Florida Senate - 2019                             CS for SB 1154
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Berman
       
       
       
       
       586-03729-19                                          20191154c1
    1                        A bill to be entitled                      
    2         An act relating to decedents’ property; creating s.
    3         731.1065, F.S.; specifying that precious metals are
    4         tangible personal property for the purposes of the
    5         Florida Probate Code; providing for retroactive
    6         application; amending s. 731.301, F.S.; specifying
    7         that formal notice is not sufficient to invoke a
    8         court’s personal jurisdiction over a person receiving
    9         such formal notice; providing applicability; amending
   10         s. 733.610, F.S.; expanding the list of sales or
   11         encumbrances that are voidable by interested persons
   12         under certain circumstances; amending s. 733.617,
   13         F.S.; specifying that certain attorneys and persons
   14         are not entitled to compensation for serving as a
   15         personal representative unless the attorney or person
   16         is related to the testator or unless certain
   17         disclosures are made before a will is executed;
   18         requiring the testator to execute a written statement
   19         that acknowledges certain disclosures were made;
   20         providing requirements for the written statement;
   21         specifying when an attorney is deemed to have prepared
   22         or supervised the execution of a will; specifying how
   23         a person may be related to an individual; specifying
   24         when an attorney or person related to the attorney is
   25         deemed to have been nominated in a will; providing
   26         construction; providing applicability; amending s.
   27         736.0708, F.S.; specifying that certain attorneys and
   28         persons are not entitled to compensation for serving
   29         as a trustee unless the attorney or person is related
   30         to the settlor or unless certain disclosures are made
   31         before the trust instrument is executed; requiring a
   32         settlor to execute a written statement that
   33         acknowledges certain disclosures were made; providing
   34         requirements for the written statement; specifying
   35         when an attorney is deemed to have prepared or
   36         supervised the execution of a trust instrument;
   37         specifying how a person may be related to an
   38         individual; specifying when an attorney or a person
   39         related to the attorney is deemed appointed in a trust
   40         instrument; providing construction; providing
   41         applicability; providing effective dates.
   42          
   43  Be It Enacted by the Legislature of the State of Florida:
   44  
   45         Section 1. Effective July 1, 2019, section 731.1065,
   46  Florida Statutes, is created to read:
   47         731.1065 Precious metals.—
   48         (1) For the purposes of the code, precious metals in any
   49  tangible form, such as bullion or coins kept and acquired for
   50  their historical, artistic, collectable, or investment value
   51  apart from their normal use as legal tender for payment, are
   52  tangible personal property.
   53         (2) This section is intended to clarify existing law and
   54  applies retroactively to all written instruments executed
   55  before, on, or after July 1, 2019, as well as all proceedings
   56  pending or commenced before, on, or after July 1, 2019, in which
   57  the disposition of precious metals in any tangible form has not
   58  been finally determined.
   59         Section 2. Effective upon this act becoming a law,
   60  subsection (2) of section 731.301, Florida Statutes, is amended
   61  to read:
   62         731.301 Notice.—
   63         (2) In a probate proceeding, formal notice is sufficient to
   64  acquire jurisdiction over the person receiving formal notice to
   65  the extent of the person’s interest in the estate or in the
   66  decedent’s protected homestead. Formal notice is not sufficient
   67  to invoke the court’s personal jurisdiction over the person
   68  receiving formal notice.
   69         Section 3. The amendment made by this act to s. 731.301,
   70  Florida Statutes, applies to all proceedings pending on or
   71  before, or commenced after, the date this act becomes a law.
   72         Section 4. Effective July 1, 2019, section 733.610, Florida
   73  Statutes, is amended to read:
   74         733.610 Sale, encumbrance, or transaction involving
   75  conflict of interest.—Any sale or encumbrance to the personal
   76  representative or the personal representative’s spouse, agent,
   77  or attorney, or any corporation, other entity, or trust in which
   78  the personal representative, or the personal representative’s
   79  spouse, agent, or attorney, has a substantial beneficial or
   80  ownership interest, or any transaction that is affected by a
   81  conflict of interest on the part of the personal representative,
   82  is voidable by any interested person except one who has
   83  consented after fair disclosure, unless:
   84         (1) The will or a contract entered into by the decedent
   85  expressly authorized the transaction; or
   86         (2) The transaction is approved by the court after notice
   87  to interested persons.
   88         Section 5. Subsection (6) of section 733.617, Florida
   89  Statutes, is amended, and subsection (8) is added to that
   90  section, to read:
   91         733.617 Compensation of personal representative.—
   92         (6) Except as otherwise provided in this section, if the
   93  personal representative is a member of The Florida Bar and has
   94  rendered legal services in connection with the administration of
   95  the estate, then in addition to a fee as personal
   96  representative, there also shall be allowed a fee for the legal
   97  services rendered.
