the
  137  electronic account or website may commence a limitations period
  138  as short as 6 months even if the recipient never actually
  139  accesses the electronic account, electronic website, or the
  140  document.
  141         (b) Once the recipient signs the written authorization, the
  142  sender must provide a separate notice to the recipient when a
  143  document is posted on to the electronic account or website. As
  144  used in this subsection, the term “separate notice” means a
  145  notice sent to the recipient by means other than electronic
  146  posting, which identifies each document posted to the electronic
  147  account or website and provides instructions for accessing the
  148  posted document. The separate notice requirement is deemed
  149  satisfied if the recipient accesses the document on the
  150  electronic account or website.
  151         (c) A document sent by electronic posting is deemed
  152  received by the recipient on the earlier of the date on which
  153  that the separate notice is received or the date on which that
  154  the recipient accesses the document on the electronic account or
  155  website.
  156         (d) At least annually after a recipient signs a written
  157  authorization, a sender shall send a notice advising recipients
  158  who have authorized one or more documents to be posted on to an
  159  electronic account or website that such posting may commence a
  160  limitations period as short as 6 months even if the recipient
  161  never accesses the electronic account or website or the document
  162  and that authority to receive documents by electronic posting
  163  may be amended or revoked at any time. This notice must be given
  164  by means other than electronic posting and may not be
  165  accompanied by any other written communication. Failure to
  166  provide such notice within 380 days after the last notice is
  167  deemed to automatically revoke the authorization to receive
  168  documents in the manner permitted under this subsection 380 days
  169  after the last notice is sent.
  170         (e) The notice required in paragraph (d) may be in
  171  substantially the following form: “You have authorized the
  172  receipt of documents through posting on to an electronic account
  173  or website on which where the documents can be accessed. This
  174  notice is being sent to advise you that a limitations period,
  175  which may be as short as 6 months, may be running as to matters
  176  disclosed in a trust accounting or other written report of a
  177  trustee posted to the electronic account or website even if you
  178  never actually access the electronic account or website or the
  179  documents. You may amend or revoke the authorization to receive
  180  documents by electronic posting at any time. If you have any
  181  questions, please consult your attorney.”
  182         (f) A sender may rely on the recipient’s authorization
  183  until the recipient amends or revokes the authorization by
  184  sending a notice to the address designated for that purpose in
  185  the authorization or in the manner specified on the electronic
  186  account or website. The recipient, at any time, may amend or
  187  revoke an authorization to have documents posted on the
  188  electronic account or website.
  189         (g) If a document is provided to a recipient solely through
  190  electronic posting pursuant to this subsection, the recipient
  191  must be able to access and print or download the document until
  192  the earlier of remain accessible to the recipient on the
  193  electronic account or website for at least 4 years after the
  194  date that the document is deemed received by the recipient or
  195  the date upon which the recipient’s access to the electronic
  196  account or website is terminated for any reason.
  197         1. If the recipient’s access to the electronic account or
  198  website is terminated for any reason, such termination does not
  199  invalidate the notice or sending of any document previously
  200  posted on the electronic account or website in accordance with
  201  this subsection, but may toll the applicable limitations period
  202  as provided in subparagraph 2.
  203         2. If the recipient’s access to the electronic account or
  204  website is terminated by the sender sooner than 4 years after
  205  the date on which the document was received by the recipient,
  206  any applicable limitations period set forth in s. 736.1008(1) or
  207  (2) which is still running is tolled for any information
  208  adequately disclosed in a document sent solely by electronic
  209  posting, from the date on which the recipient’s access to the
  210  electronic account or website was terminated by the sender until
  211  45 days after the date on which the sender provides one of the
  212  following to the recipient by means other than electronic
  213  posting:
  214         a. Notice of such termination and notification to the
  215  recipient that he or she may request that any documents sent
  216  during the prior 4 years solely through electronic posting be
  217  provided to him or her by other means at no cost; or
  218         b.Notice of such termination and notification to the
  219  recipient that his or her access to the electronic account or
  220  website has been restored.
