Florida Senate - 2021 CS for SB 1070
By the Committee on Judiciary; and Senator Berman
590-03162-21 20211070c1
1 A bill to be entitled
2 An act relating to estates and trusts; amending s.
3 69.031, F.S.; requiring the court to allow an officer
4 to elect to post and maintain a certain bond;
5 requiring the court to vacate or terminate an order
6 under certain circumstances; making technical changes;
7 amending s. 732.507, F.S.; providing that certain
8 provisions of a will are void upon dissolution of
9 marriage; specifying when dissolution of marriage
10 occurs; providing applicability; amending s. 736.0103,
11 F.S.; defining terms; revising the definition of the
12 term “terms of a trust”; amending s. 736.0105, F.S.;
13 revising the exceptions for when the terms of a trust
14 do not prevail over provisions of the Florida Trust
15 Code; amending s. 736.0201, F.S.; authorizing certain
16 proceedings to determine the homestead status of real
17 property owned by a trust to be filed in the probate
18 proceeding for the settlor’s estate; requiring that
19 such proceedings be governed by the Florida Probate
20 Rules; amending s. 736.0603, F.S.; transferring
21 provisions that authorize a trustee to follow certain
22 directions; amending s. 736.0703, F.S.; conforming
23 provisions to changes made by the act; repealing s.
24 736.0808, F.S., relating to powers to direct; amending
25 s. 736.1008, F.S.; specifying that certain claims
26 barred against a trustee or trust director are also
27 barred against certain persons acting for that
28 trustee; conforming provisions to changes made by the
29 act; amending s. 736.1017, F.S.; revising the
30 information required to be included in a certification
31 of trust; amending s. 736.1105, F.S.; revising the
32 effects that subsequent marriages, births, adoptions,
33 or dissolutions of marriage have on a revocable trust;
34 providing construction; providing applicability;
35 creating s. 736.1109, F.S.; specifying how title
36 passes for certain devises of homesteads which violate
37 the State Constitution; specifying that certain powers
38 do not subject an interest in a protected homestead to
39 certain claims; providing applicability; creating part
40 XIV of chapter 736, F.S., entitled the “Florida
41 Uniform Directed Trust Act”; creating s. 736.1401,
42 F.S.; providing a short title; creating s. 736.1403,
43 F.S.; providing applicability; providing for the
44 validity of certain terms in a directed trust which
45 designate principal places of administration; creating
46 s. 736.1405, F.S.; defining the term “power of
47 appointment”; providing applicability; specifying the
48 types of powers granted to persons other than
49 trustees; creating s. 736.1406, F.S.; authorizing the
50 terms of a trust to grant a power of direction to a
51 trust director; specifying the powers included in a
52 power of direction; creating s. 736.1407, F.S.;
53 providing for limitations on trust directors; creating
54 s. 736.1408, F.S.; providing duties and liabilities
55 for trust directors; creating s. 736.1409, F.S.;
56 providing duties and liabilities for directed
57 trustees; creating s. 736.141, F.S.; requiring a
58 trustee to provide certain information to a trust
59 director; requiring a trust director to provide
60 certain information to a trustee or another trust
61 director and a qualified beneficiary; providing that a
62 trustee or a trust director acting in reliance on
63 certain information is not liable for a breach of
64 trust in certain circumstances; creating s. 736.1411,
65 F.S.; specifying that trustees and trust directors do
66 not have a duty to monitor, inform, or advise
67 specified persons under certain circumstances;
68 creating s. 736.1412, F.S.; transferring provisions
69 relating to the appointment of trustees; creating s.
70 736.1413, F.S.; providing limitations on actions
71 against trust directors; creating s. 736.1414, F.S.;
72 authorizing trust directors to assert specified
73 defenses in certain actions; creating s. 736.1415,
74 F.S.; specifying that a trust director submits to
75 specified personal jurisdiction by accepting
76 appointment as a trust director; providing
77 construction; creating s. 736.1416, F.S.; requiring
78 trust directors to be considered a trustee for certain
79 purposes; authorizing certain persons to make a
80 specified written demand to accept or confirm prior
81 acceptance of trust directorships; creating part XV of
82 chapter 736, F.S., entitled the “Community Property
83 Trust Act”; creating s. 736.1501, F.S.; providing a
84 short title; creating s. 736.1502, F.S.; defining
85 terms; creating s. 736.1503, F.S.; providing that an
86 arrangement is a community property trust in certain
87 circumstances; creating s. 736.1504, F.S.; authorizing
88 settlor spouses to agree upon certain terms in an
89 agreement establishing a community property trust;
90 specifying when a community property trust may be
91 amended or revoked; specifying qualified beneficiaries
92 of community property trusts; creating s. 736.1505,
93 F.S.; providing that settlor spouses may classify any
94 property as community property by transferring that
95 property to a community property trust regardless of
96 domicile; providing for enforceability and duration of
97 a community property trust; providing that the right
98 to manage and control certain property is determined
99 by the terms of the trust agreement; providing the
100 effect of distributions from a community property
101 trust; creating s. 736.1506, F.S.; providing for the
102 satisfaction of obligations incurred by one or both
103 spouses from a community property trust; creating s.
104 736.1507, F.S.; providing for the disposition or
105 distribution of certain property upon the death of a
106 spouse; creating s. 736.1508, F.S.; providing for the
107 termination of a community property trust upon
108 dissolution of marriage; creating s. 736.1509, F.S.;
109 providing that a community property trust does not
110 adversely affect certain rights of a child; creating
111 s. 736.151, F.S.; providing that certain property held
112 in a community property trust qualifies as homestead
113 property; creating s. 736.1511, F.S.; providing for
114 the application of the Internal Revenue Code to a
115 community property trust; creating s. 736.1512, F.S.;
116 providing that a community property trust is not
117 enforceable in certain circumstances; amending ss.
118 736.0802, 736.08125, and 738.104, F.S.; conforming
119 cross-references; amending s. 744.3679, F.S.;
120 conforming a provision to changes made by the act;
121 providing a directive to the Division of Law Revision;
122 providing for severability; providing effective dates.
123
124 Be It Enacted by the Legislature of the State of Florida:
125
126 Section 1. Effective upon this act becoming a law, section
127 69.031, Florida Statutes, is amended to read:
128 69.031 Designated financial institutions for property
129 assets in hands of guardians, curators, administrators,
130 trustees, receivers, or other officers.—
131 (1) When it is expedient in the judgment of any court
132 having jurisdiction of any estate in process of administration
133 by any guardian, curator, executor, administrator, trustee,
134 receiver, or other officer, because the size of the bond
135 required of the officer is burdensome or for other cause, the
136 court may order part or all of the personal property assets of
137 the estate placed with a bank, trust company, or savings and
138 loan association (which savings and loan association is a member
139 of the Federal Savings and Loan Insurance Corporation and doing
140 business in this state) designated by the court, consideration
141 being given to any bank, trust company or savings and loan
142 association proposed by the officer. Notwithstanding the
143 foregoing, in probate proceedings and in accordance with s.
