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.