  221  
  222  Any applicable limitations period is further tolled from the
  223  date on which any request is made pursuant to sub-subparagraph
  224  2.a. until 20 days after the date on which the requested
  225  documents are provided to the recipient by means other than
  226  electronic posting The electronic account or website must allow
  227  the recipient to download or print the document. This subsection
  228  does not affect or alter the duties of a trustee to keep clear,
  229  distinct, and accurate records pursuant to s. 736.0810 or affect
  230  or alter the time periods for which the trustee must maintain
  231  those records.
  232         (h) For purposes of this subsection, access to an
  233  electronic account or website is terminated by the sender when
  234  the sender unilaterally terminates the recipient’s ability to
  235  access the electronic website or account or to download or print
  236  any document posted on such website or account. Access is not
  237  terminated by the sender when access is terminated by an action
  238  of the recipient or by an action of the sender in response to
  239  the recipient’s request to terminate access. The recipient’s
  240  revocation of authorization pursuant to paragraph (f) is not
  241  considered a request to terminate access To be effective, the
  242  posting of a document to an electronic account or website must
  243  be done in accordance with this subsection. The sender has the
  244  burden of establishing compliance with this subsection.
  245         (i) This subsection does not affect or alter the duties of
  246  a trustee to keep clear, distinct, and accurate records pursuant
  247  to s. 736.0810 or affect or alter the time periods for which the
  248  trustee must maintain such records preclude the sending of a
  249  document by other means.
  250         (j) This subsection governs the posting of a document
  251  solely for the purpose of giving notice under this code or the
  252  sending of a document to a person under this code and does not
  253  prohibit or otherwise apply to the posting of a document on an
  254  electronic account or website for any other purpose or preclude
  255  the sending of a document by any other means.
  256         Section 4. Section 736.0404, Florida Statutes, is amended
  257  to read:
  258         736.0404 Trust purposes.—A trust may be created only to the
  259  extent the purposes of the trust are lawful, not contrary to
  260  public policy, and possible to achieve. A trust and its terms
  261  must be for the benefit of its beneficiaries.
  262         Section 5. Effective upon becoming a law, section
  263  736.04117, Florida Statutes, is amended to read:
  264         736.04117 Trustee’s power to invade principal in trust.—
  265         (1) DEFINITIONS.—As used in this section, the term:
  266         (a) “Absolute power” means Unless the trust instrument
  267  expressly provides otherwise, a trustee who has absolute power
  268  under the terms of a trust to invade the principal of the trust,
  269  referred to in this section as the “first trust,” to make
  270  distributions to or for the benefit of one or more persons may
  271  instead exercise the power by appointing all or part of the
  272  principal of the trust subject to the power in favor of a
  273  trustee of another trust, referred to in this section as the
  274  “second trust,” for the current benefit of one or more of such
  275  persons under the same trust instrument or under a different
  276  trust instrument; provided:
  277         1. The beneficiaries of the second trust may include only
  278  beneficiaries of the first trust;
  279         2. The second trust may not reduce any fixed income,
  280  annuity, or unitrust interest in the assets of the first trust;
  281  and
  282         3. If any contribution to the first trust qualified for a
  283  marital or charitable deduction for federal income, gift, or
  284  estate tax purposes under the Internal Revenue Code of 1986, as
  285  amended, the second trust shall not contain any provision which,
  286  if included in the first trust, would have prevented the first
  287  trust from qualifying for such a deduction or would have reduced
  288  the amount of such deduction.
  289         (b) For purposes of this subsection, an absolute power to
  290  invade principal shall include a power to invade principal that
  291  is not limited to specific or ascertainable purposes, such as
  292  health, education, maintenance, and support, regardless of
  293  whether or not the term “absolute” is used. A power to invade
  294  principal for purposes such as best interests, welfare, comfort,
  295  or happiness constitutes shall constitute an absolute power not
  296  limited to specific or ascertainable purposes.
  297         (b)“Authorized trustee” means a trustee, other than the
  298  settlor or a beneficiary, who has the power to invade the
  299  principal of a trust.
