Florida Senate - 2022 CS for SB 1368
By the Committee on Banking and Insurance; and Senator Gruters
597-02839A-22 20221368c1
1 A bill to be entitled
2 An act relating to trusts; amending s. 689.225, F.S.;
3 revising criteria for application of the rule against
4 perpetuities to trusts created on or after a specified
5 date; amending s. 736.0105, F.S.; specifying that the
6 terms of a trust do not prevail over a trustee’s duty
7 to account to qualified beneficiaries under certain
8 circumstances; amending s. 736.0109, F.S.; clarifying
9 circumstances under which notice, or the sending of a
10 document, to a person under the Florida Trust Code is
11 deemed satisfied; authorizing certain trust companies
12 that are trustees to use specified methods for
13 providing notice or sending a document; specifying
14 when such notice or document is deemed sent; amending
15 s. 736.0303, F.S.; specifying circumstances under
16 which a parent may represent and bind the unborn
17 descendants of his or her unborn child or the minor or
18 unborn descendants of his or her minor child; amending
19 s. 736.0409, F.S.; revising the timeframe for which
20 certain noncharitable trusts may be enforced; amending
21 s. 736.0813, F.S.; providing that the terms of a trust
22 may permit for accounting to the qualified
23 beneficiaries only under certain circumstances;
24 providing construction; amending s. 736.08135, F.S.;
25 providing an alternate procedure for trust accountings
26 for specified trustees under certain circumstances;
27 specifying requirements and applicability; amending s.
28 736.08145, F.S.; clarifying the application of law
29 governing grantor trust reimbursement; providing an
30 effective date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Paragraph (f) of subsection (2) of section
35 689.225, Florida Statutes, is amended, and paragraph (g) is
36 added to that subsection, to read:
37 689.225 Statutory rule against perpetuities.—
38 (2) STATEMENT OF THE RULE.—
39 (f) As to any trust created after December 31, 2000,
40 through June 30, 2022, this section shall apply to a nonvested
41 property interest or power of appointment contained in a trust
42 by substituting 360 years in place of “90 years” in each place
43 such term appears in this section unless the terms of the trust
44 require that all beneficial interests in the trust vest or
45 terminate within a lesser period.
46 (g) As to any trust created on or after July 1, 2022, this
47 section shall apply to a nonvested property interest or power of
48 appointment contained in a trust by substituting 1,000 years in
49 place of “90 years” in each place such term appears in this
50 section unless the terms of the trust require that all
51 beneficial interests in the trust vest or terminate within a
52 lesser period.
53 Section 2. Paragraph (s) of subsection (2) of section
54 736.0105, Florida Statutes, is amended to read:
55 736.0105 Default and mandatory rules.—
56 (2) The terms of a trust prevail over any provision of this
57 code except:
58 (s) The duty under s. 736.0813(1)(c) and (d) to provide a
59 complete copy of the trust instrument and to account to
60 qualified beneficiaries except as otherwise provided in s.
61 736.0813(1)(d).
62 Section 3. Present subsections (4), (5), and (6) of section
63 736.0109, Florida Statutes, are redesignated as subsections (5),
64 (6), and (7), respectively, a new subsection (4) is added to
65 that section, and subsection (1) and present subsection (4) of
66 that section are amended, to read:
67 736.0109 Methods and waiver of notice.—
68 (1) Notice to a person under this code or the sending of a
69 document to a person under this code must be accomplished in a
70 manner reasonably suitable under the circumstances and likely to
71 result in receipt of the notice or document. Permissible methods
72 of notice or for sending a document include first-class mail,
73 personal delivery, delivery to the person’s last known place of
74 residence or place of business, a properly directed facsimile or
75 other electronic message, including e-mail, or posting on a
76 secure electronic account or website in accordance with
77 subsection (3).