144 733.402, the court shall allow the officer at any time to elect
145 to post and maintain bond for the value of the personal
146 property, or such other reasonable amount determined by the
147 court, whereupon the court shall vacate or terminate any order
148 establishing the depository. When the property is assets are
149 placed with the designated financial institution, it shall file
150 a receipt therefor in the name of the estate and give the
151 officer a copy. Such receipt shall acknowledge the property
152 assets received by the financial institution. All interest,
153 dividends, principal and other debts collected by the financial
154 institution on account thereof shall be held by the financial
155 institution in safekeeping, subject to the instructions of the
156 officer authorized by order of the court directed to the
157 financial institution.
158 (2) Accountings shall be made to the officer at reasonably
159 frequent intervals. After the receipt for the original property
160 assets has been filed by the financial institution, the court
161 shall waive the bond given or to be given or reduce it so that
162 it shall apply only to the estate remaining in the hands of the
163 officer, whichever the court deems proper.
164 (3) When the court has ordered any property assets of an
165 estate to be placed with a designated financial institution, any
166 person or corporation having possession or control of any of the
167 property assets, or owing interest, dividends, principal or
168 other debts on account thereof, shall pay and deliver such
169 property assets, interest, dividends, principal and other debts
170 to the financial institution on its demand whether the officer
171 has duly qualified or not, and the receipt of the financial
172 institution relieves the person or corporation from further
173 responsibility therefor.
174 (4) Any bank, trust company, or savings and loan
175 association which is designated under this section, may accept
176 or reject the designation in any instance, and shall file its
177 acceptance or rejection with the court making the designation
178 within 15 days after actual knowledge of the designation comes
179 to the attention of the financial institution, and if the
180 financial institution accepts, it shall be allowed a reasonable
181 amount for its services and expenses which the court may allow
182 as a charge against the property assets placed with the
183 financial institution.
184 Section 2. Effective upon this act becoming a law, section
185 732.507, Florida Statutes, is amended to read:
186 732.507 Effect of subsequent marriage, birth, adoption, or
187 dissolution of marriage.—
188 (1) Neither subsequent marriage, birth, nor adoption of
189 descendants shall revoke the prior will of any person, but the
190 pretermitted child or spouse shall inherit as set forth in ss.
191 732.301 and 732.302, regardless of the prior will.
192 (2) Any provision of a will executed by a married person
193 that affects the testator’s spouse is of that person shall
194 become void upon dissolution of the marriage of the testator and
195 the spouse, whether the marriage occurred before or after the
196 execution of such will. Upon dissolution of marriage the divorce
197 of that person or upon the dissolution or annulment of the
198 marriage. After the dissolution, divorce, or annulment, the will
199 shall be administered and construed as if the former spouse had
200 died at the time of the dissolution of marriage, divorce, or
201 annulment of the marriage, unless the will or the dissolution or
202 divorce judgment expressly provides otherwise.
203 (a) Dissolution of marriage occurs at the time the
204 decedent’s marriage is judicially dissolved or declared invalid
205 by court order.
206 (b) This subsection does not invalidate a provision of a
207 will:
208 1. Executed by the testator after the dissolution of the
209 marriage;
210 2. If there is a specific intention to the contrary stated
211 in the will; or
212 3. If the dissolution of marriage judgment expressly
213 provides otherwise.
214 (3) This section applies to wills of decedents who die on
215 or after the effective date of this section.
216 Section 3. Present subsections (6) through (13), (14)
217 through (21), and (22) and (23) of section 736.0103, Florida
218 Statutes, are redesignated as subsections (8) through (15), (17)
219 through (24), and (26) and (27), respectively, new subsections
220 (6), (7), and (16) and subsection (25) are added to that
221 section, and present subsection (21) of that section is amended,
222 to read:
223 736.0103 Definitions.—Unless the context otherwise
224 requires, in this code:
225 (6) “Directed trust” means a trust for which the terms of
226 the trust grant a power of direction.
227 (7) “Directed trustee” means a trustee that is subject to a
228 trust director’s power of direction.
229 (16) “Power of direction” means a power over a trust
230 granted to a person by the terms of the trust to the extent the
231 power is exercisable while the person is not serving as a
232 trustee. The term includes a power over the investment,
233 management, or distribution of trust property, a power to amend
234 a trust instrument or terminate a trust, or a power over other
235 matters of trust administration. The term excludes the powers
236 excluded from part XIV of this chapter under s. 736.1405(2).
237 (24)(21) “Terms of a trust” means:
238 (a) Except as otherwise provided in paragraph (b), the
239 manifestation of the settlor’s intent regarding a trust’s
240 provisions as:
241 1. Expressed in the trust instrument; or
242 2. Established by other evidence that would be admissible
243 in a judicial proceeding; or
244 (b) The trust’s provisions as established, determined, or
245 amended by:
246 1. A trustee or trust director in accordance with
247 applicable law;
248 2. Court order; or
249 3. A nonjudicial settlement agreement under s. 736.0111,
250 relating to nonjudicial settlement agreements the manifestation
251 of the settlor’s intent regarding a trust’s provisions as
252 expressed in the trust instrument or as may be established by
253 other evidence that would be admissible in a judicial
254 proceeding.
255 (25) “Trust director” means a person who is granted a power
256 of direction by the terms of a trust to the extent the power is
257 exercisable while the person is not serving as a trustee. The
258 person is a trust director whether or not the terms of the trust
259 refer to the person as a trust director and whether or not the
260 person is a beneficiary or settlor of the trust.
261 Section 4. Paragraph (b) of subsection (2) of section
262 736.0105, Florida Statutes, is amended to read:
263 736.0105 Default and mandatory rules.—
264 (2) The terms of a trust prevail over any provision of this
265 code except:
266 (b) Subject to s. 736.1409, relating to the duties and
267 liabilities of a directed trustee; s. 736.1411, relating to
268 limitations on duties of a trustee or trust director to monitor,
269 inform, or advise on matters involving the other; and s.
270 736.1412, relating to the allocation of powers among cotrustees,
271 requirements for excluded cotrustees to act as a directed
272 trustee, and liability and related obligations of directing
273 cotrustees, the duty of the trustee to act in good faith and in
274 accordance with the terms and purposes of the trust and the
275 interests of the beneficiaries.
276 Section 5. Subsection (1) of section 736.0201, Florida
277 Statutes, is amended, and subsection (7) is added to that
278 section, to read:
279 736.0201 Role of court in trust proceedings.—
280 (1) Except as provided in subsections (5), and (6), and (7)
281 and s. 736.0206, judicial proceedings concerning trusts shall be
282 commenced by filing a complaint and shall be governed by the
283 Florida Rules of Civil Procedure.
284 (7) A proceeding to determine the homestead status of real
285 property owned by a trust may be filed in the probate proceeding
286 for the settlor’s estate if the settlor was treated as the owner
287 of the interest held in the trust under s. 732.4015. The
288 proceeding shall be governed by the Florida Probate Rules.
289 Section 6. Subsection (3) is added to section 736.0603,
290 Florida Statutes, to read:
291 736.0603 Settlor’s powers; powers of withdrawal.—
292 (3) Subject to ss. 736.0403(2) and 736.0602(3)(a), the
293 trustee may follow a direction of the settlor that is contrary
294 to the terms of the trust while a trust is revocable.