  300         (c)“Beneficiary with a disability” means a beneficiary of
  301  the first trust who the authorized trustee believes may qualify
  302  for government benefits based on disability, regardless of
  303  whether the beneficiary currently receives those benefits or has
  304  been adjudicated incapacitated.
  305         (d)“Current beneficiary” means a beneficiary who, on the
  306  date his or her qualification is determined, is a distributee or
  307  permissible distributee of trust income or principal. The term
  308  includes the holder of a presently exercisable general power of
  309  appointment but does not include a person who is a beneficiary
  310  only because he or she holds another power of appointment.
  311         (e)“Government benefits” means financial aid or services
  312  from any state, federal, or other public agency.
  313         (f)“Internal Revenue Code” means the Internal Revenue Code
  314  of 1986, as amended.
  315         (g)“Power of appointment” has the same meaning as provided
  316  in s. 731.201.
  317         (h)“Presently exercisable general power of appointment”
  318  means a power of appointment exercisable by the power holder at
  319  the relevant time. The term:
  320         1. Includes a power of appointment that is exercisable only
  321  after the occurrence of a specified event or that is subject to
  322  a specified restriction, but only after the event has occurred
  323  or the restriction has been satisfied.
  324         2.Does not include a power of appointment that is
  325  exercisable only upon the death of the power holder.
  326         (i)“Substantially similar” means that there is no material
  327  change in a beneficiary’s beneficial interests or in the power
  328  to make distributions and that the power to make a distribution
  329  under a second trust for the benefit of a beneficiary who is an
  330  individual is substantially similar to the power under the first
  331  trust to make a distribution directly to the beneficiary. A
  332  distribution is deemed to be for the benefit of a beneficiary
  333  if:
  334         1. The distribution is applied for the benefit of a
  335  beneficiary;
  336         2. The beneficiary is under a legal disability or the
  337  trustee reasonably believes the beneficiary is incapacitated,
  338  and the distribution is made as permitted under this code; or
  339         3. The distribution is made as permitted under the terms of
  340  the first trust instrument and the second trust instrument for
  341  the benefit of the beneficiary.
  342         (j) “Supplemental needs trust” means a trust that the
  343  authorized trustee believes would not be considered a resource
  344  for purposes of determining whether the beneficiary who has a
  345  disability is eligible for government benefits.
  346         (k)“Vested interest” means a current unconditional right
  347  to receive a mandatory distribution of income, a specified
  348  dollar amount, or a percentage of value of a trust, or a current
  349  unconditional right to withdraw income, a specified dollar
  350  amount, or a percentage of value of a trust, which right is not
  351  subject to the occurrence of a specified event, the passage of a
  352  specified time, or the exercise of discretion.
  353         1.The term includes a presently exercisable general power
  354  of appointment.
  355         2. The term does not include a beneficiary’s interest in a
  356  trust if the trustee has discretion to make a distribution of
  357  trust property to a person other than such beneficiary.
  358         (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  359  AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.—
  360         (a) Unless a trust instrument expressly provides otherwise,
  361  an authorized trustee who has absolute power under the terms of
  362  the trust to invade its principal, referred to in this section
  363  as the “first trust,” to make current distributions to or for
  364  the benefit of one or more beneficiaries may instead exercise
  365  such power by appointing all or part of the principal of the
  366  trust subject to such power in favor of a trustee of one or more
  367  other trusts, whether created under the same trust instrument as
  368  the first trust or a different trust instrument, including a
  369  trust instrument created for the purposes of exercising the
  370  power granted by this section, each referred to in this section
  371  as the “second trust,” for the current benefit of one or more of
  372  such beneficiaries only if:
  373         1.The beneficiaries of the second trust include only
  374  beneficiaries of the first trust; and
  375         2.The second trust does not reduce any vested interest.
  376         (b) In an exercise of absolute power, the second trust may:
  377         1.Retain a power of appointment granted in the first
  378  trust;
  379         2.Omit a power of appointment granted in the first trust,
  380  other than a presently exercisable general power of appointment;
  381         3.Create or modify a power of appointment if the power
  382  holder is a current beneficiary of the first trust;
  383         4.Create or modify a power of appointment if the power
  384  holder is a beneficiary of the first trust who is not a current
  385  beneficiary, but the exercise of the power of appointment may
  386  take effect only after the power holder becomes, or would have
  387  become if then living, a current beneficiary of the first trust;
  388  and
  389         5.Extend the term of the second trust beyond the term of
  390  the first trust.
