Florida Senate - 2019 SB 1154 By Senator Berman 31-00330C-19 20191154__ 1 A bill to be entitled 2 An act relating to decedents’ property; creating s. 3 689.151, F.S.; defining the terms “ownership 4 document,” “personal property,” and “record”; 5 abolishing certain common law requirements relating to 6 joint tenancies with right of survivorship and 7 tenancies by the entirety; providing for the creation 8 of joint tenancies with right of survivorship and 9 tenancies by the entirety; specifying that there are 10 certain rebuttable presumptions for personal property 11 owned by both spouses and joint tenancies with right 12 of survivorship; providing that the presumption may be 13 overcome by a preponderance of the evidence or by 14 clear and convincing evidence under certain 15 circumstances; providing for the conclusive 16 presumption of an intent to create a tenancy by the 17 entirety; providing applicability; providing 18 construction; providing retroactive application; 19 creating s. 731.1065, F.S.; specifying that precious 20 metals are tangible personal property for the purposes 21 of the Florida Probate Code; providing for retroactive 22 application; amending s. 731.301, F.S.; specifying 23 that formal notice is not sufficient to invoke a 24 court’s personal jurisdiction over a person receiving 25 such formal notice; providing applicability; amending 26 s. 733.610, F.S.; expanding the list of sales or 27 encumbrances that are voidable by interested persons 28 under certain circumstances; amending s. 733.617, 29 F.S.; specifying that certain attorneys and persons 30 are not entitled to compensation for serving as a 31 personal representative unless the attorney or person 32 is related to the testator or unless certain 33 disclosures are made before a will is executed; 34 requiring the testator to execute a written statement 35 that acknowledges certain disclosures were made; 36 providing requirements for the written statement; 37 specifying when an attorney is deemed to have prepared 38 or supervised the execution of a will; specifying how 39 a person may be related to an individual; specifying 40 when an attorney or person related to the attorney is 41 deemed to have been nominated in a will; providing 42 construction; providing applicability; amending s. 43 736.0708, F.S.; specifying that certain attorneys and 44 persons are not entitled to compensation for serving 45 as a trustee unless the attorney or person is related 46 to the settlor or unless certain disclosures are made 47 before the trust instrument is executed; requiring a 48 settlor to execute a written statement that 49 acknowledges certain disclosures were made; providing 50 requirements for the written statement; specifying 51 when an attorney is deemed to have prepared or 52 supervised the execution of a trust instrument; 53 specifying how a person may be related to an 54 individual; specifying when an attorney or a person 55 related to the attorney is deemed appointed in a trust 56 instrument; providing construction; providing 57 applicability; providing effective dates. 58 59 Be It Enacted by the Legislature of the State of Florida: 60 61 Section 1. Section 689.151, Florida Statutes, is created to 62 read: 63 689.151 Tenancies by the entirety, joint tenancies with 64 right of survivorship, and tenancies in common in personal 65 property.— 66 (1) As used in this section: 67 (a) “Ownership document” means an instrument or a record of 68 transfer or an instrument or a record evidencing ownership. 69 (b) “Personal property” means all property except real 70 property, as defined in s. 192.001(12), and an interest in a 71 trust to which chapter 736 applies. 72 (c) “Record” has the same meaning as in s. 605.0102. 73 (2) With respect to joint tenancies with right of 74 survivorship and tenancies by the entirety in personal property, 75 the common law requirements of unity of time and title are 76 abolished. 77 (a) A joint tenancy with right of survivorship in personal 78 property may be created in the existing owner and one or more 79 other persons through a direct transfer by the existing owner. 80 (b) A tenancy by the entirety may be created in personal 81 property owned by one spouse through a direct transfer to both 82 spouses. 83 (3) With respect to joint tenancies with right of 84 survivorship in personal property, the common law requirement of 85 unity of interest is abolished and the shares or interests of 86 joint tenants may be equal or unequal. 87 (4) There is a rebuttable presumption that: 88 (a) Personal property owned by both spouses is owned by the 89 spouses as tenants by the entirety if: 90 1. An ownership document does not specify a form of 91 ownership or does not expressly indicate that a tenancy by the 92 entirety is not intended; or 93 2. There is a designation of joint tenancy with right of 94 survivorship in an ownership document and no express indication 95 that a tenancy by the entirety was not intended. 96 97 The rebuttable presumptions in this paragraph also apply when an 98 owner of personal property adds the name of his or her spouse to 99 such ownership document. 