295 Section 7. Subsections (3), (7), and (9) of section
296 736.0703, Florida Statutes, are amended to read:
297 736.0703 Cotrustees.—
298 (3) Subject to s. 736.1412, relating to the allocation of
299 powers among cotrustees, requirements for excluded cotrustees to
300 act as a directed trustee, and liability and related obligations
301 of directing cotrustees, a cotrustee must participate in the
302 performance of a trustee’s function unless the cotrustee is
303 unavailable to perform the function because of absence, illness,
304 disqualification under other provision of law, or other
305 temporary incapacity or the cotrustee has properly delegated the
306 performance of the function to another cotrustee.
307 (7) Except as otherwise provided in s. 736.1412, relating
308 to the allocation of powers among cotrustees, requirements for
309 excluded cotrustees to act as a directed trustee, and liability
310 and related obligations of directing cotrustees subsection (9),
311 each cotrustee shall exercise reasonable care to:
312 (a) Prevent a cotrustee from committing a breach of trust.
313 (b) Compel a cotrustee to redress a breach of trust.
314 (9) If the terms of a trust provide for the appointment of
315 more than one trustee but confer upon one or more of the
316 trustees, to the exclusion of the others, the power to direct or
317 prevent specified actions of the trustees, the excluded trustees
318 shall act in accordance with the exercise of the power. Except
319 in cases of willful misconduct on the part of the excluded
320 trustee, an excluded trustee is not liable, individually or as a
321 fiduciary, for any consequence that results from compliance with
322 the exercise of the power. An excluded trustee does not have a
323 duty or an obligation to review, inquire, investigate, or make
324 recommendations or evaluations with respect to the exercise of
325 the power. The trustee or trustees having the power to direct or
326 prevent actions of the excluded trustees shall be liable to the
327 beneficiaries with respect to the exercise of the power as if
328 the excluded trustees were not in office and shall have the
329 exclusive obligation to account to and to defend any action
330 brought by the beneficiaries with respect to the exercise of the
331 power. The provisions of s. 736.0808(2) do not apply if the
332 person entrusted with the power to direct the actions of the
333 excluded trustee is also a cotrustee.
334 Section 8. Section 736.0808, Florida Statutes, is repealed.
335 Section 9. Present subsection (7) of section 736.1008,
336 Florida Statutes, is redesignated as subsection (8), a new
337 subsection (7) is added to that section, and paragraph (a) of
338 subsection (1), subsection (2), and paragraphs (a) and (c) of
339 subsection (4) of that section are amended, to read:
340 736.1008 Limitations on proceedings against trustees.—
341 (1) Except as provided in subsection (2), all claims by a
342 beneficiary against a trustee for breach of trust are barred as
343 provided in chapter 95 as to:
344 (a) All matters adequately disclosed in a trust disclosure
345 document issued by the trustee or a trust director, with the
346 limitations period beginning on the date of receipt of adequate
347 disclosure.
348 (2) Unless sooner barred by adjudication, consent, or
349 limitations, a beneficiary is barred from bringing an action
350 against a trustee for breach of trust with respect to a matter
351 that was adequately disclosed in a trust disclosure document
352 unless a proceeding to assert the claim is commenced within 6
353 months after receipt from the trustee or a trust director of the
354 trust disclosure document or a limitation notice that applies to
355 that disclosure document, whichever is received later.
356 (4) As used in this section, the term:
357 (a) “Trust disclosure document” means a trust accounting or
358 any other written report of the trustee or a trust director. A
359 trust disclosure document adequately discloses a matter if the
360 document provides sufficient information so that a beneficiary
361 knows of a claim or reasonably should have inquired into the
362 existence of a claim with respect to that matter.
363 (c) “Limitation notice” means a written statement of the
364 trustee or a trust director that an action by a beneficiary
365 against the trustee for breach of trust based on any matter
366 adequately disclosed in a trust disclosure document may be
367 barred unless the action is commenced within 6 months after
368 receipt of the trust disclosure document or receipt of a
369 limitation notice that applies to that trust disclosure
370 document, whichever is later. A limitation notice may but is not
371 required to be in the following form: “An action for breach of
372 trust based on matters disclosed in a trust accounting or other
373 written report of the trustee or a trust director may be subject
374 to a 6-month statute of limitations from the receipt of the
375 trust accounting or other written report. If you have questions,
376 please consult your attorney.”
377 (7) Any claim barred against a trustee or trust director
378 under this section is also barred against the directors,
379 officers, and employees acting for the trustee.
380 Section 10. Present paragraphs (e), (f), and (g) of
381 subsection (1) of section 736.1017, Florida Statutes, are
382 redesignated as paragraphs (f), (g), and (h), respectively, and
383 a new paragraph (e) is added to that subsection, to read:
384 736.1017 Certification of trust.—
385 (1) Instead of furnishing a copy of the trust instrument to
386 a person other than a beneficiary, the trustee may furnish to
387 the person a certification of trust containing the following
388 information:
389 (e) Whether the trust contains any powers of direction, and
390 if so, the identity of the current trust directors, the trustee
391 powers subject to a power of direction, and whether the trust
392 directors have directed or authorized the trustee to engage in
393 the proposed transaction for which the certification of trust
394 was issued.
395 Section 11. Effective upon this act becoming a law, section
396 736.1105, Florida Statutes, is amended to read:
397 (Substantial rewording of section. See
398 s. 736.1105, F.S., for present text.)
399 736.1105 Effect of subsequent marriage, birth, adoption, or
400 dissolution of marriage.—
401 (1) Neither subsequent marriage, birth, nor adoption of
402 descendants shall revoke the revocable trust of any person.
403 (2) Any provision of a revocable trust that affects the
404 settlor’s spouse is void upon dissolution of the marriage of the
405 settlor and the spouse, whether the marriage occurred before or
406 after the execution of such revocable trust. Upon dissolution of
407 marriage, the revocable trust shall be construed as if the
408 spouse had died at the time of the dissolution of marriage.
409 (a) Dissolution of marriage occurs at the time the
410 decedent’s marriage is judicially dissolved or declared invalid
411 by court order.
412 (b) This subsection does not invalidate a provision of a
413 revocable trust:
414 1. Executed by the settlor after the dissolution of the
415 marriage;
416 2. If there is a specific intention to the contrary stated
417 in the revocable trust; or
418 3. If the dissolution of marriage judgment expressly
419 provides otherwise.
420 (3) This section applies to revocable trusts of decedents
421 who die on or after the effective date of this section.
422 Section 12. Section 736.1109, Florida Statutes, is created
423 to read:
424 736.1109 Testamentary and revocable trusts; homestead
425 protections.—
426 (1) If a devise of homestead under a trust violates the
427 limitations on the devise of homestead in s. 4(c), Art. X of the
428 State Constitution, title shall pass as provided in s. 732.401
429 at the moment of death.
430 (2) A power of sale or general direction to pay debts,
431 expenses and claims within the trust instrument does not subject
432 an interest in the protected homestead to the claims of
433 decedent’s creditors, expenses of administration, and
434 obligations of the decedent’s estate as provided in s.
435 736.05053.
436 (3) If a trust directs the sale of property that would
437 otherwise qualify as protected homestead, and the property is
438 not subject to the constitutional limitations on the devise of
439 homestead under the State Constitution, title shall remain
440 vested in the trustee and subject to the provisions of the
441 trust.