78 (4) Notwithstanding subsection (3), a family trust company,
79 licensed family trust company, or foreign licensed family trust
80 company, as defined in s. 662.111, that is a trustee of a trust
81 may use any permissible method for providing notice or for
82 sending a document specified in subsection (1) or may send a
83 properly directed e-mail that contains an attached notice or
84 document or contains a hyperlink through which the recipient can
85 view the notice or document as a permissible method of providing
86 notice or sending a document. For purposes of this subsection,
87 such notice or document sent by e-mail is deemed to have been
88 sent if any username, password, or other specific instructions
89 needed to access the notice or document are communicated to the
90 recipient beforehand or contemporaneously with the sending of
91 the e-mail message containing the notice, document, or
92 hyperlink, or upon the request of the recipient.
93 (5)(4) Notice to a person under this code, or the sending
94 of a document to a person under this code electronically by
95 electronic message, is complete when the document is sent.
96 (a) An electronic message is presumed received on the date
97 that the message is sent.
98 (b) If the sender has knowledge that an electronic message
99 did not reach the recipient, the electronic message is deemed to
100 have not been received. The sender has the burden to prove that
101 another copy of the notice or document was sent by electronic
102 message or by other means authorized by this section.
103 Section 4. Subsection (5) of section 736.0303, Florida
104 Statutes, is amended to read:
105 736.0303 Representation by fiduciaries and parents.—To the
106 extent there is no conflict of interest between the
107 representative and the person represented or among those being
108 represented with respect to a particular question or dispute:
109 (5) A parent may represent and bind the parent’s unborn
110 child and the unborn descendants of such unborn child, or the
111 parent’s minor child and the minor or unborn descendants of such
112 minor child, if a guardian of the property for the unborn child,
113 minor child, or such child’s descendants has not been appointed.
114 Section 5. Subsection (1) of section 736.0409, Florida
115 Statutes, is amended to read:
116 736.0409 Noncharitable trust without ascertainable
117 beneficiary.—Except as otherwise provided in s. 736.0408 or by
118 another provision of law, the following rules apply:
119 (1) A trust may be created for a noncharitable purpose
120 without a definite or definitely ascertainable beneficiary or
121 for a noncharitable but otherwise valid purpose to be selected
122 by the trustee. The trust may not be enforced for more than
123 1,000 21 years.
124 Section 6. Paragraph (d) of subsection (1) of section
125 736.0813, Florida Statutes, is amended to read:
126 736.0813 Duty to inform and account.—The trustee shall keep
127 the qualified beneficiaries of the trust reasonably informed of
128 the trust and its administration.
129 (1) The trustee’s duty to inform and account includes, but
130 is not limited to, the following:
131 (d) A trustee of an irrevocable trust shall provide a trust
132 accounting, as set forth in s. 736.08135, from the date of the
133 last accounting or, if none, from the date on which the trustee
134 became accountable, to each qualified beneficiary at least
135 annually and on termination of the trust or on change of the
136 trustee. Notwithstanding s. 736.0105 or the duties under this
137 paragraph, if a family trust company, licensed family trust
138 company, or foreign licensed family trust company, as defined in
139 s. 662.111, is a trustee of an irrevocable trust, the terms of
140 the trust may permit for accounting to the qualified
141 beneficiaries only at the termination of the trust; upon the
142 removal, resignation, or other event resulting in a trustee
143 ceasing to serve as a trustee; or upon demand of a qualified
144 beneficiary or the representative of a qualified beneficiary.
145 This paragraph may not be construed to prohibit a trustee that
146 is a family trust company, licensed family trust company, or
147 foreign licensed family trust company from voluntarily
148 accounting to the qualified beneficiaries annually or at other
149 times selected by such trustee.
150
151 Paragraphs (a) and (b) do not apply to an irrevocable trust
152 created before the effective date of this code, or to a
153 revocable trust that becomes irrevocable before the effective
154 date of this code. Paragraph (a) does not apply to a trustee who
155 accepts a trusteeship before the effective date of this code.