100 (b) Except as provided in paragraph (a), personal property 101 is owned as joint tenants with right of survivorship when the 102 owner designates or adds the name of one or more persons in an 103 ownership document indicating that the owner and such persons 104 own or hold the property as joint tenants with right of 105 survivorship. 106 (c) The shares or interests held by joint tenants with 107 right of survivorship or tenants in common in personal property 108 are equal. Such presumption may be overcome by proving by a 109 preponderance of the evidence the existence of fraud, undue 110 influence, lack of capacity, or contrary intent. 111 (5) Unless otherwise stated, the rebuttable presumptions 112 established in subsection (4) may be overcome by proving by a 113 preponderance of the evidence the existence of fraud, undue 114 influence, or lack of capacity or by proving by clear and 115 convincing evidence that the presumed tenancy was not intended 116 or created. 117 (6) The intent to create a tenancy by the entirety is 118 conclusively presumed when such a tenancy is designated by 119 spouses in an ownership document for personal property, or when 120 an owner of personal property adds the name of his or her spouse 121 to an ownership document with a designation of tenancy by the 122 entirety, if the designation or addition was not the product of 123 fraud, undue influence, or a lack of capacity. 124 (7) This section does not affect the application of s. 125 319.22, s. 655.78, s. 655.79, s. 655.80, s. 655.82, s. 689.115, 126 or ss. 711.50-711.512. 127 (8) The common law of joint tenancies with right of 128 survivorship and the common law of tenancies by the entirety 129 supplement this section except to the extent modified by it. 130 (9) The presumptions under this section apply to all 131 proceedings pending on or before October 1, 2019, and to all 132 proceedings commenced on or after October 1, 2019. 133 (10) Subsections (2) and (3) are remedial in nature and 134 apply to transactions occurring before October 1, 2019, to the 135 extent that those transactions relate to the existence of a 136 joint tenancy with right of survivorship or a tenancy by the 137 entirety on October 1, 2019; however, such application may not 138 impair any right acquired before October 1, 2019, if that right 139 is confirmed in a judicial proceeding commenced within 2 years 140 after October 1, 2019. 141 (11) This section does not impair the rights of any 142 lienholder or creditor acquired before October 1, 2019. 143 Section 2. Effective July 1, 2019, section 731.1065, 144 Florida Statutes, is created to read: 145 731.1065 Precious metals.— 146 (1) For the purposes of the code, precious metals in any 147 tangible form, such as bullion or coins kept and acquired for 148 their historical, artistic, collectable, or investment value 149 apart from their normal use as legal tender for payment, are 150 tangible personal property. 151 (2) This section is intended to clarify existing law and 152 applies retroactively to all written instruments executed 153 before, on, or after July 1, 2019, as well as all proceedings 154 pending or commenced before, on, or after July 1, 2019, in which 155 the disposition of precious metals in any tangible form has not 156 been finally determined. 157 Section 3. Effective upon this act becoming a law, 158 subsection (2) of section 731.301, Florida Statutes, is amended 159 to read: 160 731.301 Notice.— 161 (2) In a probate proceeding, formal notice is sufficient to 162 acquire jurisdiction over the person receiving formal notice to 163 the extent of the person’s interest in the estate or in the 164 decedent’s protected homestead. Formal notice is not sufficient 165 to invoke the court’s personal jurisdiction over the person 166 receiving formal notice. 167 Section 4. The amendment made by this act to s. 731.301, 168 Florida Statutes, applies to all proceedings pending on or 169 before, or commenced after, the date this act becomes a law. 170 Section 5. Effective July 1, 2019, section 733.610, Florida 171 Statutes, is amended to read: 172 733.610 Sale, encumbrance, or transaction involving 173 conflict of interest.—Any sale or encumbrance to the personal 174 representative or the personal representative’s spouse, agent, 175 or attorney, or any corporation, other entity, or trust in which 176 the personal representative, or the personal representative’s 177 spouse, agent, or attorney, has a substantial beneficial or 178 ownership interest, or any transaction that is affected by a 179 conflict of interest on the part of the personal representative, 180 is voidable by any interested person except one who has 181 consented after fair disclosure, unless: 182 (1) The will or a contract entered into by the decedent 183 expressly authorized the transaction; or 184 (2) The transaction is approved by the court after notice 185 to interested persons. 186 Section 6. Subsection (6) of section 733.617, Florida 187 Statutes, is amended, and subsection (8) is added to that 188 section, to read: 189 733.617 Compensation of personal representative.— 190 (6) Except as otherwise provided in this section, if the 191 personal representative is a member of The Florida Bar and has 192 rendered legal services in connection with the administration of 193 the estate, then in addition to a fee as personal 194 representative, there also shall be allowed a fee for the legal 195 services rendered. 