442 (4) This section applies only to trusts described in s.
443 733.707(3) and to testamentary trusts.
444 (5) This section is intended to clarify existing law and
445 applies to the administration of trusts and estates of decedents
446 who die before, on, or after July 1, 2021.
447 Section 13. Part XIV of chapter 736, Florida Statutes,
448 consisting of ss. 736.1401-736.1416, Florida Statutes, is
449 created and entitled the “Florida Uniform Directed Trust Act.”
450 Section 14. Section 736.1401, Florida Statutes, is created
451 to read:
452 736.1401 Short title.—This part may be cited as the
453 “Florida Uniform Directed Trust Act.”
454 Section 15. Section 736.1403, Florida Statutes, is created
455 to read:
456 736.1403 Application; principal place of administration.—
457 (1) This part applies to a trust subject to this chapter,
458 whenever created, that has its principal place of administration
459 in the state, subject to the following rules:
460 (a) If the trust was created before July 1, 2021, this part
461 applies only to a decision or action occurring on or after July
462 1, 2021.
463 (b) If the principal place of administration of the trust
464 is changed to the state on or after July 1, 2021, this part
465 applies only to a decision or action occurring on or after the
466 date of the change.
467 (2) In addition s. 736.0108, relating to a trust’s
468 principal place of administration, in a directed trust, terms of
469 the trust that designate the principal place of administration
470 of the trust in the state are valid and controlling if a trust
471 director’s principal place of business is located in or a trust
472 director is a resident of the state.
473 Section 16. Section 736.1405, Florida Statutes, is created
474 to read:
475 736.1405 Exclusions.—
476 (1) As used in this section, the term “power of
477 appointment” means a power that enables a person acting in a
478 nonfiduciary capacity to designate a recipient of an ownership
479 interest in or another power of appointment over trust property.
480 (2) Unless the terms of a trust expressly provide otherwise
481 by specific reference to this part, section, or paragraph, this
482 part does not apply to:
483 (a) A power of appointment;
484 (b) A power to appoint or remove a trustee or trust
485 director;
486 (c) A power of a settlor over a trust while the trust is
487 revocable by that settlor;
488 (d) A power of a beneficiary over a trust to the extent the
489 exercise or nonexercise of the power affects the beneficial
490 interest of:
491 1. The beneficiary; or
492 2. Another beneficiary represented by the beneficiary under
493 ss. 736.0301-736.0305 with respect to the exercise or
494 nonexercise of the power;
495 (e) A power over a trust if the terms of the trust provide
496 that the power is held in a nonfiduciary capacity; and
497 1. The power must be held in a nonfiduciary capacity to
498 achieve the settlor’s tax objectives under the United States
499 Internal Revenue Code of 1986, as amended, and regulations
500 issued thereunder, as amended; or
501 2. It is a power to reimburse the settlor for all or a part
502 of the settlor’s income tax liabilities attributable to the
503 income of the trust; or
504 (f) A power to add or to release a power under the trust
505 instrument if the power subject to addition or release causes
506 the settlor to be treated as the owner of all or any portion of
507 the trust for federal income tax purposes.
508 (3) Unless the terms of a trust provide otherwise, a power
509 granted to a person other than a trustee:
510 (a) To designate a recipient of an ownership interest in
511 trust property, including a power to terminate a trust, is a
512 power of appointment and not a power of direction.
513 (b) To create, modify, or terminate a power of appointment
514 is a power of direction and not a power of appointment, except a
515 power to create a power of appointment that is an element of a
516 broader power to affect an ownership interest in trust property
517 beyond the mere creation of a power of appointment, such as a
518 power to appoint trust property in further trust, is a power of
519 appointment and not a power of direction.
520 Section 17. Section 736.1406, Florida Statutes, is created
521 to read:
522 736.1406 Power of trust director.—
523 (1) Subject to s. 736.1407, relating to trust directors
524 being subject to the same rules as a trustee regarding Social
525 Security Act reimbursement requirements and charitable trust
526 instruments, the terms of a trust may grant a power of direction
527 to a trust director.
528 (2) A power of direction includes only those powers granted
529 by the terms of the trust.
530 (3) Unless the terms of a trust provide otherwise:
531 (a) A trust director may exercise any further power
532 appropriate to the exercise or nonexercise of a power of
533 direction granted to the trust director under subsection (1);
534 and
535 (b) Trust directors with joint powers must act by majority
536 decision.
537 Section 18. Section 736.1407, Florida Statutes, is created
538 to read:
539 736.1407 Limitations on trust director.—A trust director is
540 subject to the same rules as a trustee in a like position and
541 under similar circumstances in the exercise or nonexercise of a
542 power of direction or further power under s. 736.1406(3)(a),
543 relating to additional power granted to a trust director in
544 furtherance of an express power of direction, regarding:
545 (1) A payback provision in the terms of a trust necessary
546 to comply with the reimbursement requirements of s. 1917 of the
547 Social Security Act, 42 U.S.C. s. 1396p(d)(4)(A), as amended,
548 and regulations issued thereunder, as amended.
549 (2) A charitable interest in the trust, including notice
550 regarding the interest to the Attorney General.
551 Section 19. Section 736.1408, Florida Statutes, is created
552 to read:
553 736.1408 Duty and liability of trust director.—
554 (1) Subject to subsection (2), with respect to a power of
555 direction or further power under s. 736.1406(3)(a), relating to
556 additional power granted to a trust director in furtherance of
557 an express power of direction:
558 (a) A trust director has the same fiduciary duty and
559 liability in the exercise or nonexercise of the power:
560 1. If the power is held individually, as a sole trustee in
561 a like position and under similar circumstances; or
562 2. If the power is held jointly with a trustee or another
563 trust director, as a cotrustee in a like position and under
564 similar circumstances.
565 (b) The terms of the trust may vary the trust director’s
566 duty or liability to the same extent the terms of the trust may
567 vary the duty or liability of a trustee in a like position and
568 under similar circumstances.
569 (2) Unless the terms of a trust provide otherwise, if a
570 trust director is licensed, certified, or otherwise authorized
571 or permitted by law other than this part to provide health care
572 in the ordinary course of the trust director’s business or
573 practice of a profession, to the extent the trust director acts
574 in that capacity the trust director has no duty or liability
575 under this part.
576 (3) The terms of a trust may impose a duty or liability on
577 a trust director in addition to the duties and liabilities under
578 this section.
579 Section 20. Section 736.1409, Florida Statutes, is created
580 to read:
581 736.1409 Duty and liability of directed trustee.—
582 (1) Subject to subsection (2), a directed trustee shall
583 take reasonable action to comply with a trust director’s
584 exercise or nonexercise of a power of direction or further power
585 under s. 736.1406(3)(a), relating to additional power granted to
586 a trust director in furtherance of an express power of
587 direction, and the trustee is not liable for such reasonable
588 action.
589 (2) A directed trustee may not comply with a trust
590 director’s exercise or nonexercise of a power of direction or
591 further power under s. 736.1406(3)(a), relating to additional
592 power granted to a trust director in furtherance of an express
593 power of direction, to the extent that by complying the trustee
594 would engage in willful misconduct.