  391         (c) The class of permissible appointees in favor of which a
  392  created or modified power of appointment may be exercised may
  393  differ from the class identified in the first trust.
  394         (3)DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
  395  AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE.
  396  Unless the trust instrument expressly provides otherwise, an
  397  authorized trustee who has a power, other than an absolute
  398  power, under the terms of a first trust to invade principal to
  399  make current distributions to or for the benefit of one or more
  400  beneficiaries may instead exercise such power by appointing all
  401  or part of the principal of the first trust subject to such
  402  power in favor of a trustee of one or more second trusts. If the
  403  authorized trustee exercises such power:
  404         (a)The second trusts, in the aggregate, shall grant each
  405  beneficiary of the first trust beneficial interests in the
  406  second trusts which are substantially similar to the beneficial
  407  interests of the beneficiary in the first trust.
  408         (b)If the first trust grants a power of appointment to a
  409  beneficiary of the first trust, the second trust shall grant
  410  such power of appointment in the second trust to such
  411  beneficiary, and the class of permissible appointees shall be
  412  the same as in the first trust.
  413         (c)If the first trust does not grant a power of
  414  appointment to a beneficiary of the first trust, the second
  415  trust may not grant a power of appointment in the second trust
  416  to such beneficiary.
  417         (d)Notwithstanding paragraphs (a), (b), and (c), the term
  418  of the second trust may extend beyond the term of the first
  419  trust, and, for any period after the first trust would have
  420  otherwise terminated, in whole or in part, under the provisions
  421  of the first trust, the trust instrument of the second trust
  422  may, with respect to property subject to such extended term:
  423         1.Include language providing the trustee with the absolute
  424  power to invade the principal of the second trust during such
  425  extended term; and
  426         2.Create a power of appointment, if the power holder is a
  427  current beneficiary of the first trust, or expand the class of
  428  permissible appointees in favor of which a power of appointment
  429  may be exercised.
  430         (4)DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS
  431  TRUST.—
  432         (a)Notwithstanding subsections (2) and (3), unless the
  433  trust instrument expressly provides otherwise, an authorized
  434  trustee who has the power under the terms of a first trust to
  435  invade the principal of the first trust to make current
  436  distributions to or for the benefit of a beneficiary with a
  437  disability may instead exercise such power by appointing all or
  438  part of the principal of the first trust in favor of a trustee
  439  of a second trust that is a supplemental needs trust if:
  440         1.The supplemental needs trust benefits the beneficiary
  441  with a disability;
  442         2.The beneficiaries of the second trust include only
  443  beneficiaries of the first trust; and
  444         3.The authorized trustee determines that the exercise of
  445  such power will further the purposes of the first trust.
  446         (b)Except as affected by any change to the interests of
  447  the beneficiary with a disability, the second trusts, in the
  448  aggregate, shall grant each other beneficiary of the first trust
  449  beneficial interests in the second trusts which are
  450  substantially similar to such other beneficiary’s beneficial
  451  interests in the first trust.
  452         (5)PROHIBITED DISTRIBUTIONS.—
  453         (a)An authorized trustee may not distribute the principal
  454  of a trust under this section in a manner that would prevent a
  455  contribution to that trust from qualifying for, or that would
  456  reduce a federal tax benefit, including a federal tax exclusion
  457  or deduction, which was originally claimed or could have been
  458  claimed for that contribution, including:
  459         1.An exclusion under s. 2503(b) or s. 2503(c) of the
  460  Internal Revenue Code;
  461         2. A marital deduction under s. 2056, s. 2056A, or s. 2523
  462  of the Internal Revenue Code;
  463         3. A charitable deduction under s. 170(a), s. 642(c), s.