196 (8)(a) An attorney serving as a personal representative, or 197 a person related to the attorney, is not entitled to 198 compensation for serving as a personal representative if the 199 attorney prepared or supervised the execution of the will that 200 nominated the attorney or person related to the attorney as 201 personal representative, unless the attorney or person nominated 202 is related to the testator, or the attorney makes the following 203 disclosures to the testator before the will is executed: 204 1. Subject to certain statutory limitations, most family 205 members, regardless of their residence, and any other persons 206 who are residents of Florida, including friends and corporate 207 fiduciaries, are eligible to serve as a personal representative; 208 2. Any person, including an attorney, who serves as a 209 personal representative is entitled to receive reasonable 210 compensation for serving as a personal representative; and 211 3. Compensation payable to the personal representative is 212 in addition to any attorney fees payable to the attorney or the 213 attorney’s firm for legal services rendered to the personal 214 representative. 215 (b)1. The testator must execute a written statement 216 acknowledging that the disclosures required under paragraph (a) 217 were made prior to the execution of the will. The written 218 statement must be in a separate writing from the will but may be 219 annexed to the will. The written statement may be executed 220 before or after the execution of the will in which the attorney 221 or related person is nominated as the personal representative. 222 2. The written statement must be in substantially the 223 following form: 224 225 I, ...(Name)..., declare that: 226 227 I have designated my attorney, an attorney employed in the 228 same law firm as my attorney, or a person related to my attorney 229 as a nominated personal representative in my will or codicil 230 dated ...(insert date).... 231 232 Before executing the will or codicil, I was informed that: 233 1. Subject to certain statutory limitations, most family 234 members, regardless of their residence, and any other 235 individuals who are residents of Florida, including friends and 236 corporate fiduciaries, are eligible to serve as a personal 237 representative. 238 2. Any person, including an attorney, who serves as a 239 personal representative is entitled to receive reasonable 240 compensation for serving as a personal representative. 241 3. Compensation payable to the personal representative is 242 in addition to any attorney fees payable to the attorney or the 243 attorney’s firm for legal services rendered to the personal 244 representative. 245 246 ...(Signature)... 247 ...(Testator)... 248 ...(Insert date)... 249 250 (c) For purposes of this subsection: 251 1. An attorney is deemed to have prepared or supervised the 252 execution of a will if the preparation or supervision of the 253 execution of the will was performed by an employee or attorney 254 employed by the same firm as the attorney at the time the will 255 was executed. 256 2. A person is “related” to an individual if, at the time 257 the attorney prepared or supervised the execution of the will, 258 the person is: 259 a. A spouse of the individual; 260 b. A lineal ascendant or descendant of the individual; 261 c. A sibling of the individual; 262 d. A relative of the individual or of the individual’s 263 spouse with whom the attorney maintains a close, familial 264 relationship; 265 e. A spouse of a person described in subparagraphs b.-d.; 266 f. A person who cohabitates with the individual; or 267 g. An employee or attorney employed by the same firm as the 268 attorney at the time the will is executed. 269 3. An attorney or a person related to the attorney is 270 deemed to have been nominated in the will when the will 271 nominates the attorney or the person related to the attorney as 272 personal representative, co-personal representative, successor, 273 or alternate personal representative in the event another person 274 nominated is unable to or unwilling to serve, or provides the 275 attorney or any person related to the attorney with the power to 276 nominate the personal representative and the attorney or person 277 related to attorney was nominated using that power. 278 (d) Other than compensation payable to the personal 279 representative, this subsection does not limit any rights or 280 remedies that any interested person may have at law or in 281 equity. 282 (e) The failure to obtain an acknowledgment from the 283 testator under this subsection does not disqualify a personal 284 representative from serving and does not affect the validity of 285 a will. 286 (f) This subsection applies to all nominations made 287 pursuant to a will: 288 1. Executed by a resident of this state on or after October 289 1, 2019; or 290 2. Republished by a resident of this state on or after 291 October 1, 2019, if the republished will nominates the attorney 292 who prepared or supervised the execution of the instrument that 293 republished the will, or a person related to such attorney, as 294 personal representative. 