595 (3) Before complying with a trust director’s exercise of a
596 power of direction, the directed trustee shall determine whether
597 or not the exercise is within the scope of the trust director’s
598 power of direction. The exercise of a power of direction is not
599 outside the scope of a trust director’s power of direction
600 merely because the exercise constitutes or may constitute a
601 breach of trust.
602 (4) An exercise of a power of direction under which a trust
603 director may release a trustee or another trust director from
604 liability for breach of trust is not effective if:
605 (a) The breach involved the trustee’s or other director’s
606 willful misconduct;
607 (b) The release was induced by improper conduct of the
608 trustee or other director in procuring the release; or
609 (c) At the time of the release, the trust director did not
610 know the material facts relating to the breach.
611 (5) A directed trustee that has reasonable doubt about its
612 duty under this section may apply to the court for instructions,
613 with attorney fees and costs to be paid from assets of the trust
614 as provided in this code.
615 (6) The terms of a trust may impose a duty or liability on
616 a directed trustee in addition to the duties and liabilities
617 under this part.
618 Section 21. Section 736.141, Florida Statutes, is created
619 to read:
620 736.141 Duty to provide information.—
621 (1) Subject to s. 736.1411, relating to limitations on the
622 duties of trustees or trust directors to monitor, inform, or
623 advise on matters involving the other, a trustee shall provide
624 information to a trust director to the extent the information is
625 reasonably related to the powers or duties of the trust
626 director.
627 (2) Subject to s. 736.1411, relating to limitations on the
628 duties of trustees or trust directors to monitor, inform, or
629 advise on matters involving the other, a trust director shall
630 provide information to a trustee or another trust director to
631 the extent the information is reasonably related to the powers
632 or duties of the trustee or other trust director.
633 (3) A trustee that acts in reliance on information provided
634 by a trust director is not liable for a breach of trust to the
635 extent the breach resulted from the reliance, unless by so
636 acting the trustee engages in willful misconduct.
637 (4) A trust director that acts in reliance on information
638 provided by a trustee or another trust director is not liable
639 for a breach of trust to the extent the breach resulted from the
640 reliance, unless by so acting the trust director engages in
641 willful misconduct.
642 (5) A trust director shall provide information within the
643 trust director’s knowledge or control to a qualified beneficiary
644 upon a written request of a qualified beneficiary to the extent
645 the information is reasonably related to the powers or duties of
646 the trust director.
647 Section 22. Section 736.1411, Florida Statutes, is created
648 to read:
649 736.1411 No duty to monitor, inform, or advise.—
650 (1) Notwithstanding s. 736.1409(1), relating to the duty of
651 a directed trustee to take reasonable action when directed and
652 to the release of liability for such action, unless the terms of
653 a trust provide otherwise:
654 (a) A trustee does not have a duty to:
655 1. Monitor a trust director; or
656 2. Inform or give advice to a settlor, beneficiary,
657 trustee, or trust director concerning an instance in which the
658 trustee might have acted differently than the trust director.
659 (b) By taking an action described in paragraph (a), a
660 trustee does not assume the duty excluded by paragraph (a).
661 (2) Notwithstanding s. 736.1408(1), relating to the
662 fiduciary duty of a trust director, unless the terms of a trust
663 provide otherwise:
664 (a) A trust director does not have a duty to:
665 1. Monitor a trustee or another trust director; or
666 2. Inform or give advice to a settlor, beneficiary,
667 trustee, or another trust director concerning an instance in
668 which the trust director might have acted differently than a
669 trustee or another trust director.
670 (b) By taking an action described in paragraph (a), a trust
671 director does not assume the duty excluded by paragraph (a).
672 Section 23. Section 736.1412, Florida Statutes, is created
673 to read:
674 736.1412 Application to cotrustee.—
675 (1) The terms of a trust may provide for the appointment of
676 more than one trustee but confer upon one or more of the
677 trustees, to the exclusion of the others, the power to direct or
678 prevent specified actions of the trustees.
679 (2) The excluded trustees shall act in accordance with the
680 exercise of the power in the manner, and with the same duty and
681 liability, as directed trustees with respect to a trust
682 director’s power of direction under s. 736.1409, relating to the
683 duties and liabilities of a directed trustee; s. 736.141,
684 relating to the duties of a trustee and trust director to
685 provide and rely on information; and s. 736.1411, relating to
686 limitations on the duties of trustees or trust directors to
687 monitor, inform, or advise on matters involving the other.
688 (3) The trustee or trustees having the power to direct or
689 prevent actions of the excluded trustees shall be liable to the
690 beneficiaries with respect to the exercise of the power as if
691 the excluded trustees were not in office and shall have the
692 exclusive obligation to account to and to defend any action
693 brought by the beneficiaries with respect to the exercise of the
694 power.
695 Section 24. Section 736.1413, Florida Statutes, is created
696 to read:
697 736.1413 Limitation of action against trust director.—
698 (1) An action against a trust director for breach of trust
699 must be commenced within the same limitation period for an
700 action for breach of trust against a trustee in a like position
701 and under similar circumstances under s. 736.1008, relating to
702 limitations on proceedings against trustees.
703 (2) A trust accounting or any other written report of a
704 trustee or a trust director has the same effect on the
705 limitation period for an action against a trust director for
706 breach of trust that such trust accounting or written report
707 would have under s. 736.1008, relating to limitations on
708 proceedings against trustees, in an action for breach of trust
709 against a trustee in a like position and under similar
710 circumstances.
711 Section 25. Section 736.1414, Florida Statutes, is created
712 to read:
713 736.1414 Defenses in action against trust director.—In an
714 action against a trust director for breach of trust, the trust
715 director may assert the same defenses a trustee in a like
716 position and under similar circumstances could assert in an
717 action for breach of trust against the trustee.
718 Section 26. Section 736.1415, Florida Statutes, is created
719 to read:
720 736.1415 Jurisdiction over trust director.—
721 (1) By accepting appointment as a trust director of a trust
722 subject to this part, the trust director submits to the personal
723 jurisdiction of the courts of the state regarding any matter
724 related to a power or duty of the trust director.
725 (2) This section does not preclude other methods of
726 obtaining jurisdiction over a trust director.
727 Section 27. Section 736.1416, Florida Statutes, is created
728 to read:
729 736.1416 Office of trust director.—
730 (1) Unless the terms of a trust provide otherwise, a trust
731 director shall be considered a trustee for purposes of the
732 following:
733 (a) Role of court in trust proceedings under s. 736.0201.
734 (b) Proceedings for review of employment of agents and
735 review of compensation of trustee and employees of a trust under
736 s. 736.0206.
737 (c) Representation by holder of power of appointment under
738 s. 736.0302(4), relating to how trustees with discretionary
739 power to make trust distributions do not have a power of
740 appointment for purposes of representing persons affected by
741 such power.
742 (d) Prohibition on a trustee acting as a designated
743 representative under s. 736.0306(2).
744 (e) Validation of power to select a beneficiary from an
745 indefinite class under s. 736.0402(3).
