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.