295 Section 7. Subsection (4) is added to section 736.0708, 296 Florida Statutes, to read: 297 736.0708 Compensation of trustee.— 298 (4)(a) An attorney serving as a trustee or a person related 299 to such attorney is not entitled to compensation for serving as 300 trustee if the attorney prepared or supervised the execution of 301 the trust instrument that appointed the attorney or person 302 related to the attorney as trustee, unless the attorney or 303 person appointed is related to the settlor or the attorney makes 304 the following disclosures to the settlor before the trust 305 instrument is executed: 306 1. Unless specifically disqualified by the terms of the 307 trust instrument, any person, regardless of state of residence 308 and including a family member, friend, or corporate fiduciary, 309 is eligible to serve as a trustee; 310 2. Any person, including an attorney, who serves as a 311 trustee is entitled to receive reasonable compensation for 312 serving as trustee; and 313 3. Compensation payable to the trustee is in addition to 314 any attorney fees payable to the attorney or the attorney’s firm 315 for legal services rendered to the trustee. 316 (b)1. The settlor must execute a written statement 317 acknowledging that the disclosures required under paragraph (a) 318 were made prior to the execution of the trust instrument. The 319 written statement must be in a separate writing from the trust 320 instrument but may be annexed to the trust instrument. The 321 written statement may be executed before or after the execution 322 of the trust in which the attorney or related person is 323 appointed as the trustee. 324 2. The written statement must be in substantially the 325 following form: 326 327 I, ...(Name)..., declare that: 328 329 I have designated my attorney, an attorney employed in the 330 same law firm as my attorney, or a person related to my attorney 331 as a trustee in my trust instrument dated ...(insert date).... 332 333 Before executing the trust, I was informed that: 334 1. Unless specifically disqualified by the terms of the 335 trust instrument, any person, regardless of state of residence 336 and including family members, friends, and corporate 337 fiduciaries, is eligible to serve as a trustee. 338 2. Any person, including an attorney, who serves as a 339 trustee is entitled to receive reasonable compensation for 340 serving as trustee. 341 3. Compensation payable to the trustee is in addition to 342 any attorney fees payable to the attorney or the attorney’s firm 343 for legal services rendered to the trustee. 344 345 ...(Signature)... 346 ...(Settlor)... 347 ...(Insert Date)... 348 349 (c) For purposes of this subsection: 350 1. An attorney is deemed to have prepared, or supervised 351 the execution of, a trust instrument if the preparation, or 352 supervision of the execution, of the trust instrument was 353 performed by an employee or attorney employed by the same firm 354 as the attorney at the time the trust instrument was executed. 355 2. A person is “related” to an individual if, at the time 356 the attorney prepared or supervised the execution of the trust 357 instrument, the person is: 358 a. A spouse of the individual; 359 b. A lineal ascendant or descendant of the individual; 360 c. A sibling of the individual; 361 d. A relative of the individual or of the individual’s 362 spouse with whom the attorney maintains a close, familial 363 relationship; 364 e. A spouse of a person described in subparagraphs b.-d.; 365 f. A person who cohabitates with the individual; or 366 g. An employee or attorney employed by the same firm as the 367 attorney at the time the trust instrument is executed. 368 3. An attorney or a person related to the attorney is 369 deemed appointed in the trust instrument when the trust 370 instrument appoints the attorney or the person related to the 371 attorney as trustee, co-trustee, successor, or alternate trustee 372 in the event another person nominated is unable to or unwilling 373 to serve, or provides the attorney or any person related to the 374 attorney with the power to appoint the trustee and the attorney 375 or person related to attorney was appointed using that power. 376 (d) Other than compensation payable to the trustee, this 377 subsection does not limit any rights or remedies that any 378 interested person may have at law or equity. 379 (e) The failure to obtain an acknowledgment from the 380 settlor under this subsection does not disqualify a trustee from 381 serving and does not affect the validity of a trust instrument. 382 (f) This subsection applies to all appointments made 383 pursuant to a trust agreement: 384 1. Executed by a resident of this state on or after October 385 1, 2019; or 386 2. Amended by a resident of this state on or after October 387 1, 2019, if the trust agreement nominates the attorney who 388 prepared or supervised the execution of the amendment or a 389 person related to such attorney as trustee. 390 Section 8. Except as otherwise expressly provided in this 391 act and except for this section, which shall take effect upon 392 this act becoming a law, this act shall take effect October 1, 393 2019.