  464  2055(a), or s. 2522(a) of the Internal Revenue Code;
  465         4. Direct skip treatment under s. 2642(c) of the Internal
  466  Revenue Code; or
  467         5. Any other tax benefit for income, gift, estate, or
  468  generation-skipping transfer tax purposes under the Internal
  469  Revenue Code.
  470         (b)If S corporation stock is held in the first trust, an
  471  authorized trustee may not distribute all or part of that stock
  472  to a second trust that is not a permitted shareholder under s.
  473  1361(c)(2) of the Internal Revenue Code. If the first trust
  474  holds stock in an S corporation and is, or but for provisions of
  475  paragraphs (a), (c), and (d) would be, a qualified subchapter S
  476  trust within the meaning of s. 1361(d) of the Internal Revenue
  477  Code, the second trust instrument may not include or omit a term
  478  that prevents it from qualifying as a qualified subchapter S
  479  trust.
  480         (c)Except as provided in paragraphs (a), (b), and (d), an
  481  authorized trustee may distribute the principal of a first trust
  482  to a second trust regardless of whether the settlor is treated
  483  as the owner of either trust under ss. 671-679 of the Internal
  484  Revenue Code; however, if the settlor is not treated as the
  485  owner of the first trust, he or she may not be treated as the
  486  owner of the second trust unless he or she at all times has the
  487  power to cause the second trust to cease being treated as if it
  488  were owned by the settlor.
  489         (d)If an interest in property which is subject to the
  490  minimum distribution rules of s. 401(a)(9) of the Internal
  491  Revenue Code is held in trust, an authorized trustee may not
  492  distribute such an interest to a second trust under subsection
  493  (2), subsection (3), or subsection (4) if the distribution would
  494  shorten the otherwise applicable maximum distribution period.
  495         (6)EXERCISE BY WRITING.The exercise of a power to invade
  496  principal under subsection (2), subsection (3), or subsection
  497  (4) must The exercise of a power to invade principal under
  498  subsection (1) shall be by a written an instrument in writing,
  499  signed and acknowledged by the authorized trustee, and filed
  500  with the records of the first trust.
  501         (7)(3)RESTRICTIONS ON EXERCISE OF POWER.—The exercise of a
  502  power to invade principal under subsection (2), subsection (3),
  503  or subsection (4):
  504         (a)(1)Is shall be considered the exercise of a power of
  505  appointment, excluding other than a power to appoint to the
  506  authorized trustee, the authorized trustee’s creditors, the
  507  authorized trustee’s estate, or the creditors of the authorized
  508  trustee’s estate.
  509         (b)Is, and Shall be subject to the provisions of s.
  510  689.225 covering the time at which the permissible period of the
  511  rule against perpetuities begins and the law that determines the
  512  permissible period of the rule against perpetuities of the first
  513  trust.
  514         (c) May apply to a second trust created or administered
  515  under the law of any jurisdiction.
  516         (d) May not:
  517         1. Increase the authorized trustee’s compensation beyond
  518  the compensation specified in the first trust instrument; or
  519         2. Relieve the authorized trustee from liability for breach
  520  of trust or provide for indemnification of the authorized
  521  trustee for any liability or claim to a greater extent than the
  522  first trust instrument; however, the exercise of the power may
  523  divide and reallocate fiduciary powers among fiduciaries and
  524  relieve a fiduciary from liability for an act or failure to act
  525  of another fiduciary as otherwise allowed under law or common
  526  law.
  527         (8) NOTICE.—
  528         (a)(4) The authorized trustee shall provide written
  529  notification of the manner in which he or she intends to
  530  exercise his or her power to invade principal to notify all
  531  qualified beneficiaries of the following parties first trust, in
  532  writing, at least 60 days before prior to the effective date of
  533  the authorized trustee’s exercise of such power the trustee’s
  534  power to invade principal pursuant to subsection (2), subsection
  535  (3), or subsection (4): (1), of the manner in which the trustee
  536  intends to exercise the power.
  537         1. All qualified beneficiaries of the first trust.
  538         2.If paragraph (5)(c) applies, the settlor of the first
  539  trust.
  540         3.All trustees of the first trust.