746 (f) As to allowing application by the trust director for
747 judicial modification of a trust when such modification is not
748 inconsistent with the settlor’s purpose under s. 736.04113, for
749 judicial construction of provisions relating to federal taxes
750 under s. 736.04114, for judicial modification of a trust when
751 such modification is in the best interest of the beneficiaries
752 under s. 736.04115, or for judicial modification or termination
753 of an uneconomic trust under s. 736.0414(2), if the trust
754 director is so authorized by the terms of the trust.
755 (g) Discretionary trusts and the effect of a standard under
756 s. 736.0504, relating to special provisions regarding
757 discretionary trusts.
758 (h) Trust assets not being subject to creditor claims by
759 reason of discretionary powers granted to a trustee under s.
760 736.0505(1)(c).
761 (i) A trustee’s duty to pay trust obligations and expenses
762 before paying obligations and expenses of the settlor’s estate
763 under s. 736.05053(4).
764 (j) Acceptance or declination of a trusteeship under s.
765 736.0701.
766 (k) Requirement to give bond to secure performance under
767 certain circumstances and court discretions relating to such
768 bonds under s. 736.0702.
769 (l) Filling trustee vacancies and court appointment of an
770 additional trustee or special fiduciary under s. 736.0704.
771 (m) Resignation of a trustee under s. 736.0705, including
772 requirements, court authorizations, and remaining liabilities.
773 (n) Court removal of a trustee, including who may request a
774 removal, under s. 736.0706, but not to give the trust director
775 the power to request removal of a trustee.
776 (o) Reasonable compensation of a trustee or professional
777 acting as a trustee under s. 736.0708.
778 (p) Entitlement of a trustee to reimbursement of expenses
779 and liens to secure advances under s. 736.0709.
780 (q) Authority to pay costs or attorney fees without
781 approval under s. 736.0802(10), if the trust director has a
782 power of direction or, if the trust director has a further power
783 to direct, the payment of such costs or attorney fees under s.
784 736.1406(2), relating to the explicit power of direction granted
785 to a trust director, or s. 736.1406(3)(a), relating to the
786 implied additional power of a director in furtherance of an
787 express power of direction.
788 (r) Limitations on a trustee’s discretionary powers under
789 s. 736.0814.
790 (s) Administration of trusts by trustees without regard to
791 pending contests or proceedings, except as the court directs,
792 under s. 736.08165.
793 (t) A trustee’s obligation to invest in accordance with
794 chapter 518 under s. 736.0901.
795 (u) The exception to the prudent investor rule for life
796 insurance under s. 736.0902.
797 (v) Remedies available for a trustee breach of trust under
798 s. 736.1001.
799 (w) Damages against a trustee for breach of trust under s.
800 736.1002.
801 (x) A trustee’s immunity from liability for loss or no
802 profit under s. 736.1003 if there is no breach of trust.
803 (y) Court-awarded attorney fees and costs under s. 736.1004
804 for breach of trust challenges.
805 (z) Fees available to a trustee’s attorney for
806 extraordinary service under s. 736.1007(5), court variance of
807 compensation for a trustee’s attorney under s. 736.1007(6), and
808 agreements between a settlor and an attorney for fees to be
809 provided to a trustee under s. 736.1007(7).
810 (aa) A trustee’s immunity from liability for a breach of
811 trust under s. 736.1009 if the trustee relied on the trust
812 instrument terms.
813 (bb) Limitations on a trustee’s liability for acting
814 without knowledge of relevant events under s. 736.1010.
815 (cc) Limitations on a trustee’s exculpation of liability
816 under the terms of a trust under s. 736.1011.
817 (dd) The release of a trustee from liability with consent,
818 the release or ratification of a beneficiary, and the
819 limitations on such actions under s. 736.1012.
820 (ee) Limitations on imposing liability on a trustee for
821 obligations of a settlor under s. 736.1014.
822 (2) If a person has not accepted a trust directorship under
823 the terms of the trust or has accepted or declined a trusteeship
824 under s. 736.0701 or a trustee, settlor, or a qualified
825 beneficiary of the trust is uncertain whether such acceptance
826 has occurred, a trustee, settlor, or a qualified beneficiary of
827 the trust may make a written demand on a person designated to
828 serve as a trust director, with a written copy to the trustees,
829 to accept or confirm prior acceptance of the trust directorship
830 in writing. A written acceptance, written acknowledgment of
831 prior acceptance, or written declination of the trust
832 directorship shall be delivered by the designated trust director
833 within 60 days after receipt of such demand to all trustees,
834 qualified beneficiaries, and the settlor if living.
835 Section 28. Part XV of chapter 736, Florida Statutes,
836 consisting of ss. 736.1501-736.1512, Florida Statutes, is
837 created and entitled the “Community Property Trust Act.”
838 Section 29. Section 736.1501, Florida Statutes, is created
839 to read:
840 736.1501 Short title.—This part may be cited as the
841 “Community Property Trust Act.”
842 Section 30. Section 736.1502, Florida Statutes, is created
843 to read:
844 736.1502 Definitions.—Unless the context otherwise
845 requires, as used in this part:
846 (1) “Community property” means the property and the
847 appreciation of and income from the property owned by a
848 qualified trustee of a community property trust during the
849 marriage of the settlor spouses. The property owned by a
850 community property trust pursuant to this part and the
851 appreciation of and income from such property shall be deemed to
852 be community property for purposes of general law.
853 (2) “Community property trust” means an express trust that
854 complies with s. 736.1503 and is created on or after July 1,
855 2021.
856 (3) “Decree” means a judgment or other order of a court of
857 competent jurisdiction.
858 (4) “Dissolution” means either:
859 (a) Termination of a marriage by a decree of dissolution,
860 divorce, annulment, or declaration of invalidity; or
861 (b) Entry of a decree of legal separation maintenance.
862 (5) “During marriage” means a period that begins at
863 marriage and ends upon the dissolution of marriage or upon the
864 death of a spouse.
865 (6) “Qualified trustee” means either:
866 (a) A natural person who is a resident of the state; or
867 (b) A company authorized to act as a trustee in the state.
868
869 A qualified trustee’s powers include, but are not limited to,
870 maintaining records for the trust on an exclusive or a
871 nonexclusive basis and preparing or arranging for the
872 preparation of, on an exclusive or a nonexclusive basis, any
873 income tax returns that must be filed by the trust.
874 (7) “Settlor spouses” means a married couple who
875 establishes a community property trust pursuant to this part.
876 Section 31. Section 736.1503, Florida Statutes, is created
877 to read:
878 736.1503 Requirements for community property trust.—An
879 arrangement is a community property trust if one or both settlor
880 spouses transfer property to a trust that:
881 (1) Expressly declares that the trust is a community
882 property trust within the meaning of this part.
883 (2) Has at least one trustee who is a qualified trustee,
884 provided that both spouses or either spouse also may be a
885 trustee.
886 (3) Is signed by both settlor spouses consistent with the
887 formalities required for the execution of a trust under this
888 chapter.