   98         (8)(a) An attorney serving as a personal representative, or
   99  a person related to the attorney, is not entitled to
  100  compensation for serving as a personal representative if the
  101  attorney prepared or supervised the execution of the will that
  102  nominated the attorney or person related to the attorney as
  103  personal representative, unless the attorney or person nominated
  104  is related to the testator, or the attorney makes the following
  105  disclosures to the testator before the will is executed:
  106         1. Subject to certain statutory limitations, most family
  107  members, regardless of their residence, and any other persons
  108  who are residents of Florida, including friends and corporate
  109  fiduciaries, are eligible to serve as a personal representative;
  110         2. Any person, including an attorney, who serves as a
  111  personal representative is entitled to receive reasonable
  112  compensation for serving as a personal representative; and
  113         3. Compensation payable to the personal representative is
  114  in addition to any attorney fees payable to the attorney or the
  115  attorney’s firm for legal services rendered to the personal
  116  representative.
  117         (b)1. The testator must execute a written statement
  118  acknowledging that the disclosures required under paragraph (a)
  119  were made prior to the execution of the will. The written
  120  statement must be in a separate writing from the will but may be
  121  annexed to the will. The written statement may be executed
  122  before or after the execution of the will in which the attorney
  123  or related person is nominated as the personal representative.
  124         2. The written statement must be in substantially the
  125  following form:
  126  
  127         I, ...(Name)..., declare that:
  128  
  129         I have designated my attorney, an attorney employed in the
  130  same law firm as my attorney, or a person related to my attorney
  131  as a nominated personal representative in my will or codicil
  132  dated ...(insert date)....
  133  
  134         Before executing the will or codicil, I was informed that:
  135         1. Subject to certain statutory limitations, most family
  136  members, regardless of their residence, and any other
  137  individuals who are residents of Florida, including friends and
  138  corporate fiduciaries, are eligible to serve as a personal
  139  representative.
  140         2. Any person, including an attorney, who serves as a
  141  personal representative is entitled to receive reasonable
  142  compensation for serving as a personal representative.
  143         3. Compensation payable to the personal representative is
  144  in addition to any attorney fees payable to the attorney or the
  145  attorney’s firm for legal services rendered to the personal
  146  representative.
  147  
  148  ...(Signature)...
  149  ...(Testator)...
  150  ...(Insert date)...
  151  
  152         (c) For purposes of this subsection:
  153         1. An attorney is deemed to have prepared or supervised the
  154  execution of a will if the preparation or supervision of the
  155  execution of the will was performed by an employee or attorney
  156  employed by the same firm as the attorney at the time the will
  157  was executed.
  158         2. A person is “related” to an individual if, at the time
  159  the attorney prepared or supervised the execution of the will,
  160  the person is:
  161         a. A spouse of the individual;
  162         b. A lineal ascendant or descendant of the individual;
  163         c. A sibling of the individual;
  164         d. A relative of the individual or of the individual’s
  165  spouse with whom the attorney maintains a close, familial
  166  relationship;
  167         e. A spouse of a person described in subparagraphs b.-d.;
  168         f. A person who cohabitates with the individual; or
  169         g. An employee or attorney employed by the same firm as the
  170  attorney at the time the will is executed.
  171         3. An attorney or a person related to the attorney is
  172  deemed to have been nominated in the will when the will
  173  nominates the attorney or the person related to the attorney as
  174  personal representative, co-personal representative, successor,
  175  or alternate personal representative in the event another person
  176  nominated is unable to or unwilling to serve, or provides the
  177  attorney or any person related to the attorney with the power to
  178  nominate the personal representative and the attorney or person
  179  related to attorney was nominated using that power.
  180         (d) Other than compensation payable to the personal
  181  representative, this subsection does not limit any rights or
  182  remedies that any interested person may have at law or in
  183  equity.
  184         (e) The failure to obtain an acknowledgment from the
  185  testator under this subsection does not disqualify a personal
  186  representative from serving and does not affect the validity of
  187  a will.
  188         (f) This subsection applies to all nominations made
  189  pursuant to a will:
  190         1. Executed by a resident of this state on or after October
  191  1, 2019; or
  192         2.Republished by a resident of this state on or after
  193  October 1, 2019, if the republished will nominates the attorney
  194  who prepared or supervised the execution of the instrument that
  195  republished the will, or a person related to such attorney, as
  196  personal representative.