156 Section 7. Present subsection (3) of section 736.08135,
157 Florida Statutes, is redesignated as subsection (4) and amended,
158 and a new subsection (3) is added to that section, to read:
159 736.08135 Trust accountings.—
160 (3) Notwithstanding subsections (1) and (2), if a family
161 trust company, licensed family trust company, or foreign
162 licensed family trust company, as defined in s. 662.111, is a
163 trustee of the trust, such trustee may elect, for any accounting
164 period, to provide the qualified beneficiaries with all of the
165 following information:
166 (a) A notice stating that the trustee has made an election
167 to provide the information described in this subsection.
168 (b) The information required by paragraph (2)(a) and, if
169 applicable, the information required by paragraph (2)(f).
170 (c) A financial statement for the trust which summarizes
171 the information provided pursuant to paragraphs (2)(b)-(e). The
172 financial statement must contain sufficient information to put
173 the beneficiary on notice of the trust’s comprehensive assets
174 and liabilities as well as of the transactions occurring during
175 the accounting period. A financial statement that reports a
176 summary of the comprehensive assets and liabilities at the
177 beginning and end of the accounting period and the aggregate
178 amounts of all cash and property transactions, gains, losses,
179 receipts, expenses, disbursements, distributions, accruals, or
180 allowances occurring within the accounting period for each
181 category of assets and liabilities meets the requirements of
182 this paragraph.
183
184 For the purposes of this chapter, a financial statement that a
185 trustee provides to a beneficiary of a trust under this
186 subsection is deemed to be a trust accounting. Any trustee that
187 makes the election provided in this subsection shall, upon
188 request of any beneficiary made within the limitations period
189 under s. 736.1008, make available the detailed information
190 necessary for preparation of the financial statement to the
191 beneficiary within 30 days after the date of such request,
192 including providing copies of the requested information. A
193 request by a beneficiary for the detailed information necessary
194 for the preparation of the financial statement tolls the running
195 of any applicable limitations period until the detailed
196 information is made available to the beneficiary.
197 (4)(3) Subsections (1) and (2) govern the form and content
198 of all trust accountings rendered for any accounting periods
199 beginning on or after January 1, 2003, and all trust accountings
200 rendered on or after July 1, 2018. The election provided in
201 subsection (3) for trusts for which a family trust company,
202 licensed family trust company, or foreign licensed family trust
203 company, as defined in s. 662.111, is a trustee is available for
204 any accounting periods beginning on or after July 1, 2022. This
205 subsection does not affect the beginning period from which a
206 trustee is required to render a trust accounting.
207 Section 8. Subsection (2) of section 736.08145, Florida
208 Statutes, is amended to read:
209 736.08145 Grantor trust reimbursement.—
210 (2) This section applies to all trusts that are governed by
211 the laws of this state or that have a principal place of
212 administration within this state, whether created on, before, or
213 after July 1, 2020, unless:
214 (a) The trustee provides written notification that the
215 trustee intends to irrevocably elect out of the application of
216 this section, at least 60 days before the effective date of such
217 election, to the person treated as the owner of all or a portion
218 of the trust under s. 671 of the Internal Revenue Code or any
219 similar federal, state, or other tax law and to all persons who
220 have the ability to remove and replace the trustee.
221 (b) Applying this section would prevent a contribution to
222 the trust from qualifying for, or would reduce, a federal tax
223 benefit, including a federal tax exclusion or deduction, which
224 was originally claimed or could have been claimed for the
225 contribution, including:
226 1. An exclusion under s. 2503(b) or s. 2503(c) of the
227 Internal Revenue Code;
228 2. A marital deduction under s. 2056, s. 2056A, or s. 2523
229 of the Internal Revenue Code;
230 3. A charitable deduction under s. 170(a), s. 642(c), s.
231 2055(a), or s. 2522(a) of the Internal Revenue Code; or
232 4. Direct skip treatment under s. 2642(c) of the Internal
233 Revenue Code.
234 Section 9. This act shall take effect July 1, 2022.