889 (4) Contains substantially the following language in
890 capital letters at the beginning of the community property trust
891 agreement:
892
893 THE CONSEQUENCES OF THIS COMMUNITY PROPERTY TRUST MAY
894 BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR
895 RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD
896 PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE DURING THE
897 COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND
898 UPON THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY,
899 THIS TRUST AGREEMENT SHOULD BE SIGNED ONLY AFTER
900 CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT
901 THIS TRUST AGREEMENT, YOU SHOULD SEEK COMPETENT AND
902 INDEPENDENT LEGAL ADVICE.
903
904 Section 32. Section 736.1504, Florida Statutes, is created
905 to read:
906 736.1504 Agreement establishing community property trust;
907 amendments and revocation.—
908 (1) In the agreement establishing a community property
909 trust, the settlor spouses may agree upon:
910 (a) The rights and obligations in the property transferred
911 to the trust, notwithstanding when and where the property is
912 acquired or located.
913 (b) The management and control of the property transferred
914 into the trust.
915 (c) The disposition of the property transferred to the
916 trust on dissolution, death, or the occurrence or nonoccurrence
917 of another event, subject to ss. 736.1507 and 736.1508.
918 (d) Whether the trust is revocable or irrevocable.
919 (e) Any other matter that affects the property transferred
920 to the trust and does not violate public policy or general law
921 imposing a criminal penalty, or result in the property not being
922 treated as community property under the laws of any
923 jurisdiction.
924 (2) In the event of the death of a settlor spouse, the
925 surviving spouse may amend a community property trust regarding
926 the disposition of that spouse’s one-half share of the community
927 property, regardless of whether the agreement provides that the
928 community property trust is irrevocable.
929 (3) A community property trust may be amended or revoked by
930 the settlor spouses unless the agreement itself specifically
931 provides that the community property trust is irrevocable.
932 (4) Notwithstanding any other provision of this code, the
933 settlor spouses shall be deemed to be the only qualified
934 beneficiaries of a community property trust until the death of
935 one of the settlor spouses, regardless of whether the trust is
936 revocable or irrevocable. After the death of one of the settlor
937 spouses, the surviving spouse shall be deemed to be the only
938 qualified beneficiary as to his or her share of the community
939 property trust.
940 Section 33. Section 736.1505, Florida Statutes, is created
941 to read:
942 736.1505 Classification of property as community property;
943 enforcement; duration; management and control; effect of
944 distributions.—
945 (1) Whether both, one, or neither is domiciled in the
946 state, settlor spouses may classify any or all of their property
947 as community property by transferring that property to a
948 community property trust and providing in the trust that the
949 property is community property pursuant to this part.
950 (2) A community property trust is enforceable without
951 consideration.
952 (3) All property owned by a community property trust is
953 community property under the laws of the state during the
954 marriage of the settlor spouses.
955 (4) The right to manage and control property that is
956 transferred to a community property trust is determined by the
957 terms of the trust agreement.
958 (5) When property is distributed from a community property
959 trust, the property shall no longer constitute community
960 property within the meaning of this part, provided that
961 community property as classified by a jurisdiction other than
962 the state retains its character as community property to the
963 extent otherwise provided by ss. 732.216-732.228.
964 Section 34. Section 736.1506, Florida Statutes, is created
965 to read:
966 736.1506 Satisfaction of obligations.—Except as provided in
967 s. 4, Art. X of the State Constitution:
968 (1) An obligation incurred by only one spouse before or
969 during the marriage may be satisfied from that spouse’s one-half
970 share of a community property trust.
971 (2) An obligation incurred by both spouses during the
972 marriage may be satisfied from a community property trust of the
973 settlor spouses.
974 Section 35. Section 736.1507, Florida Statutes, is created
975 to read:
976 736.1507 Death of a spouse.—Upon the death of a spouse,
977 one-half of the aggregate value of the property held in a
978 community property trust established by the settlor spouses
979 reflects the share of the surviving spouse and is not subject to
980 testamentary disposition by the decedent spouse or distribution
981 under the laws of succession of the state. The other one-half of
982 the value of that property reflects the share of the decedent
983 spouse and is subject to testamentary disposition or
984 distribution under the laws of succession of the state. Unless
985 provided otherwise in the community property trust agreement,
986 the trustee has the power to distribute assets of the trust in
987 divided or undivided interests and to adjust resulting
988 differences in valuation. A distribution in kind may be made on
989 the basis of a non-pro rata division of the aggregate value of
990 the trust assets, on the basis of a pro rata division of each
991 individual asset, or by using both methods. The decedent’s
992 spouse’s one-half share shall not be included in the elective
993 estate.
994 Section 36. Section 736.1508, Florida Statutes, is created
995 to read:
996 736.1508 Dissolution of marriage.—Upon the dissolution of
997 the marriage of the settlor spouses, the community property
998 trust shall terminate and the trustee shall distribute one-half
999 of the trust assets to each spouse, with each spouse receiving
1000 one-half of each asset, unless otherwise agreed to in writing by
1001 both spouses. For purposes of this act, s. 61.075 does not apply
1002 to the disposition of the assets and liabilities held in a
1003 community property trust.
1004 Section 37. Section 736.1509, Florida Statutes, is created
1005 to read:
1006 736.1509 Right of child to support.—A community property
1007 trust does not adversely affect the right of a child of the
1008 settlor spouses to support that either spouse would be required
1009 to give under the applicable laws of the settlor spouses’ state
1010 of domicile.
1011 Section 38. Section 736.151, Florida Statutes, is created
1012 to read:
1013 736.151 Homestead property.—
1014 (1) Property that is transferred to or acquired subject to
1015 a community property trust may continue to qualify or may
1016 initially qualify as the settlor spouses’ homestead within the
1017 meaning of s. 4(a)(1), Art. X of the State Constitution and for
1018 all purposes of general law, provided that the property would
1019 qualify as the settlor spouses’ homestead if title was held in
1020 one or both of the settlor spouses’ individual names.
1021 (2) The settlor spouses shall be deemed to have beneficial
1022 title in equity to the homestead property held subject to a
1023 community property trust for all purposes, including for
1024 purposes of s. 196.031.
1025 Section 39. Section 736.1511, Florida Statutes, is created
1026 to read:
1027 736.1511 Application of Internal Revenue Code; community
1028 property classified by another jurisdiction.—For purposes of the
1029 application of s. 1014(b)(6) of the Internal Revenue Code of
1030 1986, 26 U.S.C. s. 1014(b)(6), as of January 1, 2021, a
1031 community property trust is considered a trust established under
1032 the community property laws of the state. Community property, as
1033 classified by a jurisdiction other than this state, which is
1034 transferred to a community property trust retains its character
1035 as community property while in the trust. If the trust is
1036 revoked and property is transferred on revocation of the trust,
1037 the community property as classified by a jurisdiction other
1038 than the state retains its character as community property to
1039 the extent otherwise provided by ss. 732.216-732.228.
1040 Section 40. Section 736.1512, Florida Statutes, is created
1041 to read:
1042 736.1512 Unenforceable trusts.—
1043 (1) A community property trust executed during marriage is
1044 not enforceable if the spouse against whom enforcement is sought
1045 proves that:
1046 (a) The trust was unconscionable when made;
1047 (b) The spouse against whom enforcement is sought did not
1048 execute the community property trust agreement voluntarily; or
1049 (c) Before execution of the community property trust
1050 agreement, the spouse against whom enforcement is sought:
1051 1. Was not given a fair and reasonable disclosure of the
1052 property and financial obligations of the other spouse.
