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.