  541         4.Any person who has the power to remove or replace the
  542  authorized trustee of the first trust.
  543         (b)The authorized A copy of the proposed instrument
  544  exercising the power shall satisfy the trustee’s notice
  545  obligation to provide notice under this subsection is satisfied
  546  when he or she provides copies of the proposed instrument
  547  exercising the power, the trust instrument of the first trust,
  548  and the proposed trust instrument of the second trust.
  549         (c) If all of those required to be notified qualified
  550  beneficiaries waive the notice period by signed written
  551  instrument delivered to the authorized trustee, the authorized
  552  trustee’s power to invade principal shall be exercisable
  553  immediately.
  554         (d) The authorized trustee’s notice under this subsection
  555  does shall not limit the right of any beneficiary to object to
  556  the exercise of the authorized trustee’s power to invade
  557  principal except as otherwise provided in other applicable
  558  provisions of this code.
  559         (9)(5)INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER
  560  PROHIBITION.—The exercise of the power to invade principal under
  561  subsection (2), subsection (3), or subsection (4) (1) is not
  562  prohibited by a spendthrift clause or by a provision in the
  563  trust instrument that prohibits amendment or revocation of the
  564  trust.
  565         (10)(6)NO DUTY TO EXERCISE.—Nothing in this section is
  566  intended to create or imply a duty to exercise a power to invade
  567  principal, and no inference of impropriety may shall be made as
  568  a result of an authorized trustee’s failure to exercise a
  569  trustee not exercising the power to invade principal conferred
  570  under subsections (2), (3), and (4) subsection (1).
  571         (11)(7)NO ABRIDGEMENT OF COMMON LAW RIGHTS.—The provisions
  572  of This section may shall not be construed to abridge the right
  573  of any trustee who has a power of invasion to appoint property
  574  in further trust that arises under the terms of the first trust
  575  or under any other section of this code or under another
  576  provision of law or under common law.
  577         Section 6. Subsection (3) of section 736.08135, Florida
  578  Statutes, is amended to read:
  579         736.08135 Trust accountings.—
  580         (3) Subsections (1) and (2) govern the form and content of
  581  This section applies to all trust accountings rendered for any
  582  accounting periods beginning on or after January 1, 2003, and
  583  all trust accountings rendered on or after July 1, 2018. This
  584  subsection does not affect the beginning period from which a
  585  trustee is required to render a trust accounting.
  586         Section 7. Subsection (3) of section 736.1008, Florida
  587  Statutes, is amended to read:
  588         736.1008 Limitations on proceedings against trustees.—
  589         (3) When a trustee has not issued a final trust accounting
  590  or has not given written notice to the beneficiary of the
  591  availability of the trust records for examination and that
  592  claims with respect to matters not adequately disclosed may be
  593  barred, a claim against the trustee for breach of trust based on
  594  a matter not adequately disclosed in a trust disclosure document
  595  is barred as provided in chapter 95 and accrues when the
  596  beneficiary has actual knowledge of:
  597         (a) The facts upon which the claim is based, if such actual
  598  knowledge is established by clear and convincing evidence; or
  599         (b) The trustee’s repudiation of the trust or adverse
  600  possession of trust assets.
  601  
  602  Paragraph (a) applies to claims based upon acts or omissions
  603  occurring on or after July 1, 2008. A beneficiary’s actual
  604  knowledge that he or she has not received a trust accounting
  605  does not cause a claim to accrue against the trustee for breach
  606  of trust based upon the failure to provide a trust accounting
  607  required by s. 736.0813 or former s. 737.303 and does not
  608  commence the running of any period of limitations or laches for
  609  such a claim, and paragraph (a) and chapter 95 do not bar any
  610  such claim.
  611         Section 8. The changes to ss. 736.08135 and 736.1008,
  612  Florida Statutes, made by this act are intended to clarify
  613  existing law, are remedial in nature, and apply retroactively to
  614  all cases pending or commenced on or after July 1, 2018.
  615         Section 9. Except as otherwise provided in this act and
  616  except for this section, which shall take effect upon becoming a
  617  law, this act shall take effect July 1, 2018.