1053 2. Did not voluntarily sign a written waiver expressly
1054 waiving right to disclosure of the property and financial
1055 obligations of the other spouse beyond the disclosure provided.
1056 3. Did not have notice of the property or financial
1057 obligations of the other spouse.
1058 (2) Whether a community property trust is unconscionable
1059 shall be determined by a court as a matter of law.
1060 (3) A community property trust may not be deemed
1061 unenforceable because the settlor spouses did not have separate
1062 legal representation when executing the trust.
1063 Section 41. Paragraph (f) of subsection (5) of section
1064 736.0802, Florida Statutes, is amended to read:
1065 736.0802 Duty of loyalty.—
1066 (5)
1067 (f)1. The trustee of a trust as defined in s. 731.201 may
1068 request authority to invest in investment instruments described
1069 in this subsection other than a qualified investment instrument,
1070 by providing to all qualified beneficiaries a written request
1071 containing the following:
1072 a. The name, telephone number, street address, and mailing
1073 address of the trustee and of any individuals who may be
1074 contacted for further information.
1075 b. A statement that the investment or investments cannot be
1076 made without the consent of a majority of each class of the
1077 qualified beneficiaries.
1078 c. A statement that, if a majority of each class of
1079 qualified beneficiaries consent, the trustee will have the right
1080 to make investments in investment instruments, as defined in s.
1081 660.25(6), which are owned or controlled by the trustee or its
1082 affiliate, or from which the trustee or its affiliate receives
1083 compensation for providing services in a capacity other than as
1084 trustee, that such investment instruments may include investment
1085 instruments sold primarily to trust accounts, and that the
1086 trustee or its affiliate may receive fees in addition to the
1087 trustee’s compensation for administering the trust.
1088 d. A statement that the consent may be withdrawn
1089 prospectively at any time by written notice given by a majority
1090 of any class of the qualified beneficiaries.
1091
1092 A statement by the trustee is not delivered if the statement is
1093 accompanied by another written communication other than a
1094 written communication by the trustee that refers only to the
1095 statement.
1096 2. For purposes of paragraph (e) and this paragraph:
1097 a. “Majority of the qualified beneficiaries” means:
1098 (I) If at the time the determination is made there are one
1099 or more beneficiaries as described in s. 736.0103(19)(c) s.
1100 736.0103(16)(c), at least a majority in interest of the
1101 beneficiaries described in s. 736.0103(19)(a) s.
1102 736.0103(16)(a), at least a majority in interest of the
1103 beneficiaries described in s. 736.0103(19)(b) s.
1104 736.0103(16)(b), and at least a majority in interest of the
1105 beneficiaries described in s. 736.0103(19)(c) s.
1106 736.0103(16)(c), if the interests of the beneficiaries are
1107 reasonably ascertainable; otherwise, a majority in number of
1108 each such class; or
1109 (II) If there is no beneficiary as described in s.
1110 736.0103(19)(c) s. 736.0103(16)(c), at least a majority in
1111 interest of the beneficiaries described in s. 736.0103(19)(a) s.
1112 736.0103(16)(a) and at least a majority in interest of the
1113 beneficiaries described in s. 736.0103(19)(b) s.
1114 736.0103(16)(b), if the interests of the beneficiaries are
1115 reasonably ascertainable; otherwise, a majority in number of
1116 each such class.
1117 b. “Qualified investment instrument” means a mutual fund,
1118 common trust fund, or money market fund described in and
1119 governed by s. 736.0816(3).
1120 c. An irrevocable trust is created upon execution of the
1121 trust instrument. If a trust that was revocable when created
1122 thereafter becomes irrevocable, the irrevocable trust is created
1123 when the right of revocation terminates.
1124 Section 42. Paragraph (a) of subsection (2) of section
1125 736.08125, Florida Statutes, is amended to read:
1126 736.08125 Protection of successor trustees.—
1127 (2) For the purposes of this section, the term:
1128 (a) “Eligible beneficiaries” means:
1129 1. At the time the determination is made, if there are one
1130 or more beneficiaries as described in s. 736.0103(19)(c) s.
1131 736.0103(16)(c), the beneficiaries described in s.
1132 736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
1133 2. If there is no beneficiary as described in s.
1134 736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
1135 in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
1136 Section 43. Paragraph (d) of subsection (9) of section
1137 738.104, Florida Statutes, is amended to read:
1138 738.104 Trustee’s power to adjust.—
1139 (9)
1140 (d) For purposes of subsection (8) and this subsection, the
1141 term:
1142 1. “Eligible beneficiaries” means:
1143 a. If at the time the determination is made there are one
1144 or more beneficiaries described in s. 736.0103(19)(c) s.
1145 736.0103(16)(c), the beneficiaries described in s.
1146 736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
1147 b. If there is no beneficiary described in s.
1148 736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
1149 in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
1150 2. “Super majority of the eligible beneficiaries” means:
1151 a. If at the time the determination is made there are one
1152 or more beneficiaries described in s. 736.0103(19)(c) s.
1153 736.0103(16)(c), at least two-thirds in interest of the
1154 beneficiaries described in s. 736.0103(19)(a) s. 736.0103(16)(a)
1155 or two-thirds in interest of the beneficiaries described in s.
1156 736.0103(19)(c) s. 736.0103(16)(c), if the interests of the
1157 beneficiaries are reasonably ascertainable; otherwise, it means
1158 two-thirds in number of either such class; or
1159 b. If there is no beneficiary described in s.
1160 736.0103(19)(c) s. 736.0103(16)(c), at least two-thirds in
1161 interest of the beneficiaries described in s. 736.0103(19)(a) s.
1162 736.0103(16)(a) or two-thirds in interest of the beneficiaries
1163 described in s. 736.0103(19)(b) s. 736.0103(16)(b), if the
1164 interests of the beneficiaries are reasonably ascertainable,
1165 otherwise, two-thirds in number of either such class.
1166 Section 44. Subsection (1) of section 744.3679, Florida
1167 Statutes, is amended to read:
1168 744.3679 Simplified accounting procedures in certain
1169 cases.—
1170 (1) In a guardianship of property, when all property assets
1171 of the estate is are in designated depositories under s. 69.031
1172 and the only transactions that occur in that account are
1173 interest accrual, deposits from a settlement, or financial
1174 institution service charges, the guardian may elect to file an
1175 accounting consisting of:
1176 (a) The original or a certified copy of the year-end
1177 statement of the ward’s account from the financial institution;
1178 and
1179 (b) A statement by the guardian under penalty of perjury
1180 that the guardian has custody and control of the ward’s property
1181 as shown in the year-end statement.
1182 Section 45. The Division of Law Revision is directed to
1183 replace the phrase “the effective date of this section” wherever
1184 it occurs in this act with the date those sections become law.
1185 Section 46. If any provision of this act or the application
1186 thereof to any person or circumstance is held invalid, the
1187 invalidity does not affect other provisions or applications of
1188 this act which can be given effect without the invalid provision
1189 or application, and to this end the provisions of this act are
1190 severable.
1191 Section 47. Except as otherwise expressly provided in this
1192 act and except for this section, which shall take effect upon
1193 this act becoming a law, this act shall take effect July 1,
1194 2021.