  197         Section 6. Subsection (4) is added to section 736.0708,
  198  Florida Statutes, to read:
  199         736.0708 Compensation of trustee.—
  200         (4)(a) An attorney serving as a trustee or a person related
  201  to such attorney is not entitled to compensation for serving as
  202  trustee if the attorney prepared or supervised the execution of
  203  the trust instrument that appointed the attorney or person
  204  related to the attorney as trustee, unless the attorney or
  205  person appointed is related to the settlor or the attorney makes
  206  the following disclosures to the settlor before the trust
  207  instrument is executed:
  208         1. Unless specifically disqualified by the terms of the
  209  trust instrument, any person, regardless of state of residence
  210  and including a family member, friend, or corporate fiduciary,
  211  is eligible to serve as a trustee;
  212         2. Any person, including an attorney, who serves as a
  213  trustee is entitled to receive reasonable compensation for
  214  serving as trustee; and
  215         3. Compensation payable to the trustee is in addition to
  216  any attorney fees payable to the attorney or the attorney’s firm
  217  for legal services rendered to the trustee.
  218         (b)1.The settlor must execute a written statement
  219  acknowledging that the disclosures required under paragraph (a)
  220  were made prior to the execution of the trust instrument. The
  221  written statement must be in a separate writing from the trust
  222  instrument but may be annexed to the trust instrument. The
  223  written statement may be executed before or after the execution
  224  of the trust in which the attorney or related person is
  225  appointed as the trustee.
  226         2. The written statement must be in substantially the
  227  following form:
  228  
  229         I, ...(Name)..., declare that:
  230  
  231         I have designated my attorney, an attorney employed in the
  232  same law firm as my attorney, or a person related to my attorney
  233  as a trustee in my trust instrument dated ...(insert date)....
  234  
  235         Before executing the trust, I was informed that:
  236         1. Unless specifically disqualified by the terms of the
  237  trust instrument, any person, regardless of state of residence
  238  and including family members, friends, and corporate
  239  fiduciaries, is eligible to serve as a trustee.
  240         2. Any person, including an attorney, who serves as a
  241  trustee is entitled to receive reasonable compensation for
  242  serving as trustee.
  243         3. Compensation payable to the trustee is in addition to
  244  any attorney fees payable to the attorney or the attorney’s firm
  245  for legal services rendered to the trustee.
  246  
  247  ...(Signature)...
  248  ...(Settlor)...
  249  ...(Insert Date)...
  250  
  251         (c) For purposes of this subsection:
  252         1. An attorney is deemed to have prepared, or supervised
  253  the execution of, a trust instrument if the preparation, or
  254  supervision of the execution, of the trust instrument was
  255  performed by an employee or attorney employed by the same firm
  256  as the attorney at the time the trust instrument was executed.
  257         2. A person is “related” to an individual if, at the time
  258  the attorney prepared or supervised the execution of the trust
  259  instrument, the person is:
  260         a. A spouse of the individual;
  261         b. A lineal ascendant or descendant of the individual;
  262         c. A sibling of the individual;
  263         d. A relative of the individual or of the individual’s
  264  spouse with whom the attorney maintains a close, familial
  265  relationship;
  266         e. A spouse of a person described in subparagraphs b.-d.;
  267         f. A person who cohabitates with the individual; or
  268         g. An employee or attorney employed by the same firm as the
  269  attorney at the time the trust instrument is executed.
  270         3. An attorney or a person related to the attorney is
  271  deemed appointed in the trust instrument when the trust
  272  instrument appoints the attorney or the person related to the
  273  attorney as trustee, co-trustee, successor, or alternate trustee
  274  in the event another person nominated is unable to or unwilling
  275  to serve, or provides the attorney or any person related to the
  276  attorney with the power to appoint the trustee and the attorney
  277  or person related to attorney was appointed using that power.
  278         (d) Other than compensation payable to the trustee, this
  279  subsection does not limit any rights or remedies that any
  280  interested person may have at law or equity.
  281         (e) The failure to obtain an acknowledgment from the
  282  settlor under this subsection does not disqualify a trustee from
  283  serving and does not affect the validity of a trust instrument.
  284         (f) This subsection applies to all appointments made
  285  pursuant to a trust agreement:
  286         1. Executed by a resident of this state on or after October
  287  1, 2019; or
  288         2.Amended by a resident of this state on or after October
  289  1, 2019, if the trust agreement nominates the attorney who
  290  prepared or supervised the execution of the amendment or a
  291  person related to such attorney as trustee.
  292         Section 7. Except as otherwise expressly provided in this
  293  act and except for this section, which shall take effect upon
  294  this act becoming a law, this act shall take effect October